INTRODUCTION

a. The Background

1. The Inter-American Commission on Human Rights (IACHR) has observed the evolution of the state of human rights in Chile the past twelve years with special interest.

2. That interest stemmed from the many reports of serious violations of human rights. The Commission began to receive after the military coup that overthrew the government of President Salvador Allende on September 11, 1973 and installed a Government Junta whose president was the Commander in Chief of the Army, General Augusto Pinochet. When the Commission met in October 1973 in Cali, Colombia, under the chairmanship of Dr. Justino Jiménez de Aréchaga, it instructed its Executive Secretary, Dr. Luis Reque, to go to Chile and obtain pertinent information on the events taking place there. That official visited Chile from 12 to 17 October 1973, and at the end of his visit submitted a report in which he recommended, inter alia, that the Commission should conduct an on-site observation of the state of human rights in Chile. That observation was carried out July 22-August 2, 1974 after consent was received from the Chilean Government.

3. As a result of that on-site observation, the Commission prepared its First Report on the Status of Human Rights in Chile, [1] which was submitted to the General assembly of the Organization of American States during its fifth regular session held in Washington in May 1975. In noting with appreciation the report of the Commission, the General Assembly requested it to again submit a report on the state of human rights in Chile to the next session of the General Assembly. [2]

4. The OAS General Assembly, meeting in its sixth regular session in Santiago, Chile, in June 1976, received the Second Report on the Situation of Human Rights in Chile. [3] And resolved “to make a special appeal to the Government of Chile to continue adopting and implementing the necessary procedures and measures for effectively preserving and ensuring the full respect for human rights in Chile”. And also requested the Commission to continue considering the state of human rights in Chile and to report thereon to its regular session in the manner it deemed advisable. [4]

5. As called for in the resolution, the Commission submitted its Third Report on the Situation of Human Rights in Chile [5] to the seventh regular session of the General Assembly, which was held in Grenada in June 1977. On that occasion, the General Assembly appealed to the Government of Chile, to continue to adopt measures for establishing the full exercise of human rights. And to report on the situation to the Inter-American Commission on Human Rights so that the information it provided might be taken into consideration when the pertinent annual report was prepared [6]

6. With effect from its 1977 Annual Report, the Commission has complied with the successive resolutions of the General Assembly that instructed it to continue to report on the state of human rights in Chile. [7] To that end, the IACHR has devoted a special section of its annual report to an analysis of the evolution in Chile of the observance of human rights and has formulated such conclusions and recommendations, as it deemed pertinent. [8]

7. In view of the persistence of the problems reported and even of the worsening of the state of human rights in that country. The Commission, at its 62nd regular session, held in May 1984, decided to begin to prepare a report on the state of human rights in Chile that would cover the period beginning with the installation of the present government. In addition, it instructed its Executive Secretary to verbally inform the Ambassador, Permanent Representative of Chile to the OAS, of the interest of the Commission in visiting Chile in order to observe the state of human rights in situ.

8. In view of the lack of response to that initiative, in a note dated October 4, 1984 sent by its Chairman, Mr. Cesar Sepúlveda, to Mr. Jaime del Valle, the Minister of Foreign Affairs of Chile. The Commission informed the Government of Chile that it had decided to prepare an extensive report on the state of human rights in that country and that, to ensure that that report would reflect the state of human rights in Chile as faithfully and objectively as possible. It deemed it desirable for an invitation to be extended to it to carry out an on-site observation in Chile or that it be granted the appropriate permission to carry out such an observation during the first one hundred days of 1985.

9. In a note dated January 16, 1985, the Minister of Foreign Affairs of Chile informed the Commission that his government declined to extend the invitation requested. The refusal of the Government of Chile was based on a number of serious accusations against the Commission, [9] that were answered by it in a note dated March 4, 1985 and signed by its Chairman Mr. César Sepúlveda. In that note, in addition to rebutting each one of the accusations made, the Commission requested the Government of Chile, in the light of the considerations expressed, to reconsider its refusal and to extend the invitation requested. [10]

10. On July 1, 1985, at its 853rd meeting, during its 65th session, the Commission provisionally adopted the present Report, and transmitted it, in conformity with Article 58 of its Regulations, to the Government of Chile so that it might submit such observations on it, as it deemed pertinent. Together with a letter of transmittal dated July 3, 1985, which was sent by Dr. Aguilar, the Chairman of the Commission, to Mr. Jaime del Valle, Minister of Foreign Affairs of that country. A copy of that report and of the letter of transmittal were also sent on the same date to Ambassador Leonidas Irarrazaval, Permanent Representative of Chile to the OAS, who returned the envelope containing those documents without opening it.

b. Objectives of the Chilean Government to this Report

11. On July 22, the Commission received a note from the Permanent Mission of Chile to the OAS also returning the report sent to the Minister of Foreign Affairs of that country. The Government of Chile, pursuant to the information contained in said note, decided to not accept the Report. Until such time as “a satisfactory response to all the points contained in the letter from the Director general of Foreign Police, Ambassador Raul Schmidt to the Chairman of the Inter-American Commission of Human Rights dated May 29”.

12. The Commission has always taken the position, and continues to do so, that has made available to the Government of Chile all of the elements which permit it to respond adequately to the various questions raised by it in the above-mentioned note of May 29, 1985. In effect, in this communication the above-mentioned Chilean official asked, in relation to the report, which at the time was being prepared by the Commission. The following procedural questions, to which an opportune response was given: provisions of the regulations on which the Commission based it decision to prepare a Report, which covered more than the normal period of activities; the reason for the Report, whether it corresponded to a mandate of an organ of the OAS or an agreement of the IACHR; relevant precedents of similar previous reports; the manner by which the Report should be transmitted; the time period allowed for response; the fate of the response and whether it would be published together with the Report; and lastly the period which would be covered by the same.

