OAS Permanent Council Holds IACHR Candidates Forum

Remarks by Professor James L. Cavallaro, Candidate Presented by the United States to the Inter-American Commission on Human Rights (IACHR), delivered at the OAS Permanent Council on May 1, 2013.

Buenos dias.  Bom dia.  Bon jour.  Good morning.

Mr. Secretary General. Mr. Chairman.

Distinguished Ambassadors and state representatives.

Distinguished members of the Inter-American Commission.

Distinguished candidates.

It is an honor for me to be here today, and to be able to address you in the first ever forum of candidates for members to serve on the Inter-American Commission on Human Rights.  I am a firm believer in the Inter-American human rights system and the Inter-American Commission on Human Rights.  So, I am particularly pleased in this moment of challenge for the system and the Commission to have the opportunity to earn your support and, if successful, contribute to the important work of the Commission.

I have spent my adult life focused on human rights in the Americas and on the inter-American system.  I have had the opportunity to live and work on the U.S.-border with Mexico, where I worked closely with Central American refugees, and to live in Chile during the final years of the military dictatorship and the beginning of transition to democracy.  I also lived and worked in Brazil for nearly a decade.  I have had the opportunity in the past three decades to work on human rights issues on more than a dozen countries in Latin America, the Caribbean, and in North America, including in my own country, the United States. I have tried to be fair and balanced in my work on human rights.  I have addressed concerns affecting both small and large countries, in powerful states and in developing states; in Anglophone nations as well as in Spanish and Portuguese speaking Latin America, as well as in the Francophonie—in Haiti and Quebec.

I believe that my background will allow me to contribute effectively and thoughtfully to the system.

My work with the Commission as both a member of civil society and as a university professor and academic has afforded me a variety of perspectives on its operations, its strengths, and—yes—its weaknesses.  After working with human rights organizations for some fifteen years, I transitioned to the legal academy where I have spent the last decade.  For several years, I served as executive director of the Human Rights Program at Harvard LawSchool.  For the past two years, I have served as professor of law and the founding director of Stanford Law School’s International Human Rights and Conflict Resolution Clinic.  I note the full title of that clinic—International Human Rights and Conflict Resolution—because the last two words—conflict resolution—are essential to my approach to human rights issues.  This is because I believe strongly that conflict resolution, based on respectful dialogue between and among all actors, will be central to the success of the inter-American human rights system moving forward.

Mr. Chairman, I would now like to set out my vision of the challenges that face our region’s human rights system, as well as possible directions and solutions.

First, I think it is essential that the system and the Commission understand the current social and political context within the Americas.  The Commission played a vital role in securing rights and protecting individuals during the years of military rule in the Americas, as well as in the region’s transition to democratic and civilian governments as the rule, rather than the exception.  The Commission has recognized that this transition requires different forms of engagement and it has done a good deal to modify its practices over the past two decades.  However, the Commission can still do more to ensure it remains as relevant in the twenty-first century as it was in the last several decades of the twentieth century.

In particular, I believe that the Commission must maximize and demonstrate its usefulness to the citizens and governments of all states throughout the Americas.  One of the inter-American system’s great strengths is that, as a principal organ of the OAS, the Commission promotes and protects human rights in all Member States, whether or not they have ratified the American Convention on Human Rights.  I agree that the Commission ought to do everything possible to encourage ratification of the American Convention and recognition of the compulsory jurisdiction of the Court by those states that have not already done so.  I believe that the Commission needs to work with states to encourage ratification.  This involves understanding the unique legal and political trajectory of each state.

In the Caribbean, for instance, it means appreciating the experience of states that have engaged the Westminster system, states that have embraced the Privy Council and are working towards integrating the Caribbean Court of Justice into their legal systems. It also involves dialogue and discussion with states such as Canada and the United States, which also have concerns relative to the American Convention.  To this end, I want to be clear that I strongly believe that my government, the United States, should ratify the American Convention.  We need to work together to ensure that ratification can be done on terms that enhance human rights, as well as the governance objectives of all states.  I believe I am well positioned to assist in advancing these discussions.

In seeking to maximize its effectiveness, the Commission should avoid one-size-fits-all approaches.  Whereas in some instances an individual case decision may be the most promising avenue for strengthening human rights, in others a friendly settlement or the provision of technical assistance to a country’s judiciary may actually be more constructive.  As a quasi-judicial body, the Commission is endowed with a variety of tools that allow it to engage creatively with states, petitioners and civil society.  At the same time, the way it applies these tools with democratic governments in 2013 should be different from the way it applied them with autocratic governments in 1983.

