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- Press Release
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- Civil Society observations on the strengthening of the Inter-American System
Civil Society observations on the strengthening of the Inter-American System
OBSERVATIONS ON THE PROCESS OF REFLECTION ON THE WORKINGS OF THE INTER-AMERICAN COMMISSION WITH A VIEW TO STRENGTHENING THE INTER-AMERICAN HUMAN RIGHTS PROTECTION SYSTEM
1. Introduction
We the undersigned organizations, members of the International Coalition of Human Rights Organizations in the Americas (hereinafter “the Coalition”), other organizations, and interested persons, strongly support any initiative, whether by the States or by the protection bodies themselves, that aims to strengthen the Inter-American Human Rights System (“IAHRS”). Nevertheless, such processes must be genuine. In other words, their real purpose must be to strengthen the IAHRS, taking account of its ultimate objective and the fundamental responsibilities of the States to meet that objective. They must not aim to limit the scope of regional protection.
In this spirit, we have made some observations below in relation to the current process initiated by the Special Working Group to Reflect on the Workings of the IACHR with a view to Strengthening the IAHRS (hereinafter “Working Group”). These observations do not cover all of the issues raised in the Working Group’s final document, or other challenges that the IAHRS faces in its efforts to ensure the possession and enjoyment of human rights in the region. They aim only to put across fundamental contributions with regard to some crucial issues.
First, we consider the relevance and the ultimate objective of the process initiated by the Working Group, in order to then set forth the principles that the undersigned organizations think should guide the strengthening process. Next, we address some essential issues that we have found to be missing from the discussion. Finally, we have some observations with respect to the recommendations made by the Working Group in its “Report of the Special Working Group to Reflect on the Workings of the IACHR with a View to Strengthening the IAHRS for Consideration by the Permanent Council,” of December 13, 2011 (GT/SIDH-13/11 rev. 2).
2. Purpose of the current debate on strengthening the Inter-American System
Throughout their history, the bodies of the IAHRS and other actors interested in guaranteeing the regional protection of fundamental rights have responded to a number of challenges raised by States in the region under governments of various political persuasions that have, at different times, questioned their effectiveness, their independence, their autonomy, their criteria for action, and the binding nature of their decisions, among other aspects.
Account must be taken of this historical context in addressing this process of reflection started by the Working Group. It is impossible to ignore the fact that the Group’s creation comes at a time during which various democratic governments have questioned the effectiveness of the IAHRS and the role of the IACHR after it has issued decisions or taken measures affecting them.[1] These recent reactions were mirrored even within the political bodies of the Organization of American States,[2] and were the driving force behind the current reflection debate.
Similarly, we civil society organizations are aware that the process of reflection on the workings of the IACHR began just two years after the adoption by the IAHRS bodies of the amendments to their Rules of Procedure. The positions held by some States then with respect to the IACHR’s Rules of Procedure were not always geared toward its strengthening; rather, at many times they sought to diminish the scope of protection offered by the IACHR, as we have discussed in other documents.[3] A number of the proposals made by the States then—which were considered extensively by the bodies of the IAHRS at that time—have again been included as recommendations in the Report of the Working Group.[4]
Therefore, although the undersigned civil society organizations support any initiative to reform the workings of the IACHR in the interest of strengthening it, the political situation in which the process has arisen could result in measures that, contrary to the Working Group’s formal mission, intend to limit the scope of protection offered by the IACHR.
Before expanding upon some of the issues below, it is crucial to bear in mind, without taking away from procedural balance and the importance of legal certainty, that when States sign human rights treaties and create supranational oversight mechanisms they acknowledge the inequality of individuals vis-a-vis state power and the need for a complementary system that provides concrete justice in response. As such, the claims of victims who did not obtain justice and/or protection in their own countries places them in a position of weakness opposite a State that designs and directs the state apparatus in all of its dimensions, has absolute privilege over information, and holds a monopoly on police forces. It is thus incumbent upon the States first and foremost to make all possible efforts to prevent violations, redress them if appropriate, strengthen the System by making its decisions effective, comply with their duty of collective guarantees under the international instruments, and provide the system with the necessary financial resources.
Below we discuss some of the principles that should guide the political bodies of the OAS in undertaking a genuine process to improve the workings of the IACHR.
3. Principles that should guide the process of reflection on strengthening the IAHRS
The reflection process initiated by the Working Group must be aimed toward and guided by the protection of the human rights of individuals, for whom the IAHRS is ultimately intended.
Therefore, in order to ensure broader protection, any changes to the workings of the IACHR must be inspired by the ultimate aim and purpose of the IAHRS. That is, they must be driven by the protection and promotion of human rights in the hemisphere, as well as the promotion of measures that provide greater access to the process for the victims and the increased effectiveness of the System as a whole. Accordingly, we must bear in mind that the primary objective of the IAHRS is not to implement an ideal of abstract justice, but rather to guarantee the protection of human dignity without distinction and to provide justice for the specific victims of human rights violations. This justice must ensure the redress of the harm caused, as well as develop tools to prevent future violations and to contribute to the elimination of the endemic violations that still persist in our hemisphere.
