Report on Sessions of the Inter-American Commission of Human Rights

OEA/Ser.L/V/II,16
Doc. 20 (English)
26 July 1967

Original: Spanish




INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

REPORT ON THE WORK ACCOMPLISHED

DURING ITS FIFTEENTH SESSION

( SPECIAL )

January 9 to 20,1967


PAN AMERICAN UNION

General Secretariat, Organization of American States

Washington, D.C.


TABLE OF CONTENTS

Page

I. ORGANIZATION OF THE FIFTEENTH SESSION 1

A. Opening and Length of the Session 1

B. Members of the Commission and Participation in the

Session 2

C. Meetings and Documents 3

II. AGENDA 4

III. REPORT PREPARED BY THE SECRETARIAT ON THE WORK ACCOMPLISHED

BY THE COMMISSION DURING ITS FOURTEENTH SESSION 4

IV. REPORT BY THE EXECUTIVE SECRETARY ON THE ACTIVITIES OF

THE SECRETARIAT BETWEEN THE FOURTEENTH AND FIFTEENTH

SESSIONS 6

V. THE SITUATION REGARDING HUMAN RIGHTS IN AMERICAN COUNTRIES 7

a. The Case of Haiti

b. The Case of Nicaragua

VI. DRAFT INTER-AMERICAN CONVENTION ON HUMAN RIGHTS 10

VII. INTERNATIONAL HUMAN RIGHTS YEAR 15

VIII. COMMUNICATIONS TO THE COUNCIL OF THE ORGANIZATION 18

AND TO THE SECRETARY GENERAL THEREOF

IX. DATE AND PLACE OF THE SIXTEENTH SESSION 18

APPENDICES:

I. OPINION ON THE DRAFT CONVENTION ON HUMAN RIGHTS APPROVED

BY THE INTER-AMERICAN COUNCIL OF JURISTS (PART TWO) 19

II. EXPLANATION OF THE VOTE OF PROF. CARLOS A. DUNSHEE DE

ABRANCHES WITH RESPECT TO THE OPINION OF THE COMMISSION

ON HUMAN RIGHTS ON THE DRAFT CONVENTION ON HUMAN RIGHTS

OF THE IACJ 55

III. LIST OF DOCUMENTS OF THE FIFTEENTH SESSION 63



INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

REPORT ON THE WORK ACCOMPLISHED

DURING ITS FIFTEENTH SESSION

(SPECIAL)

JANUARY 9 TO 20, 1967

I. ORGANIZATION OF THE FIFTEENTH SESSION

A. Opening and Length of the Session

1. The Inter-American Commission on Human Rights held its Fifteenth Session (Special) from January 9 through 20, 1967, at its permanent headquarters, the Pan American Union, in Washington, D.C.

2. This session was convoked to continue and complete the study of the Draft Convention on Human Rights prepared by the Inter-American Council of Jurists and the Draft Conventions on Human Rights presented by the governments of Chile and Uruguay to the Second Special Inter-American Conference, and to prepare a program of activities for the International Human Rights Year.

3. The opening meeting took place at 10 A.M. on January 9 in the Columbus Room of the Pan American Union. This meeting was attended by Dr. William Sanders, Assistant Secretary General of the Organization.

4. After declaring the work of this session begun, Prof. Manuel Bianchi, Chairman of the Commission, emphasized the need for completing the study of the Draft Conventions on Human Rights, which had started at the last session. He informed the Commission that within the last few days the General Assembly of the United Nations had approved the Covenants on Human Rights and a Protocol thereto, and stated that this circumstance should be taken into account because of its repercussions in the regional sphere. He added that the Commission, in addition to studying the draft conventions and the planning of activities for the International Human Rights Year, could at this session consider the situation with regard to human rights in certain American countries, with regard to which communications of a rather serious nature had been received. Finally, he expressed the Commission's pleasure at the presence of the Assistant Secretary General of the Organization, Dr. William Sanders, and in behalf of the members expressed thanks for the facilities that the General Secretariat was providing to the Commission.

5. Dr. Sanders expressed the continued willingness of the General Secretariat to cooperate toward the success of the work of the Commission. After pointing out the important work this agency was performing with regard to the Draft Conventions on Human Rights, he mentioned the visit paid to him by the Secretary-General of the Council of Europe and the Director of Human Rights of that council, who had expressed to him interest in expanding and tightening the cooperation between the Council of Europe and the Organization of American States, particularly in the field of human rights.

B. Members of the Commission and Participation in the Session

6. The Inter-American Commission on Human Rights is composed of seven members, elected in a personal capacity by the Council of the Organization of American States.

7. The names of the members are as follows, in alphabetical order:

Name Nationality

Mrs. Angela Acuña de Chacón Costa Rican

Prof. Manuel Bianchi Chilean

Dr. Carlos A. Dunshee de Abranches Brazilian

Dr. Gonzalo Escudero Ecuadorian

Dr. Gabino Fraga Mexican

Dr. Daniel Hugo Martins Uruguayan

Dr. Durward V. Sandifer United States

All members of the Commission attended this session.

C. 8. The Commission held eleven meetings during this session. The Secretariat prepared summary minutes of those meetings, which are reserved for the exclusive use of the members.

9. The Secretariat also prepared the following documents:

"Draft Report of the Inter-American Commission on Human Rights on its Activities in the Dominican Republic" (Doc. 6-15, Rev.).

"Requests for Information transmitted to the Government of Haiti on the Case of the Haitian Citizens returned to their Country from the Dominican Republic" (Doc. 2-16, Res.).

"Information on the Situation Regarding Human Rights in Nicaragua" (Doc. 4-16 ).

"Resumen de las comunicaciones recibidas por la Comisión Interamericana de Derechos Humanos correspondientes al Décimocuarto Período de Sesiones"

(Summary of communications received by the Inter-American Commission on Human Rights at the Fourteenth Session) (Doc. 7-15J Rev.).

"International Human Rights Year - Draft Program of Activities" (Doc. 7-16).

"Report by the Executive Secretary on the activities of the Secretariat between the Fourteenth and Fifteenth Sessions" (Doc. 6-16).

In addition to these documents, the Secretariat published several press releases to inform the public of the Commission's activities.

10. Technical and administrative services were furnished to the Commission by Dr. Luis Reque, its Executive Secretary, and by Drs. Alvaro Gómez and Guillermo Cabrera, staff members of its Secretariat.

II. AGENDA

11. At its first meeting, held on January 9, 1967, the Commission approved the following agenda for the Fifteenth Session (Special):

1. Report by the Chairman of the Commission.

2. Report by the Executive Secretary on the activities of the Secretariat between the Fourteenth and Fifteenth Sessions.

3. The situation regarding human rights in American countries:

a. The case of Haiti

b. The case of Nicaragua.

4. Draft Inter-American Convention on Human Rights.

5. International Human Rights Year.

6. Place of the Sixteenth Session.

III. REPORT PREPARED BY THE SECRETARIAT ON THE WORK

ACCOMPLISHED BY THE COMMISSION DURING ITS FOURTEENTH SESSION

12. The Commission, at the meeting held on January 9, 1967, approved the draft report on the Fourteenth Session prepared by the Secretariat, with the changes that the members made therein (Doc. 29-15).

This report contains a summary account of the activities carried out and the decisions taken by the Commission from October 3 through 21, 1966, when that session was held.

With respect to the situation regarding human rights in American countries, that report refers to the situation regarding those rights in Guatemala, with respect to which document 5-15 was published, containing the denunciations received with regard to that country and the notes addressed by the Commission

to its government from 1963 to the beginning of 1966.

With respect to the situation regarding human rights in Cuba, the report contains an account of the steps taken by the Chairman of the Commission for the purpose of obtaining authorization from the government of that country for the Commission to visit its territory, and of the serious denunciations received against Cuban authorities, and points out the need for preparing a new report that would include the information received on violations of human rights in Cuba, to be considered at the Sixteenth Session. With respect to the case of Haiti, the report records the decision on sending a note to the government of that country requesting information on the Haitian citizens returned to their country from Dominican territory.

13. The report devotes special attention to the work undertaken by the Commission with regard to the Draft Convention on Human Rights prepared by the Inter-American Council of Jurists and the draft conventions submitted by the governments of Chile and Uruguay to the Second Special Inter-American Conference, which work was entrusted to this agency by Resolution XXIV of that Conference and by a resolution adopted by the Council of the Organization on May 18, 1966. It presents the criterion that guided the Commission in making the study and refers to the documents it took into account in that work. It also

gives a summary of the changes suggested for the text of the articles of the IACJ draft. Following this it reproduces Part One of the Opinion transmitted to the Council of the Organization, giving the observations and recommendations made to it by the Commission on the first nineteen articles of the Draft Convention on Human Rights prepared by the Inter-American Council of Jurists, covering civil and political rights (Doc. 26-15).

14. The report also contains an account of the activities relating to the General Work Program, especially the preliminary study made of the Draft Inter-American Convention on Refugees, prepared by the Inter-American Juridical Committee, as well as of the second report entitled "The Protection of Human Rights during Periods of Suspension of Constitutional Guarantees or State of Siege"

(Doc. 12-15), by Dr. Daniel Hugo Martins, and the study entitled "The Right to Life" (Doc. 13-15), prepared by Mrs. Angela Acuña de Chacón.

Finally, the report deals with the subject of the International Human Rights Year and reproduces the decision taken at the Thirteenth Session (April 25, 1966), instructing the Secretariat to prepare a program of activities for celebrating that special year. It also mentions the decision taken to continue the study and consideration of this project at its Fifteenth Session, along with the budget for the expenditures involved.

IV. REPORT BY THE EXECUTIVE SECRETARY ON THE

ACTIVITIES OF THE SECRETARIAT BETWEEN THE FOURTEENTH AND

FIFTEENTH SESSIONS

15. At its first meeting, the Commission took cognizance of the report by the Executive Secretary on the activities of the Secretariat between the Fourteenth and Fifteenth Sessions (Doc. 6-16).

This report covers matters concerning the communications addressed by the Commission to the Council of the Organization of American States and to the governments of member states in accordance with the decisions taken at the Fourteenth Session.

16. The report also contains an account of the documents prepared by the Secretariat in the interval indicated, which dealt with the requests for information transmitted to the Government of Haiti (Doc. 2-16, Res.) and information on the situation regarding human rights in Nicaragua (Doc. 4-16), both

reserved for the exclusive use of the Commission, and the publication of other studies and reports.

V. THE SITUATION REGARDING HUMAN RIGHTS IN AMERICAN COUNTRIES a. The Case of Haiti

17. The Commission, taking into account the seriousness of certain denunciations received that alleged that violations of human rights had occurred in Haiti, decided to include the case of Haiti in its work program.

