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ABSTRACT
Despite the enormous relevance of its work, in recent years an intense debate has taken place regarding the Inter-American Commission on Human Rights’agenda, powers and alliances. Although this experience was referred to by States as a ‘strengthening process’, when the IACHR’s work came under scrutiny in this latest reform process, tensions and political agendas dominated. The process lacked a robust discussion on how to bolster the mechanism’s agenda and tools for the protection and promotion of human rights in order to contribute to a better assessment of the region’s main problems and to achieve greater impact on concrete realities. The possibility of reorienting this focus might have re-emerged with the IACHR’s launching of the process to draft a new Strategic Plan. From a practitioner’s point of view, this article seeks to offer some reflections on the IACHR’s agenda, approaches and workings that can hopefully serve as a contribution to the development and execution of this new Plan, precisely from the perspective that was lacking during the last ‘strengthening’ debates.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Gabriela Kletzel is the Director of the Center for Legal and Social Studies (CELS)'s International Team. Gabriela has particular expertise in strategising and conducting advocacy before regional and international human rights systems, the application of international human rights standards by domestic courts and the litigation of precedent-setting human rights cases before international tribunals. Before undertaking graduate studies in the US, she worked at CELS as an attorney for strategic litigation and legal defense and was coordinator of CELS’ work before the UN human rights system (2005–2010) and as member of the ESCR team (2002–2005). She was a main researcher for the Inter-American Commission on Human Rights and was part of the team of professors of the Human Rights Clinic run jointly by CELS and the University of Buenos Aires Law School. She graduated summa cum laude from the University of Buenos Aires Law School and obtained an LL.M. at New York University School of Law (2011). She received several academic awards and fellowships, including the Hauser Global Scholarship and the Fulbright Scholarship. She teaches International Human Rights Law at the University of Buenos Aires and has published several papers in the field of human rights law.
Notes
1. IACHR, Report on the Situation of Human Rights in Argentina, OEA/Ser.L/V/II.49, doc. 19, 11 April 1980, http://www.cidh.org/countryrep/Argentina80eng/toc.htm
2. Supreme Court of Justice of the Nation. Case S. 1767. XXXVIII. ‘Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc. -causa N° 17.768-’, 14 June 2005.
3. Inter-American Court, Barrios Altos v. Peru, judgment of 14 March 2001, http://www.corteidh.or.cr/docs/casos/articulos/seriec_75_ing.pdf
4. IACHR, Report No. 28/92, 2 October 1992, https://www.cidh.oas.org/annualrep/92eng/Argentina10.147.htm
5. IACHR, Report No. 21/00, Case 12.059, Carmen Aguiar De Lapacó, Argentina, 29 February 2000, http://www.cidh.org/annualrep/99eng/Friendly/Argentina12.059.htm
6. IACHR, Report No. 1/93 (friendly settlement), Cases 10.288, 10.310, 10.436, 10.496 10.631 and 10.771, Guillermo Alberto Birt et al., Argentina, 3 March 1993, http://cidh.org/annualrep/92eng/Argentina10.288.htm
7. IACHR, Report No. 85/11, Petition 12.306, Juan Carlos de la Torre v. Argentina, 21 July 2011.
8. IACHR, Report No. 15/10, Case 11.758, Rodolfo Luis Correa Belisle v. Argentina, 16 March 2010.
9. Inter-American Court of Human Rights, Kimel v. Argentina, judgment of 2 May 2008. Based on this ruling, the Argentine state modified the offence of ‘libel and slander’ in the Criminal Code to exclude cases of public interest.
