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:

Revisiting Cotton Field amid continued violence

Sensational headlines regarding violence in Mexico, particularly in the city of Ciudad Juárez, are sadly not unusual. However, it is notable that recent headlines have again begun to highlight patterns of targeted, brutal violence against the women and girls of Ciudad Juárez, a city of about 1.3 million people, located just over the border from El Paso. (map credit)
The issue of targeted violence against the women and girls of Ciudad Juárez began in 1993. Between 1993 and 2003, approximately 300 women were murdered, while an equal number were disappeared. Theories regarding the reasons for this violence abound, many of them focusing on private actors; however, the state of Mexico was also implicated, particularly for its failure to adequately investigate the disappearances and deaths of women and girls.
The families of three women and girls who disappeared and were found murdered in 2001 brought complaints to the Inter-American Commission on Human Rights regarding the deaths of their daughters and the ways in which the investigations into their deaths were handled. The Commission ultimately referred the complaint to the Inter-American Court of Human Rights (left).
In its 2009 judgment in the Case of González et al. (“Cotton Field”) v. Mexico, the Court held Mexico to be responsible for human rights violations based on the handling of investigations into disappearances and deaths of women and girls in Ciudad Juárez. The state's actions, the court opined, contributed to the atmosphere of impunity surrounding the maltreatment of women in the city. (IntLawGrrls' past posts regarding this Cotton Field decision can be found here, here, and here.)
Stories of more recent violence against the women and girls of Ciudad Juárez, combined with crime reports indicating that over 700 women and girls were murdered in Ciudad Juárez between 2008 and 2011, at first call into question the meaning of the Cotton Field case.
It would not be difficult to extrapolate further, and question the overall meaning of the Inter-American human rights system given the escalation of gender-targeted violence that has occurred in Ciudad Juárez since the Cotton Field decision.
This view would, however, discount the very real place of the Inter-American human rights system in developing meaningful legal norms and take the focus off the responsibilities of the state to respect and implement the judgments of the Court.

Jamaica’s Portia Simpson Miller: Out with the Old and in with the New

Portia Simpson Miller, who in 2006 became Jamaica’s first female Prime Minister, reclaimed the position in the country’s December 2011 general election. (photo credit) Simpson Miller adds her second term as Prime Minister to a number of prior posts within the People’s National Party, including the party’s Spokesperson on Women’s Affairs.
In the few weeks since her return to power, Simpson Miller has already turned heads, stating her intention to break away from the British monarch and declare Jamaica an independent republic.
Notably, it is not unlike Simpson Miller to go against the political grain.
In the months leading up to the election, she boldly pledged support for review of Jamaica’s homophobic sodomy law, and opened her cabinet to members of the lesbian, gay, bisexual, transgendered and intersex (LGBTI) community. (Video clip here.) The new Prime Minister’s seemingly pro- LGBTI stance stands in stark contrast to that of former Prime Minister Bruce Golding, who openly and categorically excluded gays from his Cabinet.
Simpson Miller’s increasingly progressive views toward LGBTI rights dovetail with her political posturing for greater national autonomy. Many Caribbean nations continue to criminalize consensual same-sex conduct under sodomy statutes, defending these laws on the bases of indigenous and cultural rights. In fact, however, these laws were inherited from the former British colonial power. It is therefore ironic that the Caribbean’s current sodomy laws should be defended on the grounds of cultural rights, when in fact they are a remnant of cultural imperialism.
Thanks to the tireless work of LGBTI advocates on the ground, Simpson Miller may soon find support in a regional forum. In 2011, advocates petitioned the Inter-American Commission on Human Rights to declare Jamaica’s sodomy statute to be in violation of international human rights law. The petitioners have pulled together an experienced legal team, including Lord Anthony Gifford, counsel to the landmark case of Dudgeon v. United Kingdom (1981), in which the European Court of Human Rights struck down Northern Ireland’s sodomy law.
The Inter-American Commission petition, together with Portia Simpson Miller’s pro-LGBTI rhetoric, may signal a changing tide in Jamaica and the wider Caribbean. Moving forward, LGBTI advocates can only hope that Simpson Miller will stay true to her word and finally shed the colonial vestiges of the current sodomy law.

Struggle continues in post-quake Haiti

It is two years to the day since a 7.0 earthquake struck Haiti, leveling much of Port-au-Prince, killing tens of thousands, and displacing well over 500,000. (map credit)
As indicated in the post below by IntLawGrrls contributors Sarah Paoletti and Nicole Phillips, despite pledges of $10 billion in aid, many Haitians struggle to survive in the face of forced evictions, a raging cholera epidemic, and rampant gender-based violence.
For example, even after two years:
► Half a million people continue to live in camps, some without running water or electricity. Moreover, many of these people are fighting to remain in even these substandard conditions. In the year following the earthquake, 34% of people living in camps were forced to leave those shelters as the result of evictions.
The right to housing is guaranteed by several human rights instruments, including the Universal Declaration of Human Rights (art. 25) and the International Covenant on Economic, Social and Cultural Rights (art. 11). While these instruments often recognize that housing rights may be subject to State resources, they do proscribe the kinds of evictions – often by force and without adequate notice or compensation – seen in the years following the earthquake. Indeed, on November 15, 2010, the Inter-American Commission on Human Rights granted precautionary measures for residents of camps located on private and public property in Haiti. The Commission called for the Government of Haiti to, inter alia, halt evictions pending the inauguration of a new government and ensure that those who had been evicted obtained remedies in court and were relocated to places with minimum sanitary and security.
► Fully 7,000 people have died and another 520,000 have become ill from cholera.
On November 3, 2011, 5,000 cholera victims filed a claim for reparations with the Claims Unit of the UN Stabilization Mission in Haiti, or MINUSTAH. Represented by the Institute for Justice and Democracy in Haiti, for which Nicole is a staff attorney, claimants alleged that the outbreak was triggered by the Mission's negligent, reckless, and deliberately indifferent mismanagement of its own sanitation facilities, which were used by Nepalese peacekeepers who harbored the virus.
► Women and girls face a near-constant threat of sexual violence due to insecurity in camps and impunity from the criminal justice system.
These conditions implicate women's rights to life, humane treatment, personal liberty and security as enshrined in human rights instruments such as the American Convention on Human Rights. Indeed, on December 22, 2010, the Inter-American Commission granted precautionary measures for all displaced women and girls living in Haiti's camps. The Commission called upon the Government of Haiti to, inter alia, ensure the availability of adequate medical and mental health care to survivors of sexual violence, increase security in camps, and train law enforcement to investigate incidents of sexual violence. Despite this grant, women and girls in Haiti continued to suffer sexual and other forms of gender-based violence at alarming rates last year.
Immediately following the earthquake, the international community vowed to help Haiti "build back better."

Accountability for Serious Crimes in Brazil

Last month, Brazil's Senate agreed to set up a Truth Commission to investigate human rights violations during the country’s 1964-1985 military dictatorship. While this represents an important step in the struggle against impunity, as Intlawgrrl Naomi Roht-Arriaza has recently noted, Brazil continues to be the “sole holdout” in this part of the continent to leave its amnesty law untouched. Indeed, despite a finding by the Inter-American Commission on Human Rights in 2008 that Brazil’s 1979 amnesty law – which exonerates those who committed political crimes during the dictatorship – violated petitioners’ right to justice and truth, Brazil’s Supreme Court upheld a broad interpretation of that law in April of 2010 , finding that the actions of the military were political in nature and, therefore, protected by it.
Interestingly, the Inter-American Court on Human Rights issued a decision in November 2010 holding the amnesty law incompatible with Brazil’s human rights obligations under the American Convention on Human Rights and urging Brazil to “adopt all … measures [necessary] to revoke” it. One of the interesting questions raised by this series of events is whether the recently established Truth Commission will be sufficient to satisfy those who have pressed for accountability for the abuses committed during Brazil’s military dictatorship.
Although state compliance with the decisions of the Inter-American system’s Commission and Court is far from automatic, the history of this issue in neighboring countries suggests that decisions by these bodies have been a catalyst for reform at home, even if reform has taken a long time to materialize. For instance, although the Inter-American Commission on Human Rights recommended repeal of Argentina’s amnesty laws as early as 1992 it was not until 2005 that the Argentine Supreme Court nullified the 1987 amnesty law protecting those who committed crimes during the rule of that country’s military junta. Although the Supreme Court’s decision to annul the law came 13 years after the Commission first recommended repeal, the move eventually prompted the government to establish a serious human rights violations unit in its prosecutor’s office and to reopen hundreds of human rights cases.
A similar situation occurred in the case of Uruguay. The Inter-American Commission found Uruguay’s amnesty law incompatible with the American Convention in 1992. Yet, it was not until September of this year that the Uruguayan Congress voted to repeal that law. The vote follows a decision issued by the Inter-American Court in February of this year ordering Uruguay to ensure that its 1986 Amnesty Law – which gave the President final say over which cases of human rights violations could be investigated – would no longer impede investigation of serious human rights violations that occurred between 1973 and 1985 (i.e. before the country’s return to democratic rule). Notably, the recent vote followed several failed attempts to repeal the law. Indeed, the law was supported in popular consultations in 1989 and 2009. And despite a decision by the Uruguayan Supreme Court suggesting that the Amnesty Law was unconstitutional, an attempt to annul the effects of the Law was defeated in Congress in May 2011. Still, reform seems afoot in Uruguay, even though it took nearly 20 years since the Commission’s original decision. As recent media reports note (here and here), victims are coming forward in droves to seek justice for crimes committed during the country’s dictatorship. It may only be a matter of time before Brazil follows suit.

Inter-American ruling invites global rethink of state protection against domestic violence

(Delighted to welcome back alumna Caroline Bettinger-López, who contributes this guest post)

In a landmark decision, the Inter-American Commission on Human Rights has found the United States responsible for human rights violations suffered more than a decade ago by Jessica Lenahan (below right), our client here at the Human Rights Clinic at the University of Miami School of Law. (photo credit)
The August 17 decision in Jessica Lenahan (Gonzales) v. United States also recommended changes to domestic violence law and policy. It thus creates an opportunity for governments throughout the Americas – indeed, throughout the world – to conduct introspective re-evaluations of their own domestic violence laws and policies and to make necessary changes and improvements.
The Lenahan decision came as a cathartic end to a long legal battle that had begun with a tragedy.
In 1999, Jessica’s daughters – Rebecca, Katheryn, and Leslie – were abducted by her estranged husband, Simon Gonzales. Jessica repeatedly called police in Castle Rock, Colorado, for help. But they dismissed her calls, telling her to wait until the father brought the children home. At one point they even called her “ridiculous.”
In the same 10-hour period, the police responded to a fire-lane violation, looked for a lost dog, and took a 2-hour dinner break.
Then Simon Gonzales drove up to the police station and began shooting. Officers returned fire, killing him. Afterwards, they found the bodies of Jessica’s 3 girls, shot to death inside the truck. Local authorities’ failure fully to investigate the circumstances provoked questions – about the cause, time, and place of their deaths – that remain to this day.
Jessica filed a federal civil rights suit. In 2005, the U.S. Supreme Court (below left) struck a blow to Jessica’s cause, ruling in Castle Rock v. Gonzales that the Due Process Clause of the 14th Amendment to the U.S. Constitution did not require police to have enforced the restraining order Jessica had secured against her estranged husband. (photo credit)
Along with the decision in DeShaney v. Winnebago County (1989) – which effectively declared that the government typically has no duty to protect individuals from private acts of violence – the Supreme Court's decision in Gonzales denied important potential mechanisms for ensuring government accountability, and thus was detrimental to efforts to combat domestic violence.
Undeterred, Jessica then applied to the Inter-American Commission for relief. Representing her along with our clinic were the Columbia Law School Human Rights Clinic and the American Civil Liberties Union.
Welcoming the Commission’s August 17 decision, Jessica stated:

‘I have waited 12 years for justice, knowing in my heart that police inaction led to the tragic and untimely deaths of my three young daughters. Today’s decision tells the world that the government violated my human rights by failing to protect me and my children from domestic violence.’

The Commission’s determination that the United States failed to discharge a duty to protect its nationals from domestic violence has far-reaching implications.
After the decision issued, Rashida Manjoo, the U.N. Special Rapporteur on violence against women, said:

‘State inaction towards cases of violence against women fosters an environment of impunity and promotes the repetition of violence.’

In a visit to the United States earlier this year, Manjoo (prior IntLawGrrls posts) had declared:

‘In my discussions with government officials, victims, survivors, and advocates, including Jessica Lenahan, I found a lack of substantive protective legislation for domestic violence victims in the United States, as well as inadequate implementation of certain laws, policies and programs.’

The Commission’s decision called into question the domestic violence laws and policies of the United States, including the Supreme Court decisions mentioned above, for it:
► Made clear that many of the current laws and policies are inadequate to protect the human rights of domestic violence victims;
► Recognized that the United States has an affirmative obligation to protect individuals from discriminatory violence; and
► Urged comprehensive reform, at the local, state, and federal levels, in U.S. law and policy respecting violence against women.
As Manjoo said in her own 2011 report,

‘Violence against women is the most pervasive human rights violation which continues to challenge every country in the world, and the US is no exception.’

Especially when read in conjunction with the 2009 decision of the Inter-American Court of Human Rights in the Cotton Fields case (IntLawGrrls' prior posts here and here), the Commission’s ruling in Lenahan also sets forth a framework for other nations to follow.
The decision makes clear that domestic violence is a human rights violation, and brings this point into the international spotlight. It is our hope that the decision impacts the way people perceive domestic violence. What happened to Jessica was an unfathomable tragedy. Moving forward, we hope that the decision will aid advocates to push for reforms that call for law enforcement accountability. We are hopeful that it represents an important step toward creating a world where governments and their agents will know that turning a blind eye and a deaf ear to domestic violence is not an option.

(My deep thanks to Luis Ramos, my student in the Human Rights Clinic at University of Miami School of Law, who coauthored this post with me)

Brazil / Inter-American Commission standoff

For over thirty-five years, a proposal to build the Belo Monte Dam on the Xingu River in northern Brazil has been fraught with controversy. This week, that controversy escalated to a new level when Brazilian President, Dilma Rousseff ordered an immediate interruption in relations with the Inter-American Commission on Human Rights.
Rousseff's order comes on the heels of a request PM 382/10, issued on April 1, in which the Inter-American Commission asked that the State of Brazil

'immediately suspend the licensing process for the Belo Monte Hydroelectric Plant project and stop any construction work from moving forward until certain minimum conditions are met.'

Those minimum requirements include free, prior, informed, good faith, culturally appropriate consultations with the communities that will be negatively impacted should the project be realized. An estimated 20,000-50,000 people are expected to be displaced in the 190-plus square miles that would have to be flooded to make the Belo Monte Dam operational. (credit for above right photo of site at issue)
The Brazilian government says that the Belo Monte Dam is crucial for development, as it is expected that it will provide electricity to 23 million homes:
► Defense Minister Nelson Jobim said in April that the government would not honor the request of the Inter-American Commission, and he argued that preserving indigenous communities’ way of life should not force 20 million people living in the Amazon region into underdevelopment.
► Senator Flexa Ribeiro, president of the Senate Sub-Committee charged with oversight of the dam project, has stated:

'The request is absurd. It even threatens Brazilian sovereignty.'

► The Foreign Minister has called the Commission's measures “unjustifiable.”
Late last week the Brazilian mining company, Vale, agreed to buy a $1.5 billion stake in the Belo Monte Dam consortium. After significant domestic legal controversy, construction on the dam has recently begun and will cost approximately $17 billion.
This week the Folha de Sao Paolo reported that President Rousseff is “disappointed and irritated” by the Commission's Precautionary Measure request. Ruy Casaes, the Brazilian ambassador to the Organization of American States, was ordered to remain in Brasilia rather than return to Costa Rica. In addition, Rousseff has decided both to suspend Brazil’s approximately $800,000 annual contribution to the Inter-American Commission and to desist from advancing the candidacy of a Brazilian to sit on that body.

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.

On September 24, ...

... 1992 (15 years ago today), the Inter-American Commission on Human Rights, ruling on a petition brought 3 years earlier, confirmed petitioners' allegation that on "February 22, 1983, approximately 74 people were assassinated by members of the Salvadoran security forces near Las Hojas, Sonsonate, El Salvador." It concluded that the government of El Salvador (flag at right) was responsible for the massacre, in violation of several articles of the American Convention on Human Rights. The Commission directed the state to investigate and bring to justice those responsible, and to put in place measures for prevention of such atrocities.
... 1980, under orders from President Saddam Hussein, Iraqi armed forces bombed sites in Iran and set an oil export terminal in Iran on fire, the latest escalation of border skirmishes between the 2 countries. The Iran-Iraq War would not end for another 8 years; by that time, more than 400,000 had been killed and 750,000 wounded.

Multiscalar Global Legal Pluralism and Spelling

The New York Times today highlighted the story of Kunal Sah, who hopes to reunite his family by winning the Scripps National Spelling Bee. His parents were sent back to India last year after their asylum claim was denied, while he remained in Utah with his aunt and uncle. The article quotes Sah as saying: “What I want to do is win the nationals, and, if I do, then there is a chance that my mom and dad will have a better chance of coming back.”
Sah’s statement reminded me of the way in which Sheila Watt-Cloutier presented the Inuit’s petition to the Inter-American Commission of Human Rights claiming that U.S. climate change policy violated their rights. Watt-Cloutier said: “A declaration from the commission may not enforceable, but it has great moral value. We intend the petition to educate and encourage the United States to join the community of nations in a global effort to combat climate change.”
As a complex of mixed informal/formal networks develop across spatio-temporal scales in debates over a range of substantive areas of international law, fundamental questions arise about what kind of international lawmaking narratives are most helpful. These two examples highlight the importance of interrogating what may be missed in stories that focus on formal nation-state consent, and in the process, reinforce the value of the burgeoning scholarly literature on “global” legal pluralism, which provides approaches to exploring the terrain beyond Westphalia.