Organization of American States Strengthens the Inter-American System of Human Rights [1]

OAS General Assembly, 3/22/13
OAS General Assembly, 3/22/13                                                  (Photo: OEA OAS Photostream [2])
On March 22, 2013, the Extraordinary General Assembly of the Organization of American States (OAS)[3] adopted by acclamation a resolution strengthening the Inter-American System of Human Rights (“the System”).[4] The resolution had the following provisions:

  1. Requested the Inter-American Commission on Human Rights (“Commission”), an autonomous OAS organ that promotes and protects human rights in the American hemisphere, to continue to move forward with application of its responses to suggestions for reform by a special working group and the Commission’s March 18, 2013, reform of its rules.
  2. Instructed OAS’ Permanent Council[5] to continue the dialogue on the “core aspects for strengthening” the System.
  3. Urged the Commission to put into practice pending recommendations for reform.
  4. Encouraged the Commission “to strengthen its efforts in the promotion of human rights, including through its support to national systems.”
  5. Reaffirmed the OAS General Assembly’s commitment to obtain full financing of the
    System through OAS’ Regular Fund “without prejudice to the financing of the other mandates” of the OAS.
  6. Requested the OAS Secretary General to submit to the OAS Permanent Council “a detailed, up-to-date analysis of the full operating costs” of the System.
  7. Proposed that the Commission “strengthen all its rapporteurships, including by giving consideration to granting special status to all existing rapporteurships, based on adequate financing, without prejudice to its other responsibilities.”[6]
  8. Urged “OAS member states [i.e., U.S., Canada and seven others] to ratify or accede to . . . all inter-American human rights instruments, especially the American Convention on Human Rights,” and  for the U.S., Canada and eight other states “to accept . . . the contentious jurisdiction of the Inter-American Court of Human Rights.”[7]

Understanding the significance of this resolution requires elaboration.

1.1. Recommendations of the Special Working Group. In its December 2011 report the Special Working Group proposed changes to the Commission’s rules regarding individual petitions and cases; precautionary measures; monitoring of human rights in member states; promotion of human rights; a permanent presidency; financing and allocation of resources; and dissemination of criteria and jurisprudence.[8] The most controversial ones that were seen by many as efforts to muzzle the Commission were these:

  • Restrict the Commission’s discretion in granting “precautionary measures,” by, among other things, setting forth “precise objective criteria” for granting same and determining whether the situation was “serious and urgent.” The addition of such criteria would help states as well as alleged victims who are affected by such measures.
  • Require its annual report to cover human rights conditions in all OAS members, not just those with the most pressing problems.
  • Reduce the activities and funding of the Special Rapporteur on Freedom of Expression by eliminating its separate funding and instead requiring balanced funding of all rapporteurs as well as eliminating this one’s special report.
  • Require the Commission to devote more time and resources to the general promotion of human rights and thereby reduce its time and resources to deciding individual complaints.
  • Impose restrictions on the Commission’s decisions regarding individual complaints.

1.2. Commission’s Responses to Recommendations of Special Working Group. On October 23, 2012, the Commission issued its second response expressing agreement with most of these recommendations.

However, the Commission did disagree with the recommendation to assign balanced resources to all of its rapporteurships. It pointed out that the first source of funds for the Commission is the OAS Regular Fund, which covers only 54% of the Commission’s financial needs. This necessitates soliciting outside funds, some of which are designated for specific purposes (one of which implicitly is for the Freedom of Expression Rapporteurship). “[P]rohibitting or impeding any of [these] . . . funding sources would lead to the immediate structural weakening of the thematic rapporteurships and units, as well as [their] . . . important promotional and technical assistance activities.”

Moreover, the request for balanced or equal allocation of resources legitimately was seen as a back-door way to reduce the funding for the Rapporteurship for Free Expression and hence its work, an objective of those states that had been criticized for retaliation against journalists and media for criticism of the governments.

1.3. Commission’s Recent Changes in Its Rules and Policies. On March 18, 2013 (only four days before the OAS General Assembly was to consider the whole subject of reforming the System), the Commission adopted a resolution amending its rules and adopting certain institutional policies, effective August 1, 2013.

The rules that were changed were Rule 25 (Precautionary Measures); 28 (Requirements for the Consideration of Petitions); 29 (Initial Processing); 30 (Admissibility Procedure); 36 (Decision on Admissibility); 37 (Procedure on the Merits); 42 (Archiving of Petitions and Cases); 44 (Report on the Merits); 46 (Suspension of Time Limit to Refer the Case to the Court; 59 (Annual Report); 72 (Experts); 76 (Provisional Measures); and 79 (Amendment of the Rules of Procedure).

These changes adopted many of the suggestions made by the Special Working Group.

For example, one of the more signficant changes was to Rule 25 covering precautionary measures, which are actions the Commission requests a state to take to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case before its final resolution on the merits, as well as to persons under the jurisdiction of the State concerned, independently of any pending petition or case. The amended rules more precisely identifies the situations for same as “serious and urgent situations presenting a risk of irreparable harm to persons or to the subject matter of a pending petition or case before the organs of the inter-American system” and provides definitions of “serious situation,” “urgent situation” and “irreparable harm.” It also provides that decisions granting, extending, modifying such measures shall contain certain elements.

Similar changes were made to Rule 76 covering provisional measures, which are actions the Commission requests the Inter-American Court to take in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons. The amended rule provides for the first time the following criteria for deciding upon a request for such measures: (a) ” when the State concerned has not implemented the precautionary measures granted by the Commission;” (b) “when the precautionary measures have not been effective; ” (c) “when there is a precautionary measure connected to a case submitted to the jurisdiction of the Court;” or (d) “when the Commission considers it pertinent for the efficacy of the requested measures, to which end it shall provide its reasons.”

