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I. Presentations
Irwin Cotler stated that the Commission and the Court are at the nerve center of the inter- American human rights system. In addition to being juridical bodies, they also are a looking glass of the cultures of the Americas and their societies in transition. In examining their workings, we not only expose domestic legal systems but also inquire into comparative law and comparative culture. They offer us an appreciation of the relationship between domestic and international law and the impact of international Human rights law on our domestic legal system. They offer us, particularly through the Commission's work, an early warning system to protect against backsliding into the dark days of the past. It does so by addressing mass and gross violations of human rights through "in loco" visits and by mobilizing shame against human rights violators through its reports and the case system itself. But the system needs resources, political will and transparency.
Peter Quilter explained that Towards a New Vision of the Inter-American Human Rights System, an OAS document he authored, was intended to stimulate the debate on the reform of the human rights system. The paper proposed a series of changes that could be made without changing the Convention. The changes concerned procedural issues, strengthening the system's structure and operation, its administration, and recommendations on expanding the participation in and reach of the system.
Now, the debate is mature enough and the time is right to turn the discussion on its head and begin not with specific reform proposals, but with the fundamental questions of what we expect a regional human rights machinery to achieve. The system is saddled with several fundamental problems: it is chronically starved for funds and it is not universally adhered to. It has little capacity to investigate cases and meets three or four times a year, making it basically a part time affair (even though members of the Commission devote all their personal time to the IACHR).
Furthermore, the Commission has a staff of 13 to 15 lawyers and its quality is improving slowly. If we were to increase the Commission's budget by 10%, its legal capacity would increase by only 1 to 2 lawyers. The discussion on increasing its budget needs to take place at a very high level — not within the confines of the OAS and its operating budget.
The system's procedures are inefficient and lack transparency: only recently did the Commission and the Court begin talking to each other. The two organs can take on very conflicting roles. When petitioners bring cases to the Commission, it acts as an adjudicator and if it decides to refer a case to the Court, it switches hats and becomes the system's advocate. This creates problems for member states since they view the Commission as an adversary when it argues a case against them before the Court. Similarly, problems exist for NGOs that, before the Commission, are advocates for the victims and before the Court, advisors to the Commission.
Compliance is an uncertain matter. Seventy per cent of cases to the Commission are threats to the right to life, and at a very fast pace, the Commission deals with only 30 of 800 open cases in a year. Even an optimistic reading suggests that the current structure cannot keep pace with its caseload.
The basic question we need to ask is whether this is the system that we would design to safeguard the human rights of this hemisphere today? Put another way, is this the best system we think we could get at this juncture? Mr. Quilter argued that it is not. We are living a privileged time in this hemisphere. Democracy is taking root. We can afford to begin debating the merits of ambitious ideas such as adding components to the current structure: a directorate for human rights promotion, a resource centre that would multilateralize assistance to the administration of justice and the creation of an Ombudsman.
The time is right to move on these ideas. There are democracies, progressive members in the Commission and the Court, and some member states are taking leadership roles in the OAS. The Secretary General is committed to human rights. Mr. Quilter concluded by urging the human rights community to recognize that while there is danger in changing the system, there is also great reward. "The light is green" he said, "let's cross the street."
José Miguel Vivanco began by noting the positive change across the hemisphere today within the human rights field, and the willingness of governments to acknowledge serious human rights problems. Despite these advances, most Latin American governments have fought against the work of the Inter-American Commission on Human Rights and the Inter-American Court for Human Rights. When confronted by a case before the Commission, defendant states frequently act as if their ‘honor' were in question and states most often deny the facts presented by petitioners without conducting an in-depth investigation. Many governments question the utility of the system and often work to undermine its effectiveness, including by pressuring the Commission with extralegal, political arguments. To improve its effectiveness in protecting human rights in the region, the Commission must make every effort to limit the debate in human rights cases to good-faith arguments based on solid factual and legal analyses, and thus create a stronger legal culture within the inter-American system. Ultimately this must involve the institutionalization and refinement of the procedures followed by the Commission and the Court.
An international system of human rights protection, like any domestic judicial system, requires clear rules and procedures that inspire confidence among all the actors involved. Any system hoping to build its credibility and prestige requires an objective set of procedures that serve to protect due process of law and ensure effective and predictable decisions. Essentially, the parties in a case should know their rights in advance and should share the conviction that their interests will be fairly heard by an impartial, independent quasi-judicial authority such as the Commission. Obviously, these principles are not foreign to the inter-American system. Nonetheless, it has only been in the last ten years that the Commission has really begun examining individual petitions on a large scale and referring cases to the Court. As a result, attention has increasingly and appropriately begun to focus on the Commission's procedures and on the need to update and establish new rules to guide petitioners and states in individual cases.
