HUMAN RIGHTS IN THE CONTEXT
ECONOMIC INTEGRATION OF THE AMERICAS
Patricia Begin, Political and Social Affairs Division
Mary C. Hurley, Law and Government Division
TABLE OF CONTENTS
HUMAN RIGHTS IN THE AMERICAS
Democracy, Human Rights and International Instruments
B. Current Status
C. Miami Plan of Action
WHAT IS THE IMPACT OF
ON HUMAN RIGHTS?
GLOBAL MARKETS AND
STRATEGIES FOR PROMOTING
AND PROTECTING HUMAN
Incorporate Human Development and Labour Standards
International Trade Agreements
Comprehensive and Enforceable Corporate
C. Democratize the
Economic Integration Process
RIGHTS: WHAT LEGISLATORS CAN DO
Integration: Linkage Strategies
B. The Broader
Context: The Promise of Miami
1. Promoting and
Protecting Human Rights
a. Commitment to
International Conventions and
Strengthening the Inter-American Human Rights System
National Programs and Practices
d. Oversight for Accountability
2. Addressing Poverty and
APPENDIX I: RATIFICATIONS OF SELECTED UN AND
OAS HUMAN RIGHTS CONVENTIONS
BY OAS MEMBER STATES
APPENDIX II: RATIFICATIONS OF SELECTED ILO
HUMAN RIGHTS CONVENTIONS
BY OAS MEMBER STATES
APPENDIX III: PLAN OF ACTION OF THE SUMMIT
OF THE AMERICAS DEMOCRACY
AND HUMAN RIGHTS IMPLEMENTATION PROPOSAL
HUMAN RIGHTS IN THE CONTEXT OF
ECONOMIC INTEGRATION OF THE AMERICAS*
The emergence of todays increasingly
global marketplace testifies to unprecedented technological advances in communications,
transportation and capital mobility in the post World War II period. Developments in the
economic sphere that propel nations toward free or freer trade - whether on a regional,
continental or hemispheric basis - have been roughly paralleled in time by the steady
expansion, now virtually global in scope, in the articulation of human rights values and
principles, and their entrenchment in regional, continental and/or international
instruments and declarations.(1)
In 1994, Heads of State and Government
from 34 of 35 member states of the Organization of American States [OAS](2) and the Chief Executive Officers of some of the
worlds largest multinational corporations participated in the Miami Summit of the
Americas [the Miami Summit]. The hemispheric objectives endorsed by state leaders included
not only economic integration, but also the protection and promotion of human rights as
means of strengthening democracy and the eradication of poverty and discrimination.(3)
The first part of this paper reflects on
human rights promotion and protection in light of the objective of hemispheric economic
integration. The discussion proceeds from the general premise that, while economic
development may not necessarily be incompatible with human development, it is no guarantee
of respect for, or advancement of, human rights.(4)
The issue is "not a matter of having to choose between rights and commerce [but] a
matter of putting rights on a par with commerce."(5) It therefore becomes necessary to consider what strategies
may be potentially relevant to meet this objective.
This paper then turns to a consideration
of the potential scope for action by legislators within the broad context considered by
the Miami Summit, in which economic integration represents but one of the "mutually
reinforcing set of commitments"(6)
defined as objectives for the hemisphere.
RIGHTS IN THE AMERICAS
Human Rights and International Instruments
Human rights advocates underscore the fact
that crucial to a well-functioning democracy is respect for the civil, political,
economic, social and cultural rights affirmed in internationally recognized human rights
instruments. Central among these are the Universal Declaration on Human Rights(7) and two international covenants - the International
Covenant on Civil and Political Rights(8)
[ICCPR] and the International Covenant on Economic, Social and Cultural Rights(9) [ICESCR]. Together, these human rights
instruments comprise the International Bill of Rights. Virtually all countries in the
inter-American system have ratified the covenants. Of specific relevance to the hemisphere
is the American Convention on Human Rights.(10) It concentrates mainly on civil and political rights also
found in the ICCPR and is binding on the 25 States that have ratified it (refer to
B. Current Status
Current assessments of the human rights
record of the hemisphere point, albeit with cautious optimism, to significant
improvements. One observer notes:
Although serious violations of
internationally recognized human rights still exist, it is undeniable that the countries
of the hemisphere have come a long way since the black era of the 1970s and 80s, when
massacre of civilian populations, forced disappearances, extrajudiciary executions and
torture were standard fare for opponents - or even suspected opponents - of strong-armed
The Miami Plan of Action approved at the
Americas meeting in Miami emphasized the "great progress ...made in the Hemisphere in
the development of human rights concepts and norms"; however, it acknowledged that
"serious gaps in implementation remain."(12) This assessment is borne out by the work of the New
York-based Freedom House group which quantifies the civil and political human rights
records of nations and assigns them a "Freedom Score." In its 1995-96 report Freedom
in the World, "fully half of the 35 countries in the hemisphere had lower ratings
in 1995-96 than several years earlier [1991-92]. Of the remainder, the majority remained
stable, with only 20% overall experiencing an improvement."(13)
Challenges to democratic governance in the
inter-American system involve, for example, threats to human rights, the rule of law,
impunity, drugs, crime, poverty (and its disproportionate effect on indigenous peoples,
women and children), and lack of educational opportunities, health care and other social
programs.(14) The concepts of human rights
and democratization are more than just connected. In fact, the strength and quality of a
democracy are revealed ultimately by its respect for the human rights of its citizens. It
is only over the past 30 years that countries throughout the Americas have come gradually
to embrace democratic ideals. Although most states now hold relatively free and fair
elections and have relatively efficient representative institutions (i.e., a legislative
branch and bureaucracy), both democracy and human rights are fragile. As the Freedom House
findings affirm, elections and pluralism are only part of what constitutes genuine
democracy and give no guarantee that human rights violations will cease.
Plan of Action
To narrow the chasm separating the
commitment to respect human rights and effective action, governments in the hemisphere set
out in the Miami Plan of Action a series of measures designed to promote and protect human
rights as means of "preserving and strengthening the community of democracies of the
Americas."(15) They agreed to:
Although the issue was not considered
within the context of human rights per se, Heads of State also committed
themselves to take steps to "eradicate poverty and discrimination" in the
hemisphere. Poverty defines the condition of nearly half of the hemispheres
population. It inhibits the ability of people to participate fully and equally in economic
and political life, an essential element of a democratic system. Poverty and inequality
are considered human rights issues in international instruments and human rights doctrine.