13. By reason of their nature and length, some of these questions are explained in the very text of the Report provisionally adopted by the Commission on July 1, or in the note dated July 3 with which the Chairman of the Commission transmitted the Report to the Chilean Minister of Foreign Affairs. The other questions, which were not answered in these documents, were dealt with a letter dated July 2, which, on the instructions of the Commission, was sent to Mr. Raul Schmidt, Director of Foreign Policy of the Chilean Ministry of Foreign Affairs by Dr. David Padilla, Assistance Executive Secretary of the Commission.

14. The Government of Chile, besides with refusing to receive the Commission’s Report, presented an “Aide Memoire” to the individual delegations accredited to the OAS, explaining its position and making various charges against the Commission. In addition, in August, it submitted a request to the Permanent Council to the OAS asking it to obtain the opinion of the Inter-American Juridical Committee on matters affecting the competence of the Commission to prepare reports. [11]However, that request was later withdrawn by the Delegation of Chile.

15. The Government of Chile invoked various reasons for contesting the validity of this report. First, it argued that an extensive report like that prepared by the Commission “constituted a special procedure, not provided for in the Charter of the Organization or in the Regulations of the Commission itself” of the report, pointing out that “all international agencies fit their studies to specified periods, specifically, the calendar year”. Finally, for the Government of Chile, the Report of the Commission would entail “again going over matter which the Commission has already taken decisions on and were the subject of resolutions of the supreme authority of the Organizations, which is the General Assembly”.

16. With respect to the first argument, the commission is of the opinion that the authority it possesses to prepare reports like the present report is based on the generic functions assigned to it by Article 18 (c) of the Statute of the IACHR; and Article 60 of its Regulations. Indeed, according to the above-mentioned article of its Statute, the Commission is authorized to “prepare such studies or reports as it considers advisable for the performance of its duties;” the article of the Regulations mentioned provides that the commission shall prepare such drafts of general or special reports as it deems necessary.

17. For its part, the General Assembly of the OAS has invariably reaffirmed the mandate of the Commission to prepare the reports it deems appropriate. [12]Thus, in operative paragraph 14 of the RES. 742 (XIV-O/84), adopted at its fourteenth session, held in Brasilia, the General Assembly resolved:

To request the Commission to continue monitoring the situation of human rights in such member states as it deems appropriate and to report thereon to the General Assembly at its fifteenth regular session.

18. As for the argument of the Government of Chile that the Report covers more than on e calendar year, the Commission notes that the instruments that govern it do not contain any provision that limits its authority to establish the period of the analysis of the conduct of a government. Thus, all the reports of the Commission cover varying and usually prolonged periods of time. [13] so far, no government has objected to this approach, which moreover is due to the very nature of the situations the Commission is charged with evaluating.

19. Although the Commission may include consideration on the state of human rights in one or more countries in its Annual Report for the purpose of keeping the General Assembly informed of the most important aspects of those problems in the hemisphere, that by no means entails a limitation that prevents the Commission from making an overall analysis of the conduct of a specified government, including its achievements, advances and retreats. If the Commission were compelled to make a partial analysis, limited in time, that would clearly affect the mandate of the Charter of the Organization, reaffirmed by its own Statute and successive resolutions of the General Assembly.

20. Despite the clear mandate of the IACHR to prepare extensive reports on the state of human rights in the states it deems appropriate, it could be argued, as the Government of Chile has done, that the Commission should not prepare additional reports on situations previously dealt with in earlier reports. This argument is also inappropriate. It is clear that, because of its very nature, that argument cannot be applied to the special reports prepared by the Commission. Of course, when the Commission prepares a report on the state of human rights in a specified country, it does so on the basis of all the sources available to it at that time concerning the situation prevailing in the country at the time it adopts the report and makes such recommendations as it deems advisable in the light of those elements. Obviously, those circumstances are never static and the state of human rights in a country, although it has been the subject of an earlier report by the Commission, may vary in such a way as to make consideration of a new report essential.

21. Likewise, in its new report the Commission may refer to events which, although they occurred in the period covered by the earlier report, the Commission may not have knowledge of at that time and may subsequently consider it important, as happens with this report, to disseminate them. Such is the case of this Report. [14]

22. In addition, it is possible to conceive that the recommendations made by the Commission in earlier reports may not have been fulfilled by the State concerned and that it may be necessary in the new report to insist on the fulfillment of those recommendations that were previously ignored. Thus, resolution AG/RES. 443. (IX-O/79) states: “5. To urge the Government of Chile to step up adoption and ensure the full exercise of human rights in Chile, especially regarding clarification of the situation of those detained persons who have disappeared, return of exiles to their country, lifting of state of emergency, and prompt re-installment of the right to vote.” As will be seen later, the Commission is of the opinion that so far the government of Chile has not fulfilled those recommendations of the General Assembly.

23. Finally, it is necessary to recall that the Commission is not a jurisdictional organ for which reason one cannot require it to adjust its activity to the procedural norms, which such organs must apply.

24. These reasons lead the Commission to conclude that it has broad authority to prepare reports on the state of human rights in the States it considers advisable for the discharge of its duties; that, because of their very nature, such reports, like the instant report, may cover an extensive period for the purpose of making an overall evaluation of the conduct of a government in the matter of human rights; and lastly that this evaluation in many cases requires renewed consideration of situations that were the subject of previous reports and to examine the compliance given to the recommendations which have been formulated at that time. For all these reasons, the Commission deplores the fact that the Government of Chile, basing itself on those arguments, has not submitted substantive observations on the report provisionally adopted by the Commission on July 1, 1985.

