IAHRC CONFERENCE PACT OF SAN JOSÉ- IN THE OAS FRAMEWORK Guayaquil, March 11, 2013
I.- INTRODUCTION. Welcome to this small, wonderful country, part of this unmatchable Patria Grande, please make yourselves at home. I believe I speak on behalf of the 14.5 million Ecuadorians who welcome you today with open arms. A very special, warm, brotherly, solidary and heartfelt greeting to the People of Venezuela, for the passing of their President, historic leader of our Americas and, personally, dear friend and brother. Go on Venezuela, for everything shall continue – God willing – with normalcy and you may be able to democratically elect this upcoming April 14th, as painful as it may be, the new President of the Republic. We know that Hugo cannot be replaced but we must go on, precisely for the memory of this huge Latin American man that was Hugo Chávez Frías. Also, welcome to a country and a government – and I hope all the media listen to this well – that has a deep respect for Human Rights. Hear me well please: Ecuador is one of only seven countries – out of 34 of the Inter 1
American System – that has signed absolutely all Inter American Human Rights instruments. I believe it is a country that can speak with soundness of Human Rights because it is one of the seven, in the entire Inter American System, that has signed all and each of the Human Rights instruments at the Americas level, knowingly: -
Pact of San José San Salvador Protocol Belem do Pará Convention Human rights relating to abolishment of the death penalty Forced disappearance of people Prevent and punish torture Granting civil rights to women
And this, I insist, there has been a desire to position today as a tragic day for Human Rights. Certain “free and independent” media - free and independent from their people, free and independent from the truth - that only manipulates, misinforms, wanted to position that criticism to the evident weaknesses, inconsistencies of the Inter American Human Rights Commission means being against Human Rights; just as they already did with freedom of expression. They have successfully positioned that questioning businesses devoted to communications is to threaten freedom of expression. With this logic in mind, then, criticizing the President is criticizing democracy. In any event, dear friends, you are in a country where torture is not allowed, where there is no death penalty, we have not invaded any country, there are no drones killing selectively, and without prior trials, alleged terrorists, along with “collateral damage”, such as women, children, families, neighbors, etc. In Ecuador, as in any true Rule of Law, crimes, not people, are prosecuted; but precisely because we are under a true Rule of Law, nobody is above the law, which bothers the eternal de facto powers. The UNASUR Summit held in Lima on November 2012 decided, through the Secretary General of the OAS, to call yours truly to this Conference of States Partis to the American Human Rights Convention. What does State Party mean? Those that have ratified the Convention, as we will see below, are only 23 out of the 34 countries of the Inter American System. This is the first time that a Conference of States Parties to the American Human Rights Convention has been held. We should blame ourselves; we must give more importance to something as fundamental as human rights. This is the first time that a Conference of States Parties to the American Human Rights Convention has been held, states that have undertaken with full 2
conviction and total political will the protection and defense of our citizens’ human rights. The meeting in Guayaquil is intended to provide an open and direct space between the States representing the people who own the System, in order to seek agreements on sufficient and effective mechanisms for its strengthening, universality and transparency. The amendments proposed include reforms to its rules and establishing clear procedures for its management, so they can be exercised ethically, with equity and transparency, without overstepping the boundaries set by the pertinent Treaties and documents. The most important topics in this process: IAHRC headquarters, nationality of its members and exclusive funding of States Parties to the American Human Rights Convention; clear, objective procedures under the rules for the promotion and defense of human rights; universality of rights and single Annual Report of the IAHRC; and adoption of a Conduct Code for the IAHRC and its rapporteurs. II.- DEVELOPMENT Here the States Parties are gathered, the only ones that have ratified the Inter American Human Rights Convention or Pact of ”San José”. This is what the media do not publish: that not all countries have ratified the convention, basis and starting point of the Inter American Human Rights System. Only 23 out of 34 countries of the inter-American system have ratified this fundamental document, which covers two entities: the IAHRC and the Inter American Human Rights Court. Consequently, the decisions of these entities are binding only for these 23 countries. Let’s see the origin of these entities and of the Inter American Human Rights System. In the PowerPoint slide you may see the OAS Charter, already included the Inter American Human Rights Commission. OAS Charter Article 106 “There will be an Inter-American Human Rights Commission that will have as its main role to promote the adherence and defense of human rights and to serve as consulting entity for the Organization on this matter”. Please note the States are not given the power to judge or monitor, but instead to promote the adherence and defense of human rights, but not only that. The Article continues:
“An Inter-American Human Right Convention will establish the structure, powers and procedures of said Commission, as well as of the other entities in charge of this matter”. Now let’s review the American Convention on Human Rights of Pact of San José, chapter I, Article 1. Obligation to respect rights. Those who signed undertake this, those that did not sign are not bound to it and it is fine, it is their exercise of their own Sovereignty. The problem arises when they finance, have the headquarters of the Commission and the Convention, one of the most basic entities of the Inter-American Human Rights System, while they have not signed the pertinent Convention. “The States Parties to this Convention undertake to respect the rights and freedoms enshrined in it and to ensure its free and full exercise for all individuals under its jurisdiction, without discrimination based on race, color, gender, language, religion, political views or of any other kind, national or social origin, economic position, birth or any other social situation”. Only the States Parties are bound by this, the others are not.
