We are forty days from the year 2000. On the eve of the new century, we live a moment of deep reflection on the future of mankind. The great thinkers of the XXth century have been unanimous in warning to the paradoxes of our times, such as the divorce between specialized knowledge and wisdom, and the antinomy between the advances in the sciences and the lack of control of human impulsos. It is painful to acknowledge that, in fact, the extraordinary scientific and technologiccal advances of our time have been accompanied by unprecedented cruelties against the human being. This most tragic paradox of the XXth century leads us, on the other hand, to rescue, as the most precious legacy for the next century, la evolution, fostered in moments of lucidity amidst so much violence and destruction, of the international protection of human rights along the last five decades.
Slightly over twenty years ago, on 03 September 1979, the Inter-American Court of Human Rights was being installed, in this city of San José of Costa Rica, created as it was by the American Convention on Human Rights of 1969. At that time, the Convention had 14 States Parties, and not a single one had accepted the jurisdiction in contentious matter of the Court. Two decades having lapsed, of the present 24 States Parties to the Convention, 20 have recognized the contentious compulsory jurisdiction of the Inter-American Court, giving today unequivocal signs of their determination to exercise the collective guarantee underlying the Convention to the benefit of all human beings under their respective jurisdictions.
May I take the historical commemoration of today, at first, to thank the people and the Government of Costa Rica, in the person of the President of the Republic, for having hosted throughout the last two decades the Inter-American Court of Human Rights; without this support this latter would not be the institution which is has become nowadays. Besides the headquarters of the Court, Costa Rica has donated to this latter an annual contribution which has proven vital for the operation of the Tribunal. The Government of Costa Rica signed with the Court two important Agreements: that of the privileges and immunities of the Tribunal (Headquarters Agreement, in force since 1983), and that of the creation of the Inter-American Institute of Human Rights (which entered into force in 1980).
In its twenty years of existence, the Inter-American Court has held 46 ordinary sessions and 23 special sessions, at the end of which it has adopted, until now, 16 Advisory Opinions, and 62 Judgments (on preliminary objections, competence, merits, reparations, and interpretation of sentences) on 35 contentious cases. It has, furthermore, adopted provisional measures of protection in more than 20 cases of extreme gravity and urgency, due to which it has succeeded in avoiding irreparable harms to the persons. This case-law of protection is a juridical heritage of all States Parties to the American Convention. During the years of application of the American Convention, thanks to the joint labour of the Inter-American Court and Commission, numerous lives have been saved, remedies and procedures of domestic law have been established or perfected in order to secure the observance of human rights, national laws have been harmonized with the international norms of protection. But despite all the achievements, there still remains a long way to go.
On this eve of the new century, the States Parties to the American Convention on Human Rights find themselves at a crossroads: they ought to proceed to an exam of conscience in order to decide which type of regional system of protection of human rights they really intend to have. If they want a true system, strengthened, capable of securing the effective safeguard of human rights, the road to follow is, in my view, quite clear, with measures to take at the levels of domestic as well as international law. At first, one ought to have the ratification of the American Convention, or accession to it, by all the States of the region: in the present domain of protection, the same criteria, principles and norms ought to be valid for all the States, as well as operate to the benefit of all human beings.
The second initiative lies in the adoption of the indispensable national measures of implementation of the Convention, so as to secure the direct applicability of its norms in the domestic law of the States Parties. In the present context, the international and domestic legal orders find themselves in constant interaction, forming a harmonic whole. There is pressing need for the States Parties to the Convention to adopt mechanisms of execution of judgments of the Inter-American Court at the level of its domestic law: this is a historical debt that they have in relation to the regional system of protection, and that one hopes will be overcome, to secure prompt compliance with the judgments of the Court.
