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:

Chávez vs. Inter-American human rights system

The regional human rights system of the Organization of American States is under attack.
Venezuelan President Hugo Chávez, struggling against both cancer and an emboldened opposition, is making a high-profile push for Venezuela to withdraw from the Inter-American Human Rights Commission.
The Presidents of Bolivia, Ecuador and Nicaragua have joined Chávez in calling for the creation of an alternative regional human rights system sans United States and Canada.
And even the more centrist Latin American leaders are taking shots.
A group of states including Brazil and Peru have asked the OAS to curb the Commission’s power to issue preliminary measures.
President Dilma Rousseff of Brazil  temporarily withdrew the country’s envoy to the OAS last year after the Commission called on Brazil to halt work on the massive Belo Monte dam.
President Ollanta Humula of Peru accused the Commission of exceeding its mandate by referring to the Inter-American Court of Human Rights a highly polemical case still stalled in Peru’s courts. He seemingly vowed to defy any future Court order for Peru to punish those responsible for the crimes at issue.
Are these threats serious?
► On the one hand, ire from political leaders is nothing new to the Inter-American system, and arguably even a symptom of its effectiveness. Like muckraking journalists, perhaps human rights bodies are at their best when everyone is mad at them.
Much of the pushback, at any rate, is symbolic politics.
► On the other hand, the threat from Chávez (prior IntLawGrrls posts) may be genuine cause for concern.
Chávez, who seems to be losing his battle against cancer, recently constituted a Council of State, the Venezuelan Consejo de Estado, and announced that its first order of business should be Venezuela’s withdrawal from the Inter-American Commission. (credit for above photo of OAS headquarters in Washington, D.C., where Commission meets; credit for photo below of Inter-American Court headquarters in San José, Costa Rica)
 It is not clear what this would mean. As OAS Secretary General Miguel Insulza pointed out, there is no mechanism for withdrawing from the Commission: the Commission was created pursuant to the OAS Charter, so perhaps the only way is to withdraw from the OAS itself.
The Council of State is still studying the matter.
That Venezuela denounced the Convention on the Settlement of Investment Disputes between States and Nationals of Other States last January shows that Chávez’s threats are not idle.
More troubling still is that Chávez is a regional trendsetter.
His closer allies, including Ecuador’s President Rafael Correa, Bolivia’s President Evo Morales, and Nicaragua’s President Daniel Ortega, could try to follow suit. All of them have been targeted by the Commission for their suppression of media freedom of expression, and all have voiced exasperation with a system which, they claim, is unduly influenced by the regional hegemon (that would be the United States, which, though an OAS member, has not given jurisdiction to the Court, and mostly ignores the Commission’s opinions).
Venezuela’s withdrawal would be a serious blow.
As noted in a letter of protest from over 200 concerned academics (among them, IntLawGrrls contributors Caroline Bettinger-López and me, Alexandra Huneeus):

On September 13

On this day in ...
... 1960, meeting in Colombia, the Council of the Organization of American States adopted the Act of Bogota, recommending Measures for Social Improvement and Economic Development within the Framework of Operation Pan America. (map credit) The OAS Council further approved the Act in a resolution on October 11 of the same year. As stated on the website of the U.S. Agency for International Development, the Act "[c]onceptually set-up" the Alliance for Progress, an organization that would be established the following year (prior post).

(Prior September 13 posts are here, here, here, and here.)

On August 17

On this day in ...
... 1961 (50 years ago today), a special meeting of the Inter-American Economic and Social Council at Punta del Este, Uruguay, which had begun almost 2 weeks earlier, concluded. On this day all members of the Organization of American states except Cuba signed the Charter of Punta del Este. The charter established the Alliance for Progress/Alianza para el Progreso. (image credit) It aimed to improve economic development in the Americas but which by the 1970s "was widely viewed as a failure."

(Prior August 17 posts are here, here, here, and here.)

