The lecture began at 4:30 pm, Wednesday, April 3, and was given by Emilio Alvarez Icaza, Executive Secretary of the Inter-American Commission on Human Rights; the discussant was W. Michael Reisman, Myres S. McDougal Professor of International Law at Yale Law School. *
The Inter-American System and Challenges for Its Future
By Emilio Alvarez Icaza ([dagger])
Ladies and gentlemen, good afternoon. I thank the American Society of International Law for vesting upon me the honor of delivering the Grotius Lecture. I would also like to thank Professor Michael Reisman, the distinguished discussant, for agreeing to comment on it.
I have the privilege of working for the Commission as its Executive Secretary. My reflections, which refer to this unique international protection body, are made under the heading of "The Inter-American System and Challenges for its Future." On second thought, it may have been better entitled "Challenges Overcome, New Challenges."
I hope that you will forgive a few remarks that may sound boastful or conceited when I refer to what the Commission has achieved. You can be assured that I do not claim credit for this admirable institution. I speak in tribute to the work of those who come before me. Professor Reisman, as it turns out, is a distinguished former Commissioner, as is Dean Claudio Grossman, also present. Along with jurists like long-time ASIL member and current Commissioner Dinah Shelton, and many others among you, they are some of those hundreds, thousands, of women and men who have dedicated their lives to building this extraordinary body of work during the last 53 years.
The year 2012 marked, in my opinion, an inflection point in the process of the Commission's growth--perhaps even its puberty or mid-life crisis. Marred by its own success, since the beginning of this century the Commission has been bent under the weight of thousands of petitions under initial examination, in relation to which a first decision on whether or not to process will usually take four years. Periodically, one or more member states question the legal foundation of the Precautionary Measures, ignoring the overwhelming legal evidence behind their development and, more importantly, the common sense in the fact of their existence as a tool to prevent harm to persons and peoples. Since the beginning of the century, it has been hard to imagine any policy decision by the Commission in the conducting of its business that has not been the object of extensive commentary. This extends to the ratio of resources between Rapporteurships, the relevance of Chapter IV, the Commission's very concept of its work of promotion, and the division of the procedure in admissibility and merits (widely disputed by civil society) or their accumulation (strenuously combated by states). Not even our headquarters, not even where the Commission sits, is seen as a trivial matter, with a small but vocal group of member states claiming that Washington is not an adequate venue since the United States has not ratified the American Convention on Human Rights.
In this situation, since late 2011 and until two weeks ago, all actors in the system devoted significant resources and energy to debating whether the Commission's unique manner of protecting human rights is still viable. This March the Inter-American human rights community gave a resounding "yes" to that question. In doing so, however, it underlined the fact that the challenges vanquished are not those of access, compliance, or financing. These will remain for the Commission for the years to come.
It is said that to draw a vision for one's future, it is essential to fully understand one's past. In April 1948, in Bogota, Colombia, the member states of the OAS approved the American Declaration on the Rights and Duties of Man. With that gesture, the states of the Americas placed themselves at the forefront of international recognition of rights and fundamental guarantees. Like all human works that stand the test of time, the Declaration is simple in its structure, straightforward in its language, and enormously humane in its candor when recognizing that attaining happiness is the fundamental human endeavor. This instrument remains the common standard that unites the human rights aspirations of the 35 independent states of the Americas, including the United States of America, and the primary compass against which the Commission measures their performance in this area.
The issuance of the American Declaration also served as a starting point for the modern Inter-American machinery for the promotion and defense of human rights. In furtherance of this idea, in August 1959, during the fifth meeting of consultation of Ministers of Foreign Affairs in the city of Santiago of Chile, the member states decided to create the Inter-American Commission, responsible for promoting respect for human rights in the region.
The Commission was created as a consultative body and, in its original incarnation, could have been destined to become yet another institution burdened by ancestral rituals, heavy proceedings, and deference to states. The remarkable difference was made by those who were elected to it. In contrast to the expected bow to the states which had elected him, Romulo Gallegos, the first President of the Commission, led the first charge in the never-ending work that your colleague, Judge Cecilia Medina, characterized as "The Battle of Human Rights." More than 53 years ago, Gallegos said:
Nowadays, things occur under the ceremonial cloak of political and judicial institutions as if peace, tranquility and dignity--in short, the happiness--of all persons were sufficiently guaranteed in all our Nations. But to say that this is the case, or that it is true in all places, is as false as saying that simple geographical boundaries render the destiny of one people irrelevant to another ... There is a thirst for justice all throughout the American continent. It is felt by people who are self-aware and have the inalienable right to seek material and spiritual welfare for themselves. Our Commission, which will obey the mandate to protect and defend the rights that constitute human dignity, will not be destined to fail as if it were the creature of dreamers, because it finds its reason for being in the best aspirations of the American spirit.
The Commission immediately began its work under this extraordinary vision. During the 1960s, none of its actions was confined by tradition or dogma, and its methodology and procedures were all subject to a dynamic process of trial and error that can clearly be seen in its evolution.
The Commission carried out onsite visits to different countries of the region when the visits of international bodies were unheard of, and undertook a series of follow-up human rights activities in states ruled by authoritarian regimes in a time when these considered that their record in terms of human rights was held behind ironclad borders. The members of the Commission engaged in permanent dialogue with representatives of member states, organizations, and individuals involved in emerging human rights movements at that time. All elements of information collected through different forums of dialogue and in loco visits allowed the Commission to report to the General Assembly of the OAS in relation to serious human rights violations occurring in some countries in the region.
In addition to follow-up and monitoring, the Commission helped to consolidate an awareness of human rights fact-finding and legal analysis as discrete legal disciplines through its decisions in the framework of the Individual Petition System. Since its first Regular Session, held in October 1960, the Commission rightfully claimed for itself the capacity to hear individual communications or complaints from any person or group of persons and prepare reports on these claims. The logic followed by the Commission, impeccable in its simplicity and visionary in its scope, took as a point of departure in its mandate to recommend any measures necessary to further the enjoyment of human rights by all persons under the jurisdiction of the member states. In the view of the Commission, such a competence naturally included recommendations in specific cases.
In November 1965, by resolution of the Second Extraordinary Conference held at Rio de Janeiro, member states reformed the Statute and vested the Commission explicitly with the power to examine individual petitions. Through the Individual Petition System, the Commission has enabled many victims of human rights violations to obtain justice, truth, and reparation that have been denied domestically.
For instance, the inter-American system has seen significant development of legal standards related to violence against women since 1994. Much of this evolution can be attributed to the adoption by the American states of the Convention of Belem do Para in 1994, and to the influence of key instruments that address violence against women internationally, such as the Convention on the Elimination of All Forms of Discrimination Against Women and General Recommendation 19 of the CEDAW Committee establishing that gender-based violence is included in the Convention's definition of discrimination.
While the United States has yet to ratify the Convention of Belem do Para, the Commission has dealt with important cases concerning violence against women under the American Declaration. In its report on the case of Jessica Lenahan Gonzales, the Commission analyzed the responsibility of the state for failing to comply with the terms of a protective order and the right of the victim to effective judicial protection and due process. A restraining order was the only means available to Jessica Lenahan at the state level to protect herself and her children from domestic violence, and the police did not effectively enforce the order. The state apparatus was not duly organized, coordinated, and ready to...