The third point consists in the integral acceptance of the contentious jurisdiction of the Inter-American Court by all the States Parties to the Convention, accompanied by the provision of the automatism of the compulsory jurisdiction of the Court vis-à-vis all the States Parties, without restrictions. By means of an amendment, to this effect, of Article 62 of the American Convention, one would overcome the optional character of the acceptance of the contentious jurisdiction of the Court, which would become compulsory for all the States Parties to the Convention. The clauses pertaining to the compulsory jurisdiction of the Court and to the right of individual petition, necessarily interrelated, are of capital importance: they constitute - as I have always sustained - true fundamental clauses (cláusulas pétreas) of the international protection of human rights. They are the ones which render viable the access of the individuals to justice at international level, which represents a true juridical revolution, perhaps the most important legacy which we will take to the next century.
This leads me to the fourth point, closely linked to the previous ones, namely, the imperative of the direct access of the individuals to the jurisdiction of the Inter-American Court. The realization of this ideal requires, at a first moment, that the largest participation is secured to the individuals (locus standi) in all phases of the proceedings before the Court, - and not only in the stage of reparations, as it currently occurs (Article 23 of the Rules of Procedure of the Court). The individual complainants would act as true subjects of the International Law of Human Rights with full procedural capacity, with the preservation of the non-contentious functions of the Inter-American Commission of Human Rights as an organ which assists the Court (a kind of Ministère Public of the inter-American system of protection, with 40 years of existence).
The right of direct access (jus standi) of the individuals to justice at international level would be crystallized in our regional system be means of an Additional Protocol to the American Convención to that effect. It is of the very essence of the international contentieux of human rights the element of contradiction between the individual complainants and the respondent States, with the guarantee of the procedural equality of the parties. To the recognition of rights it corresponds the procedural capacity to vindicate them, without which any system of protection would be irremediably mitigated and in flagrant procedural imbalance. The full participation of the victims themselves (or their legal representatives), in the proceedings before the Court, exercising their right of free expression as an element integrating the (international) due process of law, contributes to instruct better and to render more agile the procedures, thus avoiding the duplications and delays inherent to the present mechanism of the American Convention. In cases of proven violations of human rights, it is the victims themselves who receive the reparations and indemnities; as they are present at the beginning and the end of the process, there is no sense in denying them presence during it.
In the American continent, the necessary advances in the direction of the recognition of the jus standi of the individuals before the Inter-American Court ought to take into account, with the corresponding adaptations, the realities of operation of the inter-American system of protection (included therein the provision of free legal aid to the individuals when they have no conditions to submit their complaints on their own). Such advances in this sense are convenient to all concerned - including the respondent States, - to the extent that they contribute to consolidate the jurisdictionalization of the mechanism of protection, as the judicial solution represents the most improved form of protection of human rights. The Inter-American Court would come to operate in chambers, one a permanent basis, counting on the indispensable and adequate human and material resources (a budget five times bigger than the present one), to face the inevitable considerable increase of the number of cases and the new demands of protection.
At substantive level, one should single out the reassuring entry into force, last week, with the ratification on the part of Costa Rica, of the First Protocol to the American Convention on Human Rights in the Matter of Economic, Social and Cultural Rights (Protocol of San Salvador), disclosing the unequivocal recognition of the indivisibility of human rights, not only in theory but also in practice, and the necessity to secure, at both national and international levels, and in the framework of the universality of human rights, the justiciability of all rights, inherent to the human being and, thereby, prior and superior to the State.
To conclude, may I return to the starting point. We are forty days from the year 2000. If it is true that the XXth century has been the stage of cruelties perpetrated against the human person in an unprecedented scale, it is also true that this has generated a reaction - likewise unprecedented - against such abuses, as a manifestation of the awakening of the universal juridical conscience for the pressing needs of protection of the human being. This agonizing century, of so many paradoxes, leaves to us as the most precious legacy which we will take into the next century, the historical, definitive and irreversible conquest of the access of the individual to justice at the international level, as true emancipation of the human being from all the forms of domination or arbitrary power. This is the essence of the universal movement of human rights, and in defense of this ideal we will continue to struggle with determination. Thank you very much.
Home / Treaties / Search / Links