SPEECH BY DEAN CLAUDIO GROSSMAN
OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
THE CONTEXT OF THE DIALOGUE ON THE IMPROVEMENT OF THE
ON JURIDICAL AND POLITICAL AFFAIRS
THE PERMANENT COUNCIL OF THE OAS
D.C., May 3, 2001
Madame Chair of the Committee on Juridical and Political Affairs of
the Permanent Council, distinguished representatives of member states of
the Organization and observers, Executive Secretary of the IACHR, ladies
Madame Chair, I would like to thank you for the opportunity to be
here once again before this Committee on Juridical and Political Affairs,
this time to dialogue with you, ladies and gentlemen, representatives of
the democratically elected governments of the Hemisphere, about improving
the inter-American human rights system.
It is not my intention to reiterate my remarks during my
presentation before this Committee last week.
Rather, I will discuss in more depth several points of particular
importance for the current state of the dialogue on the inter-American
system for the protection of human rights as well as the direction the
system is and should be taking. These
reflections are based on the IACHR’s vast experience regarding the human
rights needs of our region and the type of system that we must mold in
order to respond to these exigencies.
OF THE SYSTEM AND NECESSARY CAUTION
Ladies and gentlemen: We
are living in promising times in a Hemisphere in which both men and women
have seen, as never before, the essential possibility of developing as
free human beings. In this
context, the inter-American system enjoys an enormous degree of legitimacy
that extends beyond its organs and radiates throughout the regional
This reality has caused more and more men and women in our
Hemisphere to approach the Inter-American Commission in search of
responses to their demands for human rights protection and this has led
the Commission to increase its individual caseload.
For example, when I was President of the IACHR for the first time
in 1996, we published 31 decisions in individual cases, including 16 on
the merits, 1 friendly settlement, and 14 decisions on
I already mentioned in the report I presented to you last week, we
published 153 decisions, in other words five times more, including 35
decisions of admissibility, 23 on the merits, and 13 reports of friendly
settlement, in addition to 21 decisions of inadmissibility and 61 to set
aside. These figures
illustrate the legitimacy of the system both in terms of increased use and
because states are part and, to a degree, architects of this legitimacy.
In the 1996 report, in five of the thirty-one cases the respective
government never responded to the request for information nor participated
in the proceedings before the Commission.
In the 2000 report, governments participated in each and every one
of the 153 reports we published. But
the legitimacy of the system is best demonstrated by contrasting the one
friendly settlement published in 1996
to the 13 that were reached this past year.
I do not wish
to bore you with more figures, Madame Chair, to support my thesis that the
system enjoys enormous legitimacy and must be jealously safeguarded.
And it is for this reason that this basic premise should be the
point of departure for dialogue on the system.
It is also imperative to proceed with caution in order to preserve
one of the OAS’ main sources of legitimacy.
THE NEED TO BUILD CONSENSUS AMONG ALL ACTORS IN THE SYSTEM
gentlemen, the IACHR believes that it is of utmost importance to maintain
an open and public dialogue on improving the inter-American system.
In order to preserve the legitimacy of the system, every
discussion, debate, or dialogue seeking to build consensus around
strengthening the inter-American system must include each and every actor
associated with the system.
We particularly have in mind states, the organs of the system, and
civil society organizations. Each
of these actors has a unique perspective, based on its particular roles,
responsibilities, and experiences that will contribute to a comprehensive
vision of the system. Taking
into account the system’s purpose and legitimacy and the democratic
nature of member states, reform cannot be carried out any other way.
Consensus-building requires time and dialogue.
It is therefore important not to adopt hasty measures that might
jeopardize the achievements made up to now.
Nonetheless, all the actors in the system agree that two core
issues can and must be considered during the next OAS General Assembly to
be held in San Jose, Costa Rica, this June.
We are referring to a substantial increase in funding for the
Commission and the Court and the creation of a mechanism by which the
political organs of the OAS can appropriately carry out their role of
supervising compliance with Commission and Court decisions.