18. To facilitate consideration of this subject by the Commission, the Secretariat had prepared the document entitled "Requests for Information Transmitted to the Government of Haiti on the Case of the Haitian Citizens Returned to their Country from the Dominican Republic" (Doc. 2-16), which contains an account of the communications addressed to the Commission denouncing the execution by the Haitian authorities of some repatriated persons and of the efforts made by the Chairman of the Commission since May 1966 to learn the fate of those citizens, and the text of the communications exchanged by the Commission and the Government of Haiti on the matter.

19. The Commission began its study of this case at the eleventh meeting, held on January 20, 1967, and found that the Government of Haiti had refused to provide any information on this matter, as was indicated in the note from the Haitian Foreign Minister dated December l6, 1966, in reply to the request

repeated by the Commission on November 3 of that year.

20. At that same meeting, the Commission also considered the case of the Haitian Beauvoir-Florez family. According to the denunciations and information received, both Mrs. Marie-Thérese Beauvoir-Florez and her cousin Mr. Emmanuel Beauvoir, who were political prisoners, were to be executed by the Haitian authorities.

In this case, the Commission had requested pertinent information from the Government of Haiti by a cable dated December 28, 1966, which had been answered by the Haitian Foreign Minister on January 5, 1967, stating that Mrs. Beauvoir-Florez and Mr. Beauvoir had been tried for crimes against the security of the state and other serious acts, and had been sentenced to death on December 22, 1966, but that they had been pardoned by the Chief of State cn December 31, and that the decree of pardon was published in the official gazette, Le Moniteur, on January 5, 1967.

The Commission decided to request from the-Haitian Government additional information as to whether those two persons were free to leave Haitian territory, and a copy of the aforementioned official gazette. The Government of Haiti, by a cable dated January 7, 1967, informed the Commission that Mrs. Beauvoir-Florez and Mr. Beauvoir had been freed on January 6. It subsequently transmitted a copy of the official gazette, Le Moniteur.

21. After considering the foregoing cases and examining in general the situation regarding human rights in Haiti, the Commission decided to make the said situation kown to the next Inter-American Conference, mentioning especially the case of the Haitian citizens returned to their country from Dominican territory in April and May 1966 and the case of the Beauvoir-Florez family. It also requested the Secretariat to include discussion of the last-named case in the aforementioned document 2-16, so that it might decide, at the next meeting, on the publication thereof.

The Commission decided to continue to transmit to the Government of Haiti, as usual, the pertinent parts of the denunciations received, and at the same time to request from its authorities information to clarify the facts denounced.

b. The Case of Nicaragua

22. During the months of November and December 1966, the Commission received numerous complaints and denunciations against the authorities of the Government of Nicaragua, alleging that flagrant violations of the fundamental rights of the individual were being committed in that country. Other denunciations mentioned specific violations of the rights involved in freedom of suffrage, with a view to the general elections convoked for February 1967.

The Commission, in considering this matter at its eleventh meeting, had available a restricted document entitled "Information on the Situation regarding Human Rights in Nicaragua" (Doc 4-16, Res), prepared by the Secretariat for the purpose of facilitating the work of this agency and for the exclusive

use of its members. This document mentions the denunciations against Nicaraguan authorities that were received, classified according to the rights allegedly violated. It reproduces the notes addressed by the Commission to the Government of Nicaragua, with which it sent the pertinent parts of the denunciations received and requested information on the matter. It also includes the reply of the Government of Nicaragua, with which it sent the information it deemed pertinent, and at the end of the report there are several appendices supplementing the denunciations received.

23. In studying the case of Nicaragua, the Ccmmission considered the note sent by the government of that country on December 13, 1966, in reply to the notes from the Commission dated November 17 and December 7, 1966. From this study the Commission found that several of the cases denounced for violation of fundamental human rights were already before the Nicaraguan judicial authorities, but that no verdict had been pronounced on them. With regard to one case submitted to the military courts, the Commission found that it was also in the stage of pretrial investigation. With regard to both of these situations, the Government of Nicaragua stated to the Commission that the verdicts handed down by the competent courts would be sent to it. The Commission also noted that, as regarded supposed violations of the electoral process, those cases had been transmitted to the Supreme Electoral Tribunal, "from which the Executive Branch of Nicaragua has asked for the information requested, in order to send it in due course to the Commission".

24. The Commission also took note of the receipt of numerous communications from Nicaraguan citizens, who stated that in that country there was full respect for human rights and that the denunciations made to the Commission to the contrary were groundless.

The Commission decided to continue to study the situation regarding human rights in Nicaragua in its next session, as well as the material that the Government of that country offered to send to it.

VI. DRAFT INTER-AMERICAN CONVENTION ON HUMAN RIGHTS 25. In accordance with what was decided upon at its Fourteenth Session, the Commission continued, during the present session, its study of the Draft Convention on Human Rights prepared by the Inter-American Council of Jurists, together with the draft conventions submitted by the governments of Chile and Uruguay, as regarded economic, social, and cultural rights and measures of application and special clauses (Doc. 29-15).

As this agency stated at its previous session, and in accordance with Resolution XXIV of the Second Special Inter-American Conference (Doc. 29-15), the Commission deemed it advisable:

a. To limit its contribution to the mandate it had received, that is, to make known its views so that they could be heard by the Council of the Organization;

b. To recommend that a convention be prepared that would have a chance to be ratified by

the governments, limiting it to the protection of fundamental human rights and making precise provisions with respect to measures of application; and

c. To take into special consideration the experience of the European Countries that approved the Convention of Rome (1950) and the discussions that took place during the preparation of the United Nations Draft Covenants on Human Rights, as well as the constitutional and legislative experience of the American countries.

26. Dr. Carlos A. Dunshee de Abranches served as rapporteur for this topic, and each article of the IACJ draft was studied and discussed by the members, who presented proposed changes in the wording and in the order of various articles. In some cases it was recommended that some articles be eliminated, in others that articles be completely or partially replaced by articles from the draft conventions presented by Chile or that presented by Uruguay, when it was judged that such articles were more suitable for the rights it was desired to protect. In other cases the members recommended new articles. The rapporteur presented a group of amendments to the Inter-American Council of Jurists Draft.

27. In making its study, the Commission made use of the comparative study of the Draft Convention on Human Rights prepared by the Inter-American Council of Jurists, and those presented by the governments of Chile and Uruguay, both that dealing with economic, social, and cultural rights (Doc.2-15) and that dealing with measures of application and special clauses (Doc. 3-15, Rev. 2). Both of those documents were prepared by the Secretariat for the purpose of facilitating the work of the Commission.

The Commission also made use of the work entitled "Documentos de la Comisión Europea de Derechos Humanos" (Documents of the European Commission of Human Rights) (Doc. 8-14), prepared by the Secretariat for the same purpose.

28. The Commission began this work at its second meeting studying Part I, Chapter II, of the Draft Convention prepared by the Inter-American Council of Jurists, entitled "Economic, Social, and Cultural Rights," and, beginning with Article 20, made the following recommendations:

a. That Article 20 be deleted, for the reasons stated at the beginning of Part Two of its Opinion (Appendix I).

b. That Articles 21 to 23, 25 to 30, and 32 be replaced by two articles numbered 21 and 22.

c. That Article 24 (the right to organize labor unions) be deleted, and its subject matter be transferred to the group of civil and political rights as Article 13-A.

d. That Article 31 (the right to private property) be deleted, in view of the fact that the constitutional scope of this right is being reviewed in some of the American states.

e. That Article 32 be deleted, since it deals with matters foreign to the Convention.

f. That a Chapter III, entitled "Rules for Interpretation and Application" be established, covering the subject matter of Article 33, in the new Articles 23 and 24.

g. That a Chapter IV, entitled "Expansion of Protection" be established, consisting in the new Article 25.

29. With regard to Part II of the Inter-American Council of Jurists draft, which refers to measures of application and special clauses, the Commission made the following recommendations:

a. That the said Part Two be entitled "Organs of Protection."

b. That a Chapter V, entitled "Organs", be established, replacing Articles 34 to 50 by new Articles 26 to 30.

c. That Article 34 be replaced by new Article 26, to reconcile the text to the existence of the Inter-American Commission on Human Rights.

d. That Articles 35 to 47 be replaced, for the same reasons expressed with regard to Article 34, by new Article 27, which confirms the existence of the present Commission.

e. That a Chapter VI, entitled "Procedure of the Commission " be established, replacing Articles 51 to 64 by new Articles 31 to 36.

f. That Articles 58 and 60 to 64 be deleted, since the subject matter thereof is contained in the new Articles 21 and 22.

30. With regard to the Inter-American Court of Human Rights, the Commission made the following recommendations:

a. That the title "Part IV" be eliminated and replaced by the heading "Chapter VII," entitled "Organization of the Court," replacing Articles 65 to 70 by new Articles 37 to 42, covering the same subject matter.

b. That a Chapter VIII, entitled "Jurisdiction of the Court," be established, covering the subject matter dealt with in Articles 71 to 76 in new Articles 43 to 47.

c. That a Chapter IX, entitled "Procedure before the Court," be established, including the texts of Articles 77 to 81, but renumbered as Articles 48 to 52.

31. With regard to Part V of the Draft Convention prepared by the Inter-American Council of Jurists, entitled "General Provisions," the Commission made the following recommendations:

a. That the heading "Part V" be replaced by "Part three," with the same title, "General Provisions."

b. That a new Chapter X, entitled "Duties, Privileges and Immunities, and Expenses," be established, including in it new Articles 53 to 57 in replacement of Articles 82 to 84 of the Inter-American Council of Jurists Draft, new Article 53 being exactly the same as old Article 82.

c. That a Chapter XI, entitled "Transitory Provisions," be established, dealing with the terms of the members of the Court and the headquarters thereof, in the new Articles 58 and 59, which would be added.

32. With regard to Part VI of the Draft Convention prepared by the Inter-American Council of Jurists, the Commission made the following recommendations:

a. That Part VI, entitled "Special Clauses," be eliminated.

b. That in its place a Chapter XII, entitled "Ratification, Reservations, Denunciations, and Amendment," be established, which would include new Articles 60 to 64, replacing Articles 85 to 88 of the Inter-American Council of Jurists draft.

33. The Commission completed its study of the articles of the three Draft Conventions on Human Rights during its eleventh meeting and decided, in accordance with the decision taken on this matter at the previous session, that the observations and recommendations on those drafts should be transmitted to

the Council of the Organization of American States, through the Secretary General, under the title of "Opinion on the Draft Convention on Human Rights Approved by the Inter-American Council of Jurists, Part Two" (Doc. 8-16), which appears as Appendix I to this report. There appears, likewise, the commentary

on the vote of the rapporteur, Dr. Dunshee de Abranches (Appendix II).