The existing regulations of the Commission were adopted 15 years ago with few changes since. Today, these procedural rules need a thorough evaluation to ensure that the petitioners' interests are adequately represented in cases before the Commission and the Court. Currently, once a case is referred by the Commission to the Court, the individual petitioner can no longer participate in its litigation. This fact demonstrates the need to establish an "equality of arms" between the petitioner and the defendant state in each step of the process. The petitioner should have all of the rights afforded to the defendant state, including a chance to be heard before the Court.
In general, there is a growing consensus among many actors, including members of other intergovernmental bodies and non-governmental organizations, that politicization is a serious and generalized problem threatening the inter-American system's credibility. Nevertheless, the meaning of politicization varies, so much so, that the concept requires examination with a particular focus as to how it manifests itself and affects human rights concerns.
First, many states in the inter-American system act on their view that the Court is less political than the Commission. Most governments show greater respect for the Court than for the Commission, and do not question the binding nature of the Court's judgments. In contrast, the Commission's numerous and broad functions, which include not only the examination of individual petitions, but also reporting on the general human rights conditions in the hemisphere, make most states view it as a more politicized body.
As a structural concern, the lack of transparency in the election process of the Commission's members and the Court's judges contributes to the general problem of politicization. This phenomenon is worsened by the reelection process whereby states, themselves the subject of monitoring, often determine and cast their votes based on a political assessment of the commissioner's or judge's track record. Furthermore, states can appoint ad hoc judges before the Court. These concerns should be illuminated in an effort to minimize political influences and strengthen the Court's impartiality.
The Commission could take a number of steps to decrease potential politicization and improve its overall credibility. First, it should limit the actions of member states and petitioners to strictly legal arguments when representing their respective sides in a case. In addition, the Commission should pay more attention to developing doctrine and precedent that could establish predictability in its decisions on individual petitions. As long as the Commission can consistently point to objective criteria and systematically base its findings on a sound interpretation and application of the Convention, it can deflect criticisms motivated by political, and not legal, reasons.
Along these same lines, the Commission could limit politicization and decrease any perceptions of such by developing and promptly publishing the criteria and reasons behind its decisions to refer cases to the Court. For more than ten years, there has been speculation on the reasoning applied in referring cases to the Court, thus supporting the view that these decisions are discretionary and subject to political influences. Moreover, the Commission should apply criteria consistently regardless of the political conditions of a member state.
Finally, the Commission should make every possible effort to carefully review all steps of a case within a reasonable amount of time. If the Commission were to decide on the admissibility of cases at an early stage , it would send a clear message to governments that the Commission is seriously considering moving forward with the cases. Sometimes, an early decision of admissibility encourages the parties to seek a friendly settlement.
These are just a few of the important procedural questions that deserve serious attention. It is in everyone's best interest to develop clear rules so that the inter-American system's prestige and credibility continue to improve.
II. Questions and Comments
Douglass Cassel, De Paul University, stated that the system as it is affords a measure of protection that goes well beyond what national systems and other international systems generally provide. It's extremely important that Canada and the United States ratify the Convention, and that we do what we can to strengthen and consolidate this system, while at the same time looking ahead to the future. But we should not allow a vision of a better future put at risk the gains that we have fought very hard to achieve over the last ten years with the current system.
Mr. Quilter disagreed that this is the best system we can have at this time. Changing articles of the Convention is not the problem, nor the solution. It is unlikely, for example, that such a change would get the United States closer to ratification.
Mr. Vivanco stated that we have progressed considerably in Latin America. We have elected civilian governments everywhere, except in Cuba, and many governments are far more open on human rights issues. Unfortunately, there still are problems, particularly with certain Commission practices. The problems of case referrals to the Court and the establishment of clear criteria are for the Commission to resolve. There is a problem with the independent participation of individuals before the Court, and situations where NGOs or petitioners become advisors to the Commission when a case is taken to the Court must be avoided. Mr. Vivanco is very skeptical about whether the current political conditions are favourable for improving on the American Convention — a fundamentally good instrument. Look at the poor record of member states in complying with the system's rulings, including the United States, Peru and Mexico. A representative of the Uruguayan President even told a Commissioner in a hearing that they would not comply with the decisions because they had never consented. There are notable exceptions: Argentina for example, has been playing a very constructive role. But, in general, several governments are "non-cooperative". This must be kept in mind when we hear calls to rewrite the Convention or redesign the system.
George Wright : Can the Inter-American Commission wear the ‘two hats' it currently wears at once?
Mr. Vivanco stated he was in favor of strengthening the jurisdictional competence of the Commission with regard to analysis of individual petitions. It's more appropriate to deal with concrete issues and avoid making the Commission evaluate and pass judgements on general human rights conditions in a given country. The Commission is in a better position to deliver judgements based on factual information presented as evidence. This is a question of emphasis. Unfortunately, the other more general functions have been assigned to the Commission under the American Convention and a major reform is perhaps required. But again, it's up to the Commission to put more emphasis on its case-hearing function.