25. In view of the silence of the Government of Chile, the Commission at its 859 meeting, held on September 27, 1985 during its 66th session definitively approved the text of the report it had provisionally adopted on July 1, 1985. To it have been added in this introduction the observation called for by the situation created by the Government of Chile with respect to the report. In addition, some facts and information of a public nature, which have occurred between July 1, and the date of the approval of the Report have been added in order to more fully present the current Chilean reality.

c. Content, methodology and sources employed in the present report

26. This report on the state of human rights in Chile covers the period that began on September 11, 1973 with the installation of the present Government of which General Augusto Pinochet Ugarte is the President. In the opinion of the Commission, coverage of the above-mentioned period enables the Commission to evaluate the conduct of the Government that has remained in power uninterruptedly during the period considered. The Commission considers that this time-frame is essential for drawing well-founded conclusions based on the trends recorded in it; this has therefore made it possible to indicate the cases which the situations considered have remained unchanged or have been changed and in this case to point out both advances and retreats in the state of human rights. In particular, consideration of the entire period covering the administration of the present Government with the recommendations it made both in its special reports and in the section dealing with that country in its annual reports.

27. This report also contains a detailed examination of the state of the following human rights: right to life, liberty and personal security; right to residence and movement; right to nationality; right to a fair trial and due process of law; trade union rights; the right to freedom of expression; and the state of political rights. The analysis is complemented by a presentation on Chilean institutions for the defense of human rights.

28. The Commission has not deemed it necessary to refer specifically to the state of other rights recognized in the American Declaration of the Rights and Duties of Man since it believes that the state of those rights is linked to the study of the main topics included in this report. Thus, the exercise of the right of association and assembly can be clearly deduced from what is stated about the exercise of human rights under the states of emergency and from the examination of political rights. With respect to the right to religious freedom the Commission has not found that events have occurred that imply a breach of that right as such, but rather that special situations involving problems of human rights have occurred between the Government and religious groups concerning problems of human rights; those situations have therefore been dealt with in the chapter devoted to institutions for the defense of those rights.

29. With respect to economic, social and cultural rights, the Commission has deemed it advisable to continue to study the state of those rights and not to include an analysis of them in this report.

30. In preparing this report the Commission has used various sources. For the normative aspects, it has been used as a basis the legal texts published in the Official Gazette of Chile or in official compilations of laws.

31. As for the jurisprudence, it has been extracted from Chilean specialized journals such as the Revista de Derechos y Jurisprudencia, Fallos del Mes and the Revista Chilena de Derecho de la Pontificia Universidad Catolica de Chile, as well as from the judgments with which the Commission has been provided both by the Government of Chile and by human rights organizations and even by the parties to the actions in which human rights organizations and even by the parties to the actions in which they were handed down. In two cases, that occurred outside Chile. But whose perpetration has been imputed to agents of the Government of Chile, the sources used by the Commission have been the judicial decisions of the states in which those events occurred.

32. Chilean, and foreign journalistic sources, have also been used by the Commission as sources of information for the events described in this report. The Commission has given special consideration to the documents prepared by the government of Chile and to the replies it has furnished on the cases or situations included in this report.

33. The Commission has also used information from institutions for the defense of human rights in Chile, especially the Vicariate of Solidarity of the Archdiocese of Santiago and the Chilean Commission on Human Rights.

34. The Commission must again regret the refusal of the Chilean authorities to give consent for the conduct of an on-site observation, a method that would have undoubtedly enabled the Commission to obtain further information directly from those authorities and from the various sectors in Chile that are affected by the state of human rights in that country.

Notes________________________

[1] OEA/Ser./V/II.34, doc. 21, October 25, 1974.

[2] Resolution AG/190 (V/0/75), May 19, 1975.

[3] OEA/Ser.L/V/II.37, doc. 19, corr. 1, June 28, 1976.

[4] Resolution AG/243 (VI/0/76), June 17, 1976.

[5] OEA/Ser.L/V/II.40, doc.10. February 11, 1977.

[6] Resolution AG/313 (VII-0/76) June 22, 1977.

[7] Resolutions AG/368 (VIII-0/78) July 1, 1978; AG/443 (IX-0/79), October 31, 1979; AG/510 (X-O/80), November 27, 1980; AG/543 (XI-0/81), December 10, 1981; AG/618 (XII-0/82), November 20, 1982; AG/666 (XIII-0/83) November 18, 1983; and AG/742 (XIV-0/84), November 17, 1984.

[8] For example, ICHR Annual Reports for 1977, p. 77-97; 1978, pp. 126-136; 1979-80, pp. 95-111; 1981-1982, pp. 112-114; 1983-1984. p. 86-96.

[9] The text of the note is as follows:

Mr. Chairman:

I hereby acknowledge receipt of your letter of October 4, in which you inform me that “the Inter-American Commission on Human Rights, at its 63rd session, decided to prepare an extensive report on the situation of human rights in Chile.” The letter goes on to say that “in order that the report might faithfully and objectively reflect the situation of human rights in Chile,” the Commission was of the view that it would be advisable that my Government invites the Commission to conduct a visit in loco.

As you know, Chile has repeatedly demonstrated its willingness to cooperate with the IACHR and with many other international agencies concerned with human rights Invariably, it has been receptive to visits by entities of all types it has welcomed fact-finding committees because it never had anything to hide. The depth and seriousness of the work accomplished have varied from one committee to the next.

The IACHR was invited to Chile in 1974 and was accorded all the facilities and cooperation to perform its mission. Then, as now, it said that it wished to be honest and objective. The results are well known. The report prepared was not even sent to the Chilean Government for its observations and opinions.

The Commission disregarded its own regulations governing the procedure for special reports, particularly Article 58 of the Regulations. If the Commission did not want to abide by the Regulations, courtesy alone dictates that it should have sent the report in question to the Government of Chile first.

You will recall that before being made public, the report in question was sent to the United Nations by the then Executive Secretary of the IACHR, in a unilateral act that was a violation of the rules. The intention was clearly against the Government of Chile.

My Government's subsequent commentary on the report in question was not taken into account by the Commission. In fact, it was utterly ignored. All of the observations that my Government has prepared concerning special reports or chapters the Commission has prepared on Chile in recent years have been disregarded, observations that, point by point, disprove one accusation after the other.

The Chilean Government's experience in its contacts with the Commission was unfortunate, not the kind conducive to creating a sense of trust in its future conduct.