VII. INTERNATIONAL HUMAN RIGHTS YEAR

34. By Resolution XXIII, approved by the Second Special Inter-American Conference, in November 1965, the Organization of American States decided to adhere to the celebration of the International Human Rights Year designated by the United Nations for 1968.

In paragraph 2 of the operative part of that resolution, the Conference requested the Inter-American Commission on Human Rights to prepare a program of activities that would contribute, as paragraph 1 said, to making the celebration "more effective and more successful."

35. During its Thirteenth Session, held in Mexico City in April 1966, the Commission instructed the Secretariat to prepare that program, suggesting that it include the organization of a symposium on human rights, the publication of a "Yearbook of Human Rights" beginning in 1908, and a volume on the work accomplished by the Commission from 1960 to 1967.

In accordance with the instructions received, the Secretariat reported to the Commission on the preparation of the program, during the Fourteenth Session, held in Washington, D.C., in October 1966. The draft was considered by the Commission at the meeting held on October 20, and it decided to consider that program, along with the budget therefor, at the Fifteenth Session (Special).

36. The Commission, at the sixth meeting, held on January 16, considered the program of activities prepared by the Secretariat, which bore the title "International Human Rights Year - Draft Program of Activities" (OEA/Ser.L/V/II.16, Doc. 7).

That document contains, in addition to the texts of the resolutions and decisions that served as a basis for the work, an account of the preparator work done by the United Nations with a view to the celebration of the aforementioned International Year in 1968.

37. It also refers to Resolution XXIV of the Second Special Inter-American Conference, on the possible holding of a Specialialized Conference to consider the draft Inter-American Convention on Human Rights and decide on the approval and signing of that instrument. In this connection the proposal presented by the Secretariat says that it would be desirable for the Commission to suggest to the Council of the Organization that the said Specialized Conference be held in 1968, as an effective contribution to the celebrations of the said International Year.

38. The document also indicates the possibility that the Commission might hold its Seventeenth Session in Bogotá, in 1968, as a symbolic gesture that would form part of the celebration of the Human Rights Year.

The proposal also includes the idea of holding courses on human rights beginning in 1968, under the sponsorship of the Commission, notes that such courses had already been considered by the Commission in its General Work Program since 1962, and refers to the preliminary negotiations conducted with the Instituto de Derecho Comparado (Institute of Comparative Law) of Mexico, with a view to holding the first course under this program there in 1968.

39. It also refers again to the advisability of publishing the "Yearbook of Human Rights" and the volume on the work accomplished by the Commission from 1960 to 1967 as well as of carrying out other activities, such as a series of lectures, dissertations, and round table discussions on the American Declaration of the Rights and Duties of Man, for which purpose the Commission could request of the Secretary General of the Organization that he give pertinent instructions to the Offices of the Pan American Union in the member states of the OAS.

Along with document 7-16, the Secretariat sent a copy of the resolutions adopted by the General Assembly of the United Nations (Doc. A/RES/2217/XXI/ January 3, 1967), on the International Year for Human Rights, based on the report of the Third Committee.

40. The Commission, at its eleventh meeting, held or January 20, 1967, approved the draft program presented by the Secretariat, leaving undetermined the date on which the Specialized Conference should be held, and stating that it would be desirable that it take place in 1968 if it had not met before then.

The Commission also decided to transmit that program to vhe Council of the Organization, thus fully complying with the madate conferred upon it by the Second Special Inter-American Conference.

VIII. COMMUNICATIONS TO THE COUNCIL OF THE ORGANIZATION

AND TO THE SECRETARY GENERAL THEREOF 41. As was done at earlier sessions, the Commission decided to send a note to the Chairman of the Council of the Organization of American States, informing him of the work accomplished by the Commission at its Fifteenth Session (Special). This note was sent on January 27, 1967.

A note likewise sent to the Secretary General of the Organization on April 10, 1967, transmitting Part Two of the Opinion on the Draft Convention on Human Rights Approved by the Inter-American Council of Jurists (Doc. 8-16).

IX. DATE AND PLACE OF THE SIXTEENTH SESSION 42. The Chairman of the Commission stated that the Government of Chile had informed him that it would be pleased if the Commission were to hold its next session in that country, and that the authorities of Viña del Mar had expressed their pleasure at the idea of being host to that meeting.

The Commission decided to hold its Sixteenth Session in the city of Viña del Mar, Chile, and thanked Professor Bianchi for the aforementioned invitation. It also authorized the Chairman to determine the exact date for the beginning of the session, between April 15 and May 15, 1967.

(s) Manuel Bianchi, Chairman

(s) Gabino Fraga, Vice Chairman

(s) Angela Acuña de Chacón

(s) Carlos Alberto Dunshee de Abranches

(s) Gonzalo Escudero

(s) Daniel H. Martins

(s) Durward V. Sandifer

APPENDIX I

OPINION ON THE DRAFT CONVENTION ON HUMAN RIGHTS

APPROVED BY THE INTER-AMERICAN COUNCIL OF JURISTS

PART TWO

ARTICLE 20 - The Commission recognizes the importance of the principles set forth in Article 20 of the IACJ draft, in Article 23 of the Uruguayan draft and in Article 1 of the Chilean draft which are already proclaimed in the UN Charter (Article 1.2.c and Article 2.1 and 2.7), in the OAS Charter (Articles 5.b, 9, 15 and 26), and in the Universal Declaration of Human Rights (Article 21.3). It does not believe, however, that a region corvention on fundamental human rights is the appropriate place in which to reaffirm these principles.

It therefore proposes that Article 20 be deleted from the IACJ draft.

ARTICLES 21-23 and 25-30 - As stated in Part One of its Opinion, the Commission believes that, initially, the Convention should contenplate only those rights and freedoms in regard to which the American states are now in a position to extend international protection which goes beyond the limits of their domestic competence. In examining the chapter on economic, social, and cultural rights in the LACJ draft and in those presented by the Uruguayan and Chilean governments, the Commission had serious doubts as to the appropriateness of including those rights in the present convention since, in the light of the experience of the Council of Europe and the United Nations, it considered that those rights, because of their nature, should be covered by a special system of international protection.

In considering the aforementioned economic, social and cultural rights, the Commission took into account the following development that have taken place since the Fourth Meeting of the Inter-American Council of Jurists was held in Santiago, Chile, in 1959: (a) the 1961 revision of the Statutes of IA-ECOSOC, which established the present Special Committees on Education, Health, and Labor Matters; (b) the establishment of CIAP, in 1964, with authoriuy to foster the economic and social well-being of the American states through efectivo cooperation among them; (c) the resolutions of the Second Special Inter-American Conference on amendments to the OAS Charter and on the "Economic and Social Act of Rio de Janeiro"; and (d) the proposals to ~nclude in the OAS Charter a declaration of economic and social rights, to be protected by IA-ECOSOC (Preliminary Draft of Economic and Social Standards, approved in Washington on June 18, 1966).

However, the Commission believes that in view of the importance of the economic, social and cultural rights, the future Inter-American Convention on Human Rights should contain provisions by which the states parties to the Convention will acknowledge the need to incorporate gradually into their domestic

legislation such measures as are required to fully implement those right. The Commission also considers that consideration of the system for the international protection of the economic, social, and cultural rights should begin as soon as possible. The Commission is prepared to begir examining this system of protection if the governments of the member states agree that it do so.

As a result of the foregoing, the Commission decided to suggest that Article 21 to 23, 25 to 30, and 32 of the IACJ draft be replaced by the following:

Article 21 1. The States Parties to this Convention recognize the need to adopt and, as appropriate, strengthen the guarantees to permit full protection of the other rights set forth in the American Declaration of the Rights and Duties of Man which are not included in the preceding articles.

2. The Contracting States also declare their intention of including and, as appropriate, maintaining and perfecting, in their domestic legislation, the provisions most conducive to the exercise of the right to employment and the fair and equitable remmuneration of work, the establish-

ment of humane working conditions; and the protection of children, mothers and families; as well as to the establishment of preventive and social security measures that will ensure health, disability and unemployment protection, the attainment of bette living standards, and access to education and to the means for cultural improvement.

Article 22

The contracting States shall report periodically to the Commission on Human Rights on the measures they have taken to achieve the purposes set forth in the preceding article. The Commission shall make appropriate recommendations and, when such measures have been widely accepted, shall promote the conclusion of a special convention, or additional protocols to this Convention, in order to include them in this Convention or in such other instrument as considered appropriate.

ARTICLE 24- While labor-union rights are included in the IACJ draft among the economic, social and cultural rights, the Commission regards them as a special aspect of the right of association.

The Commission feels that the latter right and its regulatory provisions should be governed by the same safeguards as protect the right of association and the others included in the IACJ draft among the civil and political rights. The European Convention for the Protection of Human Rights and Fundamental Freedoms included the right of assembly, the right of association, and the rights to organize and join labor unions under a single provision (Treaty of Rome, 1950, Article 11 ).

Accordingly, the Commission agreed to suggest the insertion of a new article, on labor-union rights, immediately after Article 13 of the IACJ draft. The proposed text is as follows:

Article 13-A 1. Everyone shall have the right to organize labor unions and

freely to join those of their choice, for the purpose of protecting their economic,

social and professional interests.

2. The law may regulate the organization of local, national and

international labor unions and restrict the exercise of these rights

by members of the armed forces or police, or by government employees.

3. No one may be obliged to belong to a union.

The above text includes the concepts contained in Article 27.2 of the Uruguayan draft and Article 21.2 of the Chilean draft.

ARTICLE 31 - The Commission considered the desirability and timeliness of including within the system of protection of the Convention the right to private pro perty, covered by Article 31 of the IACJ draft, but decided not to do so, in view of the fact that the constitutional scope of this right is being reviewed in some of the American states.

ARTICLE 33 - In order to include the substance of Article 37 of the Uruguayan draft and improve the language of Article 33 of the IACJ draft, the Commission recommends the adoption of the following texts:

CHAPTER III RULES FOR INTERPRETATION AND APPLICATION Article 23

No provision of this Convention shall be interpreted as:

a) permitting any Contracting State, group, or person to

eliminate the rights and freedoms recognized in this Con-

vention or restrict them to a greater extent than provided

herein;

b) abrogating or restricting any right or freedom recognized

by virtue of the laws of any Contracting State or by virtue

of another convention to which one of such States is a Party;

c) precluding other rights and guarantees which are inherent in

the human personality or are derived from the democratic re-

publican form of government;

d) excluding or limiting the legal effect of the American De-

claration of the Rights and Duties of Man and other inter-

national acts of the same nature. Article 24The restrictions which, according to this Convention, may be placed on the rights and freedoms recognized herein shall not be applied for purposes other than those for which the restrictions were established.