In addition, the System must ensure equal and effective access, and must be provided with sufficient financial resources to guarantee its autonomy, independence, and effectiveness. In turn, the States must improve their degree of compliance with the decisions issued by the bodies of the System, following them through to completion; that is the only way to accomplish the ultimate purpose of attaining the effective protection of human rights.
Bearing in mind the central role of victims in the IAHRS, the reflection process must be open to hearing their position, as well as the organizations that represent them and the national human rights institutions, among other key actors. This means that any debate must guarantee the broad participation of civil society at all stages of the reflection process. The recommendations made by the Working Group must be discussed as widely and as timely as possible, and any disagreements must always be decided in favor of the practical effect of protection, without neglecting legal certainty and the necessary procedural balance.
Thus, it is necessary to recall that the participation of civil society in the oral debate was restricted to a single day, October 28, 2011, with limited time, at the meeting held at OAS headquarters in Washington, DC.[5] In this respect, we observe that the Report adopted by the Working Group on December 13, 2011 incorporates issued proposed by some States following the October 28 meeting, without the civil society organizations having a chance to contribute and participate in their discussion. At the same time, we do not know what methodology and considerations were adopted by the States to assess the written and oral contributions made by civil society.
It should also be kept in mind that in the final instance the recommendations made by the Working Group must be assessed independently and autonomously by the IACHR itself, as the States’ own document establishes, within the parameters set by the American Convention, its own Rules of Procedure, and the principles of protection of individuals that inspire the System.[6]
That would be consistent with the formal recognition that the state delegations have made with regard to the importance of the autonomy and independence of the IACHR in order to maintain its credibility, legitimacy, and efficacy.[7]
4. Issues absent from the reflection process of the Working Group
We the undersigned organizations are of the opinion that the debate should include some issues that are central to strengthening the IAHRS and that the States have left out of the discussion for the time being, in spite of the fact that the civil society organizations requested their inclusion at the session held on October 28, 2011. The vast majority of those issues are related to the actions that the States themselves propose to take in order to guarantee that the IAHRS—which is comprised by the protection bodies, the OAS, the States, the victims, and others—is strengthened.
a. Principles, criteria, and procedures for the election of members to the IACHR and the Court
The IACHR and the Inter-American Court are the bodies that have jurisdiction to hear cases involving the violation of human rights in the Inter-American System. Both bodies therefore have a fundamental role in the promotion and protection of those rights, and perform important work in the “production of legal standards that help improve the constitutional and legal jurisprudence in each one of the States of the Americas.”[8] Given the importance of the composition of these bodies, we civil society organizations have continually called attention to the requirements that potential judges and commissioners must meet, as they are responsible for dispensing and administering justice and their role is “essential to the full […] realization of human rights.”[9]
In this respect, when selecting and electing candidates to be judges and commissioners, the States, having exclusive responsibility for this decision, must take serious account of the guiding criteria for their nomination. Candidates must be competent to occupy the position, possess the moral authority to perform their work, and enjoy considerable legitimacy. Candidates should be representative of the population, bearing in mind the diversity of the region, and gender parity is another factor to be considered.
Accordingly, the reflection process to improve the workings of the IACHR should include local and international mechanisms conducive to the most open and transparent nomination and selection processes possible, without the need for changes to the American Convention on Human Rights (ACHR) or the Statute of the Inter-American Commission.
Such mechanisms must ensure that the requirements established in the ACHR for choosing judges and commissioners are met through candidates who publicly demonstrate their academic qualifications, merits, and experience in the human rights field. Additionally, the moral authority required by the ACHR must be reflected in the public recognition of the candidate’s irreproachable personal and professional conduct, as well as the ethical values that demonstrate his or her commitment to democracy, the principles and standards of the Inter-American System, and the effective protection of human rights without discrimination.
Similarly, exclusions must be established with respect to candidates who have made decisions or assumed public postures or positions that evidence a manifest ignorance of the inter-American standards and principles, who have been part of authoritarian governments or dictatorships, who have participated in human rights violations, or who hold ideological positions that are manifestly incompatible with the IAHRS.
To guarantee the independence of the commissioners, the factors of competence and authority must be the criteria for their designation. However, complementarily, the independence of the body in charge of the selection of the candidates, and the transparency of the selection process that is used, is fundamental. The exchange of votes among the States—which has been taking place in the election processes in practice—not only violates the transparency and objectivity of the process but also brings into play the independence of whomever is elected, given the possible pressure or interference (among other factors) at issue in his or her election.
In view of the above, it is our opinion that this issue must be central to any process for the improvement of the IAHRS.[10]
b. Complementarity in the protection of human rights
In order to strengthen the IAHRS and make it more efficient, there must be an open discussion among the States, the IACHR, and civil society organizations about the complementarity that should exist between the IAHRS and other protection mechanisms.