The ten years that have transpired have been marked by one‑sided accusations and the manifest desire to utterly disregard anything that might be in the least bit favorable to the Chilean Government. Generalizations have been made on every aspect of government and on each one of the Government's activities. The entire system that governs the country has been put on trial: its economic, social, labor, financial, tax, agrarian, and educational laws; its health, employment, and housing programs, etc. The Commission's harsh criticisms stand in stark contrast to the opinions passed by such international organizations such as ECLA, the Monetary Fund, the World Bank, and UNICEF. These have acknowledged the progress and positive results that the Government of Chile has achieved in these fields.

Events and circumstances that are commonplace in the countries of our hemisphere are violations of human rights only if they occur in Chile. The special brand of objectivity used in addressing my country could be illustrated in the following quote from the most recent Annual Report. In referring to the Press Law, the Annual Report states that the law “could dissuade” the media from fulfilling their purpose.” Does this mean that in the past the press did fulfill its purpose? If so, why then did the IACHR never acknowledge this? Seven pages further on the report states that “freedom of expression has been severely curtailed in Chile. ”Two pages later there are a sentence that says, “there has been a small but nevertheless real expansion of the margin within with the right to freedom of expression is exercised.”

These have been ten years of a constant lack of objectivity and impartiality. The criterion that has been used to assess the values of human rights has been purely political ideological.

Often--and this stands out--the terminology used is very much the same as that used in documents produced by anti‑government political organizations.

You will recall, Mr. President, the events that led my government to sever its relations with the Commission on May 6, 1981: the conduct of some of its members was blatantly against the Government of Chile; ideas and preconceptions have been expressed that demonstrated the ideological approach to the Chilean situation; objectivity was always lacking and the Commission failed to observe its own regulations. These circumstances together force the Government of Chile to suspend its cooperation with the IACHR.

The charges brought before the Permanent Council in May 1981 was specific and concrete. The Commission did not ever answer the charges just as it has never answered any of the observations that the Chilean Government has made in response to its assertions.

In March of last year in response to a proposal received from the eminent jurist Mr. Marco Monroy Cabra, the then President of the Commission, my Government resumed its cooperation with the IACHR. At that time my predecessor sent him a note giving an lengthy explanation of Chile's concerns based on its experience in its relations with the Commission.

One of the paragraphs of that communication is a particular note. it said:

“Recently, in 1982, the Inter-American Commission on Human Rights published its Annual Report; however this time it included separate chapters on certain countries, among them Chile. The inclusion of a separate chapter on a country within the Annual Report must be governed by the same procedure that applies in the case of the special reports. Otherwise, this would be, de facto, only one means to circumvent application of Article 58 of the Regulations of the Inter-American Commission on Human Rights. In that way, the opinion of the governments concerned need not be consulted.”

When that letter was received, Dr. Monroy Cabra assured the Chilean Ambassador to the OAS, Mr. Pedro Daza, that it would be better to forget the past; that in future the Commission would adhere to its regulations in its dealings with the Chilean Government; and that, as a member of the Commission its President, a professor and magistrate, it was his wish that purposes alien to the cause of human rights should be avoided.

It was with that understanding that Chile resumed its cooperation. Last year, the Annual Report again included special chapters on certain countries. Disregarding Article 58 of its Regulations, the interested countries are not being given the opportunity to present their observations and defend themselves against the charges leveled against them.

It is not my intention to deny existence a number of human rights problems in my country, just as there are in all nations of the world. Would that that were not so. But that is no reason for the Commission, in order to give the impression of the presence of a vast number of problems, as it does in the special chapter of its most recent annual report, is full of frivolous statements: criticizing a law because it could violate rights; citing mere bills and then criticizing them, only to point out that they were modified when discussed; that such a standard that could lend itself to .... ; That it would give room for... that it is suspected; there is a suspect element; that it could happen; that it could dissuade; that they seem to act with impunity; that it can be said; that it can obstruct; the well-founded concern; the promised law, and so on.

What atmosphere of trust and respect can be established with statements based on qualifiers such as those indicated?

Furthermore, it is worthwhile recalling that in the presentation of the Report of the Commission at the most recent session of the General Assembly of the Organization, it was said that there was a rightist terrorism in Chile. That statement would seem to imply that only a certain type of terrorism is censurable. But at the time the Commission failed to mention the serious upheavals caused in the country by actions that received extensive coverage in the national and foreign press. To ignore these events, which are public knowledge, is not the most eloquent example of impartiality and objectivity. The increase in terrorist activities forced the Chilean Government to institute the state of siege on November 6 and to curtail some of the civil liberties that the Commission ignores.

Evaluating the extent to which human rights are observed is an extremely delicate task, since it involves values that in themselves are very sensitive in our societies.

The subject matter is so delicate that strict observance of the legal criteria governing the evaluation procedure becomes even more imperative. Abandoning the juridical approach means replacing it with a political-ideological approach, which will undoubtedly yield a distorted picture of the human rights situation.

The differences that Chile has had with the Commission has been on this plane. We have always maintained that because of their importance and because of their meaning in a civilized society, human rights cannot be dealt with on the basis of either political or ideological criteria.

By repeatedly ignoring its own regulations, the Commission has approached its mission from a vantage point that is alien to what the countries were after when they approved its statutes and regulations, whose observance was the main guarantee of impartiality, sobriety and equanimity.

These considerations are what have induced my Government to inform the Commission that, given its experience with the Commission in recent years, it regrets that it is unable to accede to the request made in the letter to which I now reply.

The Commission's attitude toward Chile has not been an incentive to mutual cooperation, the kind of cooperation that would have been advisable and that we hoped to provide.

As was said to Dr. Monroy Cabra, preconceived judgments do not serve to create a climate conducive to the kind of cooperation that must follow from mutual respect.

I hope that that kind of trusts can develop in the future based on an attitude free of any preconceived notions.