CHAPTER IV

EXPANSION OF PROTECTION

Article 25

The scope of protection of this Convention may be extended to include other

rights and freedoms that may be recognized in accordance with the procedure set forth

in Article 63 or 64.

ARTICLE 34 - In order to reconcile Article 34 of the IACJ draft with the existence of the Inter-American Commission on Human Rights, which had not been established when the draft was prepared, the Commission recommends the following wording:

Part II

ORGANS OF PROTECTION

CHAPTER V

ORGANS Article 26

The following organs shall be competent to ensure the performance of the

commitments made by the States Parties to this Convention:

a) The Inter-American Commission on Human Rights, hereinafter

styled "the Commission"; and

b) The Inter-American Court of Human Rights, hereinafter styled

"the court".

ARTICLES 35 to 47 - In view of its comments on Article 34, the Commission considers it unnecessary for all the existing provisions on the organization and functions of the Commission to be included in the future Convention. However, it believes that the decisions already taken on these matters should be reaffirmed and their provisions included in the Convention. This can be done by simply referring to those decisions and providing, at the same time, that the Commission will continued to have its present organization and functions, plus any additions absolutely necessary to cover the matters protected by the Convention.

The Commission therefore proposes the following text to replace Articles 35 to 47 of the IACJ draft: Article 27

The Inter American Commission on Human Rights, created by the

Fifth Meeting of Consultation of Ministers of Foreign Affairs, shall continue

to have the structure, organization and functions conferred upon it by the Statutes

approved by the Council of the Organization of American States, as recognized

and expanded by Resolution XXII of the Second Special Inter-American Conference,

and shall also have the powers hereinafter assignated to it for the accomplishment

of the purposes of this Convention.

ARTICLES 48 and 49 - Articles 4c and 49 of the IACJ draft are based on the European Convention and on the draft United Gations Covenants on Human Rights, as submitted to the UN General Assembly in 1959.

The Commission feels that the acceptance by the American states cf the procedure of receiving petitions from individuals, a procedure firmly rooted in actual practice over more than six years since the Commission was established, warrants the retention of the same procedure in the new stage of protection of human rights under the future Convention.

It considers, however, that, in exceptional cases involving serious and repeated violations of human rights, provision should be made whereby any Contracting State may present a communication directly to the Commission.

Based on these reasons, the Commission proposes that Articles 48 and 49 of the IACJ draft be replaced by the following:

Article 28

Subject to the provisions of Article 27, any person, group of persons,

or legally constituted association may lodge a petition with the Commission

containing a report or complaint of a violation of an of the rights or freedoms

recognized in Articles 1 to 18 of this Convention.

Article 29

1. Every Contracting State may, when it deposits its instrument

of ratification or acceptance of this Convention, declare that it recognizes the

competence of the Commission to receive and examine petitions in which a

Contracting State alleges that another Contracting State has committed violations

of the human rights covered by this Convention.

2. Petitions presented by virtue of this article may be admitted

and examined only if they are presented by a Contracting State which has

made a declaration recognizing in respect of itself the aforementioned

competence of the Commission. The Commission shall not admit any petition

from a Contracting State or against a Contracting State which has not made

such a declaration.

3. Such declaration may be made valid for a specified period.

4. The declarations shall be deposited in the General Secreta-

riat of the Organization, which shall transmit copies of them to the

Contracting States.

ARTICLE 50 - The Commission recognized the need for including this provision in the Convention because the reference made in Resolution XXII of the Second Special Inter-American Conference to ascertaining "whether...domestic legal ... remedies ... have been duly ... exhausted" is not sufficiently broad

to cover all the matters dealt with in Article 50 of the IACJ draft, Article 55 of the Uruguayan draft, and Article 54 of the Chilean draft.

While all three drafts make specific mention of "cases in which justice has been denied" or "a denial of justice is alleged", the Commission, recalling the discussions that have arisen when an attempt has been made to include this concept in other conventions, does not believe it advisable to include such a phrase which, because of its controversial nature, could make it more difficult to secure the ratification of the Convention. The Commission does feel, however, that it would be advisable to include an objective indication of the cases of denial of justice in which, as an exception, it may act on a petition complaint alleging a violation of the rights protected by the Convention, after the domestic legal remedies have been exhausted.

The Commission proposes the following text in lieu of Article 50 of the IACJ draft:

Article 30

1. The admission of a petition by the Commission shall be subject to the following requirements:

a) that all remedies of domestic law have been duly pursued and

exhausted, in accordance with generally recognized principles

of international law, but the alleged violation has not ceased;

b) that the petition be lodged within a period of six months from

the date on which the complaining party receive notification

of the final decision;

c) that the subject of the petition has not been submitted to another

international procedure for settlement, or is not pending a decision

through such a procedure, in the case of petitions lodged by one of

the Contracting States;

d) that the petition contain the signature, name, nationality, and domicile

of the person or persons or of the legal representative of the association

lodging the petition.

2. The provisions of paragraph 1.2 above shall not be applicable in cases in which:

a) the domestic legislation of the State in question does not afford due process

of law for the protection of the right or rights mentioned in the petition lodged

with the Commission;

b) the petitioner was denied access to the remedies of domestic jurisdiction or

was prevented from exhausting them;

c) there has been unwarranted delay in reaching a decision through domestic

remedial procedures.

ARTICLE 51 - In order to adapt the language of Article 51 of the IACJ draft to that contained in the texts already approved, the Commission suggests that the article be rephrased to read as follows:

CHAPTER VI

PROCEDURE OF THE COMMISSION

Article 31

The Commission shall consider inadmissible any petition submitted

under Article 29 if:

a) any of the requirements indicated in Article 30 has not

been met;

b) the petition does not set forth the facts alleged to

constitute a violation of the Convention;

c) the statements of the petitioner indicate that the peti-

tion is manifestly groundless;

d) the petition is substantially the same as one previously

decided upon by the Commission.

ARTICLES 52 to 57 - The procedure which the IACJ established for the Commission could obviously not take into consideration the experience of the European and Inter-American Commissions, since the draft was approved in 1959. On the basis of this experience, the Commission recommends that Articles 52 to 57 of the IACJ be replaced by the following:

Article 32

When the Commission receives a complaint of a violation of the rights protected by this Convention, it shall proceed as follows:

a) If it considers the petition admissible, it shall request information

from the government of the State to which the authority

described as being responsible for the alleged violation belongs,

furnishing a transcript of the pertinent portions of the petition.

This information should be submitted within a reasonable period

to be determined by the Commission, in accordance with the

circumstances of each case;

b) After the information has been received, or after the period

established has elapsed and the information has not been received,

the Commission shall ascertain whether the grounds for the complaint

still exist. If not, it shall order the record to be closed.

c) The Commission may also declare the petition inadmissible

or groundless on the basis of additional information or

evidence subsequently received;

d) With a view to ascertaining the facts, it shall undertake,

with prior notice to the representatives of the parties,

a critical examination of the subject matter of the peti-

tion and, if need be, an investigation for the effective

conduct of which the States concerned shall furnish all

necessary facilities;

e) It shall place itself at the disposal of the interested parties

with a view to reaching a friendly settlement of the matter

on the basis of respect for the human rights recognized in

this Convention.

f) It may request the States concerned to furnish any addi-

tional pertinent information and, if so requested, shall

hear ora1 statements or receive written statements of the

interested parties.

Article 33

If a friendly settlement has been reached in accordance with paragraph e of

Article 32, the Commission shall draw up a report, which shall be transmitted to the

States concerned and then communicated to the Secretary General of the Organization

for publication. This report shall be confined to a brief statement of the facts and of

the solution reached.

Article 24

1. If a settlement is not reached, the Commission shall, not later than 12

months after the receipt of the notice, denunciation or complaint, draw up a report setting

forth the facts and stating its conclusions. If the report does not represent in whole or in

part the unanimous opinion of the members of the Commission, any member may attach

to it a separate opinion. The written and oral statements made by the parties in accordance

with Article 32.f shall also be attached to the report.

2. The report shall be transmitted to the States concerned, which shall not be

at liberty to publish it.

3. In transmitting the report, the Commission may make such proposals

and recommendations as it sees fit.

Article 35

1. If the matter is not submitted to the Court and its juris-

diction thereof accepted within three months from the date of the

transmittal of the report of the Commission to the States concerned,

the Commission shall decide by an absolute mayority vote of its mem-

bers whether the State ccmplained against, or against which the peti-

tion has been presented, has violated the obligation contracted under

this Convention.

2. In the affirmative case, the Commission shall prescribe a

period during which the State concerned is to take the measures re-

quired by the decision of the Commission.

3. If the State concerned has not taken satisfactory measures

within the prescribed period, the Commission shall decide by the mayority

provided for in paragraph l of this article whether to publish its report.

ARTICLES 58 to 64 - In view of its suggestion that Articles 21 to 23 and

25 to 31 of the IACJ draft be replaced by Articles 21 and 22 of this Opinion, the

Commission believes that Articles 58 and 60 to 64 of the IACJ draft should

be deleted and that Article 59 should be replaced by the following:

1. The Contracting States bind themselves to inform the Com-

mission, by means of periodic reports, of the measures adopted in order to

guarantee the observance of the rights set forth in Article 21.

2. The Commission shall determine the intervals between these

reports.

3. In the case of reports that are to be presented originally to

specialized agencies of the United Nations or specialized organi zations of the

Organization of American States, the Contracting State shall comply with the

requirements of paragrapn 1 of this article by sending a copy to the Commission.

ARTICLES 65 to 70 - These articles of the IACJ draft are based on the organizational structure of the European Court of Human Rights and are an adaptation of the corresponding provisions of the Rome Convention of 1950.

The Commission believes, however, that the organization of the future Inter-American Court of Human Rights should be based on an adaptation of the system accepted for the Inter-American Commission on Human Rights, which has proved satisfactory. The Commission believes that the permanent seat of the Court should be designated in the Convention, but since it does not consider itself competent to make this designation it has left a blank in Article 42, as transcribed below. Based on these considerations, the Commission proposes that Articles 65 to 70 of the IACJ be replaced by the following:

CHAPTER VII

ORGANIZATION OF THE COURT

Article 37

1. The Court shall consist of seven members elected in an in-

dividual capacity from among jurists of high moral character and recognized

competence in the field of human rights who are nationals of Contracting States

that have accepted the compulsory jurisdiction of the Court (Article 44).

2. No two members may be nationals of the same State.

Article 38

1. The members of the Court shall be elected by the Council of the

Organization by absolute majority vote and by secret ballot.