CHAPTER VI OF ENTITIES WITH JURISDICTION Article 33. “Have jurisdiction to hear the matters related to compliance with commitments undertaken by the States Parties in this Convention: a) the Inter American Human Rights Commission, hereinafter “Commission”, and b) the Inter-American Human Rights Court, hereinafter the “Court”.
Here they list the duties; I wouldn’t want to tire you by listing each of them but please review properly and try to identify where the Inter American Human Rights Commission is given the duty to monitor the States, where is it charged with issuing precautionary measures, and where the Commission is given autonomy. Section 3. Powers Article 44 “Any person or group of people, or non-governmental organization legally recognized in one or more States Parties of the Organization may file before the Commission a petition containing claims or complaints of violations against this Convention by a State Party”. In other words, this only binds the States Parties; any citizen – even outside of the States Parties – may file a complaint but only against States Parties. We have great responsibilities, we have undertaken 4
great duties, but obviously it also means that we have rights, at least to guide the Inter-American Human Rights System. The strong asymmetry between the countries who signed the Convention compared to those that finance and run it, but that have not ratified it - meaning that do not subject themselves to the Commission’s decision, to the Court. This strong asymmetry has finally warped entirely a tool initially conceived for the benefit of all citizens of the Americas. Instead, some countries intend to intervene in others, while they turn themselves into judges – while not being subject to being judged because they are not subjected to the jurisdiction of the System, and particularly the Court. The Commission, no doubt, fulfilled a historic role of great value in the investigation, documentation and systematization of files and documents, testimonies and material evidence against despotic regimes in Latin America, mainly in the military dictatorships. However, now that our countries are, in a significant ratio, led by democratic administrations, now that there is a true new era in Latin America, those democratic governments are sometimes treated worse than dictatorial regimes and, paradoxically, are accused and insulted by the groups that before, either in a veiled or open manner, supported those dictatorships that had no respect for Human Rights. There are some paradigmatic cases in Latin America. Just remember the role of the newspaper El Mercurio in Chile in the coup against Salvador Allende. The Conference in Guayaquil is fundamental to seeking consensus to redirect the IAHRC to be more efficient and respectful of the spirit of the Convention, of its own standards and the sovereign constitutionality of the States. In this regard: How is it possible that the headquarters of the IAHRC is located in a country that is NOT a State Party of the Inter-American Human Rights System and, in fact has not ratified ANY of the inter-American instruments on Human Rights? Somebody with some sense of logic, with some sense of shame, please tell me how is it possible that the headquarters of the IAHRC is located in a country that is NOT a State Party of the Inter-American Human Rights System and, in fact has not ratified ANY, any of the inter-American instruments on Human Rights? How is this possible? Due to tradition? Well… Latin America is shaking off these bad traditions. Let’s understand that we are experiencing actual revolutions of sovereignty, of dignity in our Americas.
