WHICH STEPS NEED TO BE TAKEN TOWARDS FULL OBSERVANCE
I. PREPARATION OF AN INTER-AMERICAN INSTRUMENT OF THE INDIGENOUS PEOPLE
Through resolution AG/RES. 1022 (XIX-0/89) the General Assembly of the OAS requested the Commission to see it that "...in 1992... a legal instrument be adopted in regard to the human rights of the indigenous peoples." This task entrusted to the Commission is now in progress with the cooperation of the Inter-American Indian Institute, headquartered in Mexico City.
Given the complexity of the topic and the diversity of the situations, the Commission undertook a series of measures aimed at determining the best strategy for devising an instrument that can help improve the rights of indigenous peoples, one that is in line with the latest national and international doctrine and legislation. Of these actions, attention should be drawn to: a) a working meeting held with indigenous leaders and legal experts, at the Inter-American Indian Institute in Mexico City in January 1990; b) the studies conducted, one on the actual situation of the indigenous peoples of Latin America, and another on the legal formulation of those peoples' demands, and c) analysis of the codification work done in this field by the United Nations and the International Labour Organisation.
As a result of this preparatory work, at its 80th session the Commission decided to approve a method for drafting such an instrument: there would be two rounds of consultations with the governments of the member countries and with nongovernmental organizations. The first round of consultations would deal with the topics to be covered by that instrument and with the national legislation that should be used as a reference. This first round will be held in 1992, and work on the basis of a questionnaire approved at the 81st session.
In 1993, the Commission hopes to be able to submit to the General Assembly the findings of this first round of consultations. The second round of consultations, which will be held that year, will be based on a first draft of the aforementioned legal instrument. In this way, by 1994 the Commission will be in a position to submit its proposal to the General Assembly for consideration, after allowing the governments, indigenous organizations, and nongovernmental organizations in general time to participate in the consultation process.
Given the diversity of national situations and the interest expressed by the indigenous organizations and representatives in getting maximum participation in these consultations, the Commission felt that they should be carried out in each member country by the respective government; at the same time, however, every association would retain the right to address the Commission directly, as guaranteed by the American Convention. To this end, the Commission has publicized this process widely, and will do the same with the corresponding questionnaires.
II. AUTONOMY, INDEPENDENCE, AND PERSONAL INTEGRITY OF THE
At its nineteenth regular session, the General Assembly adopted resolution AG/RES. 1022 "Report of the Inter-American Commission on Human Rights", which, in its operative paragraph 15:
Recommends to the Inter-American Commission on Human Rights that it begin a study on the measures necessary to enhance the autonomy, independence and personal integrity of the members of the judicial branch so that they may investigate violations of human rights properly and perform their functions to the fullest.
Responding specifically to the request that resulted in the resolution of the General Assembly, the representative of Colombia (see OEA/Ser.L/V/II.77, doc. 9) declared that many countries' judicial systems had been rendered inoperative by the lack of guarantees, and the lack of mechanisms and expedients for the defense of judges. Consequently, the right to justice enshrined in the American Convention on Human Rights (Arts. 8 and 25) had been seriously undermined. He also pointed that, since the IACHR was the ideal organ to propose a plan of action to strengthen the judicial systems, it could request the General Assembly to convene a Meeting of Experts or a Specialized Conference to study the mechanisms for strengthening and protecting the Judiciary, with a view to setting up a Committee to analyze and propose security measures to be discussed and accepted by the member countries. That body could also provide those governments that requested it with advisory services pertaining to their laws and institutions.
The IACHR could request the OAS General Assembly to establish a fund that would make such a program possible.
In response to that request, at its recent sessions the Commission studied the theme, with the help of the following materials among others:
- Presentations at special hearings and on-site visits by representatives of member states and nongovernmental organizations.
- A study entrusted by the IACHR to an independent consultant on "Measures necessary to enhance the autonomy, independence and personal integrity of members of the Judicial Branch". Several aspects of that study have already been completed and have been taken into consideration in this report.
- The document produced by the United States International Development Agency (AID-USA AID/LAC/P-669) entitled "Colombia-Justice Sector Reform", describing a project for cooperation among those countries for improving the administration, operation and effectiveness of Colombia's judicial system, costing a total of US$46 million for the period 1991-1996.
- The numerous cases and denunciations brought before the Commission, containing information relating to attacks, threats or measures for reducing the autonomy, independence and integrity of the members of the Judiciary.
a. Many countries are experiencing chronic situations that generally militate against the security, integrity and, consequently, the effectiveness of the Judicial Branch; but there are also other countries with specific critical situations connected to political violence or violence connected with drug trafficking, which have aggravated these situations of insecurity, hindering the proper functioning of the justice system.
b. Such situations jeopardize the guarantees that an honest, secure, stable and efficient Judiciary signify for the effective exercise of human rights. That the effects of such situations interfere with the existence of order in all its aspects, the country's social, economic and cultural improvement advancement and, consequently, with individual and collective well-being.
c. That a number of operations have been undertaken within the international community to help the states strengthen their Judiciary through a variety of organizations concerned with the subject.
d. That the situation described occurs within democratic governments brought to power through the process of free elections, and that those countries have formal universal and regional conventions in force, all with laws that guarantee the integrity, independence and effectiveness of their systems for the administration of justice.
e. That in those countries in which this situation is most critically urgent and serious, judicial officials that are direct actual or potential victims are often caught in the crossfire between guerrillas and state or paramilitary agents, to which must be added the power of drug traffickers and their hirelings.
f. That the harassment, hounding and violence to which members of the Judiciary and lawyers in general are subjected are not isolated incidents, but part and parcel of widespread violence. These situations of violence have ominous consequences that transcend the exercise of human rights, extending to many other aspects of social life.
g. Such acts are perpetrated on the assumption that they will go unpunished, an assumption validated in practice.
h. In parallel with the government authorities' quest for solutions, there is an active solidarity network composed of nongovernmental organizations devoted to promoting and defending the security of the judiciary in particular, and human rights in general.
i. That since these situations of insecurity of officials of the Judicial Branch persist in several member countries, and legislative and other measures taken by governments in an effort to find solutions to the situation are being intensified, the Inter-American Commission on Human Rights will continue to study closely those situations and their influence on the exercise of human rights.
j. That the Commission shall pay particular attention in its task to those situations, and shall instruct the Executive Secretariat to take prompt action, using every recourse available under the American Convention, and its own Statute and Regulations, in those cases in which the events denounced concern attacks, threats or measures aimed at curtailing the autonomy, independence and integrity of the members of the Judiciary in their task of appropriately investigating the violations of human rights and carrying out their functions to the full.
Following up on the work already accomplished, after examining the issue at its 81st session, the Commission has decided the following:
1. To move ahead with the studies already undertaken, delving further into the following areas: a) an identification of the sources of the threats to the safety and security of the members of the Judiciary; b) the measures that States that have experienced this situation have taken to correct it; and, c) the policies and regulations needed to reconcile the need for judicial security with the guarantees of due process.
2. To examine and assess the possibility of requesting an Advisory Opinion of the Inter-American Court of Human Rights (San Jose, Costa Rica) regarding the principles by which to assure that certain measures designed to protect the integrity, independence, and impartiality of the members of the Judiciary are compatible with the requirements of due process that emanate from the American Convention of Human Rights.
3. To recommend to the General Assembly that it resolve to convene a Specialized Conference to deal with the subject. The conference should be attended by independent experts and public officials in charge of planning and decisions in this area, and by high-ranking members of the Judiciary. The General Assembly should allocate the funds necessary to hold this conference. Because this topic has so many angles and ramifications, various organs of the OAS should participate in the conference, particularly the Inter-American Juridical Committee, the Secretariat for Legal Affairs, and this Inter-American Commission on Human Rights.
III. STATUS OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN THE HEMISPHERE
The IACHR has prepared this preliminary study on the status of economic, social and cultural rights in the hemisphere in response to the recommendation contained in paragraph 15 of Resolution AG/RES. 1044, adopted by the General Assembly of the Organization of American States at its twentieth regular session, held in Asunción, Paraguay, from June 4 to 9, 1990. The information on the situation of these rights is based on reports presented by a number of States to international agencies and a study conducted by the Pan American Health Organization.
The first point to be noted is that implementation and effective respect for economic, social and cultural rights has been hampered by difficulties stemming from the economic crisis faced by the countries of the Inter-American system. Since promoting and bringing about effective respect for these rights is a progressive process, in step with each member country's development, the requirement to implement them has been tied to each government's effective capacity to do so.
It should be noted also that, especially for the countries of the Latin American region, the decade of the 1980s was, as it has been called, the "lost decade" because most of them had to contend with the debt crisis and their consequent further impoverishment. For that reason the external debt issue has been mentioned as one more obstacle to implementing those rights. Attention is also drawn to a number of reports by international agencies which point out that many Latin American countries used the external loan resources that gave rise to the debt to buy arms.
An important development in terms of the progress accomplished by the Latin American system in implementing economic, social and cultural rights in the hemisphere is the promulgation of the Additional Protocol to the American Convention on Human Rights Concerning Economic, Social, and Cultural Rights ("Protocol of San Salvador") adopted by the General Assembly in 1988 on the occasion of its eighteenth regular session, held in El Salvador. The current status of the Protocol is shown in the annexes to the Annual Report.
Forerunners include the following international instruments: the Charter of the Organization of American States, the American Declaration on the Rights and Duties of Man, and the American Convention on Human Rights.
The guidelines on implementation of economic, social, and cultural rights in the inter-American system are set forth in the text of the OAS Charter, as amended by the Protocol of Buenos Aires and the Protocol of Cartagena (see Chapter VII, Articles 29 through 51).
The American Declaration on the Rights of Man also deals with economic, social and cultural rights in the operative part of the text. The relevant articles of the Declaration, and the rights recognized therein, are as follows: Article VI (right to setting up and protection of the family); Article VII (right to motherhood and childhood); Article XI (right to preservation of health and general well-being); Article XII (right to education); Article XIII (right to the benefits of culture); Article XIV (right to work and to fair remuneration for labor); Article XV (right to rest and recreation), and Article XVI (right to social security).
The preamble to the American Convention on Human Rights recognizes the indivisibility of civil and political rights and of economic, social and cultural rights and confirms, as does the Universal Declaration on Human Rights, that the ideal of a free human being who is also free from fear and want can be realized only if conditions are created that allow every person to enjoy those rights alongside his or her civil and political rights.
In addition, the operative part of the American Convention states, with respect to economic, social and cultural rights, as follows:
The States Parties undertake to take measures, both at the domestic level and through international cooperation, particularly economic and technical cooperation, with a view to progressively achieving full effectiveness of the rights deriving from the economic and social rules and those pertaining to education, science and culture contained in the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, to the extent of the resources available to them, through legislative or other appropriate means.
The adoption of the Protocol of San Salvador represents the culmination of the efforts accomplished by the international community of the Americas to translate all the preceding declarations into operative rules.
It is pointed out, however, that although it is now four years since the Protocol was signed, Suriname is the only Member State to have ratified it so far. Ratification by the other Member States is hence of the utmost importance.
Attention is drawn to the important contribution made by this instrument in enabling individuals to lodge complaints against violations of economic, social and cultural rights at the international and regional levels. It further provides, in Article 22, for the incorporation of other rights and broadening of those already recognized, whether by the Inter-American Commission on Human Rights or by the Member States in General Assembly.
The severest of the problems generated by the difficult economic situation that prevails in most of the Latin American countries include, inter alia, the gradual deterioration in the quality of life of their peoples, the dearth of medical-care and public-health resources of all kinds, high newborn and infant mortality rates, high unemployment and underemployment, the emergence of an informal economy alongside the formal economy, instability of economic systems and extremely high inflation, high malnutrition rates, increasing illiteracy, scarcity of decent housing, and serious environmental deterioration owing, among other factors, to pollution and over-exploitation of valuable ecological resources. An example of the latter is afforded by the denudation and indiscriminate felling of the Amazon forest, which is endangered by the abuse and degradation to which it has been subjected.
The right to health is among those most seriously affected by the critical economic situation. Public sanitation and drinking water supply services are practically nonexistent for the great majority of the region's people.
A critical event in the area of the right to health in 1990--an event that shook the American and international community--occurred in Peru, which was ravaged by an epidemic of cholera, a disease of poverty. The Pan American Health Organization (PAHO) stressed that under the economic and social conditions prevailing in the region it would be it very difficult to come up with a quick solution to this serious problem.
A total of 160,000 cases were known in Peru, equal to 3 percent of its population. About 2,700 new cases of the disease were registered each day. In addition, reports were received of new outbreaks of the disease in many other Latin American countries.
In Ecuador, the number of persons infected with cholera is estimated at between 2,000 and 5,000, and over 100 deaths have been recorded. The estimates for Colombia were even higher, with 87,000 cases recorded before the disease was brought under control. At the time of the report 5 deaths had been recorded and 174 persons were known to have the disease. In Chile 31 cases have been recorded. In Brazil the disease is presumed to be spreading even though only five cases were recorded up to April 27, 1991.
Another alarming development affecting the right to health in the region is the appearance of Acquired Immune Deficiency Syndrome (AIDS), especially in the United States and Brazil. In the case of Brazil its transmission is strongly linked to extreme poverty; it is moreover associated with illiteracy since most of the campaigns against this terrible threat are based on written fliers and graphic documents which cannot be understood without a minimum level of literacy.