2. If the candidates for one or more vacancy shall not receive an absolute

majority vote on the first ballot, the candidate receiving the least number of votes shall be

eliminated and this procedure shall be repeated until the vacancy or vacancies are filled.

Article 39

1. At least three months before tne date prescribed for the election of the

Court, each Ccntracting State th.at has accepted the compulsory jurisdiction of the Court

shall submit a list of three candidates, including not less than two of its own nationality.

2. The Secretary General of the Organization shall prepare an

alphabetical list of these candidates and submit it to the Council at least thirty

days before the election.

3. The same procedure shall be followed in filling any vacancies that arise.

Article 40

1. The members of the Court shall be elected for a term of six years

and they may be re-elected.

2. A judge elected to replace a member whose term has not expired

shall complete the term of the member he replaces.

3. Each member shall cease to hold office at the end of his term;

provided, however, that with respect to any cases he has begun to examine, his

service shall continue until all the evidence has been taken thereon.

Article 41

1. The presence of at least five members shall constitute a quorum

for the transaction of business by the Court.

2. If a member is a national of a State which is a party to a case

submitted to the Court, he shall be replaced by an ad hoc judge possessing the

qualifications set forth in Article 37, elected by the other members of the Court,

whenever it is necessary to do so in crder to constitute the quorum prescribed

in paragraph 1 of this Article.

Article 42

1. The Court shall have its seat in . . . but may also convene and

function in any other American State it sees fit, with the acquiescence of the

State concerned.

2. The Secretary shall have his office in the place where the Court

has its seat, subject to his duty to attend the sessions held by the Court in any

other place.

ARTICLES 71 to 75 - In order to improve the language of Articles 71, 73 and 75 of the IACJ draft and eliminate the six alternatives in Articles 72 and 74, as well as Article 76, the Commission suggests that those articles be replace by the following:

CHAPTER VIII

JURISDICTION OF THE COURT

Article 43

Only the States Parties to this Convention, or the Commision, shall

have the right to submit a case to the Court.

Article 44

1. The Court shall have jurisdiction in all cases concerning the

interpretation and application of the provisions of this Convention, provided

the State against which a claim is lodged does not refuse to submit to the

judgment of the Court.

2. Contracting State may declare at any time that it recog-

nizes as binding, legally proper and not requiring special agreement, the

jurisdiction of the Court on all matters relating to the interpretation or

application of this Convention.

3. Such declaration may be made unconditionally or on the

condition or reciprocity or for a specified period only, and shall be presented

to the Secretary General of the Organization of American States, who shall

transmit copies thereof to the other Contracting States and to the Secretary

of the Court.

Article 45

In order that the Court may exercise its jurisdiction, it is necessary

that the procedures set forth in Articles 32 to 34 shall have been exhausted

and that the period of three months prescribe in Article 35 shall have expired.

Article 46

In the event of a dispute as to whether the Court has jurisdiction in

a particular case, the matter shall be settled by decision of the Court.

Article 47

l. After it has found that there was a violation of a right or freedom

protected by this Convention, the Court shall be competent to determine the

amount of compensation to be paid to the injured party.

2. The part of the judgment that contains compensatory damages

may be executed in the State concerned through the domestic procedure in force

for the execution of judgments against the State. Article 47.2 is identical with

Article S4.2 of the Uruguayan draft.

ARTICLES 77 to 81 - The Commission if of the opinion that these articles

should remain as in the IACJ draft. These articles wculd make up Chapter IX

PROCEDURE BEFORE THE COURT - and would be renumbered 48 to 52,

respectively.

ARTICLES 82 to 34 - The Commission believes that Article 82 of the IACJ

draft should be retained as Article 53. It also recommends that Articles 83 and 84 of

that draft be replaced by the following:

Part III

GENERAL PROVISIONS

CHAPTER X

DUTIES, PRIVILEGES AND IMMUNITIES, AND EXPENSES

Article 53

(Same as Article 82 of the IACJ draft)

Article 54

The members of the Commission and of the Court shall enjoy, in the

territory of the State where they exercise their duties, the privileges and immunities

extended to diplomatic representative in accordance with international law.

Article 55

While exercising their duties, the members of the Court shall

receive such emoluments and travel allowance as are allotted therefor

in the program-budget of the Organization of American States, with

due regard to the importance and dignity of those functions

Article 56

Secretariat services shall be furnished to the Commission and the

Court by the specialized unit forming part of the General Secretariat of the

Organization. This unit should be provided with the resources required to

accomplish the tasks assigned to it by the Commission and the Court.

Article 57

The expenses of the Commission, the Court and their respective Secretariats

shall be included in the program - budget of the Organization.

TRANSITORY PROVISIONS - The Commission suggests that the following transitory provisions be included in the future Convention:

CHAPTER XI

TRANSITORY PROVISIONS

Article 58 1. The terms of four of the members cf the Court elected at the first

election shall expire at the end of four years, and the terms of the other three members

shall expire at the end of two years.

2. Immediately after the first election has been completed, the Secretary

General of the Organization shall fix the length of the term of each of the successful

candidates in proportion to the number of votes received.

3. In the event that two or more of the members elected received the same

number of votes, the Secretary General of the Organization shall determine the duration

of their terms of office by the drawing of lots.

Article 59

The Commission, the Court and their Secretariats shall function in the

Pan American Union until they are installed in their permanent headquarters.

ARTICLES 65 to 89 - The Commission believes it advisable to retain Articles 85 and 67 of the IACJ draft, on the entry into force and denunciation of the future Conventicn. These would become Articles 60 and 62, respectively. In addition, it believes that Articles 86 and 88 should be replaced by the following:

CHAPTER XII

RATIFICATION, RESERVATIONS, DENUNCIATION

AND AMENDMENT

Article 60

(Same as Article 85 of the IACJ draft)

Article 61

1. Any Contracting State may, at the time of the deposit of its instrument of

ratification or acceptance of this Convention, make a reservation if a constitutiona1 or

legal provision in force in its territory should be contrary to any provision of this Con-

vention. Every reservation should be accompanied by the text of the constitutional or legal

provision referred to.

2. A provision that has been the subject of a reservation shall not be in force

between the reserving State and the other Contracting States. In order for the reservation to

have this effect, it shall not be necessary for the other Contracting States to accept it

Article 62

(Same as Article 87 of the IACJ draft)

Article 63

1. Any Contracting State, the Commission or the Court may

propose an amendment to this Convention and present it to the Inter-American

Conference through the Secretary General of the Organization.

2. The amendment approved shall enter into force on the date

when instruments of ratification thereof by an absolute majority of the States

Parties to this Convention have been deposited.

Article 64

1. Pursuant to Article 25, the Commission may submit additional protocols

to this Convention for approval by the Contracting States, with a view to the gradual

expansion of its scope of protection through the inclusion of other rights and freedoms

set forth in the American Declaration of the Rights and Duties of Man, as soon as the

Commission believes that the States are prepared to accept the obligations inherent

in each of those rights and freedoms. The Contracting States shall be obliged to submit

each Protocol to the approval of the appropriate authority, in accordance with their

respective constitutional procedures.

2. Each protocol shall enter into force on the date of deposit

of the seventh instrument of ratification thereof and shall be applicable only

between the States that are parties thereto.

January 19, 1967

(s) Manuel Lianchi, Chairman

(s) Gabino Fraga, Vice Chairman

(s) Angela Acuca de Chacón

(s) Carlos Alberto Dunshee de

Abranches

(s) Gonzalo Escudero

(s) Daniel Hugo Martins

(s) Durward V. Sandifer TEXT OF THE AMENDMENTS SUGGESTED BY THE

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

TO THE DRAFT COTNENTION ON HUMAN RIGHTS PREPARED BY

THE INTER-AMERICAN COUNCIL OF JURISTS

Part I

PROTECTION

CHAPTER I

SUBJECTS OF PROTECTION

Article 1

1. The Contracting States undertake to respect the rights and freedoms

recognized herein and to ensure to all persons within their territory and subject to

their jurisdiction the free and full exercise of those rights and freedoms, without

any discrimination for reasons of race, color, sex, language, religion, political or

other opinion, national or social origin, economic status, birth, or any other social

condition.

2. Every person has the right to recognition of his juridical personality.

CHAPTER II

RIGHTS PROTECTED

Article 2

1. Every person has the right to have his life respected. This right

shall be protected by law, in general, from the moment of conception. No one shall

be arbitrarily deprived of his life.

2. The Contracting parties shall abolish capital punishment. Reservations

to this provision shall be admitted solely on condition that sentence of death may be

imposed only as a penalty for exceptionally serious crimes and pursuant to the final

judgment of an independent and impartial regular court, which will satisfy due process

of law, and in accordance with a law establishing such punishment, enacted grior to the

commission ot the crime.

3. In no case shall capital punishment be inflicted for political

offenses.

4. Capital punishment shall not be imposed upon persons who, at

the time the crime was committed, were under 18 years of age or over 70 years

of age; nor shall it be applied to pregnant women.

5. Every person condemned to death shall have the right to request

pardon or commutation of sentence. Amnesty, pardon, or commutation of

capital punishment may be granted in all cases. Capital punishment shall

not be imposed while a decision is pending on the first petition for com-

mutation, presented to the competent authority.

Article 3

1. Every person has the right to have his physical integrity respected

2. No one shall be subjected to torture or to cruel, inhuman or degrading

treatment.

3. Punishment shall not be passed on to any person other than the

criminal.

4. The penitentiary system shall consist of a treatment oriented

insofar as possible toward the reform and social readaptation of the prisoners.

Article 4

1. No one should be subjected to slavery or to servitude, which are

prohibited in all their forms, as is the slave trade.

2. No one should be required to perform forced or compulsory labor.

This provision cannot be interpreted as meaning that, in those countries in which certain

crimes can be punished by a sentence of imprisonment a forced labor, it prohibits

serving such sentence imposed by a competent court.

3. Nor, for the purpose of this article shall the term "forced or compulsory

labor" include:

a) Any work or service normally required of a person legally

detained.

b) Any military service and, in countries where conscientious

objectors are recognized, any national service that the law provides for in

lieu of compulsory military service.

c) Any service exacted in cases of danger or calamity threatening

the life or the well being of the community; and

d) Any work or service that forms part of normal civic obligations.

Article 5

1. No one shall be subjected to arbitrary arrest or detention. No one shall

be deprived of his liberty except for reasons established beforehand by the political

constitutions of the Contracting States.

2. Anyone who is arrested should be informed of the reasons for

his arrest and should be promptly notified of the charge or charges against him.

3. Anyone arrested or detained on a criminal charge should be

brought promptly before a judge or other officer authorized by law to exercise judicial

power and should be entitled to trial within a reasonable time or to be released.