As I will discuss later, several member states have made
constructive, timely proposals pertaining to specific aspects of the
required reforms that we hope will receive the necessary support in San
Jose. Moreover, there is a
third core issue for strengthening the inter-American system and that is
incorporating human rights obligations into national regimes.
REGULATORY REFORMS AND CHALLENGES AHEAD
As a contribution toward strengthening the system, in recent months
and the Court have approved reforms to
their Rules of Procedure in the framework of their respective autonomous
structures. It is our
understanding that these reforms reflect the suggestions contained in
resolution AG/RES. 1701 (XXX-O/00) adopted in Windsor.
The IACHR’s Rules of Procedure took effect on May 1 of this year
and the Court’s will take effect on June 1.
These regulatory reforms represent one of the most significant
developments in the inter-American system since the American Convention
entered into force more than 30 years ago.
These reforms must not be overlooked and must be seriously taken
into account in the dialogue process.
and the Court streamlined and organized their procedures, increased victim
participation, and adopted necessary provisions to avoid duplication of
procedures before the Court. The
system’s organs took the challenge of improvement very seriously, and
they succeeded. The new procedures will be clearer, more methodical, will
avoid unnecessary repetition, and will be more open to individual
Given their significance and transcendence, these reforms must be
given sufficient support and allowed enough time to function and to be
evaluated. In this sense, the
adoption of an additional protocol granting victims direct access to the
Inter-American Court should be examined after these regulatory reforms
have been evaluated. This
position does not mean that we are opposed to such a development, one that
I personally have supported since I participated in the first cases
brought before the Court more than fifteen years ago.
To the contrary, it means acknowledging that the new Rules of
Procedure will help facilitate petitioners’ access to the Court.
Legal changes are more likely to be successful when they are
declarative, in other words when they reflect a transformation that for
the most part already has occurred in practice.
It therefore makes sense now to give the new Rules of Procedure a
chance to develop in practice. In
this regard, the Commission’s new Rules of Procedure contemplate the
following measures for increasing victim participation in Court
proceedings: consulting with
the petitioner and the victim concerning their position on referring the
case to the Court (Article 43(3)); taking into account the petitioner’s
opinion when deciding whether to remit the case to the Court and
introducing the assumption that all cases will be referred to the Court
(Article 44 paragraphs 1 y 2); participation of the individual in
preparing the application to be presented before the Court (Article 71);
and the possibility that the victim will be included as one of the
Commission’s delegates before the Court (Article 69.(1)).
Madame Chair, the transcendental changes made to the Commission and
Court’s Rules of Procedure require that member states give their full
political support to the organs. We
understand that the three key measures that must be adopted during the
next General Assembly are allocation of the necessary funds to the organs,
the creation of a specific mechanism that will enable the political organs
to promote compliance with Commission and Court decisions, and the
obligation of states to incorporate international human rights norms into
their national regimes.
At the same time, the new Rules of Procedure adopted by the
Commission and the Court must be accorded a reasonable amount of time to
work to avoid embarking on a dangerous spiral of reform.
This will give us time to evaluate the results, assess the
benefits, and identify any unforeseen or unresolved problems.
Ladies and gentlemen, it is not news to anyone here present that
the inter-American system in our region encompasses three levels of
adherence: One is universal
and minimum for all member states whose inhabitants are protected by the
rights recognized in the American Declaration, through the Inter-American
The second level refers to member states that have ratified the
American Convention but have not accepted the jurisdiction of the Court,
and the third level includes those who have ratified the Convention and
accept the jurisdiction of the Court.
Obviously this system is far from ideal.
From the human rights standpoint, it creates a disadvantage for the
inhabitants of important countries in the region in terms of the
international protection of their rights.
The Commission, therefore, supports the Government of Brazil’s
proposal that member states report periodically on the measures taken to
ratify the Convention and other instruments and the obstacles they face in
achieving this goal. This
proposal, modeled in part on the system used by the International Labor
Organization, will surely take the
debate over universal ratification to a new level.
