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I. Presentations
Carol Hilling emphasized that protection and promotion are equally important in the prevention of human rights violations. Promotion and protection are two sides of the same coin. The protection of human rights is just as important today as it was in the days of dictatorships. A great number of the cases dealt with by the Commission still concern violations of the right to life, freedom, security and physical integrity. In addition, states are coping with poverty and inequality which impact on economic and social rights.
Promotion and protection can only be effective if the Commission's work is undertaken with the full collaboration of a number of actors within and outside the OAS. Canada has not yet ratified the American Convention on Human Rights or recognized the compulsory jurisdiction of the Inter-American Court in contentious matters. But as an OAS member state, Canada is bound to the American Declaration on the Rights and Duties of Man, and thus has a vested interest in finding ways to help the inter-American Commission work more effectively.
Compliance is also necessary because if the Commission's recommendations are ignored, protection is ineffective and thus detrimental to the promotion of human rights. The system's legitimacy rests on the realization of human rights protection and promotion. According to its statute, the Inter-American Commission is mandated to promote the observance and defence of human rights. The Commission currently accepts and investigates individual petitions, raises awareness of human rights, advises governments on progressive measures in favour of human rights, conducts on-site visits, and writes country reports. In addition the Commission also drafts protocols to enlarge the range of rights and freedoms guaranteed under the Convention and propose amendments to the Convention.
Given the limited resources of the Commission, asking it to do more is unrealistic. The solution lies elsewhere. Ms. Hilling drew attention to the nature of state participation, indicating that without state support the system will not operate to its potential. Member states should be reminded that if they have any doubt regarding the compatibility of their domestic laws with the provisions of the Convention, they can ask for an advisory opinion from the Inter-American Court on Human Rights. It is the only human rights system where a state can directly ask for the advisory opinion of the Court. States should be encouraged to take advantage of this characteristic, particularly federal states like Canada where human rights fall in the jurisdiction of the provinces and the federal government.
The inter-American human rights system has reached a point where it's future depends largely on the willingness of states to uphold their human rights obligations as OAS member states and as democracies. One indication of this is whether international human rights norms are implemented domestically. Are domestic Courts referring to the inter-American instruments? And even if the norms have not been implemented into the domestic legal order, are domestic Courts using them as references for the interpretation of domestic law? In Canada for example, the Supreme Court of Canada shows willingness to refer to international human rights norms in its interpretation of the Canadian Charter of Rights.
Some improvements on the part of the Commission could augment its credibility and its role in the promotion and protection of human rights. Since the birth of the Commission it has not hesitated to widen its original jurisdiction. The Commission should broaden the application of the friendly settlement procedure. At the same time, steps should be taken to ensure compliance with the Commission recommendations. Without sanctions, states are not likely to agree to a friendly settlement. This cannot be done by the Commission itself. Pressure on a state to comply with recommendations should come from the other state members and OAS bodies.
The Commission should ensure that decisions on admissibility be reached in a timely fashion. One example is the Cherokee Nation case, where the decision on admissibility took over 5 years. A petitioner should not have to wait years to know whether a petition is admissible.
Ms. Hilling concluded that the Commission has played a crucial role in the promotion and protection of human rights during very difficult years and can continue to do so in the future. There is still much work to be done but we cannot expect the Commission to do it all. What we need is a true commitment on the part of the OAS member states to support the inter-American human rights system. Only when our governments and domestic institutions do their part, will the system begin to be truly effective.
Juan E. Méndez noted that the dilemma between promotion and protection is false. But it has arisen in part because of the Commission's numerous functions. It is designed to ensure protection but it also establishes standards, undertakes on-site visits, and publishes country reports.
These numerous roles mean the Commission undertakes a broad range of activities and governments therefore feel they are under constant scrutiny from the Commission. Some jurists believe that the Commission's country reports have caused governments to react against the Commission. The result is that governments try to minimize the Commission's human rights protection work and have it do more promotion. Moreover, governments do not like being held to account for their actions before the Court. They do not want to be singled out. They reject country report more forcefully than being called before the Court and having to defend their practices. But why do member states insist on promotion?
The Commission is being asked to undertake promotion in the sense of human rights education: teaching human rights to a variety of institutions and individuals. When the Commission was first founded, it was mandated to promote human rights. In 1959, it was thrown into protection when the Commission investigated Cuba, a visit which led to the suspension of Cuba's membership in the OAS. In the 1970s, the Commission established its credibility by tackling powerful members of the OAS. Then in the 1980s, the transition from authoritarian rule occurred and the elected civilian leadership began adopting the strange position that the system was conceived to oppose dictatorships and its good work had made it redundant. In Mr. Méndez's opinion, the promotional role for the Commission derives from this misconstrued perspective.