Because of the Julian Assange case – which you are all familiar with – we had to do a comprehensive analysis of international treaties and instruments on Human Rights. I can assure you that the countries that speak the most on the subject are those that have committed the least, the ones who have not signed these binding covenants. Those of us that signed everything – International Criminal Court, etc.- are Latin American countries. Good for us, we did it out of belief, but we will not allow any neo-colonialism. How is it possible that the IAHRC is funded almost in its entirety, exactly 96.5%, by countries that have not ratified the OAS Convention on Human Rights, by so-called “Observer States”, which are not part of the Inter American System and by entities and alleged international cooperation foundations in those same countries. In other words, they pay to control others, in the name of Human Rights. How much longer will we put up with so much contradiction? We all know that since the world began the one who pays sets the conditions. Enough of that hypocrisy! The Commission’s host country is only subject to the IAHRC’s jurisdiction in its capacity as Member Country of the OAS; therefore, it is not subject as is Ecuador, to the jurisdiction of the Inter-American Human Rights Court, nor to the Commission when those two act as entity of the American Convention on Human Rights.
And this is not a mere coincidence or naivety, but it is part of a political view, of the double standard, that was applied in our region for decades, when we were considered the backyard of an empire and not sovereign nations, proud homelands with free and dignified people. It is not possible in the 21st Century to tolerate in our Americas the headquarters of the IAHRC being in the country (responsible for) the criminal embargo against Cuba, that threatens international laws completely and openly, and particularly goes against the OAS Charter, at least regarding articles 1,15, 19, and 20. Without doubt, that criminal blockage constitutes the greatest violation against international law, against human rights in our continent. But this does not even appear in the IAHRC’s annual reports. It would seem that the blockage is part of the landscape. Enough! I insist, Ecuador will not accept any more neo-colonialism.
The San José Pact was signed in 1969 and ratified with the noblest humanist spirit. We will not allow it to be used for geopolitical purposes, with biased views and with such double standards. The IAHRC is absolutely dominated by hegemonic countries, by positions typical of NGOs and by the interests of great capital, particularly that capital behind the businesses devoted to communications. In fact, it is the analogy of neo-liberalism in the scope of rights. IAHRC officials come and go, sometimes with really scandalous things that go unnoticed. Let’s take a look at a representative scenario of what happens in that international bureaucracy: Take a look at what the previous Secretary of that entity, of the Commission, Mr. Santiago Cantón, wrote a little while ago, as soon as he left the Secretariat: December 10, 2012 – Diario El Universo Newspaper “In Latin America a similar process to the one in the United Nations has started and said process may weaken the fast and independent response capacity of the regional system. It should not surprise us that this process has been started and promoted by Venezuela, Ecuador and Colombia seeking to sweep their own violations under the rug”. In other words, all of us here discussing the IAHRC’s limitations are sanguinary dictatorships seeking to hide our Human Rights violations. And this gentleman – for almost 10 years – was the Secretary of the Inter American Human Rights Commission. If he was this prejudiced, wouldn’t elementary decency compel him to resign his post and fight for his beliefs in human rights defense? But he wouldn’t resign from such hefty monthly paycheck of certain international bureaucrats. This gentleman is, perhaps, an extreme example but quite telling of what we must face. Let’s take a look at his origins and his whereabouts: He always interacted with typical Anglo-Saxon NGOs, not even from Latin America, the National Democratic Institute of the United States; then he entered the OAS; he was a freedom of expression rapporteur and, most importantly, given where he ended up – he endorsed Venezuela’s Coup D’etat in 2002. In a letter to the Chancellor – not sworn in – of the coup government he addresses him as “Your Excellence” and mentions “your illustrated administration” to refer to the Carmona Administration, which had overthrown a democratic government. And these are the protectors of Human Rights and International Law of our Americas? In June, 2012 he left the IAHRC’s Directorate, the Executive Secretariat, after being in office for more than ten years. And where is he now? He is now the Director of the Robert F. Kennedy Center for Justice and Human Rights, obviously an American entity, meaning totally involved in the typical Anglo-