This is particularly important in the current context of limited resources for the IAHRS. The States should assume as their own objective not only the very necessary increase in funding but also the creation of mechanisms, together with the OAS and civil society, of convergence and complementarity among the regional human rights protection system and the universal system of the United Nations, as well as national and regional institutions. One relevant aim in this regard is the harmonization of laws and public policy with the fundamental human rights guidelines set forth in the States’ constitutions and in the human rights treaties ratified by the hemisphere’s States in the exercise of their sovereignty.
At the national level, the States must adopt and implement effective human rights plans and policies that incorporate the standards developed by the universal and regional protection bodies and, with the participation of civil society, they must design mechanisms for their effective implementation.
c. Importance of deepening commitments with respect to the execution of decisions and judgments
The issue of the execution of IAHRS decisions and judgments is pivotal, given its relevance to the effective protection of rights and the ultimate legitimacy of the System. Although the topic was absent from the formal agenda, it was taken up again in part in the recommendations of issues to be addressed in greater depth in the future. This confirms the centrality of this key issue.
With respect to the matter, it must be noted that most of the Court’s judgments require judicial investigation measures or legislative changes that exceed the jurisdiction of the Executive Branch in a democratic system. Such cases are more pronounced in countries with a federal structure of government, in which the Executive Branch represents the States.
To date, a good number of the region’s countries have not faced these challenges systematically. Therefore, a qualitative leap is required in the response to this issue, through different strategies that go beyond the legal framework, such as: the importance of multiplying the actors involved in the monitoring or implementation of the decisions; the advantage of mechanisms that depoliticize the various aspects of the execution of the decisions, and the virtue of maintaining forums for the full participation of the complaining victims and human rights organizations.
Accordingly, we encourage the States to further develop mechanisms that enable fluid coordination between inter-American and local protection systems.
d. Need for discussion of the thematic agenda according to the protection needs of the region
The States can also play an important role when it comes to discussing and proposing an agenda of thematic priorities relating to their view on the most critical human rights issues, based on the region’s political and social situations. A constructive debate must begin with such an analysis in order to address, in terms of methodology and substance, how the IAHRS can prevent and overcome existing shortcomings and weaknesses to the extent possible.
Nevertheless, this guiding debate was absent from the context of the Working Group.
5. Observations on some of the issues included by the Working Group in the reflection process
a. The universalization of the IAHRS
In considering the medium and long-term challenges and objectives of the IACHR, the Working Group urges the IACHR to give priority in its promotion efforts to “the signing of, ratification of, and accession to the American Convention on Human Rights and all other inter-American human rights instruments in those countries that have not yet done so.”[11] It also recommends that States that are not yet Parties consider “signing, ratifying, or acceding to the American Convention on Human Rights and all other inter-American human rights instruments, as well as accepting the contentious jurisdiction of the Inter-American Court of Human Rights.”[12]
We civil society organizations fully welcome this recommendation, and we consider it essential for the States to sign and ratify all of the inter-American human rights treaties. It is a fundamental step in the expansion of the mechanisms for the protection of the rights of individuals, which in light of regional and comparative experience, undoubtedly benefits from the existence of international and regional human rights protection systems.
It is also our opinion that, in addition to ratification, the States should adopt the domestic laws, policies, and practices necessary for those treaties and instruments to be implemented effectively. In that respect, we recall that more than a few States party, in spite of having ratified regional protection instruments, have yet to adopt domestic criminal provisions, legislation, or public policies to implement them. Some of these challenges pertain to specific reparations measures ordered by the IACHR and the Inter-American Court with which the States have failed to comply thus far.[13]
Therefore, we civil society organizations consider that the ratification of the regional human rights treaties and instruments is a fundamental step in order for the States to meet their international human rights obligations, but it must at the same time result in the effective implementation of those instruments.
b. Promotion and protection: functions of the IACHR
As we have held in previous documents, this is an issue that has long been debated, and is one that reemerges continually in contexts in which the States react to IACHR decisions on individual petitions or protective measures. The Inter-American Commission has authority to promote and protect human rights. It does both through mechanisms including country visits by the rapporteurs and commissioners; special thematic reports; annual reports and special country reports, and coordination work with other bodies and mechanisms of the universal human rights system. This is apart from other OAS bodies and mechanisms with protection mandates, as well as universities, inter-American institutes, and national regional institutions and organizations engaged exclusively in the work of human rights promotion.
For this reason, far from opposing improvements to the IACHR’s efficacy in its promotional work, we maintain that it is crucial to bear in mind that the IACHR is responsible—in addition to promotion—for other functions pertaining specifically to the individual petition system and protective measures. Those functions are not performed by any other body outside the IAHRS (not including the Inter-American Court), and they are the essential reason for the existence of a subsidiary and complementary system to address the shortcomings that the States themselves are unable or unwilling to resolve. The IAHRS offers the sole and final opportunity to obtain redress and justice for the hemisphere’s inhabitants.
