In this session of inauguration of the Seminar on "The Inter-American System of Protection of Human Rights on the Eve of the XXIst Century", may I extend a word of gratitude to all invited participants for their presence, as well as the entities which, with their financial support, rendered possible the realization of the event, namely, the Agency of Spanish Cooperation, the Inter-American Development Bank (IDB) and the Agency for International Development (AID). May I thank, in particular, the President of the Republic and the Minister of External Relations of Costa Rica, and the Secretary General of the Organization of American States (OAS) for their presences, as well as express my satisfaction for being able to count, together with my colleagues the Judges of the Court - Máximo Pacheco Gómez, Hernán Salgado Pesantes, Oliver Jackman, Alirio Abreu Burelli, Sergio García Ramírez, and Carlos Vicente de Roux Rengifo, - on the presence of the President and the other members of the Inter-American Commission of Human Rights, our sister institution of supervision of the American Convention on Human Rights.
May I likewise thank, for their presence and participation, the Honorary President, the President and the members of the Board of Directors, and the Executive Director of the Inter-American Institute of Human Rights, for their support, as well as the representatives of other entities on which I have always been able to count, such as the International Committee of the Red Cross (ICRC), the United Nations High Commissioner for Refugees (UNHCR), the UNESCO, and the Council of Europe. I am sure that this Seminar will be, thanks to the participation of all guest speakers, a landmark in the evolution of our regional system of protection, at the moment in which we commemorate the 20th. anniversary of the installation of the Inter-American Court, the 30th. anniversary of the adoption of the American Convention, and the 40th. anniversary of the establishment of the Inter-American Commission.
The presence, in this event, of members of Delegations of the highest level of the member States of the OAS, together with representatives of numerous non-governmental organizations and other entities of civil society, as well as professors, experts and lawyers from different countries and continents, represents, besides a significant mobilization, a clear manifestation of the support of the international community to the case-law and the labour of the Court in support of the protection of the rights of the human being. May I, in this connection, likewise thank the President of the European Court of Human Rights for the message of support to the Inter-American Court and to this event.
May I, at first, reiterate to the President of the Republic and the Foreign Minister of Costa Rica the recognition of the Inter-American Court for the unconditional support of the people and the Government of Costa Rica along the last two decades, essential to its institutional development. Two important Agreements may be recalled: first, the one which the Court signed with the Government of Costa Rica, that entered into force in 1980, whereby the Inter-American Institute of Human Rights was created, Institute which, next year completes 20 years of helping to create, by means of research and teaching, a culture of observance of human rights in the Americas. And, second, the one which also signed Costa Rica and the Court, in force since 1983, called the Headquarters Agreement of the Inter-American Court of Human Rights, whereby the regime of immunities was established which has guaranteed the regular functioning of the Court and of its Secretariat in San José, as well as the appearance, in the course of the proceedings, of the parties and the witnesses and experts, in the public hearings before the Court.
At the start of the work of the Seminar, we must bear in mind its objetives. Rather that a purely academic exercise, we will proceed to a review of the 20 years of application, since its entry into force, of the American Convention on Human Rights, with attention to the functions of the Inter-American Court and Commission, and to the needs of protection of the human beings under the respective jurisdictions of the States Parties. This historical perspective is necessary so that we can seek to identify the areas susceptible of strengthening of the mechanism of protection under the American Convention, as well as to determine the additional resources which the two organs of supervision of the Convention need for the faithful exercise of their functions of protection.
In its 20 years of existence, the Inter-American Court has held 46 ordinary sessions and 23 special sessions, at the end of which it has adopted, to date, 16 Advisory Opinions, and 61 Judgments (on preliminary objections, jurisdiction, 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 to avoid irreparable damages to the persons. This case-law of protection is a juridical heritage of all the States Parties to the American Convention. Something effectively changed in the Americas with the application of the American Convention.
