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CHAPTER V AREAS IN WHICH FURTHER STEPS ARE NEEDED TO GIVE EFFECT
TO THE HUMAN RIGHTS SET FORTH IN THE AMERICAN DECLARATION OF THE
RIGHTS AND DUTIES OF MAN AND THE AMERICAN CONVENTION ON HUMAN RIGHTS
In its recent annual reports, the Commission has been submitting
to the OAS General Assembly a number of topics that it felt were
especially important regarding respect for and observance of human
rights. The Commission has suggested taking specific steps to achieve
greater observance of human rights under the American Declaration of the
Rights and Duties of Man and the American Convention on Human Rights.
The General Assembly has adopted resolutions recognizing each of the
Commission’s recommendations.
In its previous Annual Report, for 1983-84, the Commission
pointed out the urgent need to continue work to achieve prompt adoption
of an inter-American convention defining torture as an international
crime. It commented extensively on the proposed Additional Protocol to
the American Convention on Human Rights defining Economic, Social and
Cultural Rights, and urged the member states to include the human rights
instruction material in its official curricula.
Without precluding the possibility of reiterating all of these
recommendations and urging at this time the adoption of an Additional
Protocol to the American Convention on Human Rights on Economic, Social
and Cultural Rights, and the adoption at the earliest date of a
convention defining torture as an international crime, the Commission
will also deal with the problem of displacement of people in the region
and the protection of refugees, and the need to establish mechanisms to
ensure independence and strengthening of the judiciary. II.
ADDITIONAL PROTOCOL TO THE AMERICAN CONVENTION ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
In 1982, the General Assembly of the Organization of American
States adopted Resolution AG/RES. 619 (XII-0/82) instructing the General
Secretariat to prepare a preliminary draft Additional Protocol to the
American Convention on Human Rights defining social, economic, and
cultural rights. This begins a process that had remained in suspension
after the decision of the Specialized Conference that adopted the
American Convention on Human Rights not to include in it a precise
definition of economic, social and cultural rights, but rather to refer
to them in the context of the OAS Charter, which was reflected in the
wording of Article 26 of the Convention.
After drawing up the preliminary draft requested, the General
Assembly adopted in 1983 Resolution AG/RES. 657 (XIII-0/83) requesting
the Secretary General to submit the preliminary draft to the member
states, the Inter-American Commission on Human Rights and the
Inter-American Court of Human Rights for them to make any comments or
recommendations they regarded as pertinent, with a view to holding a
meeting in which the member states to the Convention would review both
the preliminary draft and the observations and recommendations on it.
Finally, the General Assembly at its XIV session adopted
Resolutions AG/RES. 742 /XIV-0/84), which in operative paragraph 12,
invited the member states, and interested organs and agencies to make
specific proposals about the rights to be included in the additional
protocol and on the institutional mechanism that it should provide for.
In response to that request, the Commission will make the following
proposals on it.
Regarding the rights to be included in the protocol, it should
first of all be noted that existing international instruments—the
Universal Declaration, the American Declaration, the International
Covenant on Economic, Social and Cultural Rights and the OAS
Charter—have to do with a relatively similar set of rights. The same
is true of the preliminary draft drawn up by the OAS General
Secretariat.
In fact, the instruments mentioned include a basic set of rights:
the right to work, to education and to health. Added to them are other
related rights that have aspects directly connected with them or with
measures aimed at putting them into practice. It would therefore appear
to be desirable to start with this trilogy of rights and group each of
them with the other aspects or related rights.
In addition, those instruments embody other general rights aimed
at the protection of institutions or groups of persons because they are
regarded as requiring special consideration. That is the case of
protection of the family, set forth in Article 16 of the Universal
Declaration, in Article VI of the American Declaration, in Article 10 of
the International Covenant and in Article 10 of the Preliminary Draft
Additional Protocol. That is also the case of protection of children and
young people, contained in Article 25.2 of the Universal Declaration,
Article VII of the American Declaration, Article 10 of the International
Covenant, and Article 10 of the Preliminary Draft Additional Protocol.
Regarding specific rights the right to work is considered in the
instruments mentioned, together with the rights to fair remuneration,
leisure time, hygienic conditions and unemployment insurance, and the
rights to organize unions, which includes such important aspects as the
right to collective bargaining and the right to strike. Closely
connected with the right to work is the right to social security.