And extreme material inequality lies at the root of many violations of human rights.
Strategies endorsed at the Miami Summit to eradicate poverty and enhance social justice
- ensuring universal access to primary education;
- ensuring equitable access to primary health services;
- strengthening the role of women in society;
- encouraging micro-enterprises and small businesses; and
- creating a development corp of volunteers.
The general agreement among state leaders
in Miami to "give serious consideration to adherence to international human rights
instruments"(17) is viewed as including
adherence to the Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights,(18)
known as the "Protocol of San Salvador." The Protocol affirms, among other
things, the right of all peoples in the hemisphere to earn their living by freely chosen
work under just, equitable, healthy and safe conditions, to organize and join trade
unions, to achieve the highest attainable standard of physical, mental and social health
as well as adequate nutrition, and to social security. Only five states in the hemisphere
have ratified the Protocol of San Salvador. The Miami Plan of Action of the Summit of the
Americas is mostly silent on the role of the labour movement in an economically integrated
hemisphere and the means to protect and promote fundamental workers rights.
WHAT IS THE IMPACT OF
ON HUMAN RIGHTS?
The effects of liberalized trade and
global markets on the promotion and protection of human rights are the subject of debate
in many countries, including Canada. On one side of the question are those who maintain
that macro-level economic liberalization fuels social progress, democratic development and
respect for human rights. Trade and investment, in the words of Thomas dAquino,
President and Chief Executive of the Business Council on National Issues, "are
powerful catalysts for economic liberalization, democratization and the improvement of
domestic economic conditions."(19)
Political liberalization, which underlies respect for human rights, is said to be fuelled
by free markets and free trade, which bring about improvements in wages, working
conditions and employment opportunities. Such conditions, advocates of economic
integration assert, foster demands for rights and democracy. A further positive effect of
global trade and advances in telecommunications technology is transparency. People around
the world are now able to bear witness to repression and abuses of human rights occurring
in distant locations, often as events unfold. Nations that violate international human
rights norms are vulnerable to criticism, pressure and ostracism by the international
community and global business enterprises; this may, it is argued, effect changes in the
practices of repressive regimes.
On the other side of the debate are those
who view global competition as a process that subordinates social justice and human
progress to economic development. The exigencies of international competitive pressure
lead some labour-intensive transnational corporations to seek the low labour costs -- and
corresponding minimal labour standards -- found in developing countries. According to some
critics, the conditions that give global business enterprises and countries a comparative
advantage in the international competition for new markets and for trade and investment
dollars are those that disadvantage workers. Seen from this perspective, liberalized trade
"has entailed a race to the bottom, where both environmental and human
rights norms, especially labour standards, are lowered in order to attract
There is mounting evidence that the
benefits produced by economic integration are unequally distributed. Some conditions
associated with liberalized trade regimes are: widening gaps between the wealthy and the
poor within countries and between wealthy and poor nations; exploited labour; depressed
wages and poor living standards in developing economies; unemployment; deregulation of the
environment; violation of human rights; and profound social dislocation due to rapid,
unplanned urbanization in modernizing economies. Moreover, the improved economic
performance of countries known to violate basic civil and political human rights gives
credence to the viewpoint that "growth, in itself, is in no way a guarantee of a
greater commitment to fundamental rights and freedoms."(21)
Analysts who are critical of the impact of
economic integration on human rights are not anti-free traders, nostalgic for the past, or
supporters of isolationism or protectionist policies, per se. Rather, their
critiques are meant to highlight the urgent need to develop, through democratic means,
strategies to "manage" the globalization process.
Ultimately, globalizations effect on
human rights will depend on how the process is managed. Governments, businesses, trade
unions, international institutions, and ordinary citizens will all have a role to play.(22)
GLOBAL MARKETS AND
STRATEGIES FOR PROMOTING
AND PROTECTING HUMAN RIGHTS
Because there is no automatic
correlation between free trade and human rights, concrete action is needed to move the
recognition of the link between trade and rights beyond words. An integrated strategy to
promote human rights in the context of economic integration, outlined below, highlights
three measures: inclusion in trade agreements of policies promoting social progress in
working and living conditions; internationally agreed upon and enforceable codes of
conduct for corporations doing business overseas; and democratization of the free trade
treaty negotiation process.
Human Development and Labour Standards
In the context of economic development
and liberalized trade, labour rights, and more broadly based social development rights,
are significant for the lives of workers, both as producers of wealth and as consumers.
Integrating social development concerns and labour standards into economic policy and
planning was central to the agenda of the 1995 World Summit for Social Development in
Copenhagen. World leaders came together to focus, for the first time, on the global
problems of poverty, unemployment and social integration. To address inequality and
insecure labour markets, Heads of State endorsed a people-centered development perspective
that views human needs, human rights, social benefits, and quality of life and the
development of national and global markets as mutually reinforcing. In this context, the
Commitments and Programme of Action agreed to at the Social Development Summit affirmed
that economic growth is sustained by a social infrastructure that fosters productive
employment opportunities, poverty reduction and social integration.(23) A year later, at the Ministerial Conference of the World
Trade Organization in Singapore, trade ministers affirmed their "commitment to the
observance of internationally recognized core labour standards" which include freedom
of association and collective bargaining; the prohibition of forced labour, including
forced child labour; and non-discrimination.(24)
Internationally recognized human rights are included in many ILO human rights conventions
specifying basic workers rights. With few exceptions, all OAS member states have
ratified the majority of ILO human rights conventions (see Appendix II).