The IAHRS’s budget barely covers the survival of the protection bodies, and is comprised mainly by funds from outside the region. Requiring the IACHR to undertake additional promotional activity or provide more technical assistance to the States of the region would impose an impossible burden upon it and would seriously affect the case system.
c. Precautionary measures
First, we observe that the mechanism of precautionary measures is perhaps the one that has garnered the greatest number of recommendations by the Working Group, and that in spite of the Group’s stated objective, many of these recommendations could limit the scope of protection for the region’s citizens in serious or urgent situations.
Second, account must be taken of the fact that many of the concerns expressed by the States with respect to the mechanism for precautionary measures were already debated extensively during the process of amending the Rules of Procedure of the IACHR, and the article of the Rules of Procedure that defines and articulates the mechanism was consequently amended. Thus, the current Article 25 defines the elements that the IACHR considers in granting the measures, and explicitly states the factors that it must take into account in granting them, including whether the risk has been brought to the attention of the authorities, the individual identification of the victims, and the consent of the potential beneficiaries when possible. Article 25 also requires the IACHR to request information from the State prior to granting the measures, unless the urgency of the situation warrants that they be granted immediately. The article further provides that the IACHR must periodically review whether the measures should be kept in place, and specifically states that the granting of measures shall not constitute a prejudgment on the merits of the case.
Based on the above, it is clear that many of the recommendations made by the Working Group are redundant. The IACHR already considered them in the process of amending its Rules of Procedure, and it amended Article 25, which now contains many of those proposals.
We are therefore not going to evaluate each one of the recommendations made by the Working Group to the IACHR. However, we do think it is essential to present our observations regarding the proper interpretation of Article 25 of the IACHR’s Rules of Procedure, inasmuch as we believe that a strict and automatic application of that article in the sense proposed by the Working Group, without considering the context and the specific case, could place a more onerous burden on the applicants and diminish the importance of the protection mechanism.
Article 25(4)(a) provides that the IACHR must consider whether the situation of risk has been brought to the attention of the pertinent authorities or the reasons why it might not have been possible to do so. Given this requirement, the States must bear in mind that under certain circumstances, such as when the threat comes from the very law enforcement or court authorities before whom the complaint would have to be filed, the applicants may be prevented from doing so. In addition, in situations of harassment that are known to the authorities, the State must investigate the violations on its own initiative, without waiting for the applicants to lodge a complaint. Finally, it is necessary to consider that there are situations of widespread impunity in which the ineffectiveness of the complaints constitutes a pattern.
The aspect that has perhaps raised the most concern among civil society organizations is that the IACHR must request information from the State in all cases prior to granting the measures. The automatic application of this requirement by the IACHR renders the measures less effective, by slowing down the procedure for granting them, and at times increasing the risk faced by the applicant. Indeed, in some cases, harassment has taken place during this period in which information is requested from the State.[14] Therefore, when considering whether it is really necessary to wait to receive information from the State prior to granting the measures, the IACHR must consider the context, the pattern, the repetition of the threats to the beneficiaries, the State’s investigation of the threats, and the degree of compliance on the State’s part with respect to precautionary measures in general.
In evaluating requests for precautionary or provisional measures, it is essential that the IACHR and the Court adapt their practice in light of new methods of harassment, especially by non-state actors, and that they provide an appropriate response to them. In this respect, given threats or harassment by unlawful groups, organized crime, and actors linked to disputes over land, the exploitation of natural resources or other matters, and considering the frequent impunity for such acts, the IACHR and the Court must evaluate in greater depth the response of States to the complaints filed by the applicants. This is because effective investigations are a fundamental element in guaranteeing the life and safety of at-risk individuals.
The Article 25 provision stipulating that noncompliance by the beneficiaries or their representatives with IACHR requests for information may result in the lifting of the measures should also be applied with caution. Although we agree with the logic of this criterion, it is necessary to consider the possibility of situations in which the beneficiaries and even their representatives are not in a position to respond because of the very risk it entails. This may be, for example, because they have had to go into exile or move, because they are temporarily incommunicado, or because of other similarly serious situations.
We civil society organizations agree with the Working Group in terms of the need for “a work plan for the periodic review of precautionary measures with its corresponding schedule.” This is because, once the measures are granted, the follow-up is a mere bureaucratic step involving the transfer of information between the State and the beneficiaries. Thus, in order to increase the effectiveness of the measures, this recommendation should be interpreted to require the IACHR to conduct a proactive follow-up on compliance, not only through the request for information but also through the exercise of its other functions, such as conducting country visits, processing cases, granting hearings and working meetings, issuing press releases, and so on. For their part, the States should establish effective measures for compliance with precautionary measures, and demonstrate specific results rather than just simply forwarding documentation to the IACHR that does nothing to further compliance.
In this respect, we civil society organizations find it alarming that the Report of the Working Group lacks recommendations to the States that—beyond the development of good practices—require full compliance with measures and encourage the creation of mechanisms to prevent situations of risk and, when such situations do exist, to respond effectively. The report also fails to reflect upon the potential political and legal consequences for States that do not comply with measures.[15]
Finally, we are of the opinion that the Working Group should not underestimate the importance of the actual act of granting protective measures, in and of itself. In many cases, the simple granting of measures has the effect of neutralizing threats, and in some cases of preventing them from happening. In contrast, the premature lifting of measures can lead to the reemergence of the risk, or the commission of a violation.[16]
d. Procedural issues in the processing of cases and individual petitions
Also with respect to this matter, we civil society organizations observe that many of the recommendations made by the Working Group coincide with the proposals that were made by the States during the process of amending the IACHR’s Rules of Procedure. As such, they were debated and considered extensively by the IACHR at that time.