The right to work and other related rights are included in
Articles 23 and 24 of the Universal Declaration; in Articles XIV and XV
of the American Declaration; in Articles 6, 7 and 8 of the International
Covenant; in Articles 31g and 43b and c of the OAS Charter and finally
in Article 9 of the Preliminary Draft Protocol. The right to social
security is recognized in Article 22 of the Universal Declaration, in
Article XVI of the American Declaration, in Article 9 of the
International Covenant and in Article 7 of the Preliminary Draft
Additional Protocol.
It should also be pointed out that the American Convention on
Human Rights deals with situations connected with the right to work,
when it covers in Article 6 the question of forced labor and determines
the situations in which work required by the authorities does not
constitute forced labor. Since the right to work, in the terms
considered in the proposed Additional Protocol, and forced labor, in the
terms of Article 6 of the Convention are different aspects, special
attention must be given to that difference when the final rules of the
Additional Protocol are drawn up, in order to avoid wording that may
give rise to conflicting interpretations. The observation made by the
International Labour Organization on the formulation contained in
Article 2 of the Preliminary Draft Additional Protocol referring to the
character of right and of “duty” that labor should have ought to be
kept in mind.
It should be recognized that while the right to social security
is closely connected with the right to work, and in many situations,
covers the provisions granted to workers, it should also be considered
that the right should cover persons who are not working. That is the
case of including provisions on unemployment insurance, for example, and
provisions on health benefits, which are connected with the
consideration of this specific right. In this field of the right to
social security, the task of preparing normative rules should take very
mucho into consideration the experience of the International Labour
Organization, which has conventions regulating that right—such as
Convention 102—to which several OAS member countries are States’
parties. The comments on the Preliminary Draft Additional Protocol are
also of great interest in this connection.
The right to health should be accompanied by the right to enjoy
other social conditions closely connected with a healthy life, such as
decent housing and a pollution-free environment. Because of its special
importance, the right to food should be added to these rights. The right
to health, together with the right to food and the right to decent
housing are considered in Article 25.1 of the Universal Declaration, in
Article XI of the American Declaration, in Articles 11 and 12 of the
International Covenant, in Article 31 subparagraphs I, j and k of the
OAS Charter and Article 11 of the Preliminary Additional Draft Protocol.
In line with modern trends in the international field, special
attention should be given when specific rules are drawn up to the
experience of the World Health Organization in executing the guidelines
issued by the International Conference on Primary Health Care, which was
organized by WHO in conjunction with UNICEF, and was held in Alma-Ata in
September 1978.
Following the technique usually employed in international human
rights instruments, the right to education should be accompanied by the
right to participate in the cultural life and by the right to enjoy the
results of artistic or intellectual creation. The right to education and
the other rights connected with it are set forth in Articles 26 and 27
of the Universal Declaration, Articles XII and XIII of the American
Declaration, Articles 13 and 15 of the International Covenant, Article
47 of the OAS Charter, and Articles 14, 15, 16, 17 and 18 of the
Preliminary Draft Additional Protocol.
Regarding rights to protect institutions and groups such as the
family, the Commission has also stated that in its view the Additional
Protocol should cover the situation of certain special groups, such as
the handicapped and old people in order to establish provisions to
ensure effective enjoyment of economic, social and cultural rights by
those groups. The grounds for this position are contained in the
relevant section of the 1983-84 Annual Report, so that the Commission
will not repeat its views on that subject here.
The Commission wishes to cover another aspect connected with the
rights to be included in the Additional Protocol, which is the inclusion
in some of the present international instrument of political factors
that are not human rights per se but are considered necessary to
achieve the observance of the rights in question. International
cooperation, increased per capita GNP, tax and land tenure
systems, and industrialization, and promotion of exports and private
investments are some of the factors instrumental in economic
development.
The Commission feels that this approach is not appropriate in
defining basic human rights because what is really important for the
purposes of an international instrument such as that proposed is the
effective observance of rights and not the means through which they are
attained, which involves the unpredictable field of politics. In
addition, including in the human rights concept such diverse aspects as per
capita income, industrialization of capital goods or private
investment would be an inappropriate extension of it. That would involve
the still unresolved controversy over the right to development, for
example, whose inclusion in an instrument like the one proposed does not
appear to be wise at this point.