Despite these various commitments and
international safeguards, working and living conditions have not improved in a number of
countries currently experiencing economic restructuring and free market growth. To
illustrate this point in the context of the western hemisphere, increases in Mexican
workers wages and improvements in their working conditions have not materialized
under the North American Free Trade Agreement (NAFTA),(25) and "the southern part of the Americas which has the
highest per capita income in the developing world ... [also] has the worlds worst
record of income distribution."(26)
Proponents of linking global economic
development and social progress call for, among others, the inclusion of labour standards
in international trade liberalization agreements as one means of ensuring that prosperity
and justice keep pace with one another, at least for those workers directly affected.(27)
Comprehensive and Enforceable Corporate
Codes of Conduct
Private sector firms can contribute to the
promotion and protection of human rights in the countries in which they operate by
adopting standards for good corporate behaviour and refusing to do business with
oppressive regimes or sub-contractors who violate human rights. Analysts of economic
integration note that it makes good business sense to seek new markets in which political,
social and economic policies are predictable and stable. The human rights record of a
given country is an indicator of such conditions and one of the factors now voluntarily
considered by some transnational corporations in making global investment decisions.(28)
Of late, human rights issues have entered
not only international politics, but also economics...[A]nalysts are...becoming
increasingly aware of the devastating effects that political instability, in general, and
the abuse of human rights, in particular, have on the overall environment of economic
growth and prosperity ...Consequently, as international trade and economic policies become
linked to nations human rights records, many multinational investors realize the
need to consider the human rights condition of a nation in their investment decisions.(29)
A corporate code of conduct also gives
nations an instrument with which to control the behaviour of transnational enterprises
operating on their soil. Integrating such a code into a multilateral trade agreement
"would formally oblige all member states to require that multinationals respect the
established principles in the host country. The code could also specify the
internationally recognized labour standards which the corporation must abide by in its
operations abroad."(30) Thus,
enforceable corporate codes of conduct may advance the protection of human rights by
serving as a mechanism whereby corporations can pressure repressive nations seeking
investment dollars and nations can pressure corporations that violate core labour
C. Democratize the
Economic Integration Process
The key players in negotiating the terms
and conditions of trade agreements in the western hemisphere are government and the
business sector. Once countries have signed regional or multilateral free trade
agreements, they are bound by rules affecting not only tariffs but a host of legal, social
and economic matters once considered the exclusive jurisdiction of national governments
and institutions. In the global rush toward economic integration, nation states are
surrendering their sovereignty over important policy areas that have consequences for the
whole of society. For example:
When our governments cut back on social
programmes or eliminate protection for cultural industries in the name of "free
trade," citizens rights are being called into question. When industries move to
a country where anti-pollution rules are less strict, the impact on the environment does
not stop at the borders of that country. When the policy decisions to permit that are
taken in the name of citizens, without those citizens having a say in the debate around
them, our democratic political rights are infringed upon.(31)
Because labour and other groups of
citizens affected by liberalized trade have been marginalized in the process of economic
integration, some see the current framework for bringing about expansion in trade and
investment as anti-democratic. Labour advocates in the Americas call for the inclusion in
future free trade negotiations of a broad range of civil society interests to ensure that
labour, environmental, social and human rights issues are taken into consideration at the
drafting stage of international trade treaties.(32)
These advocates maintain that greater social participation in free trade negotiations will
increase the economic and political viability of integration and decrease social
inequality. Such participation is also supported by Canadian economist Sylvia Ostry, a
staunch free trader. In a recent interview, she advocated greater input from Canadians and
citizens of other countries into the process of negotiating the global rules governing
trade. In her opinion, global trade rules -- which are meant to harmonize differences
among nations -- have the effect of homogenizing countries. She stated that "I think
there should be a public discussion of the whole issue of diversity and where boundaries
of sovereignty are."(33)
UPHOLDING HUMAN RIGHTS:
WHAT LEGISLATORS CAN DO
Although the executive branch of
government is not the sole guardian of human rights, the related literature appears seldom
to focus on the role of legislators in the promotion and protection of these rights. As
elected representatives of the people, legislators are uniquely well-situated to evaluate
and balance often competing societal interests from a rights perspective and to influence
positively the development of human rights public policy both within and beyond their own
legal systems. The phrase "rights perspective" here connotes the adoption of a
consistent approach to the various dimensions of the legislators role, one that has
an expansive, proactive and holistic attitude to human rights.
The following section discusses avenues by
which legislators of the various Parliaments, Congresses and Assemblies of the Americas
may exercise their pivotal representative role in the current context. The premise is that
accelerated intra-hemispheric relations during and since the Miami Summit have
provided legislators with unprecedented opportunities - and, arguably, responsibilities as
representatives - to address a broad range of human rights concerns at national and
hemispheric levels. The endorsement by Summit participants of a "mutually reinforcing
set of commitments" explicitly inclusive of human rights objectives, and
incorporating other social, economic and cultural rights dimensions(34) - albeit not under the "rights" heading -
suggests that action by legislators need not be confined to human rights matters linked to
economic integration processes. This approach is consistent with the affirmation of the
171 nations participating in the 1993 Vienna World Conference on Human Rights, that:
All human rights are universal,
indivisible and inter-dependent and inter-related. The international community must treat
human rights globally in a fair and equal manner, on the same footing, and with the same
emphasis. While the significance of national and regional particularities and various
historical, cultural and religious backgrounds must be borne in mind, it is the duty of
States, regardless of their political, economic and cultural systems, to promote and
protect all human rights and fundamental freedoms.(35)
It is thus assumed that proposals relating
to rights, in the generic sense, as set out in the Miami Plan of Action, represent the
"floor," rather than the "ceiling," of legislators potential
action on human rights issues.
Theoretical and practical considerations
are outlined below with the understanding that, because democratization processes and
human rights development vary significantly across the hemisphere, not all of them may be
universally applicable or relevant in the short term.
