PERMANENT COUNCIL OF THE OEA/Ser.G
ORGANIZATION OF AMERICAN STATES CP/CAJP-1610/00 rev. 2
24 April 2000
COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS
DIALOGUE ON THE INTER-AMERICAN SYSTEM FOR THE
PROMOTION AND PROTECTION OF HUMAN RIGHTS
(Report by the Chair)
II. Evaluation of the inter-American human rights instruments and the institutions that comprise the system1. The General Assembly adopted several resolutions at its twenty-ninth regular session relating to the work of the various organs and entities and to the functioning of the set of juridical instruments that make up the inter-American human rights system. In particular, the General Assembly decided in resolution AG/RES. 1633 (XXIX-O/99) "to instruct the Permanent Council to continue its comprehensive consideration of the various aspects involved in the evaluation of the inter-American system for the promotion and protection of human rights with a view to strengthening and improving it, formulating such recommendations as it considers appropriate" and, in this context, "to promote dialogue and cooperation among the organs, agencies, and entities of the inter-American system and, where appropriate, with the Inter-American Institute of Human Rights and other governmental and nongovernmental organizations and institutions."
2. The Committee on Juridical and Political Affairs, chaired by Ambassador Claude Heller, Permanent Representative of Mexico to the Organization of American States, was entrusted the task of pursuing this mandate by the Permanent Council. At its meeting on September 13, 1999, the Committee approved an annotated agenda for the dialogue, with the purpose of identifying criteria and points of view for strengthening and improving the promotion and protection of human rights in Hemisphere.
3. The dialogue was formally launched at the Committee's meeting of September 22, and has proceeded on a steady path through the meetings of October 20 and December 2, 1999, and January 27, March 6, and March 16, 2000, on the basis of that annotated agenda.
4. This working document is intended to record the opinions expressed by the various participants in the dialogue and thereby facilitate the delegations' work. For the sake of clarity, this document will follow, as far as possible, the order of the annotated agenda for the dialogue.
- Despite the efforts of various administrations, the Senate has, since 1977, opposed ratification of the Convention, on the grounds, among others, that it is fundamentally contrary to domestic law, both federal and state, with respect to the death penalty, the administration of juvenile justice, the freedom of expression, and abortion. If it were to ratify the Convention, the United States would be obliged to enter the necessary reservations and statements of interpretation. Still, these problems should not be considered permanent obstacles to ratification, nor do they represent sufficient grounds for renegotiating the instrument.b. The United States has nevertheless submitted to the procedures of the Commission, both through the case system and through on-site investigations, on the basis of the provisions of the American Declaration. The United States has supported the allocation of greater resources to the Commission and the Court, and is the largest donor to the Commission's voluntary funds.
c. In terms of strengthening the inter-American system, the United States has stated its support of: a significant increase in the human and financial resources of the Commission; a redefinition of the Commission's functions--some of which could be transferred to the Inter-American Institute of Human Rights--and the delegation of preventive diplomacy efforts to a body such as the Office of the United Nations High Commissioner for Human Rights, so that the Commission could concentrate on the case system; and amendments to the Commission's procedures to reduce the time taken to process cases, to clarify the definition of admissibility requirements--distinguishing between cases judged admissible and petitions of admissibility--and to broaden the Commission's powers of investigation. Finally, the United States suggested that the Commission should no longer represent petitioners in proceedings before the Court, so as to reduce its workload and avoid the impression in member States appealing to the Court that there is a conflict of interest.
a. In this respect, Article 4, which protects the right to life "in general, from the moment of conception," could be incompatible with Canadian law and jurisprudence in the matter of reproductive freedom; Article 13, which prohibits prior censorship in the exercise of freedom of thought and expression, would be contrary to Canadian laws that seek to protect vulnerable groups by prohibiting propaganda that incites racial hatred or promotes child pornography; Article 22, according to which "no one can be expelled from the territory of the State of which he is a national," is contrary to Canada's obligations under extradition treaties, including the Statute of the International Criminal Court; and the provisions of Articles 1, 23, and 24 do not provide for "affirmative action," which is regarded in Canada as essential for the protection of human rights.