On April 30

On this day in ...
... 1948, the American Treaty on Pacific Settlement was signed during a meeting of the Organization of American States in Colombia. Also known as the Pact of Bogota on account of the city where it was signed, the treaty reaffirmed the commitment of countries in the Americas -- a commitment made a few years earlier via the U.N. Charter -- to

refrain from the threat or the use of force, or from any other means of coercion for the settlement of their controversies, and to have recourse at all times to pacific procedures.

It contemplated means such as arbitration or resort to the International Court of Justice in order to effect this pledge. Today the treaty has 15 states parties, the United States of America not among them.

(Prior April 30 posts are here, here, here, and here.)

On September 11

On this day in ...
... 2001, at a special session in Lima, Peru, the General Assembly of the Organization of American States adopted the Inter-American Democratic Charter. (image credit) Binding on the 34 member states of the OAS, the Charter details what democracy entails and how it is to be defended. As IntLawGrrl Naomi Roht-Arriaza then posted, the Charter figured in events surrounding the June 2009 ouster by Honduran armed forces of democratically elected President Manuel Zelaya. Zelaya remains in exile, and increasingly, states in the Americas are recognizing the Honduran government that replaced him.


(Prior September 11 posts are here, here, and here.)

On January 9

On this day in ...
... 1962, in Havana, the Soviet Union and Cuba signed a bilateral trade agreement. Thus began a year that would also see Cuba expelled from the Organization of American States -- a decision that the OAS reversed just 6 months ago, as we posted -- and, of course, the U.S.-Soviet standoff known as the Cuban Missile Crisis (prior posts here, here, and here).

(Prior January 9 posts are here and here.)

On October 2

On this day in ...
... 1889 (120 years ago today), the 1st Pan-American Conference opened in Washington, D.C. The conference was a meeting between the United States and various countries in Latin America. U.S. officials had "hoped to reach agreements at the conference to create a customs union for free trade and establish a system for arbitration of international disputes." Their hopes were mostly dashed, in part due to mistrust and in part "due to the embarrassing fact that the Republican-controlled Congress was simultaneously working on legislation to strengthen tariffs." An International Bureau of American Republics, or Pan-American Union, was established to convene future meetings. (credit for 1943 photo of Pan-American Union building, now headquartesr of the Organization of American States)

(Prior October 2 posts are here and here.)

A blow to democracy & human rights

This week the armed forces of Honduras overthrew democratically elected President Manuel Zelaya (left), arresting him at home and bundling him off to Costa Rica in his pyjamas. The army then installed its own president, with the thin legal veneer of the Honduran Supreme Court's blessing. The Organization of American States, the Obama administration, and human rights groups protested and called for Zelaya's reinstatement.
The coup is a direct violation of the OAS's Santiago Commitment to Democracy and the Renewal of the Inter-American System. By adopting that Commitment during a 1991 meeting in Chile's capital, countries of the hemisphere established a mechanism for collective action in the case of a sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization's member states.
This commitment was reaffirmed in 2001, in the Inter-American Democratic Charter, which requires the suspension from the OAS of states where elected governments have been found to be illegally overturned.
So why did the Honduran armed forces, backed by the legislature and the supreme court, take what they knew would be a much-criticized action? The U.S. press has stressed the attempt by President Zelaya to change the rules on re-election and the close ties between Venezuela and Honduras.
But that's only a small piece of the story.
The re-election effort was part of a larger package. Its centerpiece was a call for a popular referendum on whether or not to call a Constitutional Convention. Had the referendum, which was supported by labor, peasant, environmental, and human rights groups, passed, Honduras would have joined Latin American countries including Colombia, Ecuador, and Bolivia, that had rewritten their constitutions after a broad-based (more or less) constitutional rewriting process.
These processes have been tumultuous and highly controversial elsewhere. But on the positive side, they have:
► Broken existing political logjams and dysfunction;
► Established broad rights for indigenous communities; and
► Set the stage for institutional reforms to protect land and the environment and to give the government greater control over resource policies, especially mining and forest projects. These projects, many sponsored by U.S. and Canadian companies, have affected water and other resources and generated widespread local opposition.
Indeed, there are movements afoot in other countries, like Chile, to use upcoming elections to push for a constitutional convention to remake the Pinochet-era constitution there (not to mention efforts in California to call a constitutional convention to remake our own dysfunctional, gridlocked and almost-broke system of government!).
That's what was at stake in Honduras, and why the powers supporting the status quo were willing to brave international criticism to try to derail a new constitution-building initiative.

Ministerial Musings

Today's puzzler is inspired by foreign ministers' decision last week to revoke the 37-year-old expulsion of Cuba from the principal regional organization of nation-states in North and South America; indeed, the puzzler concerns those foreign ministers. Here goes:

Fully 34 countries have appointed ambassadors to the Organization of American States (flag at left). How many of those ambassadors are women?

Answer below.

Answer to Ministerial Musings

Answer to today's "Ministerial musings" puzzler above:

Out of 34 OAS ambassadors, 5 are women. They are:
Deborah-Mae Lovell (top left), Antigua and Barbuda; María Zavala Valladares (top right), Peru; La Celia Arita Prince (middle left), Saint Vincent and the Grenadines; Glenda Morean-Phillip (bottom left), Trinidad and Tobago; and María del Luján Flores (bottom right), Uruguay.

Any bets on whom Cuba might one day appoint?

Dinah Shelton elected to Inter-American Commission on Human Rights

Last night at the Organization of American States General Assembly in San Pedro Sula, Honduras, Professor Dinah Shelton was elected to the Inter-American Commission on Human Rights to serve a four-year term beginning January 2010. (See below for other news from the OAS meeting.)
A staggeringly prolific author of prize-winning books and countless articles on international law, human rights, and international environmental law, she is a Vice President of the American Society of International Law, and has served as a legal consultant to the United Nations Environment Programme, UNITAR, the World Health Organization, the European Union, the Council of Europe and the Organization of American States, and was made an "honorary European" to join the European Council on Environmental Law.
Recognition of the signal contributions Dinah Shelton has made include the Elizabeth Haub Prize in Environmental Law, which commemorates the legacy of Haub (1889-1977), a pioneer in efforts to preserve the natural environment.
The Obama Administration announcement on March 3 nominating Shelton to the Inter-American Commission appears here.

Hearty congratulations, Dinah!

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The Cold War has ended this day in San Pedro Sula. We begin a new era of fraternity and tolerance.'

-- Manuel Zelaya at a meeting of the Organization of American States in that town in the country of which he is President, Honduras. There yesterday national foreign ministers voted to revoke Resolution VI (quoted on page 12), which had effected the explusion of Cuba from OAS membership in 1962. (For another important development at that meeting, see post above.) As set out in the Spanish text, yesterday's resolution resolved that Cuba could resume participation in the OAS following "a process of dialogue initiated by the Government of Cuba and conducted in conformity with the practices, propositions and principles of the OAS." Though U.S. efforts to attach more conditions had failed, "[t]he decision was taken by consensus, meaning the United States accepted it," in the words of the Associated Press.

Statement on Human Rights, Sexual Orientation and Gender Identity

In full, here is the text of the Decenber 18, 2008, Statement on Human Rights, Sexual Orientation and Gender Identity supported by 67 nation-states -- including, as of yesterday, the United States, as detailed in IntLawGrrls' post above:

► 1 - We reaffirm the principle of universality of human rights, as enshrined in the Universal Declaration of Human Rights whose 60th anniversary is celebrated this year, Article 1 of which proclaims that “all human beings are born free and equal in dignity and rights”;
► 2 - We reaffirm that everyone is entitled to the enjoyment of human rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, as set out in Article 2 of the Universal Declaration of Human Rights and Article 2 of the International Covenants on Civil and Political, Economic, Social and Cultural Rights, as well as in article 26 of the International Covenant on Civil and Political Rights;
► 3 - We reaffirm the principle of non-discrimination which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity;
► 4 - We are deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity;
► 5 - We are also disturbed that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine the integrity and dignity of those subjected to these abuses;
► 6 - We condemn the human rights violations based on sexual orientation or gender identity wherever they occur, in particular the use of the death penalty on this ground, extrajudicial, summary or arbitrary executions, the practice of torture and other cruel, inhuman and degrading treatment or punishment, arbitrary arrest or detention and deprivation of economic, social and cultural rights, including the right to health;
► 7 - We recall the statement in 2006 before the Human Rights Council by fifty four countries requesting the President of the Council to provide an opportunity, at an appropriate future session of the Council, for discussing these violations;
► 8 - We commend the attention paid to these issues by special procedures of the Human Rights Council and treaty bodies and encourage them to continue to integrate consideration of human rights violations based on sexual orientation or gender identity within their relevant mandates;
► 9 - We welcome the adoption of Resolution AG/RES. 2435 (XXXVIII-O/08) on "Human Rights, Sexual Orientation, and Gender Identity" by the General Assembly of the Organization of American States during its 38th session in 3 June 2008;
► 10 - We call upon all States and relevant international human rights mechanisms to commit to promote and protect human rights of all persons, regardless of sexual orientation and gender identity;
► 11 - We urge States to take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention.
► 12 - We urge States to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice;
► 13 - We urge States to ensure adequate protection of human rights defenders, and remove obstacles which prevent them from carrying out their work on issues of human rights and sexual orientation and gender identity.

P.S. on Colombia/Ecuador

Anyone whose interest's been piqued by posts on counterrorism activities in Colombia and Ecuador -- which IntLawGrrl Naomi Norberg criticized yesterday and for which Luz Estella Nagle articulated possible justifications in an April guest-post -- will want to look at a recent ASIL Insight on the subject.
The author is Tatiana Weisberg, formerly an Associate Professor of International Law at the Catholic University of Minas Gerais, Brazil, and now an LL.M. student at the Center for Advanced Legal Studies, Buchman Faculty of Law, Tel Aviv University, Israel. Her Insight focuses on the March 5, 2008, resolution by the Permanent Council of the Organization of American States that Colombia's entry into Ecuador a week earlier

constitutes a violation of the sovereignty and territorial integrity of Ecuador and of principles of international law ...

With some understatement, Weisberg observes that the OAS resolution "is in tension with the declared policy and practice on this issue of the United States, an OAS Member State, and with the UN Security Council’s post-September 11th willingness to consider that terrorist violence can trigger the right to use force in self-defense."

(credit for map of Colombian incursion -- courtesy of The Economist)

Knocking Down That Wall . . .

My friend and former colleague Denise Gilman (pictured left), a Clinical Professor at the University of Texas School of Law, has submitted a request for a hearing on the Texas/Mexico border wall to the Inter-American Commission on Human Rights (ICHR). Gilman has pulled together an impressive Working Group on Human Rights and the Border Wall at UT, comprised of professors and students in law, anthropology, and environmental science, including Gilman's husband, Ariel Dulitzky, the former Assistant Executive Secretary of the ICHR. This is a seriously dynamic human rights duo; Dulitzky now runs the Rapoport Center for Human Rights and Justice at UT (recent law grads take note of the great fellowship opportunity at the Center). But I digress; in June, Gilman and her Working Group submitted briefing papers to the Inter-American Commission outlining the human rights violations resulting from the border wall: violations of the right to property and equal protection; violations of the government's obligation to consider harm to the environment when undertaking public projects; and violations of the rights of indigenous communities. As the United States, in typical fashion, signed but never ratified the American Convention on Human Rights, the request relies on the American Declaration of the Rights and Duties of Man [sic], which, while not a legally binding treaty, is viewed by both the Inter-American Court and the Inter-American Commission on Human Rights as a source of international obligations for all members of the Organization of American States, including the U.S. In any case, the Working Group's arguments are creative and well thought out: that the United States is taking private property that has been held by families for generations without "properly considering other alternatives for controlling the border"; that the land of small landowners who are disproportionately poor, Latino, and less educated will be taken while more lucrative properties will remain intact; that the wall will cause severe environmental degratation of the Rio Grande river and its wildlife; and that the wall will harm Native American communities that "live and practice their traditional cultures and religions along the Texas/Mexico border." Moreover, because the "United States has . . . stripped away, in relation to the border wall, judicial protection that it otherwise provides" for indigenous rights and the environment, "possibilities for a court challenge to the taking of property and construction of the border wall are extremely limited", and the Working Group thus posits a violation of Art. XVIII of the American Declaration, guaranteeing the right to judicial protection. While a hearing before the ICHR won't produce a ruling that's enforceable in U.S. courts, the Working Group's painstakingly collected evidence should have at least some shame value, and might inspire other OAS members to condemn the wall, as Chile, Mexico, and 26 other countries already have done. You go, Grrl.