A. Economic Integration:
Legislators can be instrumental in keeping
human rights concerns central to governments economic integration agenda throughout
the negotiation process. It is perhaps of special importance that social and economic
human rights be kept "on the front burner" in this context. There is a tendency
for liberalized trade to affect rights in contradictory ways, so that openings on the
civil and political side may be unaccompanied by effective advances in the social and
At the national level, their privileged
access to legislative and other public fora provides legislators with exceptional advocacy
opportunities. These include:
These and similar measures can serve to
pressure governments to give substance to what is apparently the sole reference in the
Miami Plan of Action to "[securing] the observance and promotion of worker rights, as
defined by appropriate international conventions,"(38) in conjunction with the further undertaking, under the
Human Rights heading, to seriously consider adherence to unratified international
conventions(39) such as the aforementioned
Protocol of San Salvador." In a related vein, legislators can also urge
governments to comply with the reporting requests of the International Labour Organization
Governing Body on the state of national law and practice in areas covered by ILO
conventions, whether ratified or not. Equally or more significant is the legislative role
in ensuring that the ratification exercise is more than merely symbolic through enactment
at the national level of enforceable implementing legislation containing, at a
minimum, employment standards consistent with those instruments.(40)
Extra-nationally, legislators also benefit
from means to engage in constructive, human rights-oriented exchanges with their peers in
the hemisphere on linkage strategies. For instance, a number of trans-national Parliaments
of the Americas established with a view to regional integration include human rights
promotion and protection among their objectives (these include the Latin American
Parliament and the Andean Parliament) and have established a standing committee on human
rights (the Central American Parliament) or a working group on Labour Relations,
Employment and Social Security (MERCOSUR). The latter model may be of particular interest
to legislators advocating linkage, as its agenda includes setting MERCOSUR-wide,
guaranteed minimum social provisions.(41) By
working through such bodies, legislators can be instrumental in reducing or eliminating
regional disparities in respect for human rights, thus creating a more level playing field
on which countries of the region can compete.(42)
In the process leading to free trade,
there is no shortage of issues calling for dialogue, debate and resolution from a rights
perspective at domestic and hemispheric levels. In addition to multilateral conditions
based on core workers rights and corporate codes of conduct, these include: the
relevance of making accession to an eventual free trade agreement conditional on either
removal of any vestiges of authoritarian rule,(43)
or introduction of specified democratic processes; the short- or medium-term feasibility
or desirability of developing a hemispheric social charter along the lines of the European
Union model,(44) and the merits of creating
a specialized hemispheric committee on the social dimensions of trade.(45) The active involvement of elected legislators in
promoting human rights interests and broad civil society participation can be influential
in determining how these and related issues are ultimately resolved.
B. The Broader Context:
The Promise of Miami
1. Promoting and Protecting
In newly emerging or otherwise vulnerable
democracies, the exercise of power with the consent of the governed is not always a
safeguard of rights, but must be limited by the observance of rights. Declaring that a
"democracy is judged by the rights enjoyed by its least influential members,"
the Miami Plan of Action articulated ambitious objectives aimed at remedying "serious
gaps in implementation" of human rights norms. Although not directly linked to
economic integration, these objectives are stated as equally integral to charting
hemispheric prospects. Noted more fully above,(46)
the proposals are aimed, inter alia, at:
The degree to which these goals are
translated into effective practice depends largely on ongoing interventions by elected
representatives across the hemisphere.
a. Commitment to
International Conventions and
Elected representatives can influence
building and sustaining a political consensus that centres on respect for international
human rights obligations. This approach involves pressing publicly for governments to
adhere fully to international human rights norms, not only by ratification, but
also through recognition of the competence of human rights adjudication mechanisms,
compliance with obligations such as the regular reporting mechanism set out in the ICCPR
and ICESCR, and ultimate adoption of corresponding domestic laws. Legislators can
also urge greater use of, and fuller governmental cooperation with, human rights oversight
and standard-setting bodies such as the UN Commission on Human Rights, whose membership
includes over a dozen representatives from American States.
Strengthening the Inter-American Human Rights System
The role of legislators in achieving
political consensus on the need to respect human rights, and in advocating full adherence
to international standards applies even more immediately at the hemispheric level.
Ratifications of the American Convention on Human Rights, the inter-American
systems cornerstone instrument, as well as of the Inter-American Convention to
Prevent and Punish Torture,(47) are
far from complete. Fewer than half of the nations of the Americas have recognized the
competence of the Inter-American Court of Justice [IACJ]. The 1988 Protocol of San
Salvador has not yet taken effect owing to insufficient ratifications; even fewer nations
have ratified more recent instruments relating to the abolition of the death penalty and
Explicit recognition at the Miami Summit
that progress in the development of human rights concepts and norms must be accompanied by
adequate implementation mechanisms also provides scope for involvement by elected
representatives in promoting measures aimed at institutional strengthening of the
Inter-American systems human rights régime. Consisting of the Inter-American
Commission on Human Rights, established in 1959 [IACHR],(49) and the IACJ, established in 1979,(50) the system has been praised for its potential but
criticized as lacking in real impact on the human rights situation across the Americas.
Ineffective enforcement mechanisms, insufficient resources, prolonged, cumbersome
procedures, and lack of cooperation by OAS member states are among factors said to have
contributed to this conclusion.(51)
In the view of the OAS Secretary General,
the "new reality" resulting from increased democratization across the hemisphere
has heightened the need to address a number of these factors by introducing concrete
measures for additional resource allocation and to fortify the régimes mandate.(52) Other proposals for enhancing the
effectiveness of the inter-American human rights system include establishment of a human
rights ombudsperson; creation of a hemispheric Parliament modelled on the proactive
European Parliament; fortifying the IACHRs standard-setting activities; enhancing
the autonomy of the IACJ;(53) introduction
of a reporting mechanism analogous to those of the ICCPR and ICESCR; and
adoption of a mechanism for addressing gross, systematic human rights violations,
analogous to the 1991 OAS General Assembly Resolution 1080 on Representative Democracy.(54)
Through regional inter-parliamentary
exchanges, and in conjunction with government and civil society, legislators can
participate in identifying priorities for enhancing the effectiveness of the
inter-American human rights system, pressure governments to respond positively to reform
proposals, hold them accountable for doing so in light of the Miami Summit commitment, and
seek to prevent the work of the IAHCR and the IACJ from being undermined by government, as
some fear may be happening.(55)
National Programs and Practices
While not directly or fully responsible
for the ratification of international and hemispheric human rights instruments,
legislators do have immediate involvement in and responsibility for ensuring that national
implementing legislation is not only enacted, but conforms in practice and effect to norms
set out in those instruments. The Miami Plan of Action mandate to review and strengthen
national laws in relation to specified groups and to undertake necessary steps in relation
to others with a view to improving their human rights protection(56) speaks directly to this legislative role, but does not
limit it to those areas.(57)
Additional government commitments to
develop programs promoting human rights generally, and to promote a range of womens
equality rights in particular, also provide legislators with opportunities, legislative
and other, to expand the national human rights agenda in positive ways. For example, they
can work with government to facilitate the establishment of priorities in these areas, as
well as seeking to strengthen civil society participation in defining human rights program
needs and devising appropriate remedial measures. In addition, the Miami Plan of Action
undertaking to engage in hemispheric exchange and cooperation in human rights matters
provides a window for legislators to work collaboratively to ensure that prospects for
regional cooperation in human rights are realized.