Saxon NGO style that requires from others what they do not require of themselves. And this is a perfect analogy, what us economists know was experienced under the economic neo-liberalism: Autonomous Central Banks, autonomous from their people but very dependent on the Monetary Fund, on the World Bank, both international bureaucracies to which they answered and where they would go to work to spend the last years of their “self-sacrificing existence”. Enough already! How could a guy with those prejudices be for over ten years the Secretary of the Inter American Human Rights Commission? He, who believed that in Ecuador, Colombia and Venezuela principles were violated… he should have resigned and fought for those principles, to defend human rights. But he continued in his bureaucratic post, with a hefty monthly salary, to insult our countries afterwards. Ecuador will not allow that again. And I insist, the contradictions are clamorous. The dictator, a day after Chávez was overthrown, already called him “your excellence”, and “your illustrious government”. Meanwhile, when the law is enforced and a rogue journalist is brought to court, they consider it a Human Rights violation; nothing is said about the blockage of Cuba or the tortures at the Guantanamo Base, or the human rights of those affected by the corrupt media – media lynchings that every day threatens Articles 11 and 13 of the Convention. Ecuador will not accept this shameless neo-colonialism. The goal is to create myths around journalists: “poor fighting cherubs, against despotic governments that do not tolerate any criticism”. They don’t understand that reality in Latin America has changed, that there are governments with great democratic legitimacy; that our lives are on the line to overcome the unfair structures of our Americas, mercilessly persecuted by a power that sometimes is greater than the power of the State, which is the power of the media and by unscrupulous journalists. Let’s take a look at a simple of this week alone: A tweet form Mr. Martín Pallares, diario El Comercio Newspaper – in Twitter my name is @MashiRafael: “Would somebody instruct @MashiRafael: about the IAHRC and Guantanamo before he tweets some nonsense. Attention Secom”. This is the least that “free and independent” journalists tell us, they seek to denounce the “dictators’ corruption”. Here are some articles published by that gentleman – written over the past few months – in cowardly abuse of his position as a journalist: “Correa: daring ignoramus or verbally incontinent”; “Correa the gangster”. 8
This man was in charge of the electronic website of El Comercio. Out of respect for the audience, for the children listening to us, for the women and the general public I will not read all the messages they publish in El Comercio’s website, under this gentleman’s supervision, out of hated for the President. But let’s see some examples – not selected, not extraordinary – of the hundreds sent over three, four years: “Fernando Hernández The President feels insulted by what they say to him. He very well should for having been born with drug trafficker genes because, just like his dad, he’s also a drug dealer. This time, using the diplomatic pouch, using Patiño the fool (…) do humanity a favor, take your own life like your father did… he had a little bit of dignity, albeit to take his own life. Please do the same and I’ll take you flowers and will throw them in to the Machángara”. This was published on the El Comercio’ website. Zennon Moreno Huatto “The series of lies continues in Saturdays’ vagina monologues of the silly one with power, cuckolded for lack of prowess, gay, bastard, son of a b***tch. But you’re close to being done, demon spawn”. These are the things published by the free and independent press in this country, this is what the IAHRC defends by default, because all politicians are bad, because the State is guilty on principle and the press and journalists are beyond reproach. Until when, I ask? I will not present any more out of respect for the audience. When SECOM, after years of these grievances, sent a letter saying that the permissiveness of the Diario El Comercio towards such acusations and repudiations is accompanied by a systematic attitude of rejection of the current government configured by not only criminal defamation but also a noticeable incitement to hatred, they called on El Comercio which publishes the Diario El Comercio, to stop these insults, for example: “The government threatens El Comercio and commentators in its digital version" and they say that what is being stopped is the free flow of ideas; i.e., all these insults are "the free flow of ideas." I'm sure I am speaking for the vast majority of you who are faced with a similar type of press or perhaps worse, yet the IACHR doesn’t recognize this, for it there are only evil politicians who persecute naive journalists, angelic journalists because "they denounce corruption and because these villainous dictators can’t stand the criticism" How long will we allow such lies? How long will we allow so much social deception? They must realize that there is a new era Latin America, that the dictatorships which were supported by these media outlets no longer exist. Now there are eminently 9