b. While, in principle, reservations and interpretive statements could be used, Canada believes that reservations should be kept to a minimum in this area. This does not mean that Canada believes it necessary to renegotiate the Convention, at least not for the sole purpose of meeting Canadian requirements. Canada accepts the Commission's jurisdiction on the basis of the American Declaration; in this respect, it has cooperated in the settlement of several cases, for the most part relating to the enforcement of immigration law, and the Commission conducted a visit in 1997 to examine the system for determining refugee status.
c. The Commission will have to be given a larger budget from the Regular Fund, particularly as it makes progress in reforming its procedures.
d. Consideration should be given to creating an office within the OAS to coordinate national human rights institutions. Such an office, which could be part of the Unit for the Promotion of Democracy or of the Commission itself, could act as a liaison between national institutions and the various treaty-related bodies.
6. The Paraguayan delegation stated that, apart from full ratification of or accession to the inter-American human rights instruments, the two essentials for strengthening the system were acceptance of the contentious jurisdiction of the Inter-American Court of Human Rights and fulfillment of the decisions and recommendations of the Court and the Commission.
7. The delegation of Ecuador agreed with the comments made by Paraguay and emphasized that the principles of universality, indivisibility, and interdependence of human rights (civil, political, economic, and social rights, including the right to development) should serve as the basis for analysis of the inter-American human rights system from an integrated perspective. In this context, full accession to or ratification of the system's legal instruments also involves keeping reservations to a minimum--only to cases where they are unavoidable--and considering the possibility of withdrawing those reservations already made.
8. The Chair noted the following points of agreement arising from the exchange of views on the preliminary evaluation of inter-American instruments and institutions:a. Full ratification of or accession to inter-American human rights instruments is essential for strengthening the system.
III. Strengthening and improving the inter-American system
A) Inter-American Commission on Human Rights (IACHR): procedures and rapporteurs
1. Dialogue on this topic has taken place at two levels: with the organs of the system and among member States. In this report, for the sake of consistency, observations made by the various participants are grouped under the topics identified throughout the exchange of views.
2. The Chair of the Inter-American Commission on Human Rights, Professor Robert K. Goldman, indicated that the Commission attaches great importance to the task of preparing its new Regulations. In this effort, the Commission has consulted widely with members States, experts acting in their individual capacity, and perhaps a hundred nongovernmental organizations (NGOs). He noted that the most severe criticisms of the Commission have come from NGOs, and that the greatest range of views is among the States.
In particular, he highlighted the following thematic areas.
a. Processing of petitions: general aspects
He recognized the need for the Commission to be more rigorous in processing complaints, citing as an example those situations where the petitioner alleges violations of due process.If the Commission does not issue findings on the decisions of national courts, it does, however, determine whether the effects of such decisions are consistent with the obligations assumed by the State under the Convention.
i. Before a complaint is processed as a case
The Commission's practice in this regard has changed. Complaints are being processed more carefully, so that those without merit may be declared inadmissible from the outset. In examining petitions, the Commission is ascertaining whether they meet the requirements not only of Article 46 of the Convention (such as prior exhaustion of domestic remedies) but also, to an increasing degree, those of Article 47, in particular whether the complaint involves a violation of rights guaranteed by the Convention.ii. After a case has been openedThe great majority of States are in favor of reports on admissibility. Indeed, some States are unwilling to enter into friendly settlement proceedings unless the Commission has issued a decision on the admissibility of the petition.In this respect as well, the Commission has been modifying its practice. These reports are now more concise and are drafted to be as neutral as possible, so as not to prejudge the responsibility of the State or influence the ultimate decision of the Commission.iii. Publication of reports on admissibilityNo provision of the Convention either implicitly or explicitly prohibits the Commission from publishing reports on admissibility.In its advisory opinion OC-13, the Court referred only to reports connected with Articles 50 and 51. Admissibility reports are unrelated, since they neither contain conclusions with respect to the alleged facts or violations of rights nor recommend any measure with respect to reparations. Should the States see fit, they may seek an advisory opinion from the Court on this issue.Admissibility reports are simply statements to the effect that the petition has been declared admissible.Their publication serves to disseminate the Commission's case law.
c. Follow-up on the Commission's recommendations
The principle of good faith in the fulfillment of recommendations issued by the Commission involves more than the obligation to make an effort to fulfill them. When the Commission does not exercise its authority to bring a case before the Court, this does not mean that the Commission can no longer look into the case.