In relation to the “[rigorous application of] criteria for admissibility of petitions” recommended by the Working Group, it must be recalled that the IACHR responded to that demand by including in its new Rules of Procedure the creation of a Working Group within the IACHR to examine the admissibility of petitions, making that procedural stage more efficient. Even so, we agree with the Working Group that any initiative to strengthen that group’s capabilities would be positive. The structural delays of the Inter-American System, especially within the IACHR, are primarily to the detriment of the victims of human rights violations.
With regard to the proposal to “define objective criteria or parameters and provide cause and grounds for applying the exceptional mechanism of joining the admissibility and merits stages,” it is our opinion that the IACHR should indeed provide the basis for its decision with regard to the matter. Notwithstanding, we underscore the importance that this mechanism can have in expediting the process, making the proceedings before the IACHR more effective without posing any risk to the right to a defense or the equality of arms.
With respect to the Working Group’s proposal to “broaden the criteria or parameters for setting aside petitions and cases,” we again recall that the current Rules of Procedure of the IACHR include a new Article 42 to deal with this issue, which has been applied by the IACHR in practice for years. As such, we find the Working Group’s recommendation unnecessary. In this respect, just as we civil society organizations expressed during the process of amending the Rules of Procedure, the setting aside of cases must not be triggered automatically by the procedural inactivity of a petition, as such a situation could arise from the Commission’s delay in processing the petition or for other reasons beyond the petitioner’s control.
With regard to establishing suggested deadlines for the processing of petitions before the IACHR, in principle we think it is a positive measure. However, it must be directly related to an increase in adequate resources to enable the IACHR to meet those deadlines. Additionally, this potential change must not be construed as a “sunset clause” whereby the States—which deprive the IAHRS of the resources that enable it to perform its duties—benefit from deadlines that cannot be met because of inadequate funding.
On this point, civil society organizations and experts have already proposed on numerous occasions the adoption of measures that do not require additional resources and that would help expedite proceedings before the IACHR, such as the simplification of admissibility decisions based on the model used by the old European Commission, the consolidation of petitions for purposes of issuing the report on admissibility and merits, the promotion of friendly settlements, and others.
e. Friendly settlements
In our opinion, the recommendations relating to friendly settlement procedures are positive, and as we mentioned previously, they could make the operation of the IACHR more efficient. To the extent that timely, good faith negotiations are held, friendly settlements can provide an optimal and desirable solution for resolving complaints submitted to the IACHR. Several of the civil society organizations signing this document have been involved in successful friendly settlement proceedings that ended with the effective resolution of the claims alleged before the IACHR.[17]
We observe that the Working Group does not include any recommendation to the States on this point. In the opinion of the civil society organizations, it is fundamental that the States agree to hold timely, good faith negotiations, fully comply with friendly settlement agreements, recognize the binding nature of the IACHR’s Article 49 reports, and develop the appropriate domestic mechanisms for such purposes. In our collective experience, beyond the valuable role that the IACHR can—and at times has—played, what would truly lead to a greater number of friendly settlement agreements with the petitioners is the States’ effective willingness to negotiate, together with their recognition of the binding nature of such agreements, and effective and complete compliance with all agreements reached. Nevertheless, oftentimes in practice, friendly settlements mean a “break” for the States, followed by years of exchanging routine information, or innumerable and frustrating working meetings at which state agents claim that they lack the authority or instructions to proceed, or offer to forward information later, which—out of apathy or lack of political will—they never do.
f. Effectiveness of Chapter IV of the Annual Report of the IACHR
The Report of the Working Group includes several recommendations relative to the criteria, methodology, and procedures for the preparation of Chapter IV of the IACHR’s Annual Report, and calls into question its effectiveness.
Although we commend any initiative meant to improve the technical rigor in the drafting of that document, we the undersigned organizations reiterate the importance of the Chapter IV mechanism in conducting follow-up on the human rights situation in those States that receive special attention in accordance with the existing criteria.
g. Recommendations detrimental to the effective operation of the Office of the Special Rapporteur for Freedom of Expression
We civil society organizations categorically reject several recommendations that were included in the debate at the last minute and without any opportunity for the involvement of civil society, and which, while they appear to have been made in general terms, are aimed at limiting the work and effectiveness of the Office of the Special Rapporteur for Freedom of Expression.