Very truly yours,

Jaime del Valle Alliende

Minister of External Affairs

[10] The text of said note is as follows:

Excellency:

At its sixty-fourth session, the Inter-American Commission on Human Rights asked that I reply to the note of January 16, 1985, wherein Your Excellency advises the Commission of the Chilean Government's refusal to extend the invitation requested by the Commission to conduct an on-site observation on the situation of human rights in that country, with a view to preparing a report on the matter.

The Government of Chile based its refusal on a set of serious accusations leveled against the Commission. Your Excellency's lengthy note basically contains three main charges against the Commission; violation of its own regulations, in objection to the content and language used in the section on Chile in Chapter IV of the Commission's 1983-1984 Annual Report to the General Assembly; and a constant lack of objectivity and impartiality because of the fact that the political ideological criterion has become paramount in assessing the values of human rights. Your Excellency also points out that the Commission has remained silent in the face of similar charges made in the past.

Before addressing the accusations made against the Commission, I should first like to refer to the Commission's alleged silence, since Your Excellency does not seem to have adequate information in this regard.

In the past, the Chilean Government's accusations against the Commission were always accompanied by either suspension or the threat of suspension of any form of cooperation with it. At one time, the unilateral decision to break relations with the Commission--announced during a meeting held by the Permanent Council on May 6, 1981, to which you refer in your note--was even based on actions taken by the then President of the Commission in a personal capacity. That drew an energetic response from the individual in question.

The most serious aspect of the Chilean Government's conduct was not so much that it made unfounded accusations but rather that by using them it sought to justify its failure to fulfill its international responsibilities. And the Commission has not remained silent on this point.

In its 1981-82 Annual Report the Commission said the following:

... That on May 6, 1981, the Chilean Government decided unilaterally to suspend all relations with the Commission ' and since that time, has replied to none of the communications sent to it. In the Commission's opinion, this constitutes conduct that is incompatible with the commitments that Chile has entered into under the Charter of the Organization of American States. (p.115).

Later my distinguished predecessor, Dr. Marco Gerardo Monroy Cabra, in a confidential note dated November 23, 1982, reasserted those views to the Minister of Foreign Affairs at that time and informed him that if the Chilean Government persisted in its attitude the Commission would have to report secondhand to the General Assembly on Chile's failure to comply with its international obligations.

In March 1983, in the meeting between the President of the Commission and the Permanent Representative of Chile to the OAS, held to agree upon a resumption of cooperative relations between the Government of Chile and the Commission, Dr. Monroy Cabra, with the determined support of his colleagues and in order to facilitate fulfillment of Chile's international obligations, told Ambassador Daza that it would be preferable not to discuss past situations that, given the Chilean Government's new attitude, it could be considered to be over and done with. At no time did Dr. Monroy Cabra say that the Commission had failed to comply with its Regulations or Statutes, as inferred by the expression “in the future” used in the note to which I reply.

Therefore, the Commission did not remain silent in the face of the charges leveled by Your Excellency's Government; on the contrary, it expressly indicated its disagreement with the posture taken by the Chilean Government and if it did not take the matter to the highest levels of the Organization, it was because of the cooperation that Your Excellency's Government promised hereinafter.

Having clarified this point, I should like now to address the charges leveled against the Commission in Your Excellency's note of January 16, 1985.

First, I shall address the Commission's alleged violation of its own statutory provisions. This charge is directed at three different situations.

In the first, the note from Your Excellency goes back to the time when the first Report on the Situation of Human Rights in Chile, approved on October 24, 1974, was prepared. In that regard, it states that:

The report prepared was not even sent to the Chilean Government for observations and views. The Commission disregarded its own Regulations governing the procedure for special reports, particularly Article 58 of the Regulations. If the Commission did not wish to observe the Regulations, at least for reasons of courtesy it should have transmitted the report in question to the Government of Chile for its information.

On the subject, I wish to bring to Your Excellency's attention the fact that the Regulations to which the note that I am refuting--and therefore Article 58 of those Regulations--refers date from 1980; in 1974, those regulations were not in effect. Hence they could hardly have been applied at that time.

I must remind Your Excellency that when the first Report on the Situation of Human Rights in Chile was approved, the regulatory provision in effect was Article 33 of the former Regulations. That Article provides that:

When the Commission approves a report or draft, the Secretariat of the Commission shall publish the report as an official document of the Inter-American Commission on Human Rights, for internal or general circulation, as the Commission so decides.

The procedural aspect of this regulatory provision was supplemented by Articles 52. f and 91 f of the Charter of the Organization. The former provides that the General Assembly must consider the reports of the organs of the inter-American system. Article 91.f further establishes:

The Permanent Council shall also:

f. Present to the General Assembly any observations it may have regarding the reports of the ... and the Inter-American Commission on Human Rights.

This procedure had been followed with the reports on the situation of human rights in Haiti (19630 and Cuba (1967), among others. In this case also, and in order not to leave the Government of Chile in a defenseless position, the report was forwarded to the Permanent Council so that it might consider it before its discussion by the General Assembly.

The Commission considered that in the Permanent Council, Chile would have an opportunity to put forward its observations. This is why it stated the following on page 4 of the aforementioned 1974 Report;

Because the Commission knows the risks that are inherent in its task, it applauds the procedural rules under which the Permanent Council must examine its reports, before submitting them to the General Assembly. In the Permanent Council, the countries concerned have the opportunity to make any observation they deem relevant, before the reports are given the publicity they receive when presented to the Assembly. This provides an opportunity to introduce any amendments that may be adequately justified.

In order to afford the Government of Chile an opportunity to make those observations, the day after the report was approved, October 25, 1974, the Chairman of the Commission forwarded the report to the Minister of Foreign Affairs of Chile with a certified letter, No 514800. By acting in this manner, Mr. Minister, not only did the Commission adhere to the norms of good conduct, but also it complied with the regulatory provisions in effect.

Consistent with that procedure, the Government of Chile gave its observations on the first special report during a Permanent Council meeting on December 4, 1974 (document OEA/Ser.G.CP/doc.385/74). The members of the Commission considered those observations and found that they did not provide any new information so as to modify the report.