In short, the Inter-American Commission on Human Rights feels
that the rights that should be included in the Additional Protocol to
the American Convention on Human Rights to define economic, social and
cultural rights should be based on the traditional trilogy of the right
to work, to education and to health, which should be supplemented with
the other rights associated with their implementation that were
mentioned above. In addition, the Commission feels that rules should be
included to protect institutions and groups that, because of their
special characteristics, require preferential consideration by the State
in order to achieve effective exercise of economic, social and cultural
rights. The Commission is referring here to rules on protection of the
family, children, young people, the handicapped and old people.
The Commission wishes to repeat the views it expressed in its
Annual Report for 1983-84 that the control mechanisms to be used by the
institution responsible for protecting and promoting economic, social
and cultural rights should be appropriate to the characteristics of the
right protected.
For some rights, the existing civil and political rights system
might be applicable. That would be the case when a violation occurred
because of direct action by the government, that is when the violation
might be imputed directly and immediately to the government, and
changing the situation would depend on it.
The nature of other economic, social and cultural rights would
require as a control mechanism the use of periodic and obligatory
reports submitted by these countries to the agency responsible for
protecting and promoting those rights, so that they could be taken into
consideration by that agency when it issued its opinion on the matter.
This system is appropriate for those rights whose full effectiveness
takes time and will make it possible to evaluate the progress achieved.
Specific results would therefore be evaluated in relation to economic,
social and cultural rights, thus avoiding having the institution
responsible for their protection and promotion making determinations
about development policies and models themselves.
The Commission will continue to be concerned with studying this
important matter and hopes to be in a position to submit to an early
session of the General Assembly the text of a draft Additional Protocol.
Moreover, it invites member countries and interested organizations and
agencies to submit to it before June 30, 1986, specific proposals on the
contents of the proposed Additional Protocol, especially with regard to
economic, social and cultural rights, that should be protected and the
institutional mechanisms that should be established so that the
Commission can consider those proposals when it draws up the preliminary
draft. III.
DRAFT
CONVENTION DEFINING TORTURE AS AN INTERNATIONAL CRIME
According to the recommendations made by the Commission in its
Annual Report of 1977,1
the General Assembly of the Organization approved Resolution AG/RES. 368
(VIII-0/78) requesting the Inter-American Juridical Committee to
prepare, in cooperation with the Inter-American Commission on Human
Rights, a draft convention defining torture as an international crime.2
The Inter-American Juridical Committee approved at its regular
session of January-February 1980, the “Draft Convention Defining
Torture as an International Crime,” together with a statement of
reasons. The draft was forwarded to the General Assembly with a note of
February 29, 1980.3
It should be noted that in preparing the draft, the Committee
made use of the “Draft Convention for the Prevention and Repression of
Torture,”4
approved by the Inter-American Commission on Human Rights at its 48th
session, in compliance with instructions to coordinate with the
Juridical Committee in drafting the instrument requested in Resolution
368 of 1978.
At its tenth regular session (November 1980), the General
Assembly adopted Resolution AG/RES. 509 (X-0/80), in the operative part
of which it expressed its appreciation to the Inter-American Juridical
Committee and the Inter-American Commission on Human Rights for their
work and forwarded the draft Convention, the statement of reasons and
the explanations of votes of the Committee members5
to the governments of the member countries for them to make any comments
or observations on the draft they deem appropriate and transmit them to
the Permanent Council of the OAS so it can make appropriate changes and
forward the draft to the eleventh session of the Assembly.
The Permanent Council reviewed the CJI Draft Convention over the
last four years, so the General Assembly through Resolutions AG/RES. 547
(XI-0/81); 624 (XII-0/82) and 664 (XIII-0/83) extended the deadline for
reviewing the draft. During the time the Permanent Council conducted
this careful review, the Commission has followed with interest in its
annual reports6
this codification process that the Permanent Council has successfully
accomplished until transmission of the draft to the General Assembly at
the tenth regular session (Brasilia, November 1984.)7
That session approved Resolution AG/RES. 736 (XIV-0/84), which provided
for the convening of a “Inter-American Specialized Conference to
consider the Draft Convention Defining Torture as an International
Crime,”8
to be held in 1985.
The Commission regrets that, for budget reasons, the scheduled
Inter-American Specialized Conference could not be held, and it hopes
that at this special session of the Assembly, the decision will finally
be made to consider and approve the pending draft so that the American
States will have for ratification or accession an instrument that will
help to eliminate the abominable practice of torture, or at least, to
make it an international crime punishable with severe penalties under
the domestic law of the states, and regarding which neither the benefits
of asylum (diplomatic or territorial) nor of non extradition would be
applicable.