The IACHR is convinced that publicity and transparency are key to a
democratic system. Therefore,
and as a complement to the Brazilian proposal, we would like to suggest
that the respective resolution adopted at the next General Assembly
include an appendix indicating which states have not ratified the
respective instruments and which have not accepted the jurisdiction of the
Court. In this way, the
General Assembly’s call for universal ratification will not be simply an
abstract exercise, but will be clearly directed to those countries listed
in the proposed appendix.
The IACHR is aware that the system has universal significance
through the American Declaration. And
the IACHR is not blind to the fact that some countries that have failed to
ratify the Convention offer a level of human rights protection comparable
to the regional ideal. Nonetheless,
there is a clear negative message in the failure to ratify the Convention
and accept the jurisdiction of the Court.
We run the risk of limiting the universal value of the protection
mechanism. In a hemisphere rapidly moving toward integration, human
rights must not be left behind.
5. COMPLIANCE WITH DECISIONS OF THE HUMAN RIGHTS
ORGANS AND COLLECTIVE SUPERVISION BY THE POLITICAL ORGANS OF THE
Madame Chair, while compliance with resolutions issued by the
Commission and the Court has increased when compared to the period when
many dictators reigned in the Hemisphere, the situation remains far from
satisfactory. What is
striking though is that the political organs of the OAS showed more
initiative in supporting the Commission’s decisions during those
dictatorships than they do now (only recently has the Court issued
judgments on contentious cases from 1987).
It is common knowledge that democratic countries, among them
Mexico, Venezuela, and the United States, made serious efforts to support
the effective action of the Commission during those years and to encourage
debate in the Permanent Council and the General Assembly over compliance
with Commission recommendations regarding countries engaged in serious
human rights abuses. Today,
however, and despite the winds of democracy blowing across the Hemisphere,
the political organs of the OAS are not sufficiently active as collective
guardians of the system.
More than 140 years ago, Juan Bautista Alberdi, the visionary
behind the Argentine Constitution which remains very much in force today,
was already talking about the importance of the collective guarantee of
respect for human rights. Alberdi
maintained that: “Each
treaty will be an anchor of freedom affixed to the Constitution.
Should this be violated by a national authority, it will not be the
part contained in the treaties, which the signatory nations will enforce;
and as long as some guarantees hold fast, the country will preserve the
inviolability of one part of its Constitution, and this soon will lead to
the reinstatement of the other part.”
It is imperative that the next General Assembly in San Jose adopt
the necessary measures that will enable states to act as collective
guarantors of the system. The
IACHR is convinced that the proposals presented by various states on the
establishment of an annual review procedure by the Permanent Council and
the General Assembly to assess compliance with Commission and Court
decisions would constitute a major step forward in this direction and they
have our firm support.
The IACHR has followed with interest the debates and decisions
adopted in Quebec regarding the inclusion of a democracy clause linked to
the regional free trade agreement. It
seems to us that this laudable step should explicitly include compliance
with decisions issued by human rights organs as a valid factor in
evaluating whether a government is indeed democratic.
After all, defining what is democracy is precisely the purpose of
human rights norms, inter alia,
separation of powers, independence of the judiciary, due process, equality
under the law, political freedoms, freedom of expression, association, and
religion. It is worth
pointing out that in the European Council failure to comply with decisions
issued by human rights organs is punishable by sanctions, including
exclusion from the regional system.
INTERNATIONAL OBLIGATIONS INTO THE DOMESTIC REGIME
According to the Convention, member states not only must ensure
that all individuals subject to their jurisdiction enjoy the rights and
freedoms recognized therein, but also must give legal effect to these
rights and freedoms in their domestic legislation, and ensure that
existing standards are interpreted in keeping with them (Article 2).
As a corollary to this, states may find themselves in the position
of having to amend or even derogate domestic laws incompatible with the
obligations acquired under the Convention.