You may rest assured, Mr. Minister, that if Your Excellency's Government had demonstrated that the facts described by the Commission in its report were not correct, or that those situations had been overcome, it would have proceeded to make the corresponding corrections.

It is clear from what has been said, Mr. Minister, that the reference to Article 58 of the Regulations is based on an improper consideration of the procedural rules in effect at the time when the first special report on Chile was being considered. The exposition of these rules, that I have given, demonstrates that the Commission acted strictly in accordance with the procedure in force at that time, and the accusation levied at it is therefore improper.

Another charge that the IACHR transgressed its Regulations levied by the Government of Chile concerns the fact that the first special report on Chile was forwarded to the United Nations.

Here, Mr. Minister, I wish to remind you that it was the Human Rights Director of that international organization who requested that report from the OAS Secretary General. Through the United Nations Secretary General. The special report was not sent at that time, because of its confidential nature. On December 4, 1974, the Permanent Council of the Organization considered the report and the observations of the Government of Chile at a regular meeting, and both documents thereby were made public. In view of this, and more than one month later--on January 10, 1975--, the report in question was forwarded to the United Nations Director of Human Rights.

That procedure, therefore, did not constitute any infraction of the rules whatsoever. Furthermore, Mr. Minister, since that time, the reports of the Commission have been sent regularly to the United Nations after they have been approved and made public, and there have never been any complaints by any government about this.

In light of this, the Commission finds it very strange that the Government of Chile should not base its refusal to invite the Commission, citing situations that go back eleven years, that have been surmounted once and for all, and that have not involved any violation of the rules whatsoever.

The third charge that the Commission fails to observe its statutory provisions concerns the section on that country in Chapter IV of the 1983-1984 Annual Report. The note I am replying to again refer to Article 58 of the Commission's Regulations.

Mr. Minister, I must note here that that Article governs the procedure that applies to general reports prepared by the Commission. In the case that Your Excellency is pointing out, therefore, Article 58 is not the pertinent rule since application of it would make it impossible to comply with repeated appeals expressed in the resolutions of the most recent sessions of the General Assembly that the Commission includes sections on countries in its Annual Report. Hence, the applicable rule is the rule embodied in Article 59 of the Regulations, referring to the Annual Report. Paragraph h of that Article provides that it shall include: any general or special report that the Commission considers necessary with regard to the situation of human rights in the member states, noting in such reports the progress achieved and difficulties that have arisen in the effective observance of human rights.

By including the section on Chile in the 1983‑1984 Annual Report, and in the previous annual reports, the Commission has acted in strict compliance with its regulatory provisions and with the specific mandate received from the most recent sessions of the General Assembly.

The Commission always has given the governments discussed in the Annual Report an opportunity to submit any information they might consider pertinent in relation to the observance of human rights. It offered that opportunity to the Government of Chile in a note dated June 16, 1984. The Commission carefully considered the reply from Your Excellency's government dated September 14, 1984, when it prepared the section in question. That reply did not, however, make mention of serious situations that are in the public domain and that could not be ignored by the Government or the Commission because they affect the observance of human rights.

In accordance with that, Mr. Minister, your accusation that the Commission violated its procedural standards in including the section on Chile in Chapter IV of its 1983-1984 Annual Report is also without legal grounds.

I shall now refer to the charges by Your Excellency's Government with respect to the content and language of the section on Chile in Chapter IV of the 1983-1984 Annual Report. These accusations are based on a confused group of isolated phrases taken from different parts of the section. This lack of organization make analysis of those charges difficult but does not prevent it.

Thus, on page 3 of the note Your Excellency states that: In referring to the Press Law, the Annual Report states that the law “could dissuade the media from carrying out its role”. Does this mean that in the past the press did carrying out its role? Why didn't the IACHR ever recognize this?

The phrase that Your Excellency's note cites in quotation marks is on page 90 of the Annual Report; the citation, however, is out of context. Actually, the corresponding paragraph of the Report of the IACHR reads, verbatim, as follows: The effect that this law may have on freedom of the press is a matter of concern, since its purpose is to increase the severity of penalties, and it could thus dissuade organs of the press from carrying out their role as suppliers of information when they seek to question the behavior of public officials or even their relatives

The distortion of the quotation tortures the original text to such a degree, Mr. Minister that it would appear needless to go into specifics. However, I feel obliged to point out that the text considers that the dissuasion from carrying out the work of supplying information may be an effect derived from the purpose of the new law; to raise the preexisting penalties. That is not difficult to perceive.

Something more: the new law would dissuade the media from carrying out its role when it seeks to question “the behavior of public officials or even their relatives”. As Your Excellency can see, the text points out a new aspect of the restrictions on freedom of the press in Chile. Following the sentence quoted, the Report goes on to say: “This law thus adds to the numerous limitations...” The questions presented in your note, therefore, lack any justification.

Your Excellency's note continues, stating that! Seven pages later the report states that “freedom of expression has been severely restricted in Chile.” Two pages later there are a sentence that says, “There has been a precarious but real broadening of the margins within which the right to freedom of expression may be exercised.”

In fact, on page 94 of its Annual Report, the Commission states that “Freedom of speech has been severely restricted…” and immediately following this it gives a long list of measures taken by the Chilean authorities that constitute a firm support of its affirmation. It is a question of official measures, all of them published by the Chilean media. None of them has so far been denied by Your Excellency's Government.

The sentence referring to the “precarious but real broadening of the margins...” appears to exercise a particular attraction for the Government of Chile, since the document “Observations by the Government of Chile on a Chapter of the 1983-1984 Annual Report of the Inter-American Commission on Human Rights” also refers to it. After citing that sentence that documents then states: The truth is that there presently exists in Chile a real, broad, and guaranteed freedom of speech. It is sufficient to cite as an example in this regard, the names of periodicals representing all political tendencies in some of which the government is attacked virulently: “Hoy,” “Analisis,” “Apsi,” “Cauce,” “Fortin Mapocho,” “Mensaje,” etc.