Related specific matters offering
legislators ongoing scope with respect to human rights but not explicitly or tangentially
addressed in the Miami Plan of Action include:
pressing for reforms, as
required, to ensure constitutionalized and legislated human rights are effectively
safeguarded by an impartial, independent judiciary;(60)
Reform measures with direct implications
for elected representatives, largely in the civil and political rights spheres, are
integral to a Brazil-Canada Implementation Proposal [the Proposal] for dealing with Miami
Plan of Action items in matters of democracy and human rights (see Appendix III).(62) The Proposal currently sets out a flexible
framework with a menu of suggested legislative and policy activities aimed at practical
achievement of Miami Plan of Action undertakings at the national level. An OAS Working
Group on Democracy and Human Rights has a mandate to develop follow-up activities to the
Miami Summit, including evaluation of the Proposal.(63) In December 1996, it agreed on administration of justice
as an immediate priority for implementation, with the focus on police training,
improvement in prison conditions and human rights training for judges and other court
Although this process has, thus far,
largely involved missions to the OAS at the diplomatic level, elected representatives have
a part to play in defining post-Miami human rights programs and in determining whether and
how effectively priority programs are carried out. They can, for example, maintain
constructive exchanges with the OAS Working Group and other structures promoting human
rights within the OAS, such as the Unit for the Promotion of Democracy; work with OAS
structures and civil society to identify alternative implementation priorities at national
and regional levels; develop contacts with donors active in priority areas;(64) pressure governments to implement priority
programs; and monitor their progress and effect in collaboration with civil society.
d. Oversight for Accountability
The establishment of standing committees
with special responsibility for human rights can act as a significant adjunct to other
activities for the promotion and protection of these rights. Ideally, such committees
enable legislators to exercise important oversight functions that can directly influence
the development of national standards. For example, members of the government and their
officials can be called to a public committee to justify proposed legislative or other
policy measures related to human rights; public hearings can be conducted and reports made
on a government's human rights record in general or other governmental activity with human
rights implications; governmental action can be recommended and a government response to
recommendations can be required. The oversight role can extend to the operation of
statutory human rights agencies, regular scrutiny of existing human rights laws for gaps,
inappropriate or inadequate processes, and defining priorities for future legislative
action related to human rights. In this regard, ongoing consultation with civil society
allows committees to keep abreast of new human rights concerns and developments and to
better identify the need for legislative reform in specific areas.
2. Addressing Poverty and
As a closing comment, it is worth noting
that, in addition to undertaking to promote and protect human rights in target areas as
integral to strengthening hemispheric democracy, the Miami Plan of Action set out the
eradication of extreme poverty and discrimination as a separate objective with
acknowledged human rights dimensions. International norms in relation to poverty and
discrimination have long been entrenched in international conventions, and reiterated in
the Declarations and Programmes of Action of more recent international proceedings.
Legislators of the hemisphere can work to ensure that the means for achieving the stated
objective - defined in part in the Miami Plan of Action as being to provide universal
access to primary education and equitable access to basic health services, as well as to
strengthen the role of women in society - are developed from a rights perspective, in
light of existing international norms. Legislators can collaborate with civil society to
identify priorities for reform and to influence the scope and development of government
policy in relation to each of these issues, and have a direct role to play in shaping
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"Trade Negotiations and Social Charters: The Case of the North American Free Trade
Agreement." Canada-U.S. Outlook. Issue on "The Social Charter
Implications of the NAFTA." Vol. 3, No. 3, 1992, p. 17.
de Wet, Erika. "Labor Standards in
the Globalized Economy: The Inclusion of a Social Clause in the General Agreement on
Tariff and Trade/World Trade Organization." (1995), 17 Human Rights Quarterly
Dias, Clarence and David Gillies. Human
Rights, Democracy and Development. International Centre for Human Rights and
Democratic Development, Montreal, 1993.
Elwell, Christine. "Human Rights,
Labour Standards and the New WTO: Opportunities for Linkage - A Canadian
Perspective." Essays on Human Rights and Democratic Development No. 4.
International Centre for Human Rights and Democratic Development, Montreal, 1995.
Farer, Tom J. "Collectively Defending
Democracy in a World of Sovereign States: The Western Hemispheres Prospect."
(1993), 15 Human Rights Quarterly 716.
Forcese, Craig. "Commerce with
Conscience? Human Rights and Corporate Codes of Conduct." Essays on Human Rights
and Democratic Development. International Centre for Human Rights and Democratic
Development, Montreal, 1997.
Forsythe, David. "Human Rights, the
United States and the Organization of American States." (1991), 13 Human Rights
Frosst, Lynda. "The Evolution of the
Inter-American Court of Human Rights: Reflections of Present and Former Judges."
(1992), 14 Human Rights Quarterly 171.
Gaviria, Cesar. Secretary General of the
Organization of American States. A New Vision of the OAS. Working Document, 1995
(adapted for Internet, available via OAS website, at http://www.oas.org/En/PINFO/nvindexe.htm).
Gillies, David. Between Principle and
Practice: Human Rights in North-South Relations. McGill-Queens University Press,
Montreal and Kingston, 1996.
Gillies, David and Gerald J. Schmitz. The
Challenge of Democratic Development: Sustaining Democratization in Developing Countries.
The North-South Institute, Ottawa, 1992.
Gupta, Dipak K., Albert J. Jongman and
Alex P. Schmid. "Creating a Composite Index for Assessing Country Performance in the
Field of Human Rights: Proposal for a New Methodology." (1993), 15 Human Rights
International Centre for Human Rights and
Democratic Development. "Globalization, Trade and Human Rights: The Canadian Business
Perspective - A Summary Report of the Toronto Conference." 1996 (available via ICHRDD
website, at http://www.ichrdd.ca/111/english/contentsEnglish.html).
International Labour Organization. The
ILO, Standard Setting and Globalization. Report of the Director General to the 85th
Session of the International Labour Conference. Geneva, June 1997 (available via
the ILO website, at http://www.ilo.org/public/english/standards/relm/ilc/ilc85/dg-ex.htm).