Member states are also obliged to provide judicial remedy for those
who believe that their rights and freedoms have been violated (Article
25). The Convention’s rule
of prior exhaustion of domestic remedies (Article 46) is premised on the
notion that the state must have the means to rectify a situation that has
arisen within its own jurisdiction.
It is worrisome, therefore, that the Commission must handle
numerous cases in which member states have failed to implement in their
domestic legislation the rights enshrined in the Convention or in which
judges apply internal legal standards in a way that is openly incompatible
with obligations acquired under the Convention.
Obviously, if these rights are not recognized in domestic
legislation, there can be no effective domestic remedy to redress the
consequences when they are violated.
Since member states are the primary guarantors of the human rights
enshrined in the American Convention, their compliance with this
officially acquired responsibility merits a certain degree of reflection.
In order to improve the system, member states must adopt the
legislative measures necessary to ensure that legal mechanisms exist to
implement internally the decisions adopted by the Commission and the
In recent years, several countries have adopted such measures, but
it is important to continue making progress in this direction.
Madame Chair, with the advent of democratically elected governments
in every country in the region except Cuba, the political constitutions of
many OAS member states have incorporated the standards set forth in
international treaties. In
some cases, this has been accomplished through a general reference to
these instruments, while in others it is more explicit.
This is an essential step in the right direction that must be
accompanied by specific provisions to give legal effect to the guaranteed
rights and by the active participation of judges in making use of
international human rights standards.
An important contribution to improving the inter-American system
would be for the legislative branches in our countries to adopt all the
provisions necessary to guarantee the rights recognized in the
international regime, and to amend or derogate all provisions in
contravention of international human rights treaties.
The judiciaries, for their part, should fully apply treaty
provisions and the jurisprudence emanating from the Commission and the
One of the strengths of the European system is that the legislative
branches continuously review their domestic legislation in order to ensure
its compatibility with decisions issued by the European Court of Human
Rights. Moreover, European
judges, even those presiding over the highest courts, regularly take into
account and invoke decisions emanating from the Strasbourg organs.
7. THE NEED
FOR INCREASED FUNDING
Ladies and gentlemen, I must point out that the Commission is
processing over 900 individual cases.
Over the past four years, the Commission has made two and three
on-site visits per year to member states, each of which cost between
US$30,000 and US$100,000 depending on their duration, the number of
Commissioners participating, and the place visited.
In addition, 23 contentious cases and 30 provisional measures are
pending before the Inter-American Court of Human Rights.
The costs of carrying out this invaluable work for the protection
of human rights will rise, since the new Rules of Procedure adopted by the
Commission and the Court will lead to an increase in the number of cases
before the Court.
The sad truth, however, is that the Commission’s total budget for
the current fiscal year represents less than 3.4 percent of the overall
budget of the Organization. Approximately
two thirds of the Commission’s total budget is earmarked for staff
salaries and benefits. The
remaining amount barely covers the costs of preparing and holding two
regular sessions and one special session, the publication of our annual
report, performance contracts, supplies, and other similar categories.
This means that the budget does not include sufficient funds for a
single on-site visit to a member state or for litigating cases before the
Court. The Commission,
therefore, must rely on the generous voluntary contributions of certain
member states and on the philanthropic spirit of several European
countries for funding to carry out this essential aspect of its mandate.
Member states of the Organization should find this cause for
Our heads of state are well aware of these needs.
For this reason, recently, in Quebec, they expressed the need for a
substantial increase in funding for the operations of the current
Commission and the Court. Moreover,
they specifically charged the thirty-first regular session of the General
Assembly of the OAS, to be held in San Jose, Costa Rica, in June of this
year, to initiate actions to accomplish this aim.
