Media Center



May 15, 2010 - Washington, DC

Thank you very much for the invitation and for the opportunity to share a few ideas with you. My remarks tonight will focus on the relevance and effectiveness of inter-American law. This subject interests me for intellectual and professional reasons, because like all law, it is constantly evolving, and thus continues to provide us with challenges and opportunities.

Though I am, like you all, a lawyer, I have spent much of my career in politics and international relations. Some of my most vivid memories of law school are of the spirited debates we had about international law. I still remember to this day that the public international law course began precisely with a discussion about the existence of such law. Many of us argued that it didn’t, including a friend who failed the course twice because he refused to renounce his position that public international law did not exist because it had no judicial authority. That is, states could stop observing it whenever they wanted.

Of course, very few people could make that claim today, because there is ample evidence to the contrary. Now, more than ever before, international legal provisions abound and are regularly complied with.

Compliance with international law is so commonplace today that it has passed to the realm of “common sense.” For example, I live in Washington, D.C. and every time I fly to Latin America I usually pass over the island of Cuba. We all know that there are tensions between the United States and Cuba, but despite this, hundreds of airplanes belonging to the United States fly over Cuba each month without anyone worrying that the Cubans will cease to comply with the international norm that permits that free passage. And although it is true that from time to time some international legal provision is violated somewhere in the world, it is still rare for a breach of international law to trigger headlines. The truth of the matter is that whenever we speak on the phone, receive an e-mail, watch cable television, purchase a foreign product, or cross a border, we are applying international legal norms, which are rarely breached.

An important factor to bear in mind in this regard is that states, which are the subjects of international law, have increased from about 50 in the 1950s to approximately 200 today. And it is not only the subjects of law that are increasing; so too is the whole body of law. Today there are many more rules and principles than there were 50 years ago, as well as many more international governmental organizations. Increasingly, too, individuals are becoming subjects of the international legal order.

So we have moved from law designed mainly to regulate some aspects of relations among states to law regulating almost all state and individual activity. Matters such as labor and trade, the protection of human rights, health care, telecommunications, and, in some regions such as the European Union, even matters that used to come under the domestic jurisdiction of states, are now governed by international law.

In that expansion of international public law, the inter-American system and the law emanating from it, namely inter-American law, have played a key role.

Some of the issues addressed in inter-American law toward the end of the 19th Century and in the early 20th Century, were: the peaceful settlement of disputes; abstention from the use of force as a means of resolving international conflicts; the principle of nonintervention; defense of the sovereign equality of states; the institution of diplomatic and territorial asylum; recourse to uti possidetis for the demarcation of borders; the development of maritime law; provisions regarding reservations to treaties; treatment of nationals versus foreigners; and efforts to codify private international law.

Equally important during those years was the establishment of regional bodies devoted to specific aspects of regional coexistence. The Pan American Union (precursor of the OAS General Secretariat), the International Board of Jurists (later to become the Inter-American Juridical Committee), the Pan American Health Organization, the Inter-American Commission of Women, the Inter-American Children’s Institute, the Inter-American Institute on Cooperation for Agriculture, the Pan American Institute of Geography and History (PAIGH), the Inter-American Indian Institute, and others, were all established in the first 40 years of the 20th Century. Later that century, the Inter-American Development Bank (the original idea for which dates back to the First International Conference of American States in 1889), the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights were established. More recently, we’ve seen the creation of the Inter-American Drug Abuse Control Commission, the Inter-American Telecommunication Commission, the Inter-American Committee against Terrorism, and the Justice Studies Center of the Americas.

All these institutions and their corresponding norms served, in their time, as a model for norms and institutions developed in other parts of the world and, especially, for the legal codes and international organizations that arose after the Second World War. They were not just eminently clear and enlightened expressions of juridical thinking, but norms that were highly respected by the countries of the Hemisphere. I believe that this explains why, the 20th century, which was one of the bloodiest centuries in the history of humankind, marked by two “word wars”, was the most peaceful century in the history of the Americas up until that time. With the exception of the Chaco War between Bolivia and Paraguay, in the 20th century no army in Latin America crossed the borders of a state it regarded as an enemy.

Perhaps the most powerful contribution of inter-American law to the world is also the area where the inter-American system has been most criticized – the exercise of democracy. The 1948 founding Charter of the Organization of American States (OAS) is the first instance where states agreed to organize themselves politically on the basis of democratic principles. This notion of democracy is not just descriptive. The Charter specifically calls for the exercise of representative democracy. According to article 3 of the OAS Charter: “The solidarity of the American States and the high aims which are sought through it, require the political organization of those States on the basis of the effective exercise of representative democracy.”

Here, as in other cases, inter-American law preceded international law in any other part of the world. For instance, the democracy clause was incorporated into the Charter of the European Union quite a long time after the definitions set forth in the OAS Charter.

Of course, I will be the first to admit that frequently we in the Americas are the first to proclaim the law, but not the first to abide by it. Thus, while for many years the European Union refused to admit countries such as Spain, Portugal, and Greece because they were not democratic, and refused to open the door to Eastern European countries which also lacked democratic regimes, the application of the OAS precepts of 1948 was postponed for many years. That was the case during the so-called “Cold War”. It was in that context that the principle of representative democracy, enshrined in the founding Charter of the OAS, was superseded by concerns that were considered to be strategically more important in that period. Thus, for many decades, the democratic contents of the Charter were only used rhetorically. In practice, the OAS lauded regimes that not only failed to practice representative democracy, but had also come to power by overthrowing legitimately elected governments.