democratic progressive governments that are changing the reality of our people and will continue to fight against any de facto powers that try to keep the country in the past We must recognize the Human Rights Convention as the highest regional Assembly on Human Rights, a heritage of our people, and now it must have its own headquarters, its own budget, provided by the States parties to the Convention, as is obvious, as cannot be denied without displaying a boundless cynicism. Ecuador proposes that the system be appropriated and funded by the states parties to the Pact of San José. The Commission and the Court requires 15 million to meet its financial needs. Colleagues, we can make that effort and if anyone is in difficulties, do not worry, Ecuador will make up the difference, but let those of us who have signed the Convention on Human Rights fund the System, not countries that have failed to do so and worse still those countries who are not part of the region. The site we are proposing for the IACHR is Argentina, a country which suffered terrible periods in which Civil and Human Rights were attacked, as have many of our countries. However, Argentina has also been a country that demanded a response to those same violated rights. We will always honor the Madres de Mayo for their persevering love and the dear President of Argentina, Cristina Fernandez de Kirchner, who has expressed this willingness to provide the Convention with a permanent place, to enshrine, in practice and without extra-regional interventions, the wonderful principles expressed in the Pact of San José. Finally, Ecuador suggests, as seems obvious, that the Commission and Court be composed of nationals of States that have ratified the Inter-American Convention on Human Rights. That said, knowing that until now the Commission has been chaired by nationals of countries that have not signed the Convention, maybe this principle is not so obvious. Ecuador, as a party state of the Inter-American System on Human Rights, will always be ready to defend it and meet its obligations, however we cannot allow the undermining of our sovereignty nor can we allow simple bureaucracies to attempt to rise above states. As I mentioned earlier, this is the extension of the long and sad “noche neoliberal” [neoliberal night], when the State deserted its crucial functions, and delegated them to technocrats and the bureaucracy, charitable organizations, etc. 10
There is talk of "negotiating". An unfortunate phrase of the president... Negotiate? In fact, if the press is to be believed, the President of the Commission has said that the only thing that they are willing to concede to is better regulation, on the precautionary measures--Negotiate? – We do not have to negotiate anything with any bureaucracy. The Assembly of States Parties should be the highest authority that can legitimately give commands to the various bodies of the Inter-American System. Negotiate? A little reality, please. To defend human rights, we should first comply with the laws and regulations, but despite the fact the that the powers and functions of the IACHR are well defined, as demonstrated in the American Convention on Human Rights and in the Statute approved by the General Assembly, incredibly in their own regulations, they declare themselves autonomous and arrogate functions, such as the dictating of precautionary measures. This is another feature of the typical NGO position where legality seems to be incidental. Imagine if I expropriate for myself, simply by means of an executive order, functions that are not set out in the Constitution, a constitution which I myself wrote. That is what the Commission is doing; we know what is going on. “Article 39 The Commission shall prepare its Statute, which it shall submit to the General Assembly for approval. It shall establish its own Regulations". Nowhere does it say that the Commission is independent. "STATUTE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Approved by Resolution No. 447 adopted by the General Assembly of the OAS during its ninth regular session, held in La Paz, Bolivia, October 1979", the Statute strictly follows what is set out in the of the Pact of San José. “VI. STATUTE AND REGULATIONS Article 22 The present Statute may be amended by the General Assembly. The Commission shall prepare and adopt its own Regulations, in accordance with the present Statute". Nowhere does it say that the Commission is autonomous, quite the opposite, it depends entirely on the General Assembly, whose parties are the States and nowhere does it say that it can grant precautionary measures, but lets see what else that the regulations have to say: “RULES OF PROCEDURE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Approved by the Commission at its 137th regular period of sessions, held from, October 28 to November 13, 2009” 11
“Article 1. Nature and Composition The Inter American Commission on Human Rights is an autonomous organ of the Organization of American States whose principal functions are to promote the observance and defense of human rights and to serve as an advisory body to the Organization in this area.” “Article 25. Precautionary Measures In serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case. 2.-In serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons under the jurisdiction of the State concerned, independently of any pending petition or case.” We are not against precautionary measures, we are against the breaking of the rules, against a bureaucracy with its own agenda which only represents itself, its power agenda, which becomes a totally biased monitoring system, with ideas that are far from the reality of the States to which they should be referring; we are against that. Want to have precautionary measures? Let’s discuss it; functions should not be arrogated among themselves. And of course, precautionary measures with clear procedures, and impartially and objectively. Not like now, when a precautionary measure for someone on death row may take two years, but when a case is brought against a powerful media organization one is granted in 15 