The Commission appreciates the fact that strengthening the system
has been declared the pivotal issue for the upcoming General Assembly in
San Jose. At that time, we
hope that member states will significantly increase funding for the
Commission and the Court as an essential step toward accomplishing the
goals for strengthening the system established by member states, and in
keeping with the mandate assigned to us by our presidents and heads of
Increased funding must be earmarked for institutional strengthening
of the organs, which must enjoy the autonomy necessary to decide how to
utilize the additional resources according to their needs and development
strategies including, in the medium term, progress towards the permanence
of the Commission and the Court. The
Commission supports the idea of making the organs permanent as a goal for
the medium term. At the same time, it understands that the gradual process
toward permanent organs might involve different alternatives and
approaches, which must be decided by the Commission and the Court. The decision must be based on the work methods and specific
needs of each of the organs, and on the attributes, based on the
Convention and regulations, of its members, presidents, boards of
officers, and working groups. For
example, should it receive the necessary funding, among the options being
considered by the Commission for attaining permanence in the medium term
are hiring more attorneys, gradually extending its regular sessions,
holding a new regular session, or having the working group on
admissibility meet more frequently or for longer periods.
Ladies and gentlemen, the Commission believes that we are all
striving for the effective promotion and protection of human rights in the
region. The system and its
improvement are a means to this important end.
Any reform or improvement process, therefore, must move in the
direction of broadening the protection of rights.
The inter-American system has saved and continues to save lives.
In the past, it has helped open democratic spaces and it currently
contributes to consolidating democracy in our countries.
It has fought against impunity and now helps to bring justice and
reparations to victims of human rights violations and, in doing so,
contributes to the Rule of Law. Together,
we will continue on this path toward an America united in protecting
values fundamental for human dignity.
Thank you very
Adopted during the 109th regular session, December 2000, see IACHR,
press release 18/00 and
the Speech by Dean Claudio Grossman, President of the Inter-American
Commission on Human Rights, at the presentation of the IACHR’s
Annual Report 2000 to the Committee on Juridical and Political Affairs
of the Permanent Council of the OAS, Washington, D.C.,
April 26, 2001.
Report of the President of the Inter-American Court of Human Rights,
Judge Antônio A. Cançado Trindade, to the Committee on Juridical and
Political Affairs of the Permanent Council of the Organization of
American States (March 9, 2001), OAS document OAS/Ser.G/CP/CAJP-1770/01,
of March 16, 2001, pp. 6-8.
Claudio Grossman, Disappearances
in Honduras: the need for direct victim representation in human rights
litigation, in: The Hastings
International and Comparative Law Review Vol. 15.3, 1992, pp.
The States to which only the Declaration applies are Antigua and
Barbuda, Bahamas, Belize, Canada, Cuba, United States, Guyana, Saint
Lucia, Saint Kitts and Nevis, Saint Vincent and the Grenadines, and
Trinidad and Tobago. The Commission has authority over these States by
virtue of being the principal organ of the OAS and pursuant to the
powers conferred upon it by article 20 of its Statute. See
Inter-American Court of Human Rights, Advisory Opinion OC-10/89,
Interpretation of the American Declaration on the Rights and Duties of
Man within the framework of article 64 of the American Convention on
Human Rights, July 14, 1989, Ser. A. No. 10 (1989), paragraphs. 35-45;
IACHR, James Terry Roach and Jay Pinkerton v. United States, Case
9647, Res. 3/87, September 22, 1987, Annual Report 1986-1987,
paragraphs 46-49, Rafael Ferrer-Mazorra et al v United States of
America, Report N° 51/01, case 9903, April 4, 2001.
Argentina, Barbados, Bolivia, Brazil, Colombia, Costa Rica, Chile,
Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua,
Panama, Paraguay, Peru, Dominican Republic, Suriname, Uruguay and
this we could add the list of other instruments that have not been
universally ratified. Thus,
the inhabitants of several countries in the hemisphere can appeal to
the Commission and the Court should the case arise, to request
protection of some of their economic, social, and cultural rights
since the adoption of the Protocol of San Salvador, or to allege acts
of violence or discrimination against women under the Convención of
Belém do Pará.
Statute of the Council of Europe, Articles 3, 8, and 9,
European Treaties Series 1. D.J.
