“…I believe in the power of creating opportunity for human beings through democracy, with a rich civil society, where people can express their thoughts without fear. We need to stand behind those values.”
Interviewers: Jill Christianson, Chair-Elect, UNA-NCA
Micayla Costa, Human Rights Committee, UNA-NCA
UNA-NCA: The Coronavirus pandemic has exposed great inequities – within and among nations. We see examples not only in healthcare, but also with economic division, housing, hunger – and the increase in hate crimes based on race, immigration status, gender, and lgbt status. What are the greatest lessons that we can take from this time?
CG: This pandemic has made increasingly evident inequities existing among and within nations, and Covid-19 has a clearly disproportionate impact on the most vulnerable.
The pandemic has shown us the importance of positive action by States to ensure access to health services and quality education, including health literacy. This requires the investment of resources and the mobilization of society as a whole. We must consider the most vulnerable – women facing domestic violence, people discriminated against for any reason, the elderly, minorities, immigrants and refugees, and people with disabilities, among others. Now it is undeniable that we need to include among those vulnerable populations that need special protection and consideration, those who work on the front lines endangering their lives and securing the provision of essential services and goods: doctors, nurses, medical personnel, and those engaged in food production and distribution. The pandemic has also shown the relevance of preventive measures (national and international), and the importance of medical and scientific organizations, as well as the role of the media in providing access to different sources of information. Prevention becomes imperative as simply waiting for the next pandemic to impact the world is not an option we can afford.
Everyone should try to do whatever is possible in the context of her/his activities. I have presented a proposal to the International Law Commission, together with a colleague from Sierra Leone, to develop draft articles that would result in a convention to address actions to be taken in case of pandemics, including capacity building, international cooperation, and preventive measures. We currently have a patchwork of norms that have proven to be insufficient. There is a need for coordination, multilateral action and cooperation amongst States, with a common aim to protect everyone.
UNA-NCA: Prior to your experience as a political refugee at the age of 24, were there indications in your early life that human rights would be the pulse of your life’s work?
CG: I had taken for granted essential values such as the presumption of innocence, the prohibition of the retroactive application of criminal law, the importance of separation of powers and an independent judiciary, the value of freedom of expression and human rights in general. The military coup of 1973 revealed to me in a tragic fashion that those values cannot be taken for granted. I had sensitivity for human rights. I came from a family of immigrants to Chile. Learning about the atrocities of persecution and genocide, which were part of our family’s life and education, was very important since I was a child. My father was a medical doctor, and my mother was a University professor. I went to a public school in Chile, which was very important to my parents. Students came from different backgrounds, some students had holes in their shoes. There was also a tremendous pressure for all to be the same, and there were instances of discrimination and rejection for those who were different on different grounds. The public school experience was essential for me to appreciate the whole mosaic of Chilean society and the need for its transformation, including the need to protect the most vulnerable. I was active in the student movement in the high school as President of the Federation of Students of my city, Valparaiso, and later as President of the Student Bar Association of the University of Chile, and as the Vice President of the Federation of University Students. Before the military coup, I was the Chief of Staff of the Secretary of the Government. Undoubtedly, those experiences influenced my life, including the polarization existing in Chilean society, the destruction of democracy, and the mass and gross violations of human rights. I had to get political asylum at the embassy of The Netherlands in Santiago from where, after some time, I was allowed safe passage together with other refugees housed in their diplomatic mission to travel to their country. My experience in The Netherlands, the solidarity that many others and I received, also had a profound impact in my life, including in my commitment to human rights and international law. It is enough to say that I had a refugee passport for many years.
UNA-NCA: Within the Inter-American Commission on Human Rights, you held the positions of special rapporteur on the rights of women. As a man, how did that happen, and did it influence who you are today?
CG: I think that I was the first man ever to be the Rapporteur on the Rights of Women in the InterAmerican Commission on Human Rights. When I was elected to the Commission, all seven members were men. I was sensitive to gender issues. My wife was the director of external relations for the Pan American Health Organisation. My two daughters were young at the time; they had a clear determination that under no circumstances are women less than men. They had a tremendous sense of justice.
One day I came home and said, “I was elected to the Commission.” They asked, “How many women?” I said, “none.” They said, “Resign!” To keep my credibility at home, I created the position of Rapporteur on the Rights of Women.
My mother, when I was nine years old in 1965 in Chile, decided to study literature. She wrote her doctoral thesis on the Theatre of the Absurd and became a literature professor. Berta Guiloff was a role model, an exception to the life of women of her generation.
As you know, I work at the Washington College of Law at American University. The law school was created by pioneer women who decided in 1896 to transform reality and act to achieve equal opportunities. All these circumstances had a real impact in my life. I rejected early on the tremendous unfairness created by gender discrimination. To keep my own intellectual honesty, my values, and my reputation at home, I proposed and took on this role as Rapporteur on the Rights of Women.
In the years prior to this, as I was in The Netherlands, I started with colleagues the Foundation for Legal Assistance for Chilean Political Prisoners, which we turned into the Center of Human Rights in the Netherlands that served political prisoners from every country. The legitimacy of human rights exists regardless of the ideology of the victim or the perpetrator. Women usually are ‘a prize’ in conflict. In my work in the Committee Against Torture within the InterAmerican Commission, we promoted the concept that rape is torture, the rejection of marital rape and domestic violence, and highlighted the reality and impact of gender discrimination and sexual orientation discrimination. All these issues are very important and need to be addressed by the society at large.