Despite the undoubted achievements of our regional system of protection, there still remains a long way to go. In fact, on this eve of the new century, the States Parties to the American Convention find themselves at a crossroads: they ought to proceed to an exam of conscience to decide what kind of regional system of protection of human rights they really want to have. Of very little, almost no avail, would be a flexible and somewhat primitive "system", which would allow them to try to accommodate the application of the American Convention to their own interests or perceptions, and to subordinate it to the vicissitudes of their respective domestic legal orders. If they want in fact a true system of protection, strengthened, capable of securing the effective safeguard of human rights, the road to follow is, in my view, quite clear, with measures to be taken at the levels of domestic as well as international law. Such measures, as I allowed myself to summarize in the ceremony of last night at the National Theatre, are the following:
At first, one ought to have the ratification of the American Convention, or accession to it, by all the States of the region. The fact that some member States of the OAS have have excluded themselves from the Convention, and that some States Parties to this latter have not yet accepted the contentious jurisdiction of the Inter-American Court, discloses an imbalance as to the extent of the international obligations of protection - above all in procedural matter - of the States of the region. Our regional system will much advance the day in which it binds, in the same way, according to the same criteria and to the same extent, all the countries of the region.
The current structural imbalances, instead of being accepted as "inevitable" or "insalvable" and of being preserved, ought to be reduced and eliminated, as exemplified by what at last hast been achieved in the European system of protection. All the States being juridically equal, in the present domain of protection the same criteria, principles and norms ought to be valid for all the States, irrespective of their federal or unitary structure, as well as to operate to the benefit of all human beings, irrespective of their nationality or any other circumstances.
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. Non-compliance with a judgment of the Court impedes that the las consequences of the original violation - established by the Court - of the American Convention cease, incurring the State at issue in this way in an additional violation of the Convention, as well as in a denial of access to justice (at both national and international levels).
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, putting and end to the restrictions set forth therein (including reciprocity) and expressly discarding the possibility of any other restrictions; one would thus overcome the optional character of the acceptance of the contentious jurisdiction of the Court, which would become ipso jure 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 ought to be accompanied by the guarantee of the procedural equality of the parties (the individual complainants and the respondent States), essential in any jurisdictional system of protection of human rights. 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. 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.
Moreover, 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.
At this end of century, the historical reasons which led to the denial - in my view unjustifiable, from the start, - of the direct access (jus standi) of the victims of human rights violations to the international judicial instance of protection are definitively overcome. As I have been sustaining for years, in the framework of the inter-American system of protection, the emancipation of the human being from all forms of domination or arbitrary power can and ought to be achieved, in the lines here suggested, by means of an Additional Protocol to the American Convention to this effect. All the international lawyers of the American continent have the inescapable duty to persevere in the search for the full realization of this ideal, as foreseen by the so-called founding fathers of international law (the droit des gens).
The Inter-American Court would start operating in chambers, on a permanent basis, endowed with the indispensable and adequate human and material resources (a budget five times larger than the present one), to face the inevitable considerable increase of the number of cases and the new demands of protection. The additional resources ought to reveal a true change of mentality, with the States Parties to the American Convention disclosing their full belief that this is the road to follow, and their determination to exert with firmness the collective guarantee underlying the Convention, to the benefit of all human beings under their respective jurisdictions.
These are some thoughts, of a procedural character, which I allow myself to submit to the consideration of all the participants in this important Seminar, to which I could add others, at sustantive level. There is pressing need, for example, of the expansion of the applicable law in the matter of conventional protection, so as to extend this latter to the economic, social and cultural rights, what has begun to occur with the entry into force, last week, of the First Protocol to the American Convention on Human Rights in the Matter of Economic, Social and Cultural Rights (Protocol of San Salvador), filling a historical gap of our regional system of protection. The entry into force of the Protocol of San Salvador reveals 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.
Furthermore, one ought to conceive new forms of protection of the human being, and, given the diversification of the new sources of violation of his rights, to develop methods to fight them. One ought to put an end to impunity. Also require greater attention the themes of the duty of States to provide effective local remedies and of the strengthening of the Judiciary, of the direct applicability of the norms of the American Convention in the domestic law of the States Parties, of the interaction between international law and internal public law in the safeguard of human rights, and of the development of obligations erga omnes in the present domain of protection. Only with those measures we will succeed, on this eve of the new century, to get closer to the plenitude of the protection of human rights in our continent, at national as well as international levels, and in the framework of the universality of human rights.
Last but not least, if I had to single out the most important achievement in the evolution of the international protection of human rights in the last five decades, I would not hesitate in identifying it in the historical, definitive and irreversible conquest of the access of the individual to justice at international level, as true emancipation of the human being from all forms of domination or arbitrary power. I trust that the conclusions which this Seminar may reach can be of utility to the States Parties to the American Convention with the purpose of rendering increasingly more effective the protection of human rights in the Americas. May I reiterate to all the most sincere appreciation for their presence and participation. Thank you very much.
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