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I. Topics discussed
Regional mechanisms and their importance.
New issues and the changes taking place in the inter-American system.
The paradoxical situation of greater democracy and the crisis of the inter-American system.
The European regional human rights system..
II. Presentations
Juan E. Méndez opened by commenting that the debate on the future of the human rights system can not be separated from the issue of what type of democracy we want in the hemisphere. The inter-American system for the protection of human rights is part of the larger issue of human rights in the hemisphere. An effective inter-American system can play a major role in improving domestic protection in democratic states for enjoying human rights and upholding human dignity.
The key to the system's effectiveness resides in the quality of the Commission and Court decisions. The process leading to these decisions must be improved and there must be constant reflection on how to improve and protect due process. Mr. Méndez agreed with other panellists that the system needs more resources and that compliance may become a problem; we have to find creative solutions to ensure compliance with Commission and Court decisions. The focus for the future lies in improving the decision-making process of both bodies.
In the 70s and 80s, the Commission started dealing with disappearances. The Velasquez Rodriguez case is an example (even today, ten years later) of the power and effectiveness of the inter-American system because the decision was very complete and persuasive. When the Commission does not provide sound arguments for not opening a case or when the Inter-American Court decides on a case and its arguments are not well reasoned, the system is undermined. These shortcomings mortgage the system's future.
Today, demands on the system have increased greatly and cases are more numerous and complex. This is a reflection of the democratic transition and, hopefully, massive systematic violations of fundamental rights are a thing of the past in the hemisphere. The new challenges involve the quality of democracy that we are building, such as protecting workers rights, due process rights, or novel freedom of expression issues.
Paradoxically, now that we are living in a new democratic age and that some form of the rule of law is proclaimed to be effective throughout the hemisphere, the system is still under attack. This is a "crisis of the Inter-American protection system", a crisis of identity in the sense that there is a fundamental lack of agreement among the major actors about the system's future. Juan Méndez agreed with Claudio Grossman's comment that there are many more cases and many more actors trying to use the system to advance their visions for democracy and human rights.
The system is not particularly well insulated from political pressures. Governments tend to confuse a case against them with matters of political or national pride and even of personal integrity of leaders. The unfortunate conclusion is that governments try to resolve cases by exerting political pressure on the system. Not only does this jeopardize the inter-American system's independence; it also sends the wrong message to those who use the system.
The Commission in particular lacks autonomy in budgetary and personnel matters from the Secretary General's office. This needs attention. The re-election process of Commission members is another issue making the system sensitive to political pressures. The question can only be solved by reopening the Convention and this is a hard thing to do. Instead, while maintaining the present election system, we must strive to insulate it as much as possible from undue political or diplomatic interference.
This crisis can be resolved in a positive or negative way. At this point, it looks like the efforts to make detrimental changes will not come about. Two years ago, the General Assembly discussed proposals to evaluate the system. As a result, there were two important meetings in Washington. Convened by the Inter-American Commission, the first meeting was held in December 1996 it concerned the reform process. One unique feature of this meeting was that it brought together NGOs, government representatives, academics who follow the system, and members of the Commission and the Court. The other meeting was convened by the Committee on Juridical and Political Affairs of the OAS Permanent Council. In contrast, the participants were officials from member states since the meeting was billed as a meeting of "government experts". Subsequently, the General Assembly in Lima last year issued resolutions on human rights protection and promotion. The central issues in this debate are:
How will the debate be conducted? Will it be open or closed? Right now it is relatively open. On this note, Mr. Méndez announced that the IIDH is publishing a book on the future of the system in an attempt to inform the debate.
Is reform necessary? If it is, what elements of the present system need to be modified? We are at a critical juncture and the best way to improve the system is to strengthen it as it currently exists.
What aspects of the current system need to be modified? One issue pertains to the ability of the Court and the Commission to determine themselves their procedures. This is not controversial in international law generally, as similar institutions have been empowered to decide upon major issues of jurisdiction. The situation for the Commission is worse than for the Court, because some critics would deny the Commission any discretion in determining the limits of its own competence.