First, the Working Group includes a recommendation that proposes to “incorporate all rapporteurs’ reports under a single chapter of its annual report.” This recommendation would mean that the Annual Report prepared by the Office of the Special Rapporteur for Freedom of Expression, which is an independent and detailed review of the status of freedom of expression in our region, would be contained within the Annual Report of the IACHR, in which the other rapporteurships publish their activities report. On the contrary, in order to strengthen the System and its promotion and protection work, the other rapporteurships should—to the extent that they are able—also draft separate reports; the more specific and developed reports of thematic rapporteurships should not be subsumed under a general report.
The Working Group additionally recommends the introduction of “a code of conduct to govern the management of IACHR rapporteurships in order to ensure the requisite coordination between those mechanisms and States.” On this point, we recall that the work of the rapporteurs is governed by the ACHR and by the Rules of Procedure of the IACHR; those provisions and other internal IACHR documents support its policies and practices with respect to the rapporteurships. Nevertheless, the proposal of Codes of Conduct appears to have the intent to punish or censor the actions of the rapporteurships. Indeed, it is crucial that any measure adopted with regard to the practices or rules governing the Office of the Special Rapporteur for Freedom of Expression or other rapporteurships not prevent the rapporteurs from issuing timely press releases, letters, or recommendations.
Finally, the Working Group recommends “[allocating] adequate, sufficient, and balanced resources to all its rapporteurships, working groups, and units, as well as an efficient and transparent management of those resources.” We consider that this measure should never be understood in such a way as to decrease the resources received by the Office of the Special Rapporteur for Freedom of Expression so that its budget is comparable to that of the other rapporteurships, effectively limiting its work through a significant funding cut. On the contrary, we encourage the States of the region to provide comparable resources to the existing rapporteurships, which lack sufficient financing and address other issues of particular relevance to the region, such as the rights of migrants, indigenous peoples, and so on.
6. Conclusion
We the undersigned organizations are not opposed to the reflection process undertaken by the Working Group, provided that its genuine objective is to strengthen and extend the IAHRS’s sphere of protection. We encourage the participation of civil society at all stages of that process, and call for our observations be taken into consideration.
Additionally, just as the Report indicates, the Working Group must always bear in mind that the recommendations issued are not binding, and that in the final analysis it is the IACHR that must assess them independently and autonomously.
We also regard very positively the States’ acknowledgment of the need for greater funding for the IAHRS bodies, and we hope that this formal acknowledgment will finally lead to the full and prompt observance of the recommendations made with respect to the issue. It is crucial for as much of the necessary funding as possible to come from regular OAS funds rather than from sources outside the OAS, as that situation places the system’s bodies in a very uncertain financial position in which it is difficult to make long-term strategic plans. It also means that the members of the bodies and their secretaries have to invest time and energy in seeking external funding sources. Finally, depending on voluntary donations that sometimes come from States that are subject to the jurisdiction of the Inter-American System can affect the independence and impartiality of the bodies, or at least give the appearance of improper influence.
On this point, the Report does not make clear recommendations to the States, the OAS, or its bodies with respect to their responsibilities for the effective strengthening of the IAHRS. We note that in spite of the absence of extensive discussions along these lines, the effective strengthening of the IAHRS depends not only on the improvement of the Rules of Procedure or practices of the IAHRS bodies but also, in large measure, of the adoption of decisive steps at the state level, the coordination between state policy and practice and regional protection, the allocation of funds from the OAS Budget, effective monitoring conducted by the States in their capacity as collective guarantors of the IAHRS, and other factors.
In this respect, the Working Group’s endeavors would be enriched to the extent that it reaffirms some of the shared objectives (here we can point to the commitment to the execution of judgments), determines clear commitments in the area identified as key (for example, to study the need for establishing a mechanism to facilitate the execution of judgments), and establishes the timelines and procedures for following up on them (such as calling for consultations and studies on the difficulties and proposals for guaranteeing the execution of decisions at the local level, in addition to agreeing to discuss the documents and conclusions in the Permanent Council within a six-month period).
In view of the above, we encourage the Working Group and the States to consider these suggestions for strengthening the protection of the human rights of the people of the Americas.