Release may be subject to guarantees to assure appearance for trial.

4. Anyone who is deprived of his liberty by arrest or detention,

or believes himself to be in danger of such deprivation, should be entitled to

recourse to a judge or court, in order that such judge or court may decide

without delay on the lawfulness of his detention, or on the existence of a threat

of unlawful arrest, and if the detention is not lawful, order his release. This recourse

may be had by the detained person or by another person.

5. Anyone who has been unlawfully deprived of his liberty shall

have the effective right to obtain pecuniary redress.

Article 6

1. In the substantiation of any charge or accusation against him, or in the

determination or in the determination of his civil rights and obligations, everyone shall

be entitled to a fair hearing.

2. Due process in penal matters should cover the following minimum

guarantees:

a) presumption of the innocence of the accused person, until he

is proven guilty according to law;

b) equality of rights and duties of the parties during the trial;

c) prior notification in detail to the accused, of the accusation

against him.

d) adequate time and means for the preparation of his defense;

e) the right of the accused to defend himself personally or to

be defended by 1ega1 counsel of his own choosing, and to

communicate freely and privately with his counsel;

f) compulsory participation of legal counsel paid by the State,

who shall defend the accused in the event that he does not

wish to name or cannot engage his own counsel;

g) the right of the defense to examine witnesses present in the

court and to obtain the appearance, as witnesses, of other

persors who have knowledge of the facts; and

h) the right of appeal to a higher court of the decision handed

down in the first instance.

3. A confession of guilt by the accused shall be valid only if

it is made without coercion of any kind. An accused person, acquitted

by an unappealable judgment, shal1 not be subjected to a new trial for

the same cause.

4. Criminal procedure shall be public, except insofar as may be

necessary to protect the interests of justice.

5. If a person arrested in the act or detained by an order of

preventive custody is not judged within a reasonable period, he shall

be released without prejudice to continuation of the process. Release

can be made conditional upon a guarantee ensuring the appearance of the

accused person at the trial.

6. A victim of a legal error shall be compensated for the losses

suffered as a result of the sentence and for the time during which he

was deprived of freedom, except in the event that the person convicted

contributed to the error.

Article 7

(Same as Article 7 of the IACJ draft)

Article 8

1. No one should be the object of arbitrary or abusive interference

with his private life, his family, his home, or his correspondence, or of unlawful

attacks on his honor or reputation.

2. Everyone has a right to the protection of the law against such

interference or attacks.

Article 9

l. Everyone shall have the right to freedom of conscience and of

religion. This right shall include freedom to maintain or to change his religion or

Delief, and freedom to profess or disseminate his religion or belief either

individually or in community with others, in public or in private.

2. No one shall be subject to coercion that might impair his freedom

to maintain or to change his religion or belief.

3. Freedom to manifest one's religion and beliefs may be subject only

to the limitations prescribed by law that are protect public safety, order, health, or

morals, or the freedoms of others.

Article 10

(The Commission recommends that consideration

be given the Draft Convention on Freedom of

Expression, Information and Investigation.)

Article 11

(The Commission has made a series of observations

on this Article in its Opinion.)

Article 12

(Same as Article 12 of the IACJ draft)

Article 13

(Same as Article 13 of the IACJ draft)

Article 13-A

1. Everyone shall have the right to organize labor unions and

freely to join those of their choice, for the purpose of protecting their

economic, social and professional interests.

2. The law may regulate the organization of local, national

and international labor unions and restrict the exercise of these rights by

members of the armed forces or police, or by government employees.

3. No one may be obliged to belong to a union.

Article 14

1. The family is the natural and fundamental unit of society

and should be protected by society and the State.

2. The right of men and women to marry and to raise a family,

if they meet the conditions required by national law, is recognized.

3. No marriage shall be entered into without the free and full

consent of the parties to the marriage.

4. The law should recognize equal rights for childrer born outside

of wedlock and for those born in wedlock.

Article . . .

1. Every person has the right to a given name and to the surnames of

his parents or that of one of them.

2. If the parents or one of the parents is unknown, the law shall

regulate the manner in which the corresponding parts of the civil registry shall

be inscribed obligatorily with fictitious names and surnames determined by the

petitioner, the recording clerk, or the judge, without prejudice to the right of

third parties.

3. If the parents or one of the parents are legally impeded

from recognizing the child, the procedure set forth in paragraph 2 of this

article shall be observed.

Article 15

1. Every person who is lawfully residing in the territory of a state

shall have the right to move about and establish his residence in it with complete

freedom.

2. Every person shall have the right to leave any country freely,

including his own.

3. The exercise of the foregoing rights may only be restricted, by

virtue of a law, by the measures that are indispensacle in a democratic society to

prevent crimes or to protect national security, public safety, public order,

public morals, public health, or the rights and freedoms of others.

4. The exercise of the rights recognized in paragraph 1 may also be

restricted by law in particular zones in the public interest.

5. No one may be expelled from the territory of his own country

nor deprived of the right to enter it.

Article 16

(Same as Article 16 of the IACJ draft)

Article 17

(Same as Article 17 of the IACJ draft)

Article 18

Everyone has the right to effective, simple, and prompt recourse

to the competent national judges and courts, to protect him against acts

that violate his fundamental rights recognized by the constitution or by law.

Article 19

(The Commission suggests that consideration be given the pertinent part

of the Second Report entitled "The Protection of Human Rights under the

Suspension of Constitutional Guarantees or the State of Siege", prepared

by Dr. Daniel Hugo Martins, Member of the Commission.)

Article 20

(The Commission suggests that Article 20

of the IACJ draft be eliminated)

Article 21

1. The States Parties to this Convention recognize the need

to adopt and, as appropriate, strengthen the guarantees to permit full

protection of the other rights set forth in the American Declaration

of the Rights and Duties of Man which are not included in the preeed-

ing articles.

2. The Contracting States also declare their intention of

including and, as appropriate, maintaining and perfecting, in their domestic

legislation, the provisions most conducive to the exercise of the right to

employment and the fair and equitable remuneration of work the establishment

of humane working conditions; and the protection of children, mothers and

families; as well as to the establishment of preventive and social-security measures

that will ensure health, disability and unemployment protection, the attainment

of better living standards, and access to education and to the means for

cultural improvement.

Article 22

The Contracting States shall report periodically to the Commission

on Human Rights on the measures they have taken to achieve the purposes

set forth in the preceding article. The Commission shall make appropriate

recommendations and, when such measures have been widely accepted, shall

promote the conclusion of a special convention, or additional protocols

to this Convention, in order to include them in this Convention or in such

other instrument as considered appropriate.

CHAPTER III

RULES FOR INTERPRETATION AND APPLICATION

Article 23

No provision of this Convention shall be interpreted as:

a) permitting any Contracting State, group, or person to

eliminate the rights and freedoms recognized in this

Convention or restrict them to a greater extent than

provided herein;

b) abrogating or restricting any right or freedom recog-

nized by virtue of the laws of any Contracting State

or by virtue of another convention to which one of such

States is a Party;

c) precluding other rights and guarantees which are in-

herent in the human personality or are derived from

the democratic republican form of government;

d) excluding or limiting the legal effect of the American

Declaration of the Rights and Duties of Man and other

international acts of the same nature.

Article 24

The restrictions which, according to this Convention, may be placed

on the rignts and freedoms recognized herein shall not be applied for purposes

other than those for which the restrictions were established.

CHAPTER IV

EXPANSION OF PROTECTION

Article 25

The scope of protection of this Convention may be extended to include

other rights and freedoms that may be recognized in accordance with the

procedure set forth in Article 63 or 64.

Part II

ORGANS OF PROTECTION

CHAPTER V

ORGANS

Article 26

The following organs shall be competent to ensure the performance of

the commitments made by the States Parties to this Convention:

a) The Inter-American Commission on Human Rights, hereinafter

styled "the Commission"; and

b) The Inter-American Court of Human Rights, hereinafter styled

"the Court".

Article 27

The Inter-American Commission on Human Rights, created by the

Fifth Meeting of Consultation of Ministers of Foreign Affairs, shall continue

to have the structure, organization and functions conferred upon it by the

Statutes approved by the Council of the Organization of American States,

as recognized and expanded by Resolution XXII of the Second Special Inter-

American Conference, and shall also have the powers hereinafter

assigned to it for the accomplishment of the purposes of this Convention.

Article 28

Subject to the provisions of Article 27, any person, group of persons,

or legally constituted association may lodge a petition with the Commission

containing a report or complaint of a violation of any of the rights or freedoms

recognized in Article 1 to 18 of this Convention.

Article 29

1. Every Contracting State may, when it deposits its instrument

of ratification or acceptance of this onvention, declare that it recognizes the

competence of the Commission to receive and examine petitions in which a

Contracting State alleges that another Contracting State has committed violations

of the human rights covered by this Convention.

2. Petitions presented by virtue of this article may be admitted

and examined only if they are presented b a Contracting State which

has made a declaration recognizing in respect of itself the aforemen-

tioned competence of the Commission. The Commission shall not admit

any petition from a Contracting State or against a Contracting State

which has not made such a declaration.

3. Such declarations may be made valid for a specified period.

4. The declaration shall be deposited in the General Secretariat

of the Organization, which shall transmit copies of them to the Contracting States.

Article 30

1. The admission of a petition by the Commission shall be subject

to the following requirements:

a) that all remedies of domestic law have been duly pursued

and exhausted, in accordance with generally recognized principles of international

law, but the alleged violation has not ceased;

b) that the petition be lodged within a period of six months

from the date on which the complaining party receive notification of the

final decision;

c) that the subject of the petition has not been submitted to

another international procedure for settlement, or is not pending a decision

through such a procedure, in the case of petitions lodged by one of the

Contracting States;

d) that the petition contain the signature, name, naitonality,

and domicile of the person or persons or of the legal representative of the

association lodging the petition.

2. The provisions of paragraph 1.2 above shall not be applicable

in cases which:

a) the domestic legislation of the State in question does not

afford due process of law for the protection of the right or rights

mentioned in the petition lodged with the Commission;

b) the petitioner was denied access to the remedies of domestic

jurisdiction or was prevented from exhausting them;

c) there has been unwarranted delay in reaching a decision through

domestic remedial procedures.

CHAPTER VI

PROCEDURE OF THE COMMISSION

Article 31

The Commission shall consider inadmissible any petition submitted

under Article 29 if:

a) any of the requirements indicated in Article 30 has not

been met;

b) the petition does not set forth the facts alleged to cons-

titute a violation of the Convention;

c) the statements of the petitioner indicate that the petition

is manifestly groundless;

d) the petition is substantially the same as one previously

decided upon by the Commission.