On January 8, ...

... 1961, in referenda held simultaneously in France and Algeria, voters approved a plan to give Algeria its independence after many years of French colonial rule. At the time of the vote, according to the BBC, "Algeria ha[d] the largest white settler population of any French African colony, with a million people of French descent holding power over eight million Algerian Muslims"; meanwhile, Muslims "ha[d] little political or economic power, and few legal rights, and discontent [was] at such a level that half a million French troops [we]re stationed in the country."
... 1990, Canada joined the Organization of American States, an international entity that had been established in 1948. The event culminated a governmental decision, made the previous autumn, for Canada to "become a full-fledged hemispheric actor."

Read On! "Thirteen Days"

(Read On! ... occasional posts on writing we're reading) Thirteen Days -- no, not that Kevin Costner film, though when stripped down to its essence it works well as an in-class intro to how international law can affect foreign policymaking. This one is the pithy memoir of the Cuban Missile Crisis that Robert F. Kennedy, Attorney General in the administration of his brother John F. Kennedy, wrote in 1967, 1 year before he was felled by an assassin on the night that he won the California Presidential primary.
Thirteen Days tells of the U.S.-Soviet standoff that this week marks its 45th anniversary. As stated in the very 1st words of the memoir, the crisis began "[o]n Tuesday morning, October 16, 1962, shortly after 9:00 o'clock," when the Kennedys 1st viewed intelligence photos showing that "Russia was placing missiles and atomic weapons in Cuba." Upon Russia's agreement to withdraw the missiles in exchange for the U.S. promise that it would not invade the island state, the crisis ended on Sunday, October 28. (Timeline here.) In the 100 pages or so pages of this book RFK related what happened in between: negotiations among U.S. officials and between officials of the 2 governments, consideration of law's role and the choice of a "quarantine" (a euphemism for blockade, intended to diminish the warlike import of the action), and the role that back-channel diplomacy played in ending the crisis.
3 points jump out at a reader steeped in U.S. foreign policy in this initial decade of a new century:
1st, that not 1 woman was a member of these policymakers, later dubbed "the best and brightest" by David Halberstam.
2d, the degree to which international legal regimes mattered. Once a plan was adopted, allies were sought, not only in the U.N. Security Council, but also in an international body to which the United States seems now seldom to attend, the Organization of American States. Having been treated as integral to success, those entities gave their support to the U.S. policy.
3d, that the Cabinet secretaries and other officials who made up the ad hoc Executive Committee of the National Security Council, or "Ex Comm," which RFK chaired, were encouraged to propose and debate all options in the hope of arriving at the best policy possible. As RFK wrote (p. 9):

They were men of the highest intelligence, industrious, courageous, and dedicated to their country's well-being. It is no reflection on them that none was consistent in his opinion from the very beginning to the very end. That kind of open, unfettered mind was essential.

It still is.