UNA-NCA: You serve on the UN International Law Commission and have served as Chair of the UN Committee against Torture. Why is the human rights work of the UN critical in a time that States’ powers, as well as multinational corporates and financial powers, are so powerful? As the UN celebrates its 75th anniversary, is the UN still relevant?
CG: There are different forms of supervision in international law to evaluate the State’s compliance with international obligations. The best supervision is judicial supervision, with independent judges, as is the case of the European Court, the Inter-American Court, the African Court. The Human Rights Treaty Bodies of the United Nations are a form of semi-judicial supervision, since they resort to the law to issue interpretations of binding obligations that, at a minimum, are persuasive. Those bodies are composed by independent experts, giving legitimacy to their decisions. Needless to say, their work is very important, including the contributions of the Committee Against Torture. Lives are saved, processes leading to change are encouraged. However, there is serious resource scarcity. Most human rights violations do not come to the United Nations level. There are numerous instances of lack of compliance. We have to continue to push for the realization of the goals laid out in the treaties.
We have to continue to develop these instruments. If they disappear, we lose the possibility of seeking and obtaining justice for people when their countries are unwilling or unable to do so.
The International Law Commission performs a different role: in a type of semi-legislative exercise, it presents to the States and the international community drafts articles, studies, and guidelines designed to codify and progressively develop international law. The Nuremberg principles, draft articles on state responsibility, and draft articles on international crimes are some of the products of the Commission’s work.
UNA-NCA: What actions should Americans be taking to advance the United Nations and multilateralism, especially in respect to human rights?
CG: There is always an important need for leadership; nothing happens automatically, hard work and commitment are necessary. There is a need for the articulation of common policies and narratives to face serious challenges resulting from ideologies that reject human rights, democracy, and our common humanity.
We see examples where international bodies elect violators of human rights from States that have committed mass and gross violations of human rights. Our proper reaction should always be to roll up our sleeves and create a situation where this will no longer be possible. It is important to not abandon the field, but to exercise leadership in promoting the important values of human dignity. I believe in those values.
I don’t know if military power functions well, but I believe in the power of creating the opportunity for human beings and democracy, with a rich civil society, where people can express their thoughts without fear. We need to stand behind those values.
UNA-NCA: With your 21-year experience leading legal education at the Washington College of Law at American University, what is your legacy?
CG: As Dean of the Washington College of Law, I was distinguished by having creative colleagues; together we promoted a yes culture designed to eliminate barriers that prevent creativity. The Law School developed as an important center for international and domestic legal education. We developed the Center for Human Rights, the Academy for Human Rights and Humanitarian Law, the War Crimes Research Office, programs in international commercial arbitration, intellectual property, business, and environmental law- to mention some. We expanded the clinics, our women, and the law program. The Law School became one of the most diverse in the country, reflecting the nation and world where we live in. We started our technological operation, including an on-line LLM. We developed numerous student publications and LLMs and SJD programs, dual degree programs with universities abroad and specialized summer programs. The international program began with one student from Spain and now we have 4000 graduates all around the world. Our diverse alums contributed greatly to our expansion that allowed us to become a referent in important areas of legal education, breaking down artificial barriers that divide individuals and nations, providing superb education and building a state-of-the-art new campus.
UNA-NCA: When you think about the impact of the years of educating legal scholars and attorneys at Washington College of Law, who are now across the globe that is quite profound.
CG: Absolutely! The Washington College of Law community are people who are addressing key issues of our time in different areas of the law, and in different countries, all sharing the important common experience of having studied in our school.
UNA-NCA: What do you think of Chile now and the constitutional referendum?
CG: After the restoration of democracy, Chile achieved important transformations, including the reduction of poverty from 40% to 8.6%, and the opening of the universities to the majority of the population. Rejecting prior practices of the dictatorship, the country did not have political prisoners, and there were no instances of journalists or labor leaders killed. The country reformed numerous institutions and celebrated free elections. However, serious issues remain, including access to quality education and health services, decent pensions, the need for equal opportunities, and the effective prohibition of discrimination of any kind. These issues called for a more inclusive society. A disconnect grew between the political system and the expectations and the demands of the society. A very important pollster in Chile, Marta Lagos, wrote before the social explosion that took place a year ago that civil society was demanding with a megaphone that there was an urgent need for reform, but the political system was not listening. The overwhelmingly majority of Chileans saw in the Constitution that originated in Pinochet the obstacle to advance in their societal demands. The Constitution required supermajorities for some transformations. 80% of Chileans have voted in the recent referendum to change the constitution and elect a constitutional assembly with parity participation by women. An existing process is now underway to build the consensus necessary to develop democratically in a more inclusive Chilean society.
UNA-NCA: Lastly, what is your current favorite reading?
CG: I love literature! I have read almost every book by Haruki Murakami, a Japanese writer. I enjoy reading Leonardo Padura, the Cuban writer of El hombre que amaba a los perros o Heretics. Also, the novels of Russian author Vasily Grossman have a tremendous historical meaning exposing the dire consequences of dictatorial societies. Mario Vargas Llosa said that literature is a way to “show with imagination hidden aspects of reality.” When Kafka wrote about a man becoming an insect, perhaps he anticipated a reality that was forthcoming in Europe where human beings were treated as insects. Literature adds eyes to you. Of course, as you can imagine, I read about law and international law in particular.“…I believe in the power of creating opportunity for human beings through democracy, with a rich civil society, where people can express their thoughts without fear. We need to stand behind those values.”“…I believe in the power of creating opportunity for human beings through democracy, with a rich civil society, where people can express their thoughts without fear. We need to stand behind those values.”