Article 32

When the Commission receives a complaint of a violation of the

rights protected by this Convention, it shall proceed as follows:

a) If it considers the petition admissible, it shall request

information from the government of the State to which the

authority described as being responsible for the alleged

violation belongs, furnishing a transcript of the pertinent

portions of the petition. This information should be sub-

mitted within a reasonable period to be determined by the

Commission, in accordance with the circumstances of each

case;

b) After the information has been received, or after the

period established has elapsed and the information has

not been received, the Commission shall ascertain whether

the grounds for the complaint still exist. If not, it

shall order the record to be closed.

c ) The Commission may also declare the petition inadmissible

or groundless on the hasis of additional information or

evidence subsequently received;

d) With a view to ascertaining the facts, it shall undertake,

with prior notice to the representatives of the parties,

a critical examination of the subject matter of the peti-

tion and, if need be, an investigation for the effective

conduct of which the States concerned shall furnish all

necessary facilites;

e) It shall place itself at the disposal of the interested

parties with a view to reaching frienldly settlement of

the matter on the basis of respect for the human rights

recognized in this Convention;

f) It may request the States concerned to furnish any addi-

tional pertinent information and, if so requested, shall

hear oral statements or receive written statements of the

interested parties.

Article 33

If a friendly settlement has-been reached in accordance with

paragraph e) of Article 32, the Commission snall draw up a report,

which shall be transmitted to the States concerned and then com-

municated to the Secretary General of the Organization for publi-

cation. This report shall be confined to a brief statement of the

facts and of the solution reached.

Article 34

1. If a settlement is not reached, the Commission shall, not

later than 12 months after the receipt of the notice denunciation or complaint,

draw up a report setting forth the facts and stating its conclusions. If the

report does not represent in whole or in part the unanimous opinion of the

members of the Commission, any member may attach to it a separate opinion.

The written and oral statements made by the parties in accordance with Article 32.f

shall also be attached to the report.

2. The report shall be transmitted to the States concerned which shall

not be at liberty to publish it.

3. In transmitting the report, the Commission make such proposals

and recommendations as it sees fit.

Article 35

1. If the matter is not submitted to the Court and its jurisdiction

thereof accepted within three months from the date of the transmittal of the

report of the Commission to the States concerned, the Commission shall

decide by an absolute majority vote of its members whether the State

complained against, or against which the petition has been presented,

has violated the obligations contracted under this Convention.

2. In the affirmative case, the Commission shall prescribe a

period during which the State concerned is to take the measures required by

the decision of the Commission.

3. If the State concerned has not taken satisfactory measures

within the prescribed period, the Commission shall decide by the majority

provided for in paragraph 1 of this article whether to publish its report.

Article 36

1. The Contracting States bind themselves to inform the Commission,

by means of periodic reports, of the measures adopted in order to guarantee the

observance of the rights set forth in Article 21.

2. The Commission shall determine the intervals between these reports.

3. In the case of reports that are to be presented originally to specialized

agencies of the United Nations or specialized organizations of the Organization of

American States, the Contracting State shall comply with the requirement of paragraph

1 of this article by sending a copy to the Commission.

CHAPTER VII

ORGANIZATION OF THE COURT

Article 37

1. The Court shall consist of seven members elected in an individual capacity

from among jurists of high moral character and recognized competence in the field of human

rights who are nationals of Contracting States that have accepted the compulsory jurisdiction

of the Court (Article 44).

2. No two members may be nationals of the same State.

Article 38

1. The members of the Court shall be elected by the Council of the Organization

by absolute majority vote and by secret ballot.

2. If the candidates for one or more vacancy shall not receive an absolute majority

vote on the first ballot, the candidate receiving the least number of votes shall be eliminated and

this procedure shall be repeated until the vacancy or vacancies are filled.

Article 39

1. At least three months before the date prescribed for the election of the Court,

each Contracting State that has accepted the compulsory jurisdiction of the Court shall submit a list of three candidates, including not less than two of its own nationality.

2. The Secretary General of the Organization shall prepare an alphabetical list of

these candidates and submit it to the Council at least thirty days before the election.

3. The same procedure shall be followed in filling any vacancies that arise.

Article 40

1. The members of the Court shall be elected for a term of six years and they may be re-elected.

2. A judge elected to replace a member whose term has not expired shall complete the term of the member he replaces.

3. Each member shall cease to hold office at the end of his term; provided, however, that with respect to any cases he has begun to examine, his service shall continue until all the evidence has been taken thereon.

Article 41

1. The presence of at least five members shall constitute a quorum for the transaction of business by the Court.

2. If a member is a national of a State which is a party to a case submitted to the Court, he shall be replaced by an ad hoc judge possessing the qualifications set forth in Article 37, elected

by the orher members of the Court, whenever it is necessary to do so in order to constitute the quorum prescribed in paragraph 1 of this Article.

Article 42

1. The Court shall have its seat in........but may also convene and function in any other American State it sees fit, with the acquiescence of the State concerned.

2. The Secretary shall have his office in the place where the Court has its seat, subject to his duty to attend the sessions held by the Court in any other place.

CHAPTER VIII

JURISDICCION OF THE COURT

Article 43

Only the States parties to this Convention, or the Commission, shall have the right to submit a case to the Court.

Article 44

1. The Court shall have jurisdiction in all cases concerning the interpretation and application of the provisions of this Convention, provided the State against which a claim is lodged does not refuse to submit to the judgment of the Court.

2. A Contracting State may declare at any time that it recognizes as finding, legal proper and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.

3. Such declaration may be made unconditionally or on the condition or reciprocity or for a specified period only, and shall be presented to the Secretary General of the Organization of American States, who shall transmit copies thereof to the other Contracting States and to the Secretary of the Court.

Article 45

In order that the Court may exercise its jurisdiction, it is necessary that the procedures set forth in Articles 32 to 34 shall have been exhausted and that the period of three months prescribed in Article 35 shall have expired.

Article 46

In the event of a dispute as to whether the Court has jurisdiction in a particular case, the matter shall be settled by decision of the Court.

Article 47

1. After it has found that there was a violation of a right or freedom protected by this Convention, the Court shall be competent to determine the amount of compensarion to be paid to the injured party.

2. The part of the judgment that contains compensatory damages may be executed in the State concerned through the domestic procedure in force for the execution of judgments against the State.

CHAPTER IX

PROCEDURE BEFORE THE COURT

Article 48

(Same as Article 77 of the IACJ draft)

Article 49

(Same as Article 78 of tne IACJ draft)

Article 50

(Same as Article 79 of the IACJ draft)

Article 51

(Same as Article 80 of the IACJ draft)

Article 52

(Same as Article 81 of the IACJ draft)

Part III

GENERAL PROVISIONS

CHAPTER X

DUTIES, PRIVILEGES AND IMMUNITIES, AND EXPENSES

Article 53

(Same as Article 82 of the IACJ draft)

Article 54

The members of the Commission and of the Court shall enjoy, in the territory of the

State where they exercise their duties, the privileges and immunities extended to diplomatic representatives in accordance with international law.

Article 55

While exercising their duties, the members of the Court shall receive such emoluments and travel allowances as are allotted therefor in the program-budget of the Organization of American States, with due regard to the importance and dignity of those functions.

Article 56

Secretariat services shall be funisned to the commission and the Court by the specialized

unit forming part of the general Secretariat of the Organization. This unit should be provided with the resources required to accomplish the tasks assigned to it by the Commission and the Court.

Article 57

The expenses of the Commission, the Court and their respective Secretariats shall be included in the program-budget of the Organization.

CHAPTER XI

TRANSITORY PROVISIONS

Article 58

1. The terms of four of the members of the Court elected at the first election shall expire at the end of four years, and the terms of the other three members shall expire at the end of two years.

2. Immediately after the first election has been completed, the Secretary General of the Organization shall fix the length of the term of each of the successful candidates in proportion to the number of votes received.

3. In the event that two or more of the members elected received the same number of votes, the Secretary General of the Organization shall determine the duration of their terms of office by the drawing of lots.

Article 59

The Commission, the Court and their Secretariats shall function in the Pan American Union until they are installed in their permanent headquarters.

CHAPTER XII

RATIFICATION, RESERVATIONS, DENUNCIATIOMS

AND AMENDMEMT

Article 60

(Same as Article 85 of the IACJ draft)

Article 61

1. Any Contracting State may, at the time of the deposit of its instrument of ratification or acceptance of this Convention, make a reservation if a constitutional or legal provision in force in its territory should be contrary to any provision of this Convention. Every reservation should be accompanied by the text of the constitutional or legal provision referred to.

2. A provision fhat has been the subject of a reservation shall not be in force between the reserving State and the other Contracting States. In order for the reservation to have this effect, It shall not be necessary for the other Contracting States to accept it.

Article 62

(Same as Article 87 of the IACJ draft)

Article 63

1. Any Contracting State, the Commission or the Court may propose an amendment to this Convention and present it to the Inter-American Conference through the Secretary Genera1 of the Organization.

2. The amendments approved shall enter into force on the date when instruments of ratification thereof by an absolute majority of the States Parties to this Convention have been deposited.

Article 64

1. Pursuant to Article 25, the Commission may submit additional protocols to this Convention for approval by the Contracting States, with a view to the gradual expansion of its scope of protection through the inclusion of other rights and freedoms set forth in the American

Declaration of the Rights and Duties of Man, as soon as the Commission believes that the States are prepared to accept the obligations inherent in each of those rights and freedoms. The Contracting States shall be obliged to submit each Protocol to the approval of the appropriate authority, in accordance with their respective constitutional procedures.

2. Each protocol shall enter into force on the date of deposit of the seventh instrument of ratification thereof and shall be applicable only between the States that are parties thereto.

APPENDIX II

EXPLANATION OF THE VOTE OF PROF. CARLOS A DUNSHEE DE ABRANCHES WITH

RESPECT TO THE OPINION OF THE COMMISSION ON HUMAN RIGHTS ON THE

DRAFT CONVENTION ON HUMAN RIGHTS OF THE IACJ

I. Besides appointing me rapporteur of the topic, the Inter-American Commission on Human Rights honored me by including in its opinion, many or some, of the amendments that I presented as a means of nelping the Council of the OAS fulfill Resolution XXIV of the Second Special Inter-American Conference. This provides that the Council "make the amendments to the draft prepared by the Inter-American Council of Jurists that I deems necessary in order to bring it up to date and complete it."

II. However, in other parts of its opinion, the Inter-American Ccmmission on Human Rights adopted resolutions that did not coincide with my vote. In some cases, I was able to compromise. withdrawing the respective amendments, so as to maintain as much unanimity as possible among the members of the Commission, but in others, I was not able to do this, because certain decisions of the majority of the Commission conflicted with points of view" expressed in my book "Proteçao International dos Direitos Humanos" (Freitas Lastos - Rio de Janeiro - 1964) and in other juriaical works that I have had published.