Confidentiality: Mr. Méndez stated that it is important to bear in mind that, when acting on a complaint, the Commission serves an adjudicatory function even if its role is quasi-judicial. There is something contradictory between adjudication and confidentiality, because by definition a bodyadjudicates between parties that must be equal in procedural rights. Some confidentiality may be possible at certain points but not if it results in total inequality in the sense of access to information on the record of the case.
The "binding nature of the decisions of both bodies". The Commission has some adjudicatory functions. Its decisions require some kind of binding obligation. While the various functions of the Commission are important, Mr. Méndez agreed with Secretary General César Gaviria that the new horizon and most important function of the system is adjudication. Therefore, Commission and Court decisions must be of high calibre and determined in a context where transparency exists. Moreover the independence and impartiality of the adjudicator is paramount. In this respect, it is important to highlight the concept of equality of arms. There is no serious adjudication if the parties are not equal, with similar abilities to persuade the adjudicator.
Member states have their responsibilities as well. The future of the system will in large part hinge on domestic application of the rights enshrined in the American Convention and Declaration. Governments must accept their obligations under the system. He recalled last year's landmark Giroldi decision by the Supreme Court of Argentina in which it made the revolutionary assertion that not only is the American Convention binding on the Argentine courts but so is the way the Convention is interpreted (i.e. through Commission and Court decisions).
To conclude, Juan Méndez referred to the issue of effective compliance with the Commission and Court decisions . Compliance has not yet been a major problem but it is always uncertain. It can be made more certain by creating effective response mechanisms. He stressed the fact that we are getting results, and to their credit, many governments comply, but when there is no compliance we do not know what to do to enforce it and this constitutes a clear weakness of the system.
Professor Peter Leuprecht based his presentation on the European human rights system and invited the audience to draw lessons from and parallels with the inter-American system. He began with a few preliminary remarks. First, even though the European human rights system is a regional system, it promotes universal human rights and has been a powerful and effective mechanism in this respect. The view that the European system is more mature than its inter-American counterpart is based on a hollow comparison. It is true that the European system has been operating longer. In relation to economic integration and human rights, Europe does provide an interesting and topical comparison in light of the proposal to establish a free trade area in the Americas. It is difficult to empirically determine the relationship between economic integration and human rights. What is clear though, is that economic integration has promoted economic freedom but not economic and social rights. The European Union has an active social program but this has not countered those forces which have led to the deterioration of economic, social, and cultural rights.
In his analysis of the European system, Mr. Leuprecht asked three questions:
a) the reasons for the relative success of the European system,
b) the weaknesses and shortcomings of the system, and
c) the future of the system.
There are six reasons for the relative success of the European system:
Political support and universal ratification: The European system has operated for a long time within a homogeneous group of countries which genuinely share the same values. This contributes to the political support the system enjoys. This support also derives from the historical factor that following the heinous human rights violations of the Second World War, European leaders vowed "never again" and built a system that would ensure this. In Europe, contrary to the Inter-American system, there is almost universal acceptance of the European Convention of Human Rights — of the 40 member states of the European Council, only Russia has not ratified the Convention.
Authority: The European Convention of Human Rights and its machinery command a high degree of authority. This applies to the Commission, the Court and the European Committee for the Prevention of Torture. This is a factor of the political support it enjoys but also occurs by design; both the Commission and the Court are independent.
Implementation, Compliance and Effectiveness: The European Convention is implemented, in the first place, by domestic institutions and although the regional system is very important, the Commission and the Court merely play a subsidiary role. In several countries, the Convention has a constitutional or quasi-constitutional status or is given precedence over domestic law. The European Court has become a quasi-constitutional court for Europe and the record of compliance with its judgments is remarkably good. The execution of judgments is supervised by the Committee of Ministers. The effectiveness of the European Convention on Human Rights machinery should be further enhanced by Protocol 11, which will enter into force on 1 November, 1998. The reform will increase the judicial character of the system.
The close relationship between the system's organs, the Secretariat and human rights NGOs.
The strength, independence and integrity of the Secretariat.
The budgetary situation: Unlike the inter-American system, the European counterpart is not starved for resources. In addition, thanks to a legal aid system, there are no financial barriers to accessing the Strasbourg institutions.