Foremost among the new institutional policies was the establishment of the following priorities: promotion of universal ratification of the American Convention on Human Rights and other similar instruments; promotion of economic, social and cultural rights; and development of a plan for a permanent presidency. Other adopted policies generally concerned measures to increase public transparency of the Commission’s activities.

2. Permanent Council’s Continuing Dialogue on Core Aspects of Reforming the System. Although most states and their representatives were ready to end the reform process with the adoption of the March 22nd resolution, they accepted this “open door” for further dialogue as a way to keep those states less friendly to the Commission (especially Ecuador, Venezuela, Bolivia and Nicaragua) involved in the Human Rights System and not renounce the American Convention on Human Rights and other treaties.

3. Commission’s  Implementing Pending Reform  Recommendations. I do not know what is meant by “pending [reform] recommendations,” and I solicit comments explaining this point. Presumably this refers to the Commission’s March 18th adoption of amended rules and of policy priorities.

4. Commission’s Strengthening Promotion of Human Rights. This is a commendable goal. The problem arises when decisions have to be made for allocation of insufficient financing of all the things that the Commission and Court would like to do to fulfill their mandates. In my opinion, such promotion should not come at the expense of reducing efforts on resolving specific complaints about alleged violations of human rights.

5. OAS’ Obtaining Full Financing of the System. This too is a commendable goal. The problem arises when decisions have to be made for allocation of insufficient financing of all the things that the Commission and Court would like to do to fulfill their mandates.

6. Analysis of Full Operating Costs of the System. This sounds like a straight-forward cost analysis of the Commission and the Inter-American Court of Human Rights (“the Court”).

7. Commission’s Strengthening of Rapporteurships. There now are the following Rapporteurships on the Rights of (i) Indigenous Peoples, (ii) Woman; (iii) Migrant Workers and Their Families; (iv) the Child; (v) Human Rights Defenders; (vi) Persons Deprived of Liberty; and (vii) Afro-Descendants and Against Racial Discrimination.

There also is a Special Rapporteurship on Freedom of Expression, which has a “general mandate to carry out activities for the protection and promotion of the right to freedom of thought and expression.”

Subject to the qualification about outside funding designated for specific purposes, there is no quarrel with the objective of strengthening all of the rapporteurships. 

8. Obtaining Universality of Ratification/Accession of the American Convention on Human Rights and Acceptance of Contentious Jurisdiction of the Inter-American Court of Human Rights.

Of the 34 members of the OAS, only 9 have not ratified or acceded to the American Convention on Human Rights with the U.S. and Canada being the major exceptions. Nor have the U.S. and Canada and 10 other states accepted the jurisdiction of the Inter-American Court of Human Rights to decide cases of their alleged violations of that Convention.[9]

The desire for universality expressed in this resolution, in my opinion, is appropriate even though I suspect it is motivated in part by the understandable resentment of the U.S. for not accepting the Convention and the Court’s jurisdiction while simultaneously criticizing other states in the Hemisphere for their violations of human rights.

Conclusion

The previously mentioned controversial recommendations by the Special Working Group were promoted by states that had been targets of individual complaints and of criticisms by the Special Rapporteur on Freedom of Expression.  Foremost among these states was Ecuador, which has become notorious for its legal claims against the media for criticism of its government and by states that understandably resent the U.S.’ not being a party to the American Convention on Human Rights and not consenting to the contentious jurisdiction of the Court. This background will be discussed in a subsequent post.


[1]  The author would like to thank Mexican attorney, Juan Carlos Arjona Estevez, for his assistance in preparing this post. Muchas gracias, amigo!

[2] This photo is subject to license with OAS.

[3] The OAS was established in 1951 to achieve among its member states “an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence.”  Its supreme organ is the General Assembly, which is composed of delegations of the member states.

[4] The OAS Human Rights System includes the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. A chronology of the Human Rights System reform process is available on the Commission’s website. Some of the work of the Commission has been discussed in prior posts.

[5] The OAS Permanent Council under Chapter XII of the OAS Charter is the organ that is in overall charge of its activities pursuant to delegations by the OAS General Assembly or other organs.

[6] Starting in 1990, the Commission began creating thematic rapporteurships under the leadership of an individual who is an expert in the area in order to devote attention to certain groups, communities, and peoples that are particularly at risk of human rights violations due to their state of vulnerability and the discrimination they have faced historically. The aim of creating a thematic rapporteurship is to strengthen, promote, and systematize the Commission’s own work on the issue.

[7] In footnotes to the consensus resolution, Guatemala urged the Commission to (i) move its headquarters from Washington, D.C. to San Jose, Costa Rica (which hosts the Court and the Inter-American Institute for Human Rights); (ii)  draft a proposed  protocol to the American Convention on Human Rights to establish standards for precautionary measures (akin to preliminary injunctions in U.S. law); (iii) limit the Commission’s commissioners and special/thematic rapporteurs to a single term; (iv) set 2015 as the date for attaining full financing of the System; and (v) placing all rapporteurships under the leadership of the commissioners.

[8]  The Special Working Group’s report with 53 recommendations for the Commission was adopted by the OAS Permanent Council on January 25, 2012 and ratified by the OAS General Assembly on June 5, 2012.

[9] The Court’s Statute’s Article 2(1) provides that its “adjudicatory jurisdiction shall be governed by . . . Articles 61, 62 and 63 of the Convention,” and the latter’s Article 62 requires a state’s declaration “unconditionally, or on the condition of reciprocity, for a specified period, or for specific cases” that it “recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.”

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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