Finally, the Commission wishes to state with regard to the Draft
Inter-American Convention Defining Torture as an International Crime,
its position regarding approval by the United Nations General Assembly
of the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Penalties,9
that the international treaty is in no way inconsistent with the
inter-American draft, as shown by the comparative study prepared by the
Secretariat of Legal Affairs of the General Secretariat in February
1985. Consequently, the OAS member states should proceed without delay
to approve the draft. The Commission wishes to recommend strongly that
the General Assembly approve it. IV.
DISPLACED PERSONS IN THE REGION AND PROTECTION OF REFUGEES
Since 1980, the Commission has been covering in its Annual
Reports the complex problem of refugees in the countries of the
Americas, especially the mass displacement of persons who, because of
widespread violence in their own countries, intimidation, direct
persecution against them or their immediate families or will founded
fears that their lives or liberty are in danger, flee to neighboring
countries seeking refuge.10
In those reports, the Commission pointed out “that the epidemic
of violence which plagues the continent has also produced a secondary
effect which, due to its magnitude, is alarming” and added the
following: “the phenomenon of the massive displacement of persons has
converted ten percent of the population of one country into refugees. In
others, the lack of political participation has caused massive flight in
boats and ships of thousands of persons (boat people). Such massive
migrations are a challenge for the nations of the hemisphere, which are
unprepared for the permanent integration of so many people into their
countries.”11
In its reports to the Assembly, the Commission has likewise
referred to the fact that existing international instruments in the OAS
framework on asylum and refuge, such as the Convention on Asylum (1928),
the Convention on Political Asylum (1933), the Convention on Diplomatic
Asylum (1954), and the Convention on Territorial Asylum (1954), are not
adequate for the current conditions of this flow of displaced persons in
the hemisphere, particularly in Central America and the Caribbean, for
reasons that should be repeated, which in summary are as follows: i)
political asylum now involves large masses of people where before it was
granted only in cases of persecution against well known political
leaders or a very small group of people; ii) political refugees are now
usually persons without financial resources and are often persons that
do not have higher education or job skills; iii) countries have no
international obligation to grant asylum, and refusal to grant it may
result in violent situations for persons or groups in urgent need of
protection; iv) many governments in the region are not disposed to grant
refugees asylum in their territories for ideological or political
reasons, because they consider that their own national security might be
endangered.
The Commission is concerned at the fact that, with the situation
mentioned and despite the urgent problem of asylum and refugees in the
hemisphere, adequate means that are based on or organized according to
the characteristics and peculiarities of the law of asylum in the
Americas, both diplomatic and territorial, and that would provide
effective help in seeking a solution to this problem are still lacking.
It is clear that, as the Commission indicated in its Reports of 1982-83
and 1983-84, the Organization of American States “has an obligation to
help solve the problems indicated, particularly in light of the new
refugee situation in recent years.”
It should also be recalled that not all OAS member countries are
yet parties to the American Convention on Human Rights, which recognizes
territorial asylum and the right not to be returned to a country
(Article 22, 8) and therefore, the proper protection provided by this
instrument is not uniform throughout the inter-American system for
asylum and refuge; in addition, a number of American countries are not
yet parties to the United Nations Convention on the Status of Refugees
(1951) and its additional Protocol (1967) and therefore, such protective
measures are not enforced throughout the Americas either.
In order to fill these gaps, the Commission proposed that the
General Assembly consider the possibility of establishing an
inter-American authority to provide assistance and protection for
refugees in the hemisphere, working “in close cooperation” with the
United Nations High Commission for Refugees. When it made that proposal,
the Commission noted the institutional guidelines for the creation of
such an authority, which would be established by the General Assembly
through a resolution that the Inter-American Juridical Committee and the
IAS might be assigned to draft, because the latter “would seem to be
the natural body to become this authority.”12
The above recommendations were repeated in the Annual Reports of
1982-1983 and 1983-1984, particularly with regard to the establishment
of an inter-American authority to deal with the refugee problem, without
establishing an organization parallel to that existing in the United
Nations, that is, the UNHCR, “because that would duplicate efforts and
fail to recognize the admirable work being performed in this field by
the Office of the High Commissioner for Refugees.” On the contrary,
what is being sought, as indicated in the reports mentioned, is the
establishment of an authority in the OAS that would cooperate closely
with the UNHCR in its efforts to achieve observance of the basic rights
of refugees and displaced persons. The Commission’s experience in
dealing with problems in this area lead it to believe that it would be
the appropriate agency to serve as that inter-American authority: the
problem of Cuban political refugees; the case of Haitian refugees in the
Dominican Republic who have been returned to that country; the Haitian
refugees in the United States; the problem of Guatemalans in Mexico and
Miskitos in Honduras; as well as the numerous complaints and individual
cases considered by the Commission are grounds for affirming its view
that establishing the authority mentioned is urgently necessary and such
authority should devolve upon the Commission itself, which is the
appropriate organization to assume the high responsibility involved in
this matter. In particular, the Commission is greatly concerned that the
problem of resettlement of refugees and displaced persons and the proper
respect that the countries of origin as well as the countries of refuge
should pay to the principle of nonreturn included in the right “not to
be turned back at the borders.”