III. The amendments I presented were closely interrelated and would constitute a new draft in they were considered as a whole.

However, I want to commend the members of the IACJ for having been able to prepare the entire draft during the Santiago meeting in 1959. The brevity of the meeting prevented them from turning out a perfect document, and this explains any omissions, technical shortcomings, or obscurities that I ventured

to correct in the amendments submitted to the Inter-American Commission on Human Rights.

Below, I should 1ike to defend some of the relevant points of the amendments that failed to gain acceptance.

RIGHT TO PRIVATE PROPERTY

IV. The right to private property is set forth in the constitutions and civil laws of all the American states. In democratic systems, the importance of respect for private property on the part of the state and of reconciling its use and enjoyment with social interest need not be demonstrated. The form and means of protection of this right, which are essentially jurisdictional, justify its inclusion in the group of so-called civil ard political rights that will be the subject of a future convention. The same right is protected by

inclusion in the Protocol No. 1 of 1952 to the European Convention (Article 1).

The IACJ affirmed the right to private property but classified it under economic, social, and cul tural rights. I consider that this right should be included in the group of essential rights that will be protected by the future convention.

V. Consequently, following Article 17, I proposed the adoption of:

"Article 17 bis

1. Every person shall have the right to the use and enjoyment of his possessions, but the law may subordinate such use and enjoyment to social interest.

2. No one shall be deprived of his possessions unless previous and a just compensation is made in accordance with the cases and forms established by law. In the case of expropriation of unexploited property for social interest, the law shall establish the payment of compensation by mears of state fixed-maturity bonds, with an adjustment clause for devaluation of currency."

VI. I was not convinced by the opinion shared by the majority of the IACHR that it would not be suitable to include the right to private property in the future convention, because the substance of that right was being reviewed in some of the American countries.

For many years, I have strongly advocated necessary changes to eliminate the traditional concept of individual property, wherever it still prevails, and to establish the pinciple of subordinating the use and enjoyment of private property to the interest of the community. However, it is not essential to abolish the right to private property to make possible agrarian reform and other reforms that bring about social justice.

Notwithstanding its economic nature, property is an inherent right of the individual and the fundamental basis of stable family life.

VII. The terms in which our amendment --based on Protocol No. 1, supplementary to the European Convention-- defines the right of protection of individual possessions from confiscation or other abusive action by the State will not interfere with the reforms that we demand for Latin America. The clause

"previous and just compensation" will allow for expropriation of land through payment of state fixed-maturity bonds, providing that this is done according to the law. Another member of the Commission on Human Rights, Mrs. Angela Acuña de Chacón, supported the inclusion of the right to private property in this convention.

ADVISORY OPINIONS OF THE COURT

VIII. The action of the future Inter-American Court of Human Rights, like that of other international courts, will depend upon the states accepting the Court's competence, with all its juridical consequences, including the obligation to comply with the decisions of the Court. Therefore, the states are more likely to agree to submit certain questions of a general legal nature to jurisdictional organs, on a consultative basis, than they are to do so with regard to specific cases of litigation. Consequently, The Statute of the International Court of Justice (Articles 65 to 68) and the Second Protocol, supplementary to the European Convention (Article 1), besides atributing litigious competence to the Court at The Hague and to the Court at Strasbourg, enable the states to request the Courts for advisory opinions that will prevent litigations and serve as guidelines for political decisions.

IX. Based on these precedents, I proposed that the Inter-American Commission on Human Rights recommend that the following new article be included in the draft convention:

"Article 56

Any of the contracting states, and also the Commission or the

Council of the Organization, may consult the Court on the interpre-

tation of this convention or on any other question concerning the

protection of human rights in the American states. Dissenting

opinions of the members, if any, should be included in the opinion

of the Court."

X. The Commission decided not to approve this amendment, on the grounds that, under that it adopted when it began its work, changes in the IACJ draft should be proposed only when necessary. I share this view, but I think that it is essential to give the future court competence to issue advisory opinions.

HEADQUARTERS OF THE COMMISSION AND OF THE COURT

XI. The IACJ Draft, following in 1959 the pattern of the European Convention, did not establish the headquarters of the Commission and of the Court, which were foreseen in the future convention as the organs responsible for measures to be applied. Soon after, the Inter-American Commission on Human Rights, established by the Fifth Meeting of Consultation of Ministers of Foreign Affairs, was installed in Washington, where it has been functioning at the headquartera of the Pan American Union for six years.

XII. The European Court, together with the Commission, is installed in Strasbourg, in a large and beautiful building, the "Palais de Droits de l'Homme." built especially for them and donated by the municipality of Strasbourg to the Council of Europe for that purpose. I had the honor of being invited to take

a complete tour of the headquarters of the European Commission and Court, to inspect their facilities, and to study their administration. As a result, I concluded that it would not be advisable to locate the future Inter-American Court and Commission in the capital of any American state, as provided for by Article 50.3 of the IACJ draft.

XIII. For this reason, I proposed that IACHR recommend inclusion of the following new article in the convention:

"Article 66

1. The Commission, the Court, and their secretariat shall have

permanent headquarters in the State of Virginia, United States of

America, near Gunston Hall, Fairfax County, the former residence of

George Mason, author of the Virginia Bill of Rights, adopted on

June 12, 1776.

2. The headquarters building of the Commission and the Court shall

be called the "House of Human Rights" and shall be built with funds donated

by American governments, public institutions, private organizations, and personal

subscriptions from all the nations of the Americas.

3. If the United States Government has not ratified this Convention

by the date of its entry into force, or within one year from that date, the Council of the

Organization, having heard the Commission, may choose the territory of another

contracting state for the headquarters of the House of Human Rights."

XIV. The IACHR recognized that it would be advisable for the convention to determine the permanent headquarters of the Court, although leaving to the Court the authority to meet and function in any American state when this was considered advisable. Nevertheless, most of the members of the Commission felt that the choice of the permanent headquarters would be a political matter and that it would not be appropriate for the Commission to make any suggestion in this respect. Consequently, it decided to leave the matter open.

XV. The reason given does not follow data venia. Determination of the permanent headquarters involves technical matters and is a principal point in the proper functioning of the executive organs of the future convention. In addition to the historic feature, designation of the State of Virginia, as set forth in my amendment, offers the following advantages:

a. It keeps the headquarters of the Commission in the United States of America, where it has been functioning efficiently for six years, with the acceptance and cooperation of all the American states;

b. It provides for location of the Commission and the Court in the same

building, as is essential, and for that building to be called the

"House of Human Rights;"

c. It places the House of Human Rights outside the capital of the United

States, but close enough for easy communication;

d. It leaves the governments of the United States and of the State

of Virginia free to accept or decline location of the House of Human

Rights in Fairfax County and, in the event of the latter, to deter-

mine how another permanent site will be chosen.

CONFLICT OF DUTIES

XVI. To assure that the members of the Court and of the Commission will have the greatest possible independence in carrying out the difficult duties that the future convention will assign to them, I considered it advisable to include the following article in that convention:

"Article 64

1. During their terms of office, the members of the Commission

and the judges of the Court may not hold office as chief of state, minister, vice

minister, Secretary or undersecretary of state, or be appointed diplomatic

representative.

2. The exercise of any of these functions after election to the

Commission or to the Court implies resignation from the respective assignment.

This amendment has been supported by another member of the Commission,

Professor Durward V. Sandifer.

XVII. The majority of the members of the Commission, however, decided that this article would not be necessary, because upon choosing the members of the Court and of the Commission, the states could avoid any conflicts of duties that they deemed pertinent. The argument did not change my conviction that such conflicts should not be left to each government to determine, on a subjective and sporadic basis, at each election; moreover, these conflicts should be explicitly spelled out, to cover any resulting from events following the elections.

(s) Carlos A. Dunshee de Abranches

Member, Inter-American Commission on

Human Rights

Washington, D.C., January 21, 1967

APPENDIX III

LIST OF DOCUMENTS OF THE FIFTEENTH SESSION

(OEA/Ser.L/V)

Document Number

OEA/Ser.L/V/II.16 Title

Doc. 1 Documentos de la Comisión Interamericana

de Derechos Humanos, registrados por la

Secretaría hasta el 11 de abril de 1967

Doc. 2 Requests for Information transmitted to

the Government of Haiti on the Case of

the Haitian Citizens returned to their

Country from the Dominican Republic

Doc. 2 Rev. Requests for Information transmitted

to the Government of Haiti on the Case

of the Haitian Citizens returned to

their County from the Domincan Republic

and the Case of the Beauvoir-Florez

Family

Doc. 3 Declaración Americana de los Derechos y Deberes del Hombre (Aprobada en la Novena Conferencia Internacional Americana, Bogotá, 1948)

Doc. 4 Informaciones sobre la situación de Derechos Humanos en Nicaragua

Doc. 5 Rev. Programa (Décimoquinto Período de

Sesiones) (Aprobado por la Comisión

en su primera sesión celebrada el 9

de enero de 1967

Doc. 6 Informe del Secretario Ejecutivo sobre

las actividades de la Secretaría entre

el Décimocuarto y Décimoquinto Períodos

de Sesiones

Doc. 7 Rev. 2 International Humar Rights Year (Draft

Program of Activities)

Document Number Title

Doc. 8 Rev. Opinion on the Draft Convention on

Human Rights Approved by the Inter-

American Council of Jurists (Part Two)

(Approved by the Commission at the

tenth session held on January 19, 1967)

Doc. 9 Acta resumida de la primera sesión

celebrada el 9 de enero de 1967

Doc. 10 Acta resumida de la segunda sesión

celebrada el 10 de enero de 1967

Doc. 11 Acta resumida de la tercera sesión

celebrada el 11 de enero de 1967

Doc. 12 Acta resumida de la cuarta sesión

celebrada el 12 de enero de 1967

Doc. 13 Acta resumida de la quinta sesión

celebrada el 13 de enero de 1967

Doc. 14 Acta resumida de la sexta sesión

celebrada el 16 de enero de 1967

Doc. 15 Acta resumida de la séptima sesión

celebrada el 17 de enero de 1967

Doc. 16 Acta resumida de la octava sesión

celebrada el 18 de enero de 1967

Doc. 17 Acta resumida de la novena sesión

celebrada el 18 de enero de 1967

Doc. 18 Acta resumida de la décima sesión

celebrada el 19 de enero de 1967

Doc. 19 Acta resumida de la undécima sesión

celebrada el 20 de enero de 1967

Doc. 20 Report on the Work Accomplished during

its Fifteenth Session (Special)

January 9 to 20, 1967

CDH/600