Sincerely, the undersigned[18]
Regional Organizations
Center for Justice and International Law (CEJIL)
Comité de América Latina y el Caribe para la Defensa de los Derechos Humanos de las Mujeres (CLADEM)
Asociación Interamericana para la Defensa del Ambiente, (AIDA)
IPAS Centroamérica
Washington Office on Latin America (WOLA)
Organizations by country
Argentina
FOCO – Foro Ciudadano de Participación por la Justicia y los Derechos Humanos
Bolivia
Oficina Jurídica para la Mujer
Brazil
Associação Juízes para la Democracia
Grupo Tortura Nunca Mais (Rio de Janeiro)
Colombia
Corporación Colectivo de Abogados José Alvear Restrepo (CCAJAR)
Comisión Colombiana de Juristas (CCJ)
Consultoría para los Derechos Humanos y el Desplazamiento (CODHES)
Comisión de Justicia y Paz
Grupo Interdisciplinario por los Derechos Humanos (GIDH)
REINICIAR
Ecuador
Fundación Andina para la Observación Social y Estudio de Medios (Fundamedios)
Centro de Documentación en Derechos Humanos “Segundo Montes Mozo S.J.” (CSMM)
Coordinación Regional de la Plataforma Interamericana de Derechos Humanos, Democracia y Desarrollo (PIDHDD)
Comisión Ecuménica de Derechos Humanos (CEDHU)
David Cordero Heredia, Presidente, Fundación Regional de Asesoría se Asesoría en Derechos Humanos (INREDH)
Fundación Pachamama
Juan Carlos Calderón Vivanco, Director de la Revista Vanguardia
Guatemala
Impunity Watch
Movimiento Social por los Derechos de la Niñez Adolescencia y Juventud
Seguridad en Democracia (SEDEM)
Unidad de Protección a Defensoras y Defensores de Derechos Humanos, Guatemala (UDEFEGUA)
Fundación Myrna Mack
Honduras
Centro de Derechos de Mujeres (CDM)
Equipo de Reflexión, Investigación y Comunicación de la Compañía de Jesús (ERIC)
Foro de Mujeres por la Vida
La Convergencia por los Derechos Humanos de la Zona Noroccidental
Centro de Investigación y Promoción de Derechos Humanos (CIPRODEH)
Organización Fraternal Negra Hondureña, OFRANEH
Red Lésbica Cattrachas
Asociación de Jueces por la Democracia (AJD)
Casa Renacer
Mexico
Acción Urgente para Defensores de los Derechos Humanos A.C.
Asociación Mexicana de Derecho a la Información (AMEDI)
Centro de Derechos Humanos de la Montaña Tlachinollan
Centro de Derechos Humanos de las Mujeres (CEDEHM)
Centro de Derechos Humanos Fray Bartolomé de las Casas
Centro de Derechos Humanos Miguel Agustín Pro Juárez, A.C (Centro Prodh)
Centro Mexicano de Derecho Ambiental A.C. (CEMDA)
Centro Regional de Derechos Humanos “Bartolomé Carrasco Briseño” A.C., Oaxaca, México.
Ciudadanos en Apoyo a los Derechos Humanos, A.C.
Colectivo de Mujeres de San Cristóbal A.C. (COLEM)
Comisión Mexicana de Defensa y Promoción de los Derechos Humanos A.C.
Comité Cerezo México
Comité de Defensa Integral de Derechos Humanos Gobixha (CODIGO-DH)
Comunicación Comunitaria A.C.
Consorcio para el Diálogo Parlamentario y la Equidad Oaxaca A.C.
Defensores oaxaqueños por los derechos humanos “Isabel”, A.C.
i(dh)eas, Litigio Estratégico en Derechos Humanos, A.C.
Liga Mexicana por la Defensa de los Derechos Humanos (LIMEDDH)
Litiga OLE
Comisión de Solidaridad y Defensa de los Derechos Humanos (COSYDDHAC)
Nicaragua
Centro Nicaragüense de derechos Humanos CENIDH
Centro de Asistencia Legal para Pueblos Indígenas (CALPI)
El Movimiento Autónomo de Mujeres de Nicaragua
Panama
Centro de Iniciativas Democráticas (CIDEM)
Luz Aleida Therán (Alianza de Mujeres de Panamá)
Paraguay
Coordinadora de Derechos Humanos de Paraguay (CODEHUPY)
AGORA, Espacio Civil Paraguay
Peru
Coordinadora Nacional de Derechos Humanos
Asociación Pro Derechos Humanos (Aprodeh)
Instituto Runa de Desarrollo y Estudios sobre Género
Asociación Paz y Esperanza
Comisión de Derechos Humanos (Comisedh)
Comisión de Derechos Humanos “Alto Huallaga” (CODHAH)
Estudio para la Defensa de los Derechos de la Mujer (DEMUS)
Fundación Ecuménica para el Desarrollo y la Paz (FEDEPAZ)
Venezuela
Asociación Civil Espacio Público
COFAVIC
PROVEA
Centro para la Paz y Derechos Humanos de la Universidad Central de Venezuela
Foro por la vida (18 Venezuelan human rights organizations)
Private Individuals
Patricia Lee Ryan Ladonnick
J. Hugo Rodríguez Brignardello
Pablo Rojas Rojas
Sofía Macher
Evelyn Rossana Recinos Contreras
[1] See Venezuela’s position following the IACHR’s release of the Report entitled “Democracy and Human Rights in Venezuela,” at http://www.semana.com/mundo/chavez-dice-venezuela-saldra-cidh/135502-3.aspx; and regarding its inclusion in Chapter IV of the Annual Report of the IACHR, at http://www.semana.com/nacion/cidh-no-trabaja-beneficio-ddhh-sino-intereses-eeuu-gobierno-venezolano/155172-3.aspx; Statements of President Correa of Ecuador after the IACHR issued statements on the issue of freedom of expression http://www.contrainjerencia.com/?p=31193; Statement of the Brazilian government after the IACHR granted the precautionary measures concerning the Belo Monte Hydroelectric Plant project http://www.itamaraty.gov.br/sala-de-imprensa/notas-a-imprensa/solicitacao-da-comissao-interamericana-de-direitos-humanos-cidh-da-oea; Press release on the reaction of the Peruvian State following the Inter-American Commission’s decision to bring the Chavín de Huantar case before the Court, at http://peru.com/actualidad/peru-rechaza-demanda-cidh-caso-chavin-huantar-noticia-35156.