On this important matter, the Commission wishes to point out that
a “Colloquium on International Protection of Refugees in Central
America, Mexico and Panama: Legal and Humanitarian Problems,” took
place in Cartagena, Colombia (November 19-22, 1984). The meeting was
organized jointly with the Law School of the Universidad de Cartagena de
Indias, the Regional Center for Third World Studies (COCSET) and the
Office of the United Nations High Commissioner for Refugees, all under
the generous auspices of the Colombian Government.
That Colloquium, which was attended by the Chairman, two members
and the Executive Secretary of the Commission, considered the most
important aspects of the legal problems of refugees and displaced
persons in Central America, such as general principles and specific
measures for protection, particularly with regard to situations of mass
flight, international instruments for protection and minimum standards
for basic rights and basic living conditions in situations of mass
flight, including the problem of freedom of movement of refugees and
displaced persons, their physical security, removal of them from the
borders and the other responsibilities of the state granting asylum,
such as respect for the right to non-refoulement of refugees. In
addition, the Colloquium dealt with important questions connected with
the problem of integrating refugees or displaced persons or repatriating
them, stressing that such repatriation must be entirely voluntary.
As a result of its work, the Colloquium approved the
“Declaration of Cartagena” on refugees, which takes note of the
commitments on the refugee problem included in the Contadora Act of
Peace and Cooperation in Central America, expressed its full agreement
with them, then drew up a number of conclusions, that, because of their
importance for any program the OAS might carry out in this field, the
Commission considers important to reproduce in this chapter,
particularly the fifteenth conclusion, which is closely related to the
Commission’s goals expressed in previous reports to the General
Assembly.
The text of the conclusions of the Declaration of Cartagena is as
follows:
1. Promote in the countries
of the region the adoption of internal laws to facilitate the
application of the Convention and the Protocol, and, if necessary, to
establish internal procedures and resources for the protection of
refugees. In addition, endeavor to have any domestic laws be based on
the principles and criteria of the Convention and the Protocol, thus
assisting in the necessary process of systematic harmonization of
national laws on refugees.
2. Encourage any states that
have not yet ratified or acceded to the 1951 Convention and the 1967
Protocol to do so without reservations limiting the scope of those
instruments, and invite countries that have made reservations to
consider withdrawing them as son as possible.
3. Reiterate that, in view
of the experience gained with the mass influx of refugees in the Central
America area, a widespread refugee problem must be dealt with, taking
into consideration, in the pertinent section, and in light of the
characteristics of the existing situation in the region, the precedent
of the OAU Convention (Article 1, paragraph 2) and the doctrines set
forth in the reports of the Inter-American Commission on Human Rights.
Thus, the definition or concept of refugee recommended for use in the
region might, in addition to containing elements from the 1951
Convention and the 1967 Protocol, also consider as refugees those
persons that have fled from their countries because their life, safety
or liberty have been threatened by widespread violence, foreign
aggression, domestic conflict, massive violation of human rights or
other situations that have seriously disturbed public order.
4. Ratify the peaceful,
apolitical and exclusively humanitarian nature of the granting of asylum
or the recognition of the status of refugees and underscore the
importance of the internationally accepted principle under which none of
this shall be interpreted as an unfriendly act toward refugees’
country of origin.
5. Reiterate the importance
and significance of the principle of nonreturn (including the
prohibition of rejection at the borders), as a cornerstone of the
international protection of refugees. This operative principle
concerning refugees should be recognized and respected in the present
state of international law, as a principle of jus cogens.