The practice of follow-up hearings is consistent with the aims of the Convention. The Human Rights Committee established by the International Covenant on Civil and Political Rights has been doing this for years. Yet the Commission has never published a report on its follow-up work.
The Commission will continue to hold "follow-up hearings," and will include the practice in its Regulations.
d. Friendly settlement mechanisms
These have given rise to some major innovations which, in light of the success of the mechanism, should be governed by the Commission's new Regulations.
The Commission cannot, however, compel the parties to engage in the friendly settlement process. When both parties have decided on this course of action, the Commission then assumes the role of mediator or arbitrator.
e. Action before the Court
There appears to be a consensus that, when the Commission refers a case to the Court, the petitioner should be allowed to act in his own right and not through the Commission during the proceedings. This would not require an amendment to the Convention, since Article 57 merely provides that "the Commission shall appear in all cases before the Court." Nothing prevents the Court from amending its own Rules of Procedure.
The Commission, however, is the party bringing the case before the Court, so its limiting its role to that of amicus curiae is out of the question.
f. Compliance with decisions
The integrity of the inter-American human rights system depends to a large extent on compliance by member States with the decisions of its organs.
Where a State, in the exercise of its sovereignty, has freely undertaken a specific obligation under international law, it cannot cite provisions of its domestic law to excuse itself from fulfilling that obligation.
3. The exchange of views among States resulted in a number of proposals, as summarized below.
a. Processing of petitions: general aspects
i. The Commissionís Regulations should be amended to establish a reasonable time limit for the submission of additional information by petitioners. (Jamaica)ii. In the initial procedure by which the Commission receives an individual petition, it should explain clearly each of the elements involved in the entry of the petition for consideration and, if applicable, its acceptance, in principle, as admissible, in light of the requirements established in the Statute and the Regulations. (Bolivia)iii. All cases that, prima facie, meet the admissibility requirements should be opened, and those that do not should be promptly declared inadmissible, by means of a report which should explain the legal basis for that decision and should be included in the Annual Report of the Commission. (Argentina)iv. The six-month time limit established by Article 46 of the Convention should not be modified. (Antigua and Barbuda)v. When the Commission receives a petition, this should be transmitted in full to the State, unless doing so would put the petitioner in danger. Once the time limit has elapsed, no further information should be accepted. Holding hearings during this stage could save time and money. (Canada)
vii. No provision of the Convention, or of the Statute of the Commission, empowers the Commission to inform the public of precautionary measures processed under Article 29 of its Regulations. Such precautionary measures must be kept confidential until one of the reports that the Convention allows to be published has been adopted, for example, the report on friendly settlement (Article 49) or the final report on the merits (Article 51). (Peru)
b. Admissibilityi. The Commission should not be obliged to rule on whether domestic remedies have been exhausted, unless the State cites this argument in its defense. (Bolivia)ii. In the case of a defense alleging duplication of procedures, the Commission should be barred from considering a petition only when the outcome of proceedings under way in another international organization would be legally binding. (Bolivia)
iv. The Commission should follow objective, transparent criteria in opening cases, so as to promote an atmosphere of trust in relations between the Commission and the States and, as a result, promote appropriate solutions to human rights problems. In that connection, we suggest possibly creating a step, preceding the current procedure, in which the Commission could gather information enabling it to decide whether to open a case prior to publication of the report on admissibility. (Brazil)
v. In order to avoid confusion between the specific right addressed and the substance of the complaint, the Commission should declare inadmissible any petition dealing with a right that is not protected by the Convention. (Bolivia)
vi. The parties must have the broadest possible access to documentation relating to the case, and the time allowed the Commission to prepare its report should be reduced by half. (Bolivia)
vii. The Commission must shorten the time limits for rendering its decisions on admissibility, particularly when precautionary measures have been requested. The experience of the Human Rights Committee may be useful in this regard. (Canada)
