The Future of Human Rights in the Americas: Update on the Inter-American Reform Process

Today, on Human Rights Day, as we mark the 64th anniversary of the adoption of the Universal Declaration of Human Rights, the inter-American human rights system – guardian of the world’s first international human rights agreement – faces an unprecedented threat to its independence and authority.

The Inter-American Commission on Human Rights – which oversees implementation of the American Declaration of the Rights and Duties of Man, adopted in April, 1948, eight months prior to the Universal Declaration – is undergoing a state-initiated “reform” process that may lead to controversial changes in the Commission's practices and procedures, without the consent of the Commission.
As IntLawGrrl Alexandra Harrington posted in February, since it came into existence in 1960, the Inter-American Commission has promoted and protected human rights in the 35 member states of the Organization of American States. It does so through reporting, country visits, precautionary measures, and the individual complaints mechanism. The Commission's exercise of its functions has motivated criticism and objections in recent years from some states that disagreed with specific decisions – as have Ecuador, Bolivia, Brazil, and Peru – or accused it of bias – as has Venezuela.
In June of 2011, the OAS Permanent Council created a Special Working Group with a mandate to study the Commission’s work and propose any reforms deemed necessary. The Special Working Group’s proposals, which the OAS Permanent Council approved this past January, focused on both the Commission’s institutional practices and its substantive mandate.
Among the most controversial proposed reforms were those that would:
► Restrict the Commission’s discretion in deciding requests for precautionary measures,
► Significantly alter Chapter IV of the Commission’s Annual Report, in which it highlights countries with particularly troublesome human rights practices,
► Reduce the autonomy of the Special Rapporteur on Freedom of Expression, and
► Impose additional restrictions on the processing of individual complaints in ways that could favor states at the expense of victims.
Civil society has criticized the proposed reforms, and the reform process itself, as lacking in transparency and input from advocates and victims.
A joint statement coordinated by CEJIL, the Center for Justice and International Law, and signed by over 90 organizations, called on the OAS and its individual member states to ensure that the process is truly aimed at strengthening the inter-American system and includes the input of advocates and victims. Representatives of nongovernmental organizations, academia, and the judiciary have also signed on to the “Bogota Declaration,” which echoes this call.
A politically motivated, state-imposed reform of the Commission’s authority and procedures is a unique and pressing cause for concern to all those invested in the protection of human rights in the Americas.
In the words of the Commission's chair, José de Jesús Orozco:

Packing a Regional Punch

Yesterday, the Inter-American Commission on Human Rights released a 155-page Report on Immigration in the United States: Detention and Due Process. Concerned by the dramatic increase between FY 2001 and FY 2008 in the U.S. Immigration and Customs Enforcement's (ICE) detention of non-citizens, from just over 200,000 to over 375,000 detained, the IACHR decide to investigate U.S. immigration detention policies and practices to determine their compatibility with our international human rights obligations.
Based on site visits to four detention facilities and three thematic hearings on the rights of immigrants in the United States, as well as consultation with ICE officials, immigration experts, attorneys, detainees and their families, and analysis of relevant reports and research by state agencies, non-profits, and media, the IACHR focused on several areas of concern, highlighting the increasing criminalization of immigration detention and glaring failures in oversight:

• ICE's presumption of the necessity of detention even though immigration violations are governed by civil rather than criminal law;
  
• The disproportionate nature of the punishment, and the under-utilization of less punitive alternatives to detention;
• ICE's increase in partnerships with local and state law enforcement without sufficient oversight of their actions;
• The criminal rather than civil nature of the detention system;
  
• ICE's outsourcing of the detention system to private contractors without sufficient supervision; and
  
• The impact of detention on immigrants' due process rights, particularly the right to representation, especially with respect to unaccompanied children, the disabled, and those unable to represent themselves.
  

While the criticisms raised in the report are not new -- indeed, faithful readers have seen nearly all of them discussed on this blog -- the precision with which they are detailed and the sheer quantity of pages of paper pack a powerful punch (and offer a comprehensive resource for anyone researching the topic of immigration detention). And of course, their presentation by a regional intergovernmental organization adds legitimacy to the NGO voices that have long been raising concerns about the treatment of detained migrants in the United States.
Will the combined voices of its neighbors (including one of our own, Dinah Shelton) help to prod domestic immigration reform in the U.S.? Predictably, though disappointingly, the Obama Administration responded to a draft of the report by reiterating that many of the sources of law cited by the IACHR in the report, including the American Declaration of the Rights and Duties of Man, do not give rise to binding obligations on the United States. The IACHR jabbed back, noting in the report that "the American Declaration is indeed an instrument that generates international obligations in the framework of the [OAS] Charter" and declaring its intention to follow up to ensure the United States' full compliance with its recommendations "within the framework of its functions and competencies." And interestingly, Spain may be in the IACHR's corner, having funded the publication of the report, though demurring as to its own views on the issue. This IntLawGrrl, for one, eagerly awaits the IACHR's next punch . . .

Speaking (Soft) Law to Power

Just in time for the one-year anniversary of the Haitian earthquake, and just when the cholera crisis made one think that life could not get any worse for the Haitians, the Department of Homeland Security is planning to resume deportations of Haitians with criminal convictions. Yesterday, several immigrants' rights and civil rights groups including the Center for Constitutional Rights, the Florida Immigrant Advocacy Center, and the human rights and immigration clinics at the University of Miami (the former run by guest/alumna Carrie Bettinger-Lopez) filed a petition for precautionary measures with the Inter-American Commission on Human Rights, asking that it prevent the United States from resuming deportations to Haiti.
Though the petition is long, it's worth a read if only just for the brief but devastating portrait of U.S. policy towards Haitian immigrants since the early 1960s. The stories of the named petitioners in the case demonstrate the ongoing cruelty of our immigration laws. None of the petitioners have been convicted of violent crimes; one is being deported for two counts of drug possession with intent to sell, for which he was sentenced to six months in prison. All face likely imprisonment upon arrival in Haiti simply for the fact of being criminal deportees from the United States. All have lived in the United States for at least a decade and have significant family ties with U.S. citizens and permanent residents. Most were permanent residents themselves before removal proceedings were initiated against them. None have close relatives in Haiti who survived the earthquake, and as a result will have nobody to bring them food and water in prison or advocate for their release.
An older petitioner who suffers from serious medical conditions has not received proper medical care in immigration detention in the United States; one can only imagine what will happen to him in Haiti. A younger petitioner has a 6-year old U.S. citizen son who suffers from a serious medical condition that has worsened since his father has been detained. Another is the sole financial provider for his four U.S. citizen and permanent resident children. Approximately 350 Haitians are in the immigration detention system; 100 were transferred to Louisiana in mid-December to await deportation to Haiti.
The petition alleges violations of five provisions of the American Declaration of the Rights and Duties of Man (sic). The deportation of these Haitians abrogates their right to life given the inhumane prison conditions they will face at home, particularly during the cholera epidemic, which has hit prisons particularly hard. Their removal also breaches their right to freedom from cruel, infamous, or unusual punishments due to the severe lack of medical care and social services in post-earthquake Haiti. The arbitrary detention these criminal deportees will face upon return violates their right to security of person. The petition also argues that the failure of the U.S. immigration system to offer a humanitarian defense to deportation, either by measuring the impact of removal on U.S. citizen family members or assessing the gravity of conditions in their home country violates the Haitians' right to family life and their right to due process and a fair trial.
Though aspirational in nature, the Inter-American Court and Commission on Human Rights have held the American Declaration's obligations to be binding on members of the Organization for American States, an approach necessitated by the United States' failure to ratify the American Convention on Human Rights (as always, in good company, alongside Cuba). Given the dearth of domestic options to appeal or even obtain information about ICE's deportation policies, and given the Inter-American Commission's recent decision finding that some aspects of U.S. immigration law violate the American Declaration, the Commission seems a wise choice of forum. But even if the Commission finds in favor of the petitioners, will the U.S. follow its precautionary measures? Unlike the Medellin case, here the execution of the orders in question lies in the hands of the federal government. And despite the recent shellacking, it remains a Democratic administration, one that will hopefully be willing to engage the human rights issues at stake.

All in the Family?

Last month, the Inter-American Commission on Human Rights issued a groundbreaking decision finding that some aspects of U.S. immigration law violate the American Declaration of the Rights and Duties of Man. Specifically, the Commission held that provisions requiring mandatory deportation of a non-citizen convicted of an "aggravated felony" violate the right to family life, the rights of the child, the right to a fair trial, and the right to due process. The European Court of Human Rights and the UN Human Rights Committee have grounded their jurisprudence in similar cases on the right to family life, so this decision may expand the scope of human rights protections for non-citizens in the Americas.

While the grounding of the right to fair immigration proceedings in the right to family life and the rights of the child narrows the scope of protection, it is also, symbolically, a powerful description of the harms inflicted by harsh deportation policies. One of the petitioners in this case, Wayne Smith, moved to the United States from Trinidad and Tobago at the age 10 and had been a lawful permanent resident since 1974. Smith is married to a US citizen who survived breast cancer but lost her health insurance; they have a US citizen daughter. He and his wife owned a small business that employed over 15 people (most of whom were recovering drug addicts). Smith pled guilty to a non-violent drug offense (cocaine possession and attempted distribution) in 1990 (before such a crime was a deportable offense). He was denied a humanitarian waiver and deported in 1998; he returned in 1999 and challenged his deportation order based on a 2001 Supreme Court decision that may have made him eligible for a humanitarian waiver. He lost this challenge, and was deported again; in the meantime, his wife and child struggle to cover basic living expenses.
Among other arguments before the IACHR, the US government asserted its sovereign right under international law to expel criminal aliens; that the right to family life under Articles V and VI of the American Declaration protects only against state action that intends to harm family life, not secondary consequences of lawful, reasonable state actions (sound familiar?); and my personal favorite -- that because the United States is not party to the Convention on the Rights of the Child, prior IACHR analysis (pertaining to a party to the CRC) on the rights of the child with respect to their parent's deportation proceeding was not relevant.
The IACHR was not buying any of this. It found that the United States' sovereign rights of expulsion are not absolute, but are subject to a balancing test, drawing from elements laid out by the ECHR and UNHRC, including the strength of family ties, the duration of residence, the hardship of deportation to the family, and the nature and severity of the criminal offense (including age at the time of commission, time span of the offense, and subsequent rehabilitation). While the balancing test is to be applied flexibly, the IACHR emphasized strongly the importance of the best interest of the minor child. The IACHR also rejected the "intent to harm family life" limitation suggested by the US government, and noted that the American Declaration protects against foreseeable consequences that flow from state action.
Because the petitioners had no opportunity to a present humanitarian defense to deportation or to have rights to family considered and because the best interests of their US citizen children were not considered by the decision maker, the IACHR found a violation of Articles V (right to private and family life), VI (right to family life), and VII (rights of the child) of the American Declaration. Notably, the Commission held that heightened due process protections apply in immigration proceedings that include the sanction of deportation, and that the petitioners' deportations violated Article XXVI (right to a fair trial) and XVII (right to an effective remedy) of the American Declaration. The IACHR recommended that the U.S. allow petitioners to return, reopen their deportation proceedings, and present humanitarian defenses, as well as to allow the immigration judge to weigh these defenses. Finally, the Commission suggested that the U.S implement laws to protect non-citizen residents' right to family life. Now those would be some solid family values.

Environmental racism case against U.S. declared admissible by Inter-American Commission

An environmental human rights case brought against the United States has been declared admissible by the Inter-American Commission on Human Rights (IACHR).
Toxic contaminants spewed by fourteen industrial facilities in and around Mossville, Louisiana, have been polluting the air, water and land there for years. The residents of this poor, mostly African-American community suffer health problems that are known to be caused by the types of chemicals those facilities produce, including cancer and damage to cardiovascular, nervous, respiratory and immune systems. And they suffer from them at higher than average levels. Just one example: Dioxin levels in their blood are three times higher than the national average. No wonder CNN entitled a recent program: Toxic towns: People of Mossville are 'like an experiment.'
After trying to achieve change through state and federal authorities and through the companies themselves, the residents of Mossville turned to international human rights bodies. In 1999, a member of the Mossville community spoke at the UN Commission on Human Rights about what it was like to live in such environmental degradation. Read his powerful statement here.
Environmental racism in the United States had already caught the attention of the UN. When the UN Special Rapporteur on racism and racial discrimination visited the United States in 1994, he received information from several organizations about this problem. In the report of his visit he included a section entitled "Racism and the Environment" in which he took note of studies showing that the racial composition of a population "was decisive in the choice of sites" for toxic product depots, toxic waste dumps and hazardous waste facilities. At the UN Commission on Human Rights in 1999, the Mossville spokesperson urged the UN to send the Special Rapporteur on the dumping of toxic waste to visit Mossville and investigate the dumping and storage of toxic waste there.
But little changed, and the government kept issuing permits to the polluters.
Then, in 2005, the residents of Mossville turned to the Inter-American Commission on Human Rights, in a petition brought against the United States on their behalf by lawyers Monique Harden (right) and Nathalie Walker (left) of the New Orleans-based NGO, Environmental Advocates for Human Rights. A second amended petition was filed in 2008 that included petitioners' observations on the government response to their claims.
On March 30, 2010, the Inter-American Commission communicated to Environmental Advocates that the petition had been declared admissible. The admissibility decision is available here. The decision to accept the case is significant in several respects.

• First, the Inter-American Commission rejected the government's argument that what the residents of Mossville are being subjected to regarding environmental pollution are not violations of rights protected in the of the American Declaration of the Rights and Duties of Man (sic). The Commission found potential claims regarding the right to equality and freedom from racial discrimination (Article II) and the right to protection of the law for one's private and family life (Article V). As to the latter, the Commission noted European Court of Human Rights jurisprudence that a State's failure to prevent a plant from polluting nearby homes violated the right to privacy. As for the other rights the petitioners argued have been violated, including the rights to life, and to the preservation of one's health, the Commission decided that domestic remedies had not been exhausted.
  
• Second, the Commission rejected the US argument that racially discriminatory impact does not amount a human rights violation "absent a clear showing of intentional discrimination." Racial discrimination does not have to be intentional to trigger state responsibility. Under international human rights law, policies and practices that have the effect of depriving people of their rights because of their race are human rights violations. This approach recognizes that just because the racially discriminatory treatment one is experiencing is unintentional, that does not diminish the existence or experience of that racially discriminatory treatment.
  
• Third, the decision goes to the heart of the importance of having an effective remedy when one's rights have been violated. The state has an obligation to take steps to ensure that its permit-issuing decisions do not result in a racially disproportionate burden with respect to the pollution that results, and an obligation to provide an effective remedy for racial discrimination that does result.

Read the Advocates for Environmental Human Rights press release about the IACHR admissibility decision here.
As for the industries operating in and around Mossville, in 2007 the Business and Human Rights Resource Centre asked companies if they wished to respond to reports of environmental health problems in Mossville; the reports and the companies' responses are shared here.

Detainee petitions Inter-American Commission

Guantánamo detainee Djamel Ameziane has complained to the Inter-American Commission on Human Rights (IACHR) that his 6-and-1/2-year-detention at Camp Delta, without charge or judicial review, violates several rights protected by the 1948 American Declaration of the Rights and Duties of Man, to which the US is a party. The US has also recognized the IACHR, though is not in the habit of listening when it suggests that the US is violating the Declaration. As Beth Van Schaack pointed out, the Commission has several times reiterated precautionary measures that have gone unheeded with respect to US detention of "enemy combatants" at Guantanamo, CSRT proceedings and refoulement of prisoners. Like the proceedings seeking those measures, Ameziane's complaint was filed by the Center for Constitutional Rights (CCR): since the Supreme Court's June 2008 ruling in Boumediene v. Bush recognizing Guantanamo detainees' right to challenge their detention, "neither Mr. Ameziane nor any other Guantánamo detainee has yet had a hearing on the merits of his case." Under such circumstances, Ameziane may well satisfy the IACHR procedural rule requiring exhaustion of domestic remedies, except where unavailable as a matter of fact or law, i.e., where domestic legislation doesn't afford due process of law or the petitioner has been denied access to or prevented from exhausting the remedies that do exist, or where there has been unwarranted delay. Given the lack of attention the US has paid to the IACHR throughout the "war on terror," a decision in favor of Ameziane might be for naught. But what if the president who takes office in January decides to provide hope even to Guantanamo detainees and introduce real change, that is, follow IACHR recommendations?

Gitmo & the Inter-American Commission

The central question facing the U.S. Supreme Court (left) in Boumediene was:
To what extent does the privilege of the writ of habeas corpus extend to foreign nationals detained within the unique jurisdictional circumstances of Guantánamo?
This question is situated within a larger inquiry about the extent to which various provisions of the Constitution apply extraterritorially as exemplified by such cases as United States v. Verdugo-Urquídez (1990) (finding that the warrant clause of the 4th Amendment does not apply extraterritorially). In Boumediene, the Court answered the genus question regarding habeas rights, which no doubt will shed light on the larger question in future cases.
One key factor underlying the Court’s ruling in Boumediene that petitioners are entitled to enjoy the privilege of habeas corpus was the degree of control exercised by the United States over Guantánamo (below left & right). The Court determined that although “ultimate sovereignty” over Guantánamo continues to reside in Cuba, the United States exercises “complete jurisdiction and control” (Slip Op. 23 & 25). This control is “absolute” and “indefinite” (Slip Op. 38), such that Guantánamo is within the “constant jurisdiction” of the United States (Slip Op. 39). It was also dispositive that no other law applies on Guantánamo: “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station” (Slip Op. 21). Indeed, the Court was confident that an order from a federal court would be obeyed at Guantánamo. In so holding, the Court rejected the Government’s contention that “de jure sovereignty is the touchstone of habeas corpus jurisdiction” (Slip Op. 25).
In focusing not on “the formal legal status” of Guantánamo, but rather on “the objective degree of control the United States asserted over it” (Slip Op. 24), the Court’s reasoning mirrored the functional approach adopted by many human rights tribunals that have addressed similar questions of the extraterritorial application of their constitutive treaties. In particular, the Court’s ruling largely vindicated the determinations made by the Inter-American Commission on Human Rights in an ongoing proceeding against the United States. (The Inter-American Commission on of Human Rights has jurisdiction over the United States by virtue of its membership in the Organization of American States (below right) for violations of the American Declaration of the Rights and Duties of Man.)
In these proceedings, petitioners—Guantánamo detainees represented by the Center for Constitutional Rights—had sought precautionary measures (a protective mechanism like a preliminary injunction employed to preclude the imminent perpetration of human rights violations) against the United States. Employing the lexicon from Article 5 of the Geneva Conventions, the detainees sought in particular a determination from a “competent tribunal” of their legal status, as well as of the rights and protections to which they are entitled under U.S. domestic and international law. The Commission determined that a state’s responsibility for violations of international human rights committed against a particular individual

turns not on that individual’s nationality or presence within a particular geographic area, but rather on whether, under the specific circumstances, that person fell within the state’s authority and control.

The Commission determined that because doubt existed as to the detainees’ prisoner-of-war status, they should be accorded access to a competent tribunal to determine their legal rights.
These precautionary measures were reiterated several times as new information emerged about:
► detainee mistreatment;
► the potential use of evidence extracted by torture in legal proceedings before military commissions; and
► instances of refoulement to places where detainees risked further mistreatment.
Eventually, the Commission amplified the precautionary measures when it urged the U.S. to

take all necessary steps to conduct independent, impartial and effective investigations into the allegations of the torture or cruel, infamous and unusual treatment of detainees under its custody and control, and, where such treatment is found to have occurred, to prosecute those responsible, including those who may be implicated through the doctrine of superior responsibility.

In a subsequent communication, the Commission determined that the proceedings before the Combatant Status Review Tribunals (CSRTs) and the Administrative Review Boards (ARBs) did not adequately respond to the concerns underlying the Commission’s request for precautionary measures.
In finding that the United States’ obligations under the American Declaration apply wherever it exercises "authority and control,” the Commission echoed the findings of other human rights institutions to consider the question of extraterritorial application of treaty obligations.
With the exception of a short foray into the multifaceted nature of state sovereignty, the Boumediene majority opinion is devoid of any reference to international law, as the questions presented were fully able to be resolved through a determination of the constitutional reach of the privilege of habeas corpus. Indeed, the Boumediene opinion provides a definitive history of the writ of habeas corpus—its origins (Magna Carta, left), profound purpose, vulnerabilities, and safeguards. Nonetheless, there are openings in the Court’s opinion where the universal human right to judicial review might have entered the Court’s consideration. In particular, the Court eschewed a purely originalist or historical approach to understanding the contemporary reach of habeas rights by noting the potential for the protections of the Suspension Clause to expand along with post-1789 developments (Slip Op. 15-16). The codification of rights to habeas corpus and its equivalents (e.g., amparo) in the omnibus human rights treaties represents one important modern development that provides international law fortification to the Court’s ruling. The Supreme Court's ruling demonstrates a high degree of convergence with rulings from international human rights institutions as they have grappled with similar questions about the extraterritorial reach of human rights treaties, as I have elaborated upon here.

(Partially cross-posted and expanded on Jurist's hotline.)

On this day

On March 13, ...
... 1949, Rt. Hon. Dame Sian Elias (left) was born in London, England, the daughter of a father of Armenian heritage and a mother of Welsh heritage. Educated at Auckland University in New Zealand and Stanford University in the United States, she became a barrister in Auckland in the early 1970s. Appointed a Queen's Counsel in 1988 and a High Court judge in 1995, she became New Zealand's 1st woman Chief Justice, a position she holds to this day, in 1999. That same year she was named Dame Grand Companion of the New Zealand Order of Merit and appointed to the Privy Council. She also serves as Administrator of the Government, the person who would assume the duties of the Governor-General, the "personal representative of" the "Head of State, Queen Elizabeth II of New Zealand," if the Governor-General should be unable to perform those duties.
... 1979, "members of the New Jewel party, a left-wing opposition group" in parliament, staged a coup d'état in Grenada, a Caribbean island state. The group's leader, Maurice Bishop, would govern until October 1983, when he was killed by "supporters of his deputy, Bernard Coard, who resented attempts to mend bridges with the US," according to BBC, which added that "[l]ater that month 6,000 US troops invaded Grenada." Detention occurring during the 1983 military action was held violative of the 1948 American Declaration of the Rights and Duties of Man in Coard v. United States, a 1999 decision of the Inter-American Court of Human Rights about which I've written here.