Promotion is only one line of attack to weaken the Commission and the system generally, including the Court. On the other hand, the system also has influential supporters, such as the Secretary General of the OAS who recently mentioned that the new horizon of the inter-American System is the case system. Mr. Méndez concurred with this view and mentioned that whatever is done to increase other functions of the Commission, it must not weaken the case system. A resolution to this effect was passed at the 27th OAS General Assembly stipulating that the Commission should undertake promotional activities but specifically not to the detriment of the Commission's protection responsibilities. That was an important conceptual victory, but the resolution is nonetheless problematic. It does not clearly distinguish between the different aspects of promotion. If the Commission were to do everything this resolution calls for, it would sink. The Commission is now working to bring a promotion plan to the Permanent Council of the OAS.
One understanding of promotion is not very different from what we would call human rights education because it includes teaching human rights standards to policemen, soldiers in the battlefield, or justice officials. But promotion also means standard setting - promoting progressive development of human rights standards and adapting them to reflect the changing views of society. Developing and setting new standards means not only having the intellectual capacity to think through new appropriate standards but also implementing them. Of the two interpretations of promotion, the Commission has a clear comparative advantage over any other institution in standard setting. The Commission is not a research-oriented organization and it is not an academic institution. It does not do human rights education particularly well.
The Commission does not have a specific program dealing with promotion as standard setting. It is not an easy task. One way to do more promotion without weakening protection would be to allocate promotional resources to standard setting and promote those standards throughout the hemisphere.
Claudio Grossman presented an overview of the changing demands facing the inter-American human rights system. He mentioned that the nature of human rights violations is changing and this does not argue for increasing the Commission's role in the area of human rights education. The inter-American system must tighten its jurisprudential consistency. Previous cases before the Commission did not require a high degree of legal sophistication. They did require immediate action and the Commission often neglected to follow strict procedural and admissibility criteria.
One country visit which received great praise was the Commission's visit to Argentina in 1985. It was reported that following the visit, no other disappearance took place. On the other hand, during the Commission's visit to Colombia, four hundred people were massacred. Three thousand people have been massacred in Colombia in a year. Under these circumstances, to use the case system would ultimately highlight its futility. What we need in the case of Colombia is to mobilize public opinion and talk frankly with government officials. In those situations it is best to inculcate human rights practices in the conscience of people rather than to play the charade of the Commission and Court proceedings. The Commission is uniquely situated to undertake such tasks. Nevertheless, there are voices recommending that country visits be terminated.
Other situations are more suitable for the case system and in loco visits are currently being coordinated with the case system. The idea of appointing a Human Rights Commissioner in the region to do this type of work is singularly unwise. The minimum common denominator would prevail in such an appointment.
Mr. Grossman then turned to the idea of increasing the Commission's role in promotion, which he views unfavourably. Currently over 80% of the Commission's resources go to the case system, a task which it is agreed the Commission should be involved in. This might change if the momentum for promotion that emerged from the 27th General Assembly increases. A resolution mandated the Commission to prepare a promotional plan on human rights in the hemisphere. This could bring the Commission into human rights promotion, which Juan Méndez referred to as the broad interpretation of the term "human rights education". The Commission has undertaken a couple of promotional activities in Brazil and Paraguay, but these were focused on the case system. The motives for pushing the Commission in the direction of promotion are not genuine. Such a move would not strengthen the system, which is why the Commission's response is a proposal to act merely as a coordinator.
The impact of the Commission's case law has been extraordinary. Notwithstanding, there is room for improvement in admissibility, interpretation of due process and human rights norms, action on the death penalty, the right of appeal, etc. The Commission has had some notable successes with the case system. For example in Paraguay, the government has accepted to restore land to an Indian community in a friendly settlement case and agreed to pay two million dollars in damages. This was the result of a Commission visit and a negotiated friendly settlement. Secondly, in Guatemala, the government indicted those responsible for a massacre in Colotenango and paid compensation. In Argentina, in the Verbitsky case, the intervention of the Commission led to a positive change in legislation concerning the right of individuals to criticize government officials. Finally, in Colombia and Venezuela, governments officially acknowledged state responsibility in friendly settlements of cases involving massacres with the participation of army units.
Mr. Grossman noted that sound legal arguments are persuasive in developing friendly settlements. Friendly settlements reflect the changing attitudes of democratically elected governments but there are limits to this cooperation. While governments are willing to settle disputes before reaching the Court, they are not willing to fund projects which will improve the system. For example, the project to document jurisprudence in the inter-American system is currently being funded by the Netherlands, without the support of American states.
Mr. Grossman concluded by commenting that many things remain to be done. The key and central issue today is to protect human rights. We must not be distracted by what is less important. The central issue of the reform is the following: let us not do anything that does not result in more joy, happiness, and rights for people. For this project we need the support of governments and civil society.