The question of admissibility should not be treated as a single question. On the contrary, it has three aspects that must be clearly separated: (1) admissibility as a necessary, independent, and autonomous procedural phase; (2) the power of the Commission to express its decision on admissibility by means of a report; and (3) the power of the Commission to publish that report. (Mexico)Regarding the drafting of reports on admissibility, the Convention provides, in the treatment of contentious cases, only for preliminary and final reports, so that the Commission lacks the authority to follow its current practice. Moreover, even if a broader interpretation of the Convention led to the conclusion that the Commission in effect has the authority to draft the report in question, under no circumstances does it have the authority to publish it. (Mexico)The foregoing conclusion is based on the following considerations: (1) the only publication authorized by the Convention is the final report, as provided in Article 51; (2) the publication of the reports on admissibility, under current practice, involves a number of steps in which the responsibility of the State is prejudged; (3) therefore, in practice, their publication has the effect that is intended to be achieved with the publication of the final report--that is, sanction--but without the prior completion of formal procedures demonstrating such responsibility on the part of the State. (Mexico)xi. However, these difficulties may be solved as follows: (1) by modifying the format of the "reports," henceforth calling them "resolutions"; and (2) by limiting their content to a minimal indication of the facts and the applicable law and notice of the decision adopted by the Commission. (Mexico)xii. The Convention does not authorize the publication of "reports on admissibility." Decisions on admissibility should be conveyed exclusively to the States and the petitioners on a confidential basis. (Peru)xiii. The publication of reports on admissibility lends certainty to the processing of the case and facilitates the monitoring thereof by the parties and by public opinion. Neither the instruments nor the interpretations thereof prevent the Commission from publishing such reports. (Paraguay)xiv. Once a petition has been declared inadmissible by the Commission, there should be no possibility of reopening the case. A declaration of inadmissibility should be interpreted as the setting aside of a case by the Commission. (Jamaica)xv. A petition's admissibility or inadmissibility should be determined through an adversarial procedure distinct from the subsequent examination of the merits. (Argentina)
xvii. The Commission is not a fourth level of jurisdiction. Doctrine confirms that the Commission does not claim competence either to review decisions made within a national judicial system acting within its purview and adhering to proper judicial guarantees nor to rule on such decisions unless individual guarantees have been violated or such decisions involve the violation of other rights enshrined in and protected by the Convention. (Paraguay).
c. Friendly settlement mechanisms
i. The offer of friendly settlement should be conditional upon a finding of admissibility of the petition. (Argentina)ii. When the Commission decides to withdraw as mediator of a friendly settlement process, in the cases provided for in Article 45 (7) of its Regulations, it should issue a resolution duly explaining the basis for that decision. (Bolivia)iii. The friendly settlement mechanism does not always work. Many cases cannot be resolved through negotiation, because the complainant makes negotiation conditional on the State's recognition of full responsibility for what has occurred. In that sense, in order for the mechanism to work, the Commission must act as a true mediator to reach a satisfactory solution or assess whether the mechanism can be employed in all cases. (El Salvador)
d. Preparation of the report (Articles 50 and 51 of the Convention)
i. In its report, the Commission should state its position on all points raised by the parties, and should explain the basis for the opinion referred to in Article 51 (1) of the Convention. (Bolivia)ii. Provisions should be made to enable the complete text of the State's replies to be included, including the replies given during hearings convened by the Commission. The context of the report should be borne in mind. And the Commission should provide information on the current legal system and the particular political and social circumstances facing the State. (El Salvador)iii. The period of three months provided in Article 51 of the Convention should be observed, and legal interpretations should not be used as a means of cutting it short. (El Salvador )
i. Provision should be made for reconsideration of the report referred to in Article 50 of the Convention, solely in favor of States not parties to the Convention, through an adversarial procedure. This would be especially important in the case of federal States, in order to facilitate consultation with local authorities. (Argentina)
f. Follow-up to recommendations of the Commission
i. Publication of a final report constitutes the conclusion of the proceedings, according to the Convention and the Court's case law. It should be recalled that the preparation and publication of the Article 51 report are not necessarily required, but are, rather, at the entire discretion of the Commission. Therefore, if the Commission finds that a case should remain under its jurisdiction, it need only maintain the confidentiality of the report. The decision falls not to the State but to the Commission. (Mexico)ii. The Convention does not empower the Commission to follow up on the recommendations contained in its final reports. These reports are the final stage in the processing of individual petitions. The recommendations they contain are recommendations and nothing more. (Peru)
iv. Follow-up on decisions and recommendations relating to final reports is not appropriate. El Salvador endorses this position in the sense that institutionalizing such follow-up by amending the Regulations would be inconsistent with the letter and spirit of the American Convention.