Inter-Parliamentary Union. Parliament:
Guardian of Human Rights. Report of the Inter-Parliamentary Symposium. Budapest, May
Kilgour, David. "Joint
Responsibility: Human Rights Across the Commonwealth." The Parliamentarian,
Vol. LXXVII, April 1996, p. 122.
Medina, Cecilia. "The Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights: Reflections on a
Joint Venture." (1990), 12 Human Rights Quarterly 439.
North, Liisa and Yasmine Shamsie (the
Canadian Foundation of the Americas), and George Wright (Centre for Research on Latin
America and the Caribbean. A Report on Reforming the Organization of American States to
Support Democratization in the Hemisphere: A Canadian Perspective. Centre for Research
on Latin America and the Caribbean, North York, 1995.
Organization of American States. "The
Inter-American System for the Promotion and Protection of Human Rights" (available via
OAS website, at http://www.oas.org/EN/prog/ hrights.htm).
Organization of American States. "The
Santiago Commitment to Democracy and the Renewal of the Inter-American System." 21st
Regular Session, OAS General Assembly, AG/Doc.2734/91, Santiago, 1991(available via OAS
website, at http://www.oas.org/EN/
Organisation of Economic Co-operation and
Development, Development Assistance Committee Policy Statements. "Development
Partnerships in the New Global Context" (1995). "Conflict, Peace and Development
Cooperation on the Threshold of the 21st Century" (1997). (Available via OECD
website, at http://cs1-hq.oecd.org/dac/htm/policy.htm).
Plan of Action of the Summit of the
Americas: Democracy and Human Rights Implementation Proposal, Brazil (coordinator) -
Canada (co-coordinator) Initiative, 1995, obtained from Department of Foreign Affairs and
Schmitz, Gerald J. and Corinne McDonald. Human
Rights, Global Markets: Some Issues and Challenges for Canadian Foreign Policy.
Background Paper BP-416E. Parliamentary Research
Branch, Ottawa, 1996.
Smith, James F. "NAFTA and Human
Rights: A Necessary Linkage." (1994), 27 U.C. Davis Law Review 793.
Summit of the Americas. Declaration of
Principles, "Partnership for Development and Prosperity: Democracy, Free Trade
and Sustainable Development in the Americas." Miami, 1994 (available via official
Free Trade Area of the Americas website, at http://www.ftaa-alca.org./ministerials/miami_e.asp).
Summit of the Americas. Plan of Action.
1994 (available via official FTAA website, at http://www.ftaa-alca.org./ministerials/plan_e.asp).
Thede, Nancy. "Democracy and Human
Rights in the Hemisphere." Forces. (forthcoming), 1997.
United Nations Development Programme. Human
Development Report 1996 and Human Development Report 1997. Oxford
University Press, Cary, North Carolina and Oxford, U.K., 1996 and 1997) (Summaries
available via UNDP website, at http://www.undp.org/hdro/index.html).
1 The instruments selected are,
with the exception of the Optional Protocol to the International Covenant on Civil and
Political Rights, suggested for ratification in the Brazil-Canada Implementation
Proposal, note 62. The Additional Protocol to the American Convention on Human Rights
in the area of Economic, Social and Cultural Rights, or "Protocol of San
Salvador" which is not yet in force in the absence of the required eleven
ratifications, is not included on this list. Sources for United Nations instruments: Human
Rights: International Instruments - Chart of Ratifications as at 30 June 1996 (United
Nations: New York and Geneva, 1996), and the United Nations High Commission for Human
Rights website, at http://www.unhchr.ch/html/intlist.htm source for OAS instruments:
Organization of American States website, at http://www.cidh.oas.org/basic.htm.
2 American Convention on
Human Rights, OAS Treaty Series No. 36.
3 Inter-American Convention
to Prevent and Punish Torture, OAS Treaty Series No. 67.
4 International Convention
on Economic, Social and Cultural Rights, UNTS, Vol. 993, CTS 1976/46.
5 International Covenant on
Civil and Political Rights, UNTS, Vol. 999, CTS 1976/47.
6 Optional Protocol to the
International Covenant on Civil and Political Rights, UNTS, Vol. 999, CTS
7 International Convention
on the Elimination of All Forms of Racial Discrimination, UNTS, Vol. 660. CTS
8 Convention on the Rights
of the Child, UN Doc. A/RES/44/25, adopted by general Assembly 20 November 1989,
9 Convention on the
Elimination of All Forms of Discrimination against Women, UNTS, Vol. 1249, CTS
10 Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNTS, Vol.
1465, CTS 1987/36.
1 Each of the 34 nations of the
Americas participating in the Miami Summit is an ILO member. Source for ILO ratifications:
Lists of Ratifications by Convention and by country (as at 31 December 1996),
(Geneva: International Labour Office, 1997).
2 Freedom of Association and
Protection of the Right to Organize Convention, 1948 (No. 87), UNTS, Vol. 68, CTS
3 Right to Organize and
Collective Bargaining Convention, 1949 (No. 98), UNTS, Vol. 96.
4 Forced Labour Convention,
1930 (No. 29), UNTS, Vol. 39.
5 Abolition of Forced Labour
Convention, 1957 (No. 105), UNTS, Vol. 320, CTS 1960/21.
6 Discrimination (Employment
and Occupation) Convention, 1958 (No. 111), UNTS, Vol. 362.
7 Equal Remuneration
Convention, 1951 (No. 100), UNTS, Vol. 165. CTS 1973/37.
8 Minimum Age Convention,
1973 (No. 138), UNTS, Vol. 1015.
This paper was originally prepared for the Delegation from the Parliament of Canada to the
Parliamentary Conference of the Americas, September 1997, Quebec City.
In the Americas, for instance, the earliest bilateral or regional trade agreements date
from the 1950s, while the inter-American system for the promotion and protection of human
rights was formally inaugurated in 1948.
Cuba has been excluded from participation in the OAS since 1962.
Summit of the Americas, Declaration of Principles, "Partnership for
Development and Prosperity: Democracy, Free Trade and Sustainable Development in the
Americas" [Miami Declaration] (available via official Free Trade Area of the
Americas website, at http://www.ftaa-alca.org./ministerials/miami_e.asp).