6. Reiterate to countries
granting asylum that refugee camps or settlements in order areas should
be installed in the interior of the country of asylum at a reasonable
distance from the borders, with a view to improving the conditions of
protection for refugees, to preserve their human rights and to implement
projects aimed at their self-sufficiency and integration into the
society that is accepting them.
7. Express concern about the
problem of military attacks on refugee camps and settlements that have
occurred in several parts of the world and propose to the governments of
the countries of Central America, Mexico and Panama that they support
measures proposed by the High Commissioner to the Executive Committee of
the UNHCR on this subject.
8. Encourage the countries
of the region to establish a system of minimum processing for refugees
based on the provisions of the 1951 Convention and the 1967 Protocol,
and the American Convention on Human Rights, taking into consideration
also the conclusions of the UNHCR Executive Committee, particularly
number 22 on protection of request for asylum in situations of large
scale influx.
9. Express concern at the
situation of displaced persons in their own country. In this connection,
the Colloquium urges national authorities and competent international
agencies to provide protection and assistance to such persons and help
alleviate the situation of anguish in which many of them find
themselves.
10. Urge the member states
of the American Convention on Human Rights of 1969 to implement that
instrument in their treatment of refugees seeking asylum in their
territory.
11. In countries of the are
that have massive numbers of refugees, study the possibility of
integrating the refugees into the country’s productive life, using
international community resources channeled by the UNHCR to generate or
create jobs, thus making it possible for the refugees to enjoy economic,
social and cultural rights.
12. Reiterate the voluntary
and individual nature of repatriation of refugees and the need for it to
take place under conditions of complete safety, preferably, to the
refugee’s place of residence in his country of origin.
13. Recognize that
reunification of families is a basic principle in the refugee problem,
which should give rise to a system of humanitarian treatment in the
country of asylum and likewise the facilities provided in the cases of
voluntary repatriation.
14. Urge nongovernmental
organizations, both international and national, to pursue their
praiseworthy efforts to coordinate their activities with the UNHCR and
with national authorities in the country of asylum, in accordance with
the directives that such authorities indicate.
15. Promote the most
intensive use of the competent agencies of the inter-American system,
and especially the Inter-American Commission on Human Rights in order to
supplement international protection of refugees seeking asylum. Of
course, to perform these functions, the Colloquium considers that
existing close coordination and cooperation between the Commission and
the UNHCR should be strengthened.
16. Place on record the
importance of the OAS/UNHCR cooperation program and the activities that
are being carried out, and propose that the first stage concentrate on
the problems posed by the mass influx of refugees into Central America,
Mexico and Panama.
17. Encourage the Central
American countries and the Contadora Group to disseminate at all levels
the domestic and international rules on protection of refugees, and in
general, on human rights. In particular, the Colloquium considers it of
special importance for universities and centers of higher education to
contribute their valuable assistance in such dissemination.
The Commission fully shares these conclusions and urges member
countries to give them their most vigorous support. V.
STRENGTHENING OF THE JUDICIARY
The importance of this topic in connection with the observation
and protection of human rights is obvious because an impartial judiciary
composed of competent judges is the best guarantee of proper
administration of justice, and in the final analysis, of defense of
human rights.
The Commission feels that the problem of strengthening the
judiciary so it can properly carry out its duties should be given
priority both domestically and by the international organizations
concerned. Thus, it feels that first, member countries should take the
necessary steps, allocate funds and establish programs for that purpose,
and second, it is highly desirable for the OAS to promote by every means
available to it and in cooperation and with the support of the
governments and public and private agencies, the formulation of plans
and programs for that purpose.
The Commission believes that the time has come for all countries
in the hemisphere to make a sustained and general effort to improve the
conditions of the judiciary, which, in many cases suffers from
breakdowns due to deficiencies in the laws in the area of public
administration, to neglect by the highest authorities who have the duty
to be concerned with the effectiveness, independence, and impartiality
of those who represent and enforce the laws, and in not a few cases, to
hostility and arbitrary interference in the exercise of high judicial
functions, including the situation of public prosecutors.
It is no exaggeration to say that in most of Latin America and
the countries of the Caribbean the judiciary does not have the
resources, either of trained professional personnel or of material
elements, required in a period characterized by the growing increase of
legal problems of all kinds, the need for making quick decisions, and
the use of modern facilities to streamline the workings of justice.