g. Action before the Court
i. The possibility of the petitioner's appearing before the Court in his own right, from the point at which the case is referred to the Court, is something that should be carefully studied and discussed with the Court, and this has not happened so far. Implementing this proposal, however, should be contingent upon a substantial modification of the Commission's role. Otherwise, not only would the problem of the Commission's acting as judge and party not be resolved, but the procedural balance would be disrupted, since the States would now have to litigate against two parties with separate legal standing representing the same interest. One possibility would be for the Commission to act as amicus curiae, or friend of the court, in order to legitimately represent its legal interest in the case. (Mexico)ii. Consideration should be given to reforming the Commission by joining the Court and the Commission in a single body, as in the European system, redefining the functions of the Commission vis-a-vis the petitioners, and allowing the petitioners to participate directly in the proceedings from the beginning. Resources could perhaps be saved, and procedural criteria standardized, if the two bodies had the same headquarters. (Bolivia)iii. The Convention does not provide for the appearance of petitioners before the Court in their own right, but rather provides that only the Commission and the States may submit cases to the Court. Direct representation by petitioners before the Court would entail amendment of the Convention. (Peru)
h. Compliance with decisions
i. As regards the rank of international law within national law, the real problem the States face is not the lack of clarity as to whether international law takes precedence, but the lack of an appropriate judicial context that recognizes the weight human rights instruments already possess in the constitutional sense. (Mexico)ii. Fulfillment of the decisions of the inter-American human rights organs is essential to the functioning of the system. The primacy of international law entails furthering the application of international law by national courts. (Chile, Ecuador, Paraguay)
i. Special Rapporteurs
i. Until the Special Rapporteur for Freedom of Expression was appointed, this function had been entrusted to a member of the Commission. The appointment of individuals from outside the Commission creates confusion and detracts from the legitimacy of the rapporteur's function. (Mexico)
ii. The limitations facing the Commission are not sufficient reason to adopt a mechanism not provided for in the Convention, especially when the rapporteur can receive petitions and circumvent the Commission in communicating with States. There should at least be prior consultation with the States on the appointment of the rapporteur, without compromising the Commission's independence, since the role of the rapporteur is not to protect but to promote human rights in a specific area. (Brazil, Mexico, Peru)
iii. Special rapporteurs should not concern themselves with individual cases. Their responsibility should be limited to situations of a general nature. (Brazil)
iv. There is a lack of clarity and precision in the Regulations of the Commission regarding the establishment and functioning of the special rapporteurs. Topics addressed in special rapporteurs' reports should be treated on equal terms. (Paraguay)
v. The Special Rapporteur on Freedom of Expression cannot substitute for the Commission in hearing individual complaints, which can be processed only by the Commission itself through the case system, once domestic remedies have been exhausted. The special rapporteur is a mechanism of the Commission itself; therefore, the rapporteur can report only to the Commission. The special rapporteur cannot submit reports directly to the General Assembly. (Peru)
B) Inter-American Court of Human Rights
1. The President of the Inter-American Court of Human Rights, Judge AntŰnio A. CanÁado Trindade, participated in the dialogue and submitted a complete and detailed report, with eleven appendices, dealing with the functioning, development, and powers of the Court and the initiatives that have arisen in different arenas with a view toward strengthening the inter-American human rights protection system. This report from the President of the Court, in addition to being a response to the invitation extended by the Committee on Juridical and Political affairs, is also the result of a wide-ranging process of reflection that has been taking place within the Court, through its meetings with the Commission, the seminar on The Inter-American Human Rights Protection System on the Threshold of the 21st Century, held in San Josť, Costa Rica, on November 23-24, 1999, and four meetings of experts held at the Courtís headquarters between September 1999 and February 2000.