See also Summit of the Americas Plan of Action [Miami Plan of Action] (available at
The 1996 report of the United Nations Development Programme concluded both that
"economic growth and equitable human development must move together in the long run,
if both are to succeed," and that "there is no automatic link between economic
growth and human development - a simple fact, often forgotten by growth advocates":
J.G. Speth, UNDP Administrator, "Economic Growth and Equitable Human Development: The
Launch of the 1996 Human Development Report," 16 July 1996 Speech to the National
Press Club, Washington, D.C. (available via UNDP website, at
http://www.undp.org/undp/news/hdr96sp1.htm). See also Policy Statements of the Development
Assistance Committee of the Organization for Economic Cooperation and Development,
particularly "Development Partnerships in the New Global Context" (1995) and
"Conflict, Peace and Development Co-operation on the Threshold of the 21st
Century" (1997) (available via OECD website, at http://cs1-hq.oecd.org/dac/htm/policy.htm).
E. Broadbent, former President of the International Centre for Human Rights and Democratic
Development, quoted in D. Kilgour, "Joint Responsibility: Human Rights Across the
Commonwealth," The Parliamentarian, Vol. LXXVII, April 1996, p. 122.
Miami Declaration (1994).
Adopted and proclaimed by General Assembly Resolution 217 A (III) of 10 December 1948.
United Nations Treaty Series [UNTS], Vol. 999, Canada Treaty
Series [CTS] 1976/47.
UNTS, Vol. 993, CTS 1976/46.
OAS Treaty Series No. 36.
N. Thede, "Democracy and Human Rights in the Hemisphere," Forces, September
1997, p. 2.
Miami Plan of Action (1994), para. I(2).
Thede (1997), p. 3.
Government of Canada, "Notes for an Address by the Honourable Christine Stewart,
Secretary of State (Latin America and Africa) to the 26th General Assembly of the
Organization of American States," Department of Foreign Affairs and International
Trade, Panama City, 3 June 1996.
Miami Plan of Action (1994), para. I(2).
Ibid., para. III(16) - (20).
C. Gaviria, Secretary General of the OAS, A New Vision of the OAS, "Defense
and Protection of Human Rights" (available via OAS website, at http://www.oas.org/En/PINFO/nvindex.e.htm).
OAS Treaty Series No. 69.
T. dAquino, "Globalization, Social Progress, Democratic Development and Human
Rights," Notes for an Address to the Conference on Globalization, Trade and Human
Rights: The Canadian Business Perspective, Toronto, 22 February 1996, p. 6 [Toronto
Briefing Note for Toronto Conference, jointly prepared by The International Centre for
Human Rights and Democratic Development and the Business Council on National Issues,
D. Bronson and S. Rousseau, Working Paper, Globalization and Workers Human Rights
in the APEC Region, International Centre for Human Rights and Democratic Development,
26 October 1995, p. 17.
United Nations, Report of the World Summit for Social Development (doc.
A/CONF.166.9, 19 April 1995).
World Trade Organization (WTO): Singapore Ministerial Declaration (doc. WT/MIN(96)/DEC,
18 December 1996), para. 4. Cited in The ILO, Standard Setting and
Globalization, Report of the Director General to the 85th Session of the International
Labour Conference (Geneva: International Labour Office, June 1997) (available via
the ILO website, at http://www.ilo.org/public/english/standards/relm/ilc/ilc85/dg-ex.htm).
"North American Free Trade Agreement," Foreign Policy in Focus,
Interhemispheric Resource Centre and Institute for Policy Studies, Vol. 2,
No. 1, January 1997, p. 2.
C. Elwell, Human Rights, Labour Standards and the New WTO: Opportunities for a Linkage
(Montreal: International Centre for Human Rights and Democratic Development, 1995),
Ibid., p. 3.
D.K. Gupta, A.J. Jongman and A.P. Schmid, "Creating a Composite Index for Assessing
Country Performance in the Field of Human Rights: Proposal for a New Methodology"
(1993), 15 Human Rights Quarterly 131, p. 132.
Elwell (1995), note 26, p. 27.
Thede (1997), note 11, p. 9.
Third Trade Union Summit, Declaration of the Workers of the Americas: Democracy,
Development and Social Justice in the Americas, 13 May 1997, Belo Horizonte,
A. Lindgren, "Trade Negotiator Fears Sovereignty at Risk," The Ottawa Citizen,
28 June 1997, A1.
Miami Declaration and Plan of Action (1994).
Vienna Declaration and Programme of Action (doc. A/CONF.157/23, 12 July 1993).
Article I, para. 5. See also D. Gillies, Between Principle and Practice: Human
Rights in North-South Relations (Montréal and Kingston: McGill-Queens
University Press, 1996), p. 19-20; C. Dias and D. Gillies, Human Rights, Democracy
and Development (Montréal: International Centre for Human Rights and Democratic
Development, 1993), p. 7; Elwell (1995), note 26, p. 39-40.
House of Commons, Standing Committee on Foreign Affairs and International Trade, Minutes
of Proceedings and Evidence, 1st Session, 35th Parliament, 12 April 1994, 6:13-14
(testimony of E. Broadbent).
In this regard, the ILO Director General rejects the notion that standard-setting in the
context of trade liberalization entails unrealizable standardization of social protection.
In his opinion, denying developing countries the temporary advantages resulting from
differences in conditions and levels of protection "would be tantamount to denying
them a share in the profits of globalization and, by extension, the possibility of
subsequent social development." He suggests that the objective is, rather to
establish certain common rules of the game for all partners in the multilateral trade
system in the form of guarantees of core fundamental rights: ILO (1997), note 24. Thus, it
is not the number of standards that are important, but the type: see E. de Wet,
"Labor Standards in the Globalized Economy: The Inclusion of a Social Clause in the
General Agreement on Tariff and Trade/World Trade Organization" (1995), 17 Human
Rights Quarterly 443, p. 453.
Miami Plan of Action (1994), para. II(9)(2). Note that none of the 12 Working Groups
established by hemispheric Trade Ministers to lay the groundwork for eventual free trade
negotiations is directly concerned with workers rights or labour relations matters:
see "The Belo Horizonte Ministerial Declaration" issued at the close of the
Summit of the Americas Third Trade Ministerial Meeting, Belo Horizonte, 16 May 1997
(available via the FTAA website, at http://www.ftaa-alca.org./ministerials/belo_e.asp).