HARRIS, M. O'BOYLE & C. WARBRICK,
Law of the European Convention on Human Rights , Butterworths,
1995, p.700 y C. F. AMERASINGHE, Principles
of the institutional law of international organizations, Cambridge
University Press, 1996, p. 115.
We could mention, among others: Colombia:
Law 288 of 1996, which establishes specific mechanisms for
compensation of damages incurred by victims of Human Rights
violations, pursuant to the provisions of particular international
human rights organs, including the Inter-American Commission on Human
Rights; Costa Rica: Article
27 of the agreement between the Government of Costa Rica and the
Inter-American Court of Human Rights provides that the resolutions of
said organ or its President will have equal effect as those issued by
the Costa Rican judiciary, once said resolutions have been
communicated to the administrative and judicial authorities of Costa
Rica; Honduras: Article
15 of the Constitution establishes that "Honduras embraces
international law principles and practices
espousing human solidarity, respect for the self determination
of nations, nonintervention and commitment to universal peace and
declares the inalterable validity and obligatory execution of
international arbitral or legal judgments;” Mexico: Article 11 of
the Ley sobre la Celebración de Tratados stipulates that
“Judgments, arbitral awards and other jurisdictional resolutions
emanating from the application of international mechanisms for the
resolution of legal conflicts as mentioned in Article 8, will have
legal effect and recognition in the Republic, and may be used as
evidence in cases of nationals in the same legal circumstances, in
accordance with the Código Federal de Procedimientos Civiles and
relevant treaties;” Peru: Law
23506, Article 40: “Resolutions
of the international entity to whose jurisdiction the Peruvian State
is subject, do not require prior recognition, revision, or review in
order to have legal force and effect. The Supreme Court of Justice of the Republic will receive the
resolutions issued by the international entity and will provide for
their execution and enforcement in accordance with internal rules and
procedures in effect governing execution of judgments.”
1999 Constitution provides, in Article 31, that the state will adopt,
in accordance with procedures established by the Constitution and the
law, the measures necessary to enforce decisions emanating from
international human rights organs.
See also Martín Abregú y Christian Courtis (comps.), La aplicación
de los tratados sobre derechos humanos por los tribunales locales,
CELS – Editores del Puerto, Buenos Aires, 1997. Rodolfo E. Piza
Escalante, El valor del derecho y la jurisprudencia internacionales de
derechos humanos en el derecho y la justicia internos: el ejemplo de
Costa Rica, in: Inter-American Court of Human Rights, Liber
Amicorum Héctor Fix-Zamudio (1998), pp.169-191 Max Alejandro
Flores Rodríguez, Aplicación de los tratados internacionales de
derechos humanos por la Corte Constitucional y los jueces, in Espacios
internacionales para la justicia colombiana, vol. III,
Andean Commission of Jurists, Colombian Section, 1993.
Lillich, Richard The Role of
Domestic Courts in Enforcing International Human Rights Law, in Guide to International Human Rights Practice, edited by Hurst Hannum,
University of Pennsylvania Press, p. 228. Mohammed Bedjaoui, The
Reception by National Courts of Decisions of International Tribunals,
in International Law Decisions in National Court, Edited by Thomas
M. Frank & Gregory H. Fox, Transnational Publishers, Inc. New
York, 1996, p. 22.
Andrew Moravcsik, Explaining
International Human Rights Regimes: Liberal Theory and Western Europe,
1:2 European J. Int'l
Relations 157, 178 (1995), Carlos Fernández de Casadevante, La
aplicación del convenio Europeo de Derechos Humanos en España,
Tecnos, Madrid, 1988.
Under Article 36 of its new Rules of Procedure, a new Working Group on
Admissibility will meet prior to each regular session.
Article 30 and related articles of the Rules of Procedure
stipulate that the Commission must adopt, in principle, a decision
regarding the admissibility of each petition it processes.
Based on a study conducted by the Secretariat of the Commission
for the 110th regular session held in February of this year, more than
650 petitions currently are pending a decision regarding