As you will recall, Mr. Minister, that document was presented to the General Assembly at the meeting on November 16, 1984. Eight days previously, however, the Government of Chile had suspended, by Decree No 1217 of the Ministry of the Interior, the publication of the magazines “Analisis,” “Apsi and “Cauce”, and of the newspaper “Fortin Mapocho,” and had subjected the magazine “Hoy” to prior censorship. It had also suspended the publication of two other magazines. Your Excellency's Government, in this way, had eliminated practically all the examples of the “real, broad, and guaranteed freedom of speech.”

Your Excellency accuses the Commission of not recognizing the good aspects of the Chilean Government's policies. The sentence about the real broadening of the margins within which the right to freedom of speech might be exercised constituted recognition of that kind. Unfortunately, Your Excellency's Government itself saw to confirming the wisdom of including the adjective “precarious” in that phrase.

On page 5 of your note, after recognizing that there are human rights problems in your country and expressing your desire that that were not so, Your Excellency points out that:

Nonetheless, this is no reason for the Commission, in order to give the impression of a vast number of problems, as it does in the special chapter of its most recent annual report, to make so many frivolous statements: criticizing a law because it could violate rights; taking up mere bills of laws to criticize them, and then point out that they were amended when discussed; that such a certain norm could lend itself to...; that it would give room for ... ; ... who are suspected; there is an element of suspicion; that it could happen; that it could dissuade; persons who appear to act with impunity; that it may be said; that it may obstruct; a well-founded concern; the promised law, and so on.

What atmosphere of trust and respect can be established with statements based on conditional elements such as those indicated?

It is essential to break down this long paragraph in order to clarify its meaning. It must be interpreted, in the first place, that Your Excellency considers the use of verbs in the conditional mood in the analysis of various aspects of the standards dealt with by the Commission to have a negative effect.

In this regard, it may be pointed out that the following are not conditional expressions: “it may be said,” “a well-founded concern,” and “the promised law.” These are correct and suitable expressions in themselves and in the context in which they are used. They cannot have any negative effect in the creation of a “climate of confidence and respect.”

The expression “who are suspected”, Mr. Minister, is not used by the Commission; it is part of the text of Article 45 of the Penal Code of Chile, quoted on page 89 of the Annual Report. The term “element of suspicion” is a reference to the text of that article. This wording also, taken from Chile's own legislation, cannot work against the establishment of a positive atmosphere between the Commission and your Government.

At no point has the Commission taken up “mere bills of laws to criticize them and then pointed out that they were amended when discussed.” On page 88 of the Annual Report the fact is simply stated with respect to Law 18,314 that “...a number of the provisions of the original bill which had had been harshly criticized were eliminated from the law that was finally enacted “ Therefore, in this part of Your Excellency's note there is a distortion of the Commission's text.

The expression “who appear to enjoy immunity,” while it is not a direct quotation, is comparable to what is used in paragraph 12.b on page 91 of the Report, where the Commission points out that fifteen deaths have occurred as a result of abuse of power, specifying that: “These are isolated cases but they reveal a dangerous lack of control of some members of these (security) agencies, who act in the shadow of the impunity which they appear to enjoy.” An adequate reply by your Government would have been to send to the Commission the names of the persons tried and sentenced for abuse of power as a result of deaths during the period covered by the Annual Report until then, the statement of the Commission sticks strictly to the facts.

With respect to the negative effect of the use of verbs in the conditional mood in the analysis of various legal standards promulgated by the Government of Chile, there are several aspects that should be mentioned.

In the first place, it is of primary interest to foresee the effects that may be derived, in practice, from the application of any standard whatever. This is an exercise that is not only legitimate but also essential in order to avoid negative situations in its future application. Parliamentary discussions of bills devote a substantial part of their time to this exercise; this is also done by academic works that analyze bills of law or standards recently promulgated. Since it is a question of possible future events, the conditional mood is the only on appropriate to use.

Secondly, to point this out is particularly important for an agency that has been entrusted with the protection of human rights, since it thus helps to restrict the margins within which conduct may be performed that impairs the effectiveness of human rights. In this case, it is a matter of a positive contribution that deserves careful consideration by any government. Not only should violations of human rights be punished; it is basic that they be foreseen to prevent their occurrence.

In the third place, the Commission, in analyzing legal provisions from this perspective, is acting in accordance with its general and specific powers. In relation to those provisions, it performs a task of promotion intended to foresee possible future transgressions; in relation to these, it is acting within the context of the provisions of Article 18.b of its Statute, concerning the recommendations it should make so that the states will adopt appropriate measures to further observance of human rights.

Furthermore Your Excellency, in giving bases for the imputation that the context and language of the section on Chile of the latest Annual Report do not contribute to creating a “climate of trust and respect”, points out that: it is worth while recalling that in the presentation of the Report of the Commission at the most recent session of the General Assembly of the Organization, it was said that there was a “terrorism of the right” in Chile. That statement would seem to imply that only a certain type of terrorism is censurable.

Once again you show that you are not well informed. The tape of my remarks to the General Assembly indisputable disproves that statement. Also disproving it are the minutes of the November meeting at which I made the general presentation of the report to which you refer. Suffice it to say your Government needs the corresponding transcription to ascertain this. Nothing else will do, since on page 89 of its Annual Report the Commission clearly says that: it has repeatedly indicated its condemnation of any kind of terrorism, whether it is carried out by opposition insurgent groups, paramilitary groups, or by the state apparatus itself.

This text is sufficiently clear to discredit the insinuation contained in your note that “only a particular type of terrorism is censurable.”

In accordance with the above, your accusations concerning the content and language used by the Commission in its last Annual Report have no basis either in language or in fact. Hence, it is not the Commission that should be accused of not contributing to an “atmosphere of trust and respect.” Neither is it the Commission that makes “so many frivolous statements.”