Andrew Reding, World Policy Institute, asked what we could learn from looking more closely at the European Commission on Human Rights and the European Court of Human Rights. To what extent can that model help us in looking at how we could improve our human rights system?
Mr. Vivanco replied that the European system has evolved considerably from a procedural point of view. Particularly concerning individual access to the Court, we are like the Europeans were in the 1970s. That could be fixed without touching the Convention— but the political climate does not lend itself to proceeding down the European path.
Mr. Quilter considered there is a lot to learn from the European system. When we talk about the European model as one that is more advanced, we have to be careful, because in fact, it is a cycle. For example, right now in Europe, there is an infusion of countries with problems like the Latin American countries had 10 to 15 years ago. The European system is having to rethink itself in light of these changes. We should also follow closely the entering into force of Protocol 11 which will initiate sweeping changes to the structure and organization of the European system.
Juan Méndez, Instituto Interamericano de Derechos Humanos, commented that we can do better. But can we do better in a context in which we can do a lot worse? If we open up the Convention, there is a very real risk that model norms like Article 13 (freedom of expression) which is the most protective of its kind, could be diluted. By the same token, a High Commissioner may be a great idea, but in this context, in which some governments clearly want to trim down and cut back the powers and attributes of the Court and the Commission, is it wise to introduce yet another institution whose effectiveness elsewhere is not encouraging? Recall that the first High Commissioner of the United Nations was a great failure. In regions like the Americas, appointing a High Commissioner will be seen by many governments as an excuse not to comply with the decisions of the Commission. The point is, this system can do a lot better, without a major revamping. Rather than rethinking the whole system, why don't we let the system expand into all the potential that it has and give it the autonomy and resources it needs?
Claudio Grossman, Dean, Washington College of Law, considered that what is being discussed here boils down to different perspectives of a theory of change. We need ideas that mobilize people. Everyone is in favour of a reform - but reform for what purpose? The projects that have been floated reduce drastically the accessibility of individuals to the Commission, or establish mandatory friendly settlement for people who do not want it. What has not been widely debated is Peter Quilter's suggestion in his paper Toward a New Vision of the Inter-American Human Rights System regarding the need to ensure compliance with the system's rulings and the need to involve the political organs in this task.
Mr. Quilter responded that the Secretary General's paper does speak to the issue of compliance, including some ideas to involve member states in a new mechanism. Concerning an increase in the number of lawyers at the Commission, the Office of the General Secretariat would be supportive but more resources would have to be found.
Alain Dupuis, Counsellor and Alternative Representative of Canada to the OAS, stated that the General Assembly has to consider a budget that has consistently been cut because a lot of countries do not pay their quotas on time. There are 7 countries out of 35 that pay on time. Therefore, every year the Secretary General of the Organization is put in the position where he has to submit a budget based on figures that he will not be able to guarantee. This has a direct impact on the strengthening of the Commission and the Court. The Commission has been receiving less funds every year over the last three years. If this trend continues, instead of 15 lawyers, the Commission will end up with 10, 8 or 7 lawyers. Prompt payment is a direct contribution to the success of the Commission and the Court. There are countries that have not paid since 1984, 1988, 1991, yet these countries have access to the Organization's resources. He pointed out that the country that has not signed the Convention is the one that pays the earliest: Canada.
Mr. Vivanco answered that if compliance is not forthcoming we have to move to higher political levels. The use of stigmatization can be an effective tool. We also have to reveal the lack of consistency between the discourse and the actions of governments. Concerning confidentiality, the question erupted after a very unfortunate decision of the Court in the Advisory Opinion No. 13, in which the Court confused preventing publicity with confidentiality. In the name of confidentiality, they deprived petitioners access to information about the case, thereby violating due process. Some adjustments could be made in order to protect confidentiality without violating due process.
Sharryn Aiken, past President, Canadian Council of Refugees, reminded the panel that, concerning the issue of compliance, Canada, one of the so-called progressive members of the OAS, like Uruguay, also does not comply. Canada is still not complying with certain decisions of the Commission.
Mr. Quilter agreed that the money issue is key, but we must not reduce this debate to how much money we have in the OAS budget. The kinds of reforms we are talking about go beyond the confines of the OAS budget and must therefore be discussed on another level. We must not let this debate end on the issue of procedure, nor should we frame the debate on whether or not we should open up the Convention. The focal point of the debate should be: what is the best system we can have at this democratic moment in the history of our hemisphere?
Mr. Vivanco concluded that it would be healthy to promote the idea that the American Convention is not going to be opened. Let the bodies decide what changes should be made, but we have a responsibility to strengthen the impact of the Commission's work.
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