Professor Leuprecht then outlined what he saw as the system's primary weaknesses.
The fact that the Commission and the Court can act only on the basis of applications. This does, however, not apply to the European Committee for the Prevention of Torture.
The European system seems relatively powerless when faced with patterns of gross human rights violations.
The length of European proceedings.
The fact that even under the reformed system, the Court cannot order binding interim measures.
Contracting states to the European Convention can maintain derogations under Article 15 which enables human rights suspension during a state of emergency.
The scope of rights protected is not the same for all Parties to the European Convention of Human Rights, as a result of reservations and of non-ratification of additional protocols by some member States.
The European system is currently subjected to considerable stress. The Council of Europe has been enlarged very rapidly, going from 23 States in 1989 to 40 today. On the one hand, this enlargement reflects highly positive developments in Europe, but in recent years, the homogeneity of the Council of Europe suffered when East European countries, which are not pluralist democracies based on the rule of law, were admitted.
The new permanent, single Court will start to operate on 1 November 1998; 31 judges were elected recently. It is to be hoped that the new judges will maintain a high level of independence.
Concerning the case law in the European Court of Human Rights, the doctrine of the ‘margin of appreciation' presents certain dangers. In a system now incorporating different legal cultures, using this tool threatens to dilute the standards established in the past.
III. Questions and Comments
John Foster, University of Saskatchewan, asked what we can learn from Europe or from other experiences in terms of building blocks for an effective system of protection and expansion of economic and social rights in the hemisphere.
Warren Allmand, ICHRDD, stated that the problem of non-compliance arises in Canada as well, particularly with the "notwithstanding" clause, which allows our governments to override our Charter of Rights. Therefore, some Canadians have taken their cases to Geneva. What benefit would there be for them in going to the Inter-American system rather than to the UN? Secondly, also with regard to compliance, is it not, in the European system, a question of political will rather than a question of law?
George Wright asked whether the positive attitude towards NGOs in the European system is under attack as it is in the UN today. How did the role of NGOs in the European system develop after World War II?
In response, Mr. Méndezstated that economic and social rights are not the only problems concerning the future of the protection system in Latin America and the Caribbean. While massive human rights violations are not common and hopefully are a thing of the past, violations of civil and political rights continue and torture is still practiced. We face "endemic violations" now, including appalling prison conditions, violence against street children, and rural violence over land tenure: all these require a great amount of work within the national jurisdictions by both governments and NGOs. We have to improve the quality of political rights, and this must go beyond elections and centre on the very nature of political participation, with a view to enhancing the quality of democracy. On the issue of economic and social rights, the problem is somewhat different because the international mechanisms don't lend themselves as well to protection. International trade agreements may afford the opportunity to make some of these rights, such as union and workers' rights, subject to judicial review.
In respect to Mr. Allmand, Juan Méndez believes that the UN system is in no way superior to any of the regional systems, particularly because it has no precedential value and is not binding. In Geneva you get a good hearing, but you do not get a solution or a binding decision against the state. Canadians do not have to choose between one system and the other. You can and should have both. It would be advantageous for Canadians to enjoy access to both the Inter-American Court and the UN system; but in order to go to San José, Canada will have to ratify the American Convention. Every victim should be able to choose his battlefield. To try to apply some of the European system's aspects in the American context would be disastrous — the margin of appreciation, for example.
In response, Mr. Leuprecht stated, concerning economic integration and human rights, that the lesson to be learned from the European experience is that unless human rights concerns are brought into the integration process, economic integration will neglect human rights. Major problematic issues are those concerning non-Communitarians and the tendency in Europe to treat human rights as an external issue, rather than rights existing within Europe itself.
Regarding the status of NGOs, the governments of certain new member states were clearly not keen on human rights NGOs, but attacks have been purely verbal. No attempts have been made at the Council of Europe level to restrict their presence. NGO involvement began through the European movement of NGOs promoting European union. Things have evolved very pragmatically. Now, a draft Convention on NGO status is under discussion in the Council of Europe.
Regarding the choice between Geneva or San José, he stated that the UN and inter-American systems are complementary. Were Canada to ratify the American Convention, Canadian lawyers might be more inclined than they are now to use the American system.
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