Miami Plan of Action (1994), para. I(2).
A search of the ILO online database NATLEX shows that many nations of the Americas do have
in place legislation referring to the generally acknowledged core labour rights relating
to freedom of association and collective bargaining, prevention of forced labour,
prohibition of discrimination, and minimum age (available at http://natlex.ilo.org/scripts/natlexcgi.exe?lang=E).
It is not clear to what degree the substantive provisions are in fact standard-setting
provisions or, if so, what enforcement mechanisms apply.
Elwell (1995), note 26, p. 19.
J. Smith, "NAFTA and Human Rights: A Necessary Linkage" (1994), 27 U.C. Davis
Law Review 793, p. 817-8.
During the 1980s, the then European Community [now the European Union] denied admittance
to Spain, Portugal and Greece on this basis: see Elwell (1995), note 26, p. 11. In
July 1997, Turkeys renewed bid to join the EU was reportedly denied, in part, owing
to its poor human rights record.
European Social Charter (revised), ETS No. 163 (1996) (available via Council
of Europe website at http://www.coe.fr/eng/legaltxt/e-dh.htm).
The United Nations Economic Commission for Latin America and the Caribbean (ECLAC) has
recommended that the region recognize minimum social conditions for purposes of achieving
more equitable trade and competition: see Elwell (1995), note 26, p. 20.
Refer to text under heading "Human Rights in the Americas:
C. Miami Plan of Action".
OAS Treaty Series No. 67.
These are the Protocol to the American Convention on Human Rights to Abolish the Death
Penalty, OAS Treaty Series, No. 73, and the Inter-American Convention on the
Forced Disappearance of Persons adopted at Belem do Para, Brazil, 9 June 1994.
The status of ratifications of OAS instruments is set out at the organizations
website, at http://www.cidh.oas.org/basic.htm.
The IACHR derives its authority from two sources: the 1948 OAS Charter (UNTS,
Vol. 119) and American Declaration of the Rights and Duties of Man (adopted by
the Ninth International Conference of American States in 1948, reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System,
OEA/SER.L/V/II.71.Doc.6 Rev.1(1987)), under which it exercises collective ombudsperson
functions, and the American Convention on Human Rights, note 10, under which it
acts as a quasi-judicial body of first recourse.
The IACJ was created by the American Convention on Human Rights, with contentious
and advisory jurisdiction under prescribed circumstances.
The régimes operation is usefully reviewed and analyzed in C. Medina, "The
Inter-American Commission on Human Rights and the Inter-American Court of Human Rights:
Reflections on a Joint Venture" (1990), 12 Human Rights Quarterly 439; D.
Forsythe, "Human Rights, The United States and The Organization of American
States" (1991), 13 Human Rights Quarterly 66; L. Frosst, "The
Evolution of the Inter-American Court of Human Rights: Reflections of Present and Former
Judges" (1992), 14 Human Rights Quarterly 171.
See New Vision (1995), note 17, "Defense and Protection of Human Rights."
L. North, Y. Shamsie and G. Wright, A Report on Reforming the Organization of American
States to Support Democratization in the Hemisphere: A Canadian Perspective (North
York: Centre for Research on Latin America and the Caribbean, 1995), p. 44.
Adopted at the 21st Regular Session of the OAS General Assembly, Santiago, Chile,
5 June 1991. The OAS response to emergent threats to democracy in Haiti and Peru
under the authority of Resolution 1080 has, in fact, drawn criticism: see T. Farer,
"Collectively Defending Democracy in a World of Sovereign States: The Western
Hemispheres Prospect" (1993), 15 Human Rights Quarterly 716, and R.
Bloomfield, "Making the Western Hemisphere Safe for Democracy? The OAS
Defense-of-Democracy Regime" (1994), 17 The Washington Quarterly 157.
North et al. (1995), p. 41-2.
Groups targeted in this manner include minority groups, indigenous peoples, people with
disabilities, migrant workers, children and prisoners.
Consistency of approach, from a rights perspective, suggests that all existing and
prospective legislation should be subject to review through a "human rights
filtre" in light of international commitments.
Proposals for OAS involvement in evaluation and reform of national human rights
institutions are set out in New Vision (1995), under the heading "Support for
institutions and national policies for the promotion and observance of human rights."
Principles developed by the 1991 Workshop on National Institutions and subsequently
endorsed by the UN Commission on Human Rights and its General Assembly, known as the
"Paris Principles," are of interest as guidelines for the establishment of new
human rights institutions and the strengthening of existing bodies: see United Nations
Economic and Social Council, E/CN.4/1992/43, p. 46-9.
Although a search of a comparative constitutional database for Latin American countries
indicates that many fundamental human rights norms have been entrenched in at least some
constitutions of the region, constitutionalization in itself offers insufficient
protection in the absence of effective enforcement schemes (see Comparative Constitutional
Laws (human rights) available online via Political Database of the Americas
website, at http://www.georgetown.edu/LatAmerPolitical/
In many countries of the Americas, judges are elected by legislative assemblies for
relatively brief, fixed terms (see Country Summaries available via Political
Database of the Americas website, at http://www.georgetown.edu/LatAmerPolitical/Summary/summary.html).
See also 1997 Report of the Special Rapporteur on the independence of judges and lawyers
to the United Nations Commission on Human Rights (available via website of UN High
Commissioner for Human Rights, at http://www.unhchr.ch/html/menu2/hrissues.htm).
See document "Issues of Special Concern to the Special Rapporteur" of the
Special Rapporteur on extrajudicial, summary and arbitrary executions to the United
Nations Commission on Human Rights (available via UNHCHR website, Ibid.).
See Plan of Action of the Summit of the Americas: Democracy and Human Rights
Implementation Proposal, Brazil (coordinator) - Canada (co-coordinator) Initiative,
1995, obtained from Department of Foreign Affairs and International Trade. The Summit
Implementation Review Group established in the wake of the Miami Summit accepted
Brazils offer to coordinate the Democracy and Human Rights theme, and the
willingness of Canada and the OAS to assist.
The Proposal is likely to be redrafted in light of comments requested from Miami Summit
A number of donors have, for example, been active in Administration of Justice projects,
including the Inter-American Development Bank, the National Democratic Institute, the Ford
Foundation, and the UNDP.