II. Questions and Comments
Daryl Robinson, Department of Foreign Affairs and International Trade, concurred with Claudio Grossman's presentation and asked whether the Commission could utilize the phrase in the promotion resolution "without detriment to the protection activities" to maintain the form of system the Commission wants. One could say for example that we have 800 or 900 cases and 13 lawyers and anything else would be to the detriment of our protection activities. Do you have any suggestions for us?
Mr. Grossman responded that the Commission should not do promotional work. It should continue to carry out, on an opportune basis, promotional activities relating specifically to the case system. There is a lack of understanding on how the system works. There are still countries that do not know how to answer petitions. But we do not want to be teaching human rights to willing or unwilling police and military.
Eduardo Cáceres, APRODEH, inquired, given many cases and very scarce resources, what contribution the Commission can make to standard setting.
José Herrán-Lima, Department of Foreign Affairs and International Trade, asked how the system can use other available resources, such as the network of ombudsmen, to help further the cause of human rights.
Mr. Grossman responded that promotion along the lines suggested by Juan Méndez is excellent although some member states have contrasting views. The Commission should not be involved in developing programs to teach the military, judges, and police. Other institutions are better equipped for this task. On the issue of standard setting, the Commission recently drafted a Declaration on the Rights of Indigenous Peoples which has been submitted to the General Assembly. Whether there is political support to accept this declaration is another question. Mr. Méndez's idea to appoint rapporteurs or working groups, who are not Commissioners is a possibility. However the Commission will require oversight to maintain its independence.
Establishing closer collaborative relations with ombudsmen is an excellent idea. For one, this would enhance the Commission's investigative capacities. Having a link with ombudsmen creates possibilities for getting information. Ombudsmen have acquired importance and legitimacy in the hemisphere. The ombudsmen themselves have already initiated working relations with the Commission. To take one example, the ombudsmen of Argentina presented a claim against Argentina. Collaboration with Canadian organizations is low. There are limited examples of Canadian organizations taking cases before the Commission. There definitely is more room for human rights organizations and law faculties taking cases before the Commission.
David O'Brien, ICHRDD, stated that the resolution on promotion passed by the General Assembly meeting in Lima was thoroughly covered in the discussion. What has been omitted was the resolution on protection. Could Mr. Grossman comment on the state of that debate and how the Commission is involved in it? What recommendations would the Commission endorse and what would it resist?
Mr. Grossman responded that there has been little progress following the resolution on protection; it is not going anywhere for the moment. What we would like is a more inclusive discussion process, strengthened means of protection, the implementation of concrete measures in order to increase political support and material resources, and a recognition of the value of friendly settlement. Autonomy for the Commission is another key issue. We would like to be able to appoint the lawyers working for the Commission. The Court has this attribute. The debate on the reform of the system is in fact a debate on the reform of the Commission. Very few things are said about the other organs of the OAS.
Viviana Krsticevic, CEJIL, requested further discussion on the different views expressed on the subject of compliance and effectiveness.
Ms. Hilling stated that, regarding compliance, the main difference between the Commission and the Court is that the Court renders binding decisions, whereas the Commission can only make recommendations which states may decide to follow or ignore. The issue of compliance is quite different when we are looking at recommendations by the Commission and decisions of the Court. The Commission requires outside support to ensure that its recommendations are complied with. Regarding the system's effectiveness, Carol Hilling said she was speaking from the perspective of a Canadian lawyer. The situations the inter-American system faces are quite different from the majority of human rights issues before Canadian courts. Due process in Canada upholds the rule of law whereas in other judicial systems in the Americas this is not always the case and the reason why the system has been faulted for being ineffective.
Mr. Méndez added that effectiveness has an internal dimension that is not always dependent on member states complying. Organs build their prestige not so much on their power but on good sound decisions and their ability to persuade. The Argentine Supreme Court for example has just stated that domestic law pertaining to human rights norms of the inter-American system should be interpreted by reference to decisions of the Commission and the Court.
An intense debate is currently taking place on the issue of whether the Commission's decisions are binding or not. Some governments, including the US government, claim that the Declaration and the Commission's recommendations are not binding. Other governments, including some that have ratified the Convention, argue that only the Court can make binding decisions. As a specific organ of the Convention, the Commission issues binding resolutions on whether or not violations have occurred. The fact that the Convention mentions "recommendations" is strictly in relation to the remedy. When the Commission says that a country has violated the rights of "x"and "y", its decision is binding on the country, and only its recommendations to pay remedies or damages are not. There is a need to distinguish the final resolution of the case from the remedies. The Commission cannot be considered to be an exclusively advisory body.
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