Violations that occur in democratic states are increasingly the result of the complex interaction of a range of actors—such as states, domestic or multinational corporations, civil society groups, indigenous peoples— and issues—such development goals, traditional values, land usage–that often are not well-suited to resolution through the contentious case mechanisms.  As many of you know well, complex problems in democratic states often require multiparty engagement and consensus building arrangements, not zero-sum game solutions.  I believe that there is much that the Commission can do in this regard, and I would welcome the opportunity to explore with you options for more active Commission engagement in these issues if elected in June.  As just one example, I would look to leverage the Commission’s existing cooperation agreements with regional universities and with other institutions to deepen cooperation and dialogue among users of the system.

Use of such tools takes me to my second point: the Commission needs to think seriously and carefully about how it allocates and manages its scarce resources.  I know well that the human rights system faces budget challenges.  These challenges affect not only the quantity of the Commission’s work, but also, inevitably, its quality.  In my academic writing, for example, I have analyzed the Inter-American Court’s tendency to limit witnesses and days of hearings.  These limits can affect the ability of all parties to present their understandings of the facts and the law that bear on the relevant decisions to be issued by the Court.  For me, they raise the question of budget support for the System, and the need for adequate resources to enable the organs of the system to discharge their functions in a timely and credible fashion.  Securing adequate funding is a vital challenge that I would promise to undertake, working closely with all interested actors, if elected to the Commission.

Mr. Chairman, another area that has been an institutional challenge for the Commission has been the efficiency and transparency of the petition system.  Given its extraordinary workload and limited resources, the Commission has struggled to respond in a timely fashion to petitions.  The Commission’s Strategic Plan for 2011-2015 sets goals for the number of cases to be decided and hearings to be held, as well as management objectives in financial and administrative terms. This is progress, and it helps to facilitate dialogue among the Commission, civil society and member states.  Still, there is more to be done.

As a petitioner, I know that it can be frustrating to not know when a case will be processed, when one’s submission will be forwarded to the other party, or when a final decision is likely to be issued.  I can also imagine how frustrating this must be for many of you, as representatives of member States.  I sincerely believe that the Commission must do better to enhance its efficiency and transparency.  In many ways, I think that smoother and more timely operating procedures will help to strengthen trust and cooperation among System users.

This leads me to the third point of my remarks today: ensuring active, constructive engagement by all parties—states, civil society, victims—in short, all aspects of society in the Americas.  Over the past few years, the interactions among these stakeholders have intensified, generating tensions and a salutary, if at times contentious, debate.  But we must acknowledge the dynamism of our region and the need to continue improving our work.  If elected, I pledge to listen to the concerns of all parties and to work with my fellow Commissioners to continue improving our collective work and ensure the legitimacy and support for the System.

I believe proactive engagement with Member States does not compromise the independence and autonomy of the Commission, but rather safeguards it.  I am convinced that the system works best when states engage in measures to advance human rights out of conviction, rather than when they are forced to make changes by determinations of the system.

I have sought friendly settlements with governments in matters before the Court and the Commission.  For example, I worked with Brazilian authorities in the Urso Branco matter to remove it from the jurisdiction of the Inter American Court so that an oversight mechanism in Brazil could take full responsibility for taking the measures necessary to ensure respect for human rights in the Urso Branco prison.  I did the same in several other cases in which I served as counsel for victims and communities.  My objective as an advocate has always been to enhance the human rights guarantees of those on whose behalf I have worked—not to embarrass or force the hand of governments unnecessarily.

I have also urged judgments firmly grounded in existing human rights principles, rather than advance novel legal theories.  I believe in measured jurisprudence because the most thorough implementation of human rights standards is achieved through the acceptance and application of those standards by authorities in a given country.  This has led some of my civil society colleagues to critique my work. So be it.

Para terminar, señor Presidente, quiero subrayar mi convicción de que los Estados, y no así los organismos internacionales, son los actores clave en la promoción de los derechos humanos.  Si bien la Comisión ha hecho mucho para asegurar que los funcionarios judiciales, legislativos y ejecutivos en las Américas entiendan la jurisprudencia del sistema y comprendan cómo ésta se conecta con el derecho interno, se puede hacer más.  Creo que la necesidad de litigio internacional puede reducirse significativamente cuando los agentes del Estado entienden y aplican las normas de derechos humanos.  La Comisión debería expandir su trabajo en conjunto con las autoridades estatales para mejorar el conocimiento del sistema en todos los niveles. Señor Presidente, siempre podemos ir más lejos cuando trabajamos juntos.

Ésta es mi promesa y éste es mi compromiso como candidato independiente a la Comisión Interamericana de Derechos Humanos.

I thank you for your attention and look forward to your questions.  Muchas gracias; muito obrigado; merci beaucoup.