A judiciary that is respectable because of its independence and
impartiality is one of the cornerstones of democracy, so that any
initiative to support and consolidate democracy in the inter-American
system must give particular consideration to improvement of the
judiciary as an important feature of the democratic way of life.
The Commission feels that the following measures to strengthen
the judiciary in the American countries would be especially advantageous
and urgent:
a.
Establishment of national commissions to reform and strengthen
the judiciary, where that is necessary.
b.
Organization of specialized training courses for judiciary
personnel, lawyers or nonprofessional persons that aspire to enter the
judiciary, and for its auxiliary personnel; such courses might be given
under the sponsorship of the Inter-American Institute of Human Rights
(IIDH) or other university or technical centers that wish to provide
assistance. In that regard, the IACHR itself, within the scope of its
budget and of any additional funds that might be provided, might carry
out programs to train judges and professionals in the law or auxiliary
personnel, with the help of universities and inter-American institutes.
It is also recommended that governments of member states
establish or strengthen a career in the judiciary to ensure effective
stability for its members, and proper training of public prosecutors,
who, because of their impartiality, training, competence, and
independence, constitute a guarantee of just enforcement of the law.
Finally, the Commission also feels that it would be timely for
this programming to deal with issues involving modernization of the
judiciary, as indicated previously, such as the use of computer and word
processors, modern information systems, central records and modern
filing systems to protect documentary and other evidence, and speedy and
reliable recording of judicial case law, decrees, laws and other
documents that are important for dispensing justice and for the exercise
of the profession of attorney.
All of these initiatives, both nationally and inter-American, in
which states that are permanent observers to the OAS might also take
part if they wish, might help substantially to strengthen the judiciary
in member countries of the Organization. The Commission hopes that, when
the General Assembly accepts these initiatives, it adopt with high
interest the concomitant provisions that will enable the IACHR to
implement the concrete and specific programs connected with the
above-mentioned goals.
Based on the above information and considerations, the Commission
request the General Assembly of the Organization of American States to
adopt the following decisions at its fifteenth regular session:
1.
Adopt as soon as possible, either at this session or a
specialized conference to be convened at the earliest date, the proposed
Inter-American Convention defining torture as an international crime.
2.
Invite the governments of member countries and the organs and
agencies that so desire to submit to the Inter-American Commission on
Human Rights by June 30, 1986, specific proposals on the contents of an
additional Protocol to the American Convention on Human Rights on the
subject of economic, social and cultural rights, especially with regard
to defining rights to be protected and the institutional mechanisms that
should be set up to attain adequate protection of those rights, so the
Commission can submit to a forthcoming session of the General Assembly a
preliminary draft Additional Protocol on this subject.
3.
Urge member countries to support, and in accordance with their
capabilities, carry out the conclusions and recommendations of the
“Declaration of Cartagena on Refugees,” adopted on November 22,
1984, by the Colloquium on International Protection of Refugees in
Central America, Mexico and Panama.
4.
Recommend that member countries take effective measures to ensure
the strengthening and independence of the judiciary.
5.
Again recommend to member countries the inclusion as classroom
material in their primary and secondary official curricula the teaching
of human rights, as defined in the respective constitutional provisions
and in the corresponding international instruments. [ Table of Contents | Previous ] 1
OEA/Ser.L/V/II.43, doc. 21, corr. 1, p. 27. 2
Proceedings: OEA/Ser.O/Viii-0.2, vol. I, p. 86. 3
Doc. CJI-42, pp. 43 to 97. 4
OEA/Ser.L/V/II.48, doc. 27 of December 14, 1979. 5
OEA/Ser.P/AG/doc. 1227/80. 6
a. Report 1982 (OEA/Ser.L/V/II.61, doc. 22, rev. 1, pp. 37
and 38; b. Idem, 1983-1984, pp. 135-36. 7
See Report of the Permanent Council: AG/doc.1812/84. 8
OEA/Ser.P/AG/doc.1902/84, rev. 1 p. 107. 9
Resolution 3946 (XXXIX) of December 10, 1984. 10
See Reports of 1980-81 (OEA/Ser.L/V/II.54, doc. 9, p. 127;
1981-82 (OEA/Ser.L/V/II.57, doc. 6 rev. 1, p. 134 et seq.; 1982-83
(OEA/Ser.L/V/II.63, doc. 10, p. 136 and 146. 11
Annual Report 1980-1982, p. 134. 12
Report 1981-82, op. cit. p. 142.
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