This situation only began to change in the early 1990s with the demise of the dictatorships that had predominated in Latin America in earlier decades; when new democratic states, such as Canada and the English speaking Caribbean nations joined the OAS; and when Central America’s long-drawn-out civil wars ended. The starting point for this change dates back to the adoption of resolution 1080 by the OAS General Assembly in June 1991. The Commitment of Santiago, Chile, as it is also called, outlined new democratic rules and regulations and established an almost automatic response mechanism for intervening in member states faced with an abrupt disruption of the institutional political process. This process of giving teeth to the democratic clause of the 1948 Charter continued with the 1992 Protocol of Washington, which amended the OAS Charter by introducing the possibility of suspending the membership rights of any state experiencing the overthrow of a democratically constituted government. With this amendment, a democratic system of government became an obligation on all members and a prerequisite for joining and remaining in the inter-American system.

The culmination of the process to give effect to the concept of democracy by in inter-American law was the signing of the Inter-American Democratic Charter on September 11, 2001. It is important to remember that it is a declaration, not a treaty. Thus, while it is binding upon countries, it does not have the same strength as an international treaty. Despite that, I regard it as probably the most important legal instrument in the Americas with respect to the exercise of democracy.

The Inter-American Democratic Charter’s definition of democracy goes far beyond its expression in the form of elections or the origin of governments. Naturally, it addresses the need for a secret ballot, periodic and free elections, and responsible and full participation by citizens, but it also upholds the independence of the branches of government and the obligation of the authorities to wield power within the bounds of the Constitution and the law. In short, it envisages democracy in the same sense that the ancient Greeks attached to the word “republic.”

Consequently, the Inter-American Democratic Charter refers not only to democracy, but also to the democratic republic, which is namely one based on the full participation of all citizens and comprising a set of institutions that make it a republic governed by laws. Thus, for the Inter-American Democratic Charter, the rule of law and democracy go hand in hand. For that reason, it extols what might be defined as “political citizenship” or the right of all citizens to be governed by laws, to elect their authorities and participate fully in the administration of government.

The Inter-American Democratic Charter also includes what it regards as the other essential ingredients of democracy: respect for human rights and public freedoms, including of course, freedom of expression and freedom of association, and a pluralist party system. That is why the Charter also upholds the concept of “social citizenship,” that is to say, rights that go beyond political participation: the right to express one’s views, to organize and to be well informed about everything that happens in society. It is also the right to be governed well, a requirement that is reflected in the sections dedicated to transparency and probity in government.

Finally, the Inter-American Democratic Charter upholds the notion that democracy and economic and social development are interdependent and mutually reinforcing. For that reason, it points to poverty and illiteracy, as well as other social issues, as factors hindering the development of democracy. For that reason, too, it calls on government to respect workers’ rights, condemns all forms of discrimination and commits states to promote the full and equal participation of women in the political structure of society.

The Inter-American Democratic Charter is an instrument of inter-American law because it is binding upon states. But it also serves as a guidepost for our actions to consolidate and broaden democracy in the Americas. It is really a political program for strengthening democracy. So it should come as no surprise that discussions among our countries generally revolve around the meaning and application of Inter-American Democratic Charter. Most of the criticism has to do with failure by various governments to comply with the Charter’s precepts. Paradoxically, when governments defend themselves against such accusations, they too cite the Charter.

The principles enshrined in the Inter- American Democratic Charter may seem clear, but its application is not straightforward. This is not only because it requires agreement of the member countries in every specific case, but also because of another phenomenon that is at the heart of contemporary dialogue regarding international law: The tension between collectively shared principles–in this case democratic principles–and the principle of sovereignty and non-interference in the domestic affairs of other states. That tension imposes restrictions not only on the OAS but on contemporary multilateral organizations. Indeed, the very Charter of the Organization of American States prohibits states from “intervening, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State”. It goes on to affirm the right of every state “to choose, without external interference, its political, economic, and social system and to organize itself in the way best suited to it”.

However, the same Democratic Charter provides for certain forms of collective action when an “internal” matter gives rise to “situations… that may affect the development of its democratic political institutional process.”

It is precisely these kinds of tensions that allow for debate about the validity and effectiveness of international law in general and inter-American law in particular. And it was precisely this issue of whether international law is valid if it can be ignored by states that made my law school classmate and friend hold tight to his belief that such law did not exist. And yet, as I said, I believe that the evidence of its existence, validity, and effectiveness outweigh the evidence to the contrary. What is more, I believe that tensions such as the one we encountered in the case of Honduras will ultimately help us to reach peaceful solutions and reaffirm the existence of international and inter-American law. We can confront this experience with the very successful (and less publicized) experiences of application of the Inter American Democratic Charter in Nicaragua (2005), Ecuador (2005), Colombia (2004 – 2010), Haiti (2005), Bolivia 2006- 2010), Guatemala (2008) among others. The exercise of discussing and debating these cases and issues is what will help us find peaceful solutions.

Moreover, the challenges facing the international community are so numerous that it is unthinkable that international law–and, with it, inter-American law–will not develop further in response to them. Let me mention just one final example to illustrate my point: With transnational organized crime, be it related to drug trafficking, money laundering, plagiarism, or trafficking in persons–all of which are both transnational in character and increasingly prevalent–it is easy to see that the speed with which the criminals can move far outpaces that of states, whose very sovereignty constitutes an impediment to their acting with the necessary swiftness and agility. That is just one area calling clearly for an expansion of international law to endow states with at least the same speed and flexibility that criminals dispose of to commit their crimes.

In closing, I for one welcome the ongoing development of international and inter-American law. I believe that as human civilization develops intellectually, ethically and politically, we will need to update existing laws and to generate new ones to help regulate and guide our interactions as individuals and states.

Thank you very much.