One last general accusation made in your note refers to the Commission's constant lack of objectivity and impartiality, because of the priority it gives to the ideological and political criterion in assessing the values of human rights. In support of that accusation, your note includes a number of paragraphs, in some of which you attribute to the Commission specific activities that, actually, it never has had; in others, the allegations rest merely on subjective judgments.

On pages 2 and 3 of your note you say:

The ten years that have transpired have been marked by one-sided accusations and the manifest desire to utterly disregard anything that might be in the least favorable to the Chilean Government. Very individual comments have been made on every aspect of national events and on each one of the Government's activities. The entire system that governs the country has been put on trial; its economic, social, labor, financial, tax, agrarian, and educational laws; its health, employment, and housing programs, etc. The Commission's harsh criticisms stand in stark contrast to the opinions of such international organizations such as ECLA, the Monetary Fund, the World Bank, and UNICEF. These have acknowledged the progress and positive results that the Government of Chile has achieved in these areas.

The statement quoted is an astonishing one. No report of the Commission on Chile has referred to financial, tax, agrarian, housing, or health legislation. Therefore, it would be hard to find any contradiction between the statements of the Commission on Chile and those of such organizations as ECLA, the Monetary Fund, the World Bank, or UNICEF.

Moreover, you make several subjective statements on the action of the Commission and of some of its members. You say, for example, “These have been ten years of a constant lack of objectivity and impartiality. The criterion that has been used to assess the values of human rights has been purely political and ideological;” that in the reports of the Commission “the terminology used is very much the same as that used in documents produced by anti-government political organizations in Chile;” and that “the ideas and preconceived notions expressed [by the Commission] demonstrated an ideological approach to the Chilean situation.”

In the last ten years, 18 distinguished persons from throughout the hemisphere have been members of the Commission. During that same period, the Commission has had six chairmen. This is a good indication that these statements are made on shaky grounds.

The suggestion that so many people for so long have been of the same mind must be sought in the truth of the acts of which they speak--the situation of human rights in Chile--and not in conspiracies originating in “anti-government political organizations” in your country.

The Commission has defended human rights with respect to many different types of government. Its many general and special reports are an eloquent demonstration of its dedication to that commitment. A great number of individual cases have been settled favorably because of the Commission's role. Its work has been praised year after year by the General Assembly and has been recognized by the most different governmental and non-governmental organizations engaged in the protection of human rights.

Up to now, no American state in which a state of law exists has questioned, as your government has, the procedures used by the Commission. On the contrary, generally speaking, democratic governments that have faced situations on human rights that have been brought to the Commission's attention have expressed to it their appreciation and even respect for the resolutions or reports containing some criticism of their authorities.

The background and considerations I have brought up reliably demonstrate that none of the serious allegations made in your note have any legal or factual basis. For this reason, the Commission regrets that the Government of Chile is using these allegations as grounds for declining to issue the necessary invitation to the Commission to visit its country to make an observation in loco of the situation of human rights. The Commission therefore hopes that your government will reconsider its refusal and issue the requested invitation, in the terms contained in y note to you of October 4, 1984.

I should inform you, however, that even if the Government of Chile does not remove the obstacle it has set for the Commission, this would not prevent it from continuing to prepare a report on the situation of human rights in Chile. So that that report may reflect the Chilean situation as faithfully and objectively as possible, the Commission will resort to all sources to which it can gain access, including, of course, those of the Chilean Government itself. For this purpose, the Commission will, at the appropriate time, ask you for the necessary information, just as it always has done.

Accept, Excellency, the assurances of my highest consideration.

Cesar Sepúlveda

Chairman

[11] The operative part of the draft resolutions submitted by the Delegation of Chile to the Permanent Council of the Organization requested: That the following legal issues raised by the Delegation of Chile be submitted to the Inter-American Juridical Committee: A) Can a dependent and consultative organ, one of those listed in Article 51--claiming that its Regulations permit it to do so--prepare reports on matters that, under Article 12 of the Charter, constitute fundamental rights and matters reserved to the Member States? What precedents could be set by this possibility? B) What are the bounds of the attributions of this organ imposed on it by Article 11 of the Charter? C) Can this consultative and subordinate organ, within the Organization, decide without a mandate from the supreme organ and going beyond the Charter and its own statute, prepare reports and develop procedures on matters already considered at the highest level, which de facto makes its action retroactive? 2). To request the Inter-American Juridical Committee to report the findings of those studies to the Permanent Council without delay.

[12] In this regard, see, for example, resolutions RES. 510 (C‑0/80), RES. 543 (XI‑0/81, RES. 618 (XII‑0/82), RES. 666 (XIII‑0/83) and RES. 742 (XIV‑0/84).

[13] Thus, for example, the Report on the Situation of Human Rights in Argentina (OEA/Ser.L/V/II.49. doc.19) Covers in particular the period between the military coup of March 1976 (even a little earlier) until April 1980; the most recent report on Cuba (OEA/Ser.L/V/II.61 doc.20 rev. 1) covers the 25 years of the present government from its installation on January 1, 1959; the report on Haiti. (OEA/Ser.L.V/II.45 doc.66 rev. 1) covers the period between April 22, 1971 and November 1979; the report on Panama (OEA/Ser.L/V/II.44 doc.38 rev. 1) deals with the events that occurred between the coming to power of General. Torrijos in October 1969 and July 1, 1978; the report on Paraguay (OEA/Ser/V/II.43 doc.13 corr. 1) covers situations between August 1968 and December 1977; the report on Suriname (OEA/Ser/L/II.6l doc.6 rev. 1) deals in particular with the situation resulting from the coup d’etat of February 25, 1980 until January 1983; and the report on Uruguay ((OEA/Ser.L/V/II.43 doc.10 corr. 1) deals with the state of human rights in that country, especially between June 27, 1973, when the Executive ordered the dissolution of the General Assembly and January 31, 1978.

[14] See, for example, the cases of Lonquén and Mulchen in Chapter III of this Report.