[2] In his July 14, 2011 remarks before the Permanent Council, the Secretary General of the OAS included some of the issues raised by the States when he made reference to the autonomy of the IACHR, which in his opinion should be limited to substantive issues and not include administrative issues affecting its operation. He advocated prioritizing the IACHR’s promotional competence over its quasi-judicial competence, and he questioned the scope and binding nature of precautionary measures. See: Remarks by the OAS Secretary General, José Miguel Inzulza, at the Permanent Council meeting of July 14, 2011 (GT/SIDH/INF-1/11 of July 18, 2011).
[3] CEJIL, Position Paper No. 5, “Contributions to the debate on possible reforms to the function of the Commission and Inter-American Court on Human Rights,” 2008, available at https://cejil.org/.website_6cea44c6/sites/default/files/Documento_5_sp_0.pdf ; CEJIL, “Observations regarding the proposal for the IACHR Rules of Procedure,” June 30, 2009; CEJIL, “Observaciones al proyecto de reforma del Reglamento de la Corte,” August 13, 2009.
[4] See, on this point, the positions of some States with respect to the mechanism of precautionary measures (advocating a request for information prior to the adoption of the measures; the creation of specific criteria for assessing seriousness and urgency; the specification of the beneficiaries; review of the measures, etc.); the proposal to eliminate the mechanism of consolidating admissibility and merits; the need to establish deadlines for the processing of petitions; greater participation of the IACHR in friendly settlement proceedings, and methodology for the preparation of Chapter IV, among others. See: OAS, CP/CAJP, Results of the Process of Reflection on the Inter-American System for the Promotion and Protection of Human Rights (2008-2009), OEA/Ser.G, CP/CAJP-2665/08 rev. 8 corr. 3, March 18, 2009.
[5] On this point, see the letter sent by a group of 180 civil society organizations to the Chairman of the Working Group on December 13, 2011.
[6] See: I/A Court H.R., Control of Legality in the Practice of Authorities of the Inter-American Commission of Human Rights (Arts. 41 & 44 to 51 of the American Convention on Human Rights). Advisory Opinion OC-19/05 of November 28, 2005. Series A No. 19, para. 21:
“human rights treaties… are inspired by the highest common values, focused on the protection of the individual; they are applied in keeping with the idea of collective guarantee; embody obligations of an essentially objective nature, and have specific monitoring mechanisms.”
[7] See: Report of the Working Group, December 13, 2011, p. 8.
[8] Claudia Martin, Derecho Internacional de los Derechos Humanos, Distribuciones Fontamara, Mexico, 2004, p. 207.
[9] Vienna Declaration and Program of Action, as adopted by the World Conference on Human Rights on 25 June 1993, para. 27.
[10] Bearing in mind the importance of this issue to the strengthening of the IAHRS, CEJIL has advocated the creation of transparent mechanisms that guarantee the independence and competence of potential judges and commissioners. See, e.g., Position Paper No. 1, “Inputs to the selection process of members of the Inter-American Commission and Court on Human Rights,” 2005, at https://cejil.org/.website_6cea44c6/sites/default/files/Documento_1_sp_0.pdf; CEJIL, Gazette No. 6, “Las elecciones de miembros para la Corte y la Comisión Interamericana,” 1997.
[11] Report of the Working Group, p. 9.
[12] Idem, p. 10.
[13] By way of example, in spite of having signed the Inter-American Convention on the Forced Disappearance of Persons, Peru has not yet enacted a criminal provision defining the offense of forced disappearance consistent with the international standards, even though this measure was ordered by the Inter-American Court in several adversarial cases. See: I/A Court H.R., Case of Gómez-Palomino v. Peru; Case of Kenneth Ney Anzualdo v. Peru.
[14] See, e.g., request for precautionary measures before the IACHR by the José Alvear Restrepo Lawyers’ Collective for the next-of-kin in the Palace of Justice v. Colombia case, September 13, 2010. In that case, before receiving the application, the IACHR requested information from the State in accordance with Article 25(5) of the Rules of Procedure, and one of the potential beneficiaries was forced into exile prior to receiving any answer from the Commission due to the imminent danger to his life and the lack of protective measures.
[15] For example, the States could agree for the IACHR to include in Chapter IV of its Annual Report those States that systematically fail to comply with protective measures, or States that, while not doing so systematically, fail to comply in a specific case in which noncompliance is followed by the commission of a violation against the beneficiary.
[16] This situation is illustrated, for example, by the lifting of precautionary measures in the case of human rights defender Digna Ochoa, who was subsequently murdered.
[17] CEJIL, Gazette No. 4, “La solución amistosa ante la Comisión Interamericana,” 1996.
[18] This document remains open to additional signatories.