10. Inter-American Court of Human Rights, La Cantuta v. Peru, 29 November 2006.
11. Inter-American Court of Human Rights, Barrios Altos v. Peru, 14 March 2001.
12. Inter-American Court of Human Rights, Gelman v. Uruguay, 24 February 2011.
13. Inter-American Court of Human Rights, Almonacid Arellano et al. v. Chile, 26 September 2006.
14. The IACHR established a specific section about the process on its website. See: http://www.oas.org/en/iachr/mandate/strengthening.asp. At the same time, the discussion’s precedents and evolution can be found in the book compiled by Dejusticia, CELS, Fundar, Conectas Direitos Humanos and DPLF, Desafíos del Sistema Interamericano. Nuevos tiempos, viejos retos, Colección Dejusticia, Bogota, Colombia, August 2015, http://www.cels.org.ar/common/documentos/Desaf%C3%ADos_del_sistema_interamericano_de_derechos_humanos.pdf. It is also possible to find details of the debates in two issues of the magazine Aportes DPLF. See in this regard AportesDPLF, ‘Reflections on Strengthening the Inter-American Human Rights System’, No. 16 (2012), http://www.dplf.org/sites/default/files/1338572412.pdf; and AportesDPLF, ‘The Reform of the Inter-American Commission on Human Rights’, No. 19 (2014), http://dplf.org/sites/default/files/aportes_19_english.pdf
15. See the Committee on Juridical and Political Affairs, ‘Results of the Process of Reflection on the Inter-American System for the Promotion and Protection of Human Rights (2008–2009)’, 18 March 2009, CP/CAJP-2665/08 rev. 8 corr. 3.
16. Some states pushed for the IACHR’s main agenda to be the promotion of human rights in the region instead of the protection. The latter, a role mostly associated with the litigation of cases before the commission and the court.
17. Failing to recognise these measures’ essential role in protecting human rights, some states even characterised them as ‘undue interference’ that directly affected their sovereignty to make decisions regarding, for example, national development projects. An emblematic case lay in Brazil’s harsh reaction to the precautionary measures initially granted by the IACHR to stop construction of the Belo Monte hydroelectric plant. See PM 382/10 – Indigenous Communities of the Xingu River Basin, Pará, Brazil, http://www.oas.org/en/iachr/indigenous/protection/precautionary.asp. The Brazilian government responded by characterising the measures as ‘hasty and unjustified’. In particular, it criticised the use of a tool such as the precautionary measure on a decision of this magnitude regarding development-related public policy decisions by democratic governments. See the response of the Brazilian government: http://www.itamaraty.gov.br/sala-de-imprensa/notas-a-imprensa/solicitacao-da-comissao-interamericana-de-direitos-humanos-cidh-da-oea. Following this decision, Brazil made the decision to withdraw its ambassador to the Organization of American States (OAS) and to refrain from formally presenting a Brazilian candidate to become a member of the IACHR. Over time, and based on numerous decisions adopted by the IACHR (including the one to restrict the original scope of the precautionary measures), Brazil’s position regarding the extent of reforms that should be carried has moderated.
18. Chapter IV of the IACHR’s report to the General Assembly of the OAS concerns the situation of human rights in member countries, based on the competence assigned to it by the OAS Charter, the ACHR, and the Commission’s Statute and Rules of Procedure. This practice has served the purpose of providing the OAS with updated information on the human rights situation in those countries that had been the subject of the commission’s special attention; and in some cases, to report on a particular event that had taken place or was emerging or developing at the close of its reporting cycle. See: http://www.cidh.org/annualrep/2009eng/Chap.IV.eng.htm
19. As the reform process advanced, Colombia decided to change its strategy and secure that the commission make a visit to the country so it could be removed from Chapter IV of the Annual Report and be mentioned instead in the sections on follow-up visits. The visit finally took place on 3–7 December 2012. The final report is http://www.oas.org/en/iachr/reports/pdfs/Colombia-Truth-Justice-Reparation.pdf
20. See Gabriela Kletzel and Camila Barretto Maia, ‘The Challenge of Complementarity in Latin America’s New Institutional Architecture for Human Rights’, in Desafíos del Sistema Interamericano. Nuevos tiempos, viejos retos, ed. Dejusticia, CELS, Fundar, Conectas Direitos Humanos and DPLF (Bogota: Colección Dejusticia, August 2015), Chapter 1. Available in Spanish at: http://www.cels.org.ar/common/documentos/Desaf%C3%ADos_del_sistema_interamericano_de_derechos_humanos.pdf
21. By then, the Office of the Special Rapporteur for Freedom of Expression had made pronouncements on several occasions about the case of the El Universo newspaper in that country. See in this regard the ‘IACHR’s Special Rapporteurship for Freedom of Expression’, Press Releases R104/11,R20/12,R72/11andR32/11, http://www.oas.org/en/iachr/expression/artListCat.asp?year=2011&countryID=16&lID=1&catID=1. See also IACHR, LPM406/11-Emilio Palacio, Carlos Nicolás Pérez Lapentti, Carlos Pérez Barriga and César Pérez Barriga, Ecuador. Available at: http://www.oas.org/en/iachr/expression/jurisprudence/decisions_iachr_precautionary.asp (see 2012).