2. After stressing how important the dialogue was to the Court, in that strengthening the system "is a task that involves us all," the President described the path the Court has followed over its 20-year existence in both its contentious and advisory roles. During that period, the number of States accepting its contentious jurisdiction has risen from one to 20. Its needs, and those of its users, therefore require that "the Court adapts to current realities," and so "it is important that the Inter-American Court and the Commission, and the Organization of American States and its members recognize the present needs of the inter-American human rights protection system and work to strengthen it." See the report submitted by the President of the Court which, by reason if its importance, must be seen to be an essential part of this document. The following sections will only indicate the topics addressed by the President of the Court; however, those that are directly related to the issues discussed during the dialogue will be commented on accordingly.
a. Substantive aspects of the Courtís work: contentious and advisory procedures.
b. Institutional aspects of the Courtís work: organization of sessions and support from the Secretariat.
c. Progressive development of the Courtís Rules of Procedure.
d. Initiatives for strengthening the inter-American human rights protection system proposed at the seminar and the meetings of experts. These mainly addressed the following points:
i. Participation by individuals in Court proceedings (locus standi in judicio). Following the evolution that has made the individual a full subject of international human rights law, there is a consensus for granting individuals full juridical capacity to appear at all stages of contentious proceedings instead of, as has been the case to date, restricting them to the reparations phase. This could be achieved by modifying the Rules of Procedure, instead of through a Protocol to the Convention.ii. Functions of the Inter-American Commission. The Commission should maintain its role as the guardian of the Convention and carry out the noncontentious functions it has performed so effectively, particularly through its on-site observations and its reports on general human rights situations. With regard to procedures, the need for the Commission to improve the production of evidence has been mentioned, in order to avoid duplications of efforts by the Court and the Commission; the power to assess evidence would, however, be reserved to the Court. Mention has also been made of the possibility of the petitioners being consulted in the procedure for the submission of cases to the Court.iii. Compliance with the Courtís judgments. The Court must, in accordance with Article 65 of the Convention, continue to inform the General Assembly about cases in which its judgments are not observed, so that the Organizationís Member States may collectively guarantee the functioning of the inter-American protection system. Reference has been made to introducing mechanisms for compliance with judgments into Statesí internal legal systems, and to the possibility of the Commission filing suit to ask the Court to declare an additional violation of the Convention by States that fail to observe the Courtís decisions.iv. Implementation of the Commissionís recommendations. Given that States are obliged to make their best efforts to implement the Commissionís recommendations in good faith, it has been suggested that States that do not agree with the Commissionís recommendations could be allowed to take the matter to the Court for a definitive interpretation.e. Additional resources for the Court. In recent years, there has been a substantial increase in the numbers of cases, advisory opinions, and provisional measures brought before the Court; this has necessarily led to higher numbers of sessions per year. This notwithstanding, the Courtís budget has remained unchanged for the past three years, sorely testing the Courtís ability to perform the tasks with which it has been charged by the States; neither does it reflect the increase in the number of States that have accepted its contentious jurisdiction. The analysis conducted by the Member States to remedy this situation must take into account the fact that the judges are not salaried. A 50 percent increase in the Courtís budget would only assist its operations but would fall far short of the amount required were the Court to function permanently.f. Conclusions. The President of the Court stated that, in the task of strengthening the system, constant consideration must be given to the broad scope of the protection obligations arising from human rights treaties, "which bind together all the branches of government: executive, legislature, and judiciary. By establishing obligations for Member States with respect to all the people under their jurisdiction, said treaties require the exercise of the collective guarantee for fully attaining their goal and purpose. As we stand at the threshold of a new century, the Inter-American Court of Human Rights trusts that through the permanent exercise of that collective guarantee, a contribution will be made to the strengthening of the inter-American human rights protection system."
3. The delegations involved in the debate came out, unanimously and strongly, in favor of budget reallocation measures that would help alleviate the Courtís financial situation.
4. Regarding the measures proposed for strengthening the system, several delegations stressed the importance of any reform process, on account of the complexity thereof, being in accordance with the Convention, taking place gradually, and enjoying at all times the unanimous support of the States that created the system. (Brazil, Paraguay, El Salvador, Nicaragua)
5. Two delegations remarked that the exercise currently being carried out was aimed at obtaining concrete results, and that it could not conclude with mere changes to the Commissionís Regulations and the Courtís Rules of Procedure. (Chile, Trinidad and Tobago)
6. The delegation of Ecuador expressed its support for the direct application of international human rights law within domestic legal systems, on account of the pro homine nature of the system. It also said it would be useful to think about the obligatory jurisdiction of the Court ipso jure, as in the European system.
7. The delegation of Mexico asked the President of the Court the following questions:
a. In light of the fact that the Court is the only fully jurisdictional body, to what extent does the Court consider itself bound by the Commissionís procedures and factual rulings?
b. With provisional measures, what guidelines are used to determine the minimum evidence the Commission must provide in each specific case to demonstrate that a situation of extreme urgency effectively exists?
c. Finally, with regard to locus standi, if it is admitted, it would imply a major change in the Commissionís role, more resembling that of an amicus curiae or some other function, in compliance with its exclusive role as guardian of the Convention. Otherwise, there could be a risk of a State litigating against two parties.
8. The President of the Court answered these questions in the same order:
a. The Court has, at all times, the authority to assess any evidence or fact produced by the Commission. However, as the Commission improves its procedures to ensure that evidence is produced with due guarantees, it would in principle not have to be produced again before the Court.
b. Considering the circumstances that by nature surround situations of this kind, and in light of the purpose of provisional measures within international human rights law, the same degree of proof as is needed in a contentious procedure cannot be demanded. The Court is obliged to act on the basis of information that, prima facie, demonstrates the existence of a threat to a given individualís life or person.
c. The role of the Commission would indeed be modified, and what at first could be restricted to the participation of the alleged victim in all the contentious phases could later lead to the individual having direct access to the Courtís jurisdiction.
C) Inter-American Institute of Human Rights
1. The President of the Inter-American Institute of Human Rights made particular reference to the following issues:
a. Procedures of the Commission and the CourtHe said that the procedural differences in the way cases were handled by the two bodies should be corrected solely by those bodies through modifications to their regulations.b. Incorporating the system into domestic lawHe said that the States should develop a domestic legal framework for the automatic implementation of decisions reached by the systemís bodies. He also noted the need for greater interaction between the Inter-American Commission and Court and the different national institutions involved in promoting and protecting human rights.f. Role of the OASís political organsHe repeated an opinion expressed by different sectors Ė most notably the Court and the Commission, as well as nongovernmental organizations Ė that the political organs of the OAS should act as guarantors of compliance with the decisions of the systemís institutions.
D) Nongovernmental Organizations
1. Around 160 NGOs drew up a document titled Action Plan for Human Rights: A Continental Challenge, A Joint Undertaking, containing a series of proposals related to system reform.
2. Americas Watch, the Center for Justice and International Law (CEJIL), and the International Human Rights Law Group placed great emphasis on the importance of their having being invited, for the first time ever, to offer their points of view on the system to a principal committee of the Organizationís Permanent Council, and they offered to work with and assist the States, as constructively and as positively as possible, in their efforts to strengthen the protection of human rights.
3. The representative of Americas Watch spoke on the following issues:
a. Impunity and crises in the administration of justice. He said these two elements were the chief causes of human rights violations in the hemisphere.b. Procedures. He said that the revision of procedures should pursue the following goals:i. Speeding up the processing of individual cases.ii. Increasing the effectiveness of the system.iii. Ensuring greater transparency in and public access to the dealings of the Commission and the Court.iv. Avoiding duplicating procedures when a case is referred to the Court.v. Clarifying and regulating Commission practice in preliminary cases.
4. The representative of the International Human Rights Law Group offered the following comments:
a. The dialogue about the system must be expanded not only to nongovernmental organizations based in Washington, but also, and most particularly, to national human rights promotion organizations and other sectors that are involved, such as legislatures, the courts, universities, etc.b. Any bid to review the system must begin by assessing the human rights situation in each of the States and then, in light of those assessments, the orientation the system should have can be determined.c. Although the advancement of democracy in the region is a reality and major progress has been made in protecting human rights, serious violations of those rights still occur persistently. There is a crisis of identity within the system, in that neither the States nor the organs have a clear idea of the direction they want its reform to take.
5. The representative of CEJIL made the following comments:
a. Finance. She proposed doubling the budget for the Court and the Commission over a period of three years and using the new funding to finance the following:i. The chair and presidency of the two organs to be permanent positions.ii. Extending the duration of sessions.iii. Doubling the staff levels of the Commission and the Court.iv. Financing the production of evidence in contentious cases.b. Election of judges and commissioners. The election mechanism should guarantee:i. That only individuals of the highest moral and professional standing serve as judges and commissioners.ii. That both sexes are equitably represented.c. Compliance with the decisions of the systemís organs.i. Compliance with the decisions of the Court and the Commission is essential if the system is to be effective.ii. States have the obligation of collectively guaranteeing compliance.iii. A mechanism for the political organs to intervene should be established, rising in intensity depending on the nature of the noncompliance and the reasons for it.iv. In particularly serious and extreme cases, consideration should be given to a mechanism similar to those that exist for when a breakdown occurs in a Stateís constitutional order.
IV. Chairís conclusions
The dialogue on the inter-American human rights system, held under the auspices of the Committee on Juridical and Political Affairs, yielded important results and taught important lessons. Among the things it demonstrated was that the best and most viable way to improve and strengthen the system was gradually, through consensus and transparent, impartial, inclusive dialogue. The exercise undertaken represents a vital step forward in consolidating the context of confidence and openness essential to identify and implement the measures and actions that ensuring the currency of human rights in the hemisphere requires.
Similarly, we must bear in mind that the debate on the inter-American system and, in general, on the protection of peopleís basic rights, is in no way the exclusive prerogative of any individual or group. On the contrary, it is a shared duty in which the different players involved assume specific roles. Nevertheless, by reason of their nature, the States have responsibilities that are primordial and inescapable: ensuring the currency of human rights in their territories and acting as the guarantors of the permanence, consolidation, and effectiveness of the inter-American system as a whole.
That the above premises are valid can be clearly seen in the major progress achieved during this dialogue in the discussion of different aspects of the inter-American system. As reflected in the proposed resolution for the General Assembly, ample evidence of this was given by the agreements reached on such key issues as the universalization of the system, the need for a substantial increase in the funds allocated to the Inter-American Court and Commission, the importance of complying with or enforcing those bodiesí decisions, as applicable. and the different procedural issues where clarification or regulation will increase the effectiveness, equality, and transparency with which individual petitions are processed and resolved.
Finally, the improvement and strengthening of the inter-American human rights system must seen as a long-term effort. The scope and effectiveness of its results depend on its permanence and consolidation. Thus, this dialogue must continue. The practice of debating, within the Organizationís political organs, all issues related to human rights protection Ė be they political, juridical, or institutional Ė must become a daily exercise for the States, the systemís organs, and the representatives of nongovernmental organizations.[Human Rights/tracker.htm]