days, a week, trampling all the procedures they themselves established. The idea of the ISHR was that states –in representation of their societies-- run by honest governments with democratic legitimacy, would be in the majority and that they would denounce, through the respective agencies, the totalitarian states, the dictatorial governments. The idea was not that a bureaucracy in Washington autonomously becomes the monitor of our States, and subjects the sovereignty of our country. This Ecuador is not going to allow it, they might use bombastic phrases like the "defense of human rights", but it is an attack on our sovereignty and we will not allow it. The Ecuadorian government does not recognize the ability of the Commission to impose mandatory precautionary measures on the States, it only recognizes that capacity in the Court. We can discuss it, but with the necessary mechanisms. The Commission must give up its exclusive dedication to the procedures which are pre-judicial in nature because it has become a monitor of States, something not agreed to in the Pact of San José. Its priority should always be the promotion of human rights, the prevention of violations as well as improvement;
rather than the investigation and reparation of the consummated events, that's why the Court exists. The Commission cannot create its own rules. Where was that written? and then impose them on States as if they were international instruments which must be respected and subordinated to. Finally, Ecuador proposes the development of a Code of Conduct to demarcate the powers and responsibilities of the Commissioners and Rapporteurs. While the Commission has offered regulate this issue, as far as Ecuador is concerned, that is not enough, it is the states who are the owners of the System and who oversee the actions of the ISHR and the Inter-American system as a whole. We need to institutionalize the Conference of States Parties to the Pact of San JosĂŠ, the reform of IACHR must be given all the importance it deserves. It is urgent that it take on a position of impartiality in its treatment of the issues, but there is incredible bias. It must depoliticize its actions, it must remain dignified, proud and sovereign, like the nations it represents. The Inter-American Commission on Human Rights, has eight rapporteurships of rights: rights of disabled people, rights of Indigenous Peoples, etc., but unlike the other seven, the Special Rapporteur for Freedom of Expression is the only one with its own reporting structure and funding. This funding comes primarily from the United States, which is not a signatory of the American Convention on Human Rights (i.e. it pays to be able to control the rest) and therefore it is not subject to the Commission. It also receives financing from the European Union, which is obviously not part of the Inter-American system. Does having its own funding, having this independent reporting structure mean the supremacy of the right to freedom of expression over other rights such as, say, those of people with disabilities? Make no mistake, simply put, as I mentioned, it demonstrates the supremacy of the capital behind the companies dedicated to communication. The world is dominated by capital. This is why Ecuador proposes that the Commission should assign just, sufficient and balanced resources to all the Rapporteurships. There cannot be contributions from States, or third party States or NGOs, earmarked for particular Rapporteurships. Ecuador proposes a single reporting structure for the thematic reports and the rapporteurships. The report should focus on progress and efforts of States in promoting and protecting human rights, including economic, social and cultural (ESC) rights, as well as other rights like developmental, environmental, and collective rights, etc. But basically, funding must be from the States Parties who 13
are subject, that consider the decisions of the Commission and of the Court to be binding and this should be shared fairly among all the rapporteurships. Make no mistake; we're not talking about the supremacy of one right over others. Obviously the disabled do not operate large businesses, they donâ€™t have a lot of money behind them as with the misunderstood freedom of expression, while those engaged in the business of communication do. Dear friends: In the name of the defense of fundamental human rights, in the name of noble concepts like FREEDOM, even in the name of God, our America has suffered throughout its history from all kinds of attacks and plundering. During the twentieth century there was no coup or invasion that was not justified in the name of "freedom". The dictatorship in Chile, spoke of "libertarian" Chile, for example. I will finish by repeating what I said in Cochabamba at the 42 General Assembly of the OAS: It is essential that the American System of Human Rights be transformed, and to have the assurance that we are fighting for bodies that genuinely protect the rights of the public and our America, without succumbing to special interests, ideas foreign to its role and pressures of any kind. If we cannot rectify the last vestiges of neo-liberalism and neo-colonialism in the Americas, entrenched in the Inter-American System of Human Rights, we must look elsewhere, our peoples will not forgive us if we do not take historical decisions. We must find something new, better, and truly our own. Long live Ecuador! Long live the Patria Grande! and, Hasta la victoria siempre!