22. In his speech at the OAS General Assembly in Bolivia, President Evo Morales said: ‘[t]o re-found the OAS, the universalisation of the Inter-American Commission is important so that it may supervise the realisation of human rights not only in Latin America but also in the United States, and if they don’t want to protect human rights in the United States, it’d be better for the IACHR to disappear.’ See ‘Evoexigerefundar la OEA para que no esté sometida a EE.UU’, http://www.la-razon.com/nacional/Evo-refundar-OEA-sometida-EEUU_0_1626437377.html
23. See ‘IACHR Regrets Decision of Venezuela to Denounce the American Convention on Human Rights’, 12 September 2012, http://www.oas.org/en/iachr/media_center/PReleases/2012/117.asp
24. See Resolution OEA/Ser.PAG/RES.1(XLIV-E/13) rev.1, ‘Results of the Process of Reflection on the Workings of the Inter-American Commission on Human Rights with a View to Strengthening the Inter-American Human Rights System’.
25. See IACHR, Resolution 1/13, about the reform of the Rules of Procedure, Policies and Practices, http://www.oas.org/en/iachr/decisions/pdf/Resolution1-2013eng.pdf
26. IACHR, ‘Consultation for the Strategic Plan 2016–2020’, http://www.oas.org/en/iachr/reports/questionnaires.asp
27. Ibid.
28. IACHR, ‘Severe Financial Crisis of the IACHR Leads to Suspension of Hearings and Imminent Layoff of Nearly Half its Staff’, 23 May 2016, http://www.oas.org/en/iachr/media_center/PReleases/2016/069.asp
29. IACHR, ‘IACHR Urges Member States to Redouble Efforts to Overcome IACHR Financial Crisis and Announces Consultation of its Strategic Plan’, http://www.oas.org/en/iachr/media_center/PReleases/2016/074.asp
30. Ibid.
31. The IACHR has dedicated a special section of its website to the financial crisis. The site includes information on those states that have pledged to provide more funds to the IACHR. See: http://www.oas.org/en/iachr/media_center/crisis-support.asp
32. In the last OAS General Assembly, member states were not able to come up with a definitive solution to the IACHR’s crisis. Their commitment to ‘attain full financing’ through the OAS Regular Fund went as far as to instruct the General Secretariat to include in the OAS ‘Program-Budget, through consultations with the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights, measures to address the critical situation of those organs and to submit proposals to strengthen their financial sustainability in the medium and long term.’
33. In fact, CELS was founded in 1979, in the context of state terrorism in Argentina in the framework of the IACHR’s visit to the country.
34. IACHR, Strategic Plan 2011–2015, https://www.oas.org/en/iachr/docs/pdf/IACHRStrategicPlan20112015.pdf
35. Clearly we are not including here all of the issues that we understand deserve the IACHR’s attention. For example, although it is not specified in this section, we believe it is indispensable that it continue its efforts to ensure that the right to communitarian property of indigenous communities in the region be made a reality.
36. IACHR, Report ‘The Right to Truth in the Americas’, 13 August 2014, http://www.oas.org/en/iachr/reports/pdfs/Right-to-Truth-en.pdf
37. ‘Report of the Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program’, 9 December 2014, http://www.intelligence.senate.gov/press/committee-releases-study-cias-detention-and-interrogation-program
39. The author thanks Paula Litvachky for her contributions on this issue.
40. On this point see, IACHR, ‘Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, Principle XVII’, http://www.oas.org/en/iachr/mandate/Basics/principlesdeprived.asp
41. IACHR, ‘Report on Citizen Security and Human Rights’, 31 December 2009, https://www.oas.org/en/iachr/docs/pdf/CitizenSec.pdf
42. CELS, ‘The Impact of Drug Policy on Human Rights: The Experience in the Americas’, 2015, http://www.cels.org.ar/documentos/?info=publicacionesTpl&ids=3&lang=es&ss=126. The author thanks Luciana Pol for her contributions on this matter.
43. OHCHR, ‘Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights’, 4 September 2015, A/HRC/30/65, http://www.ohchr.org/EN/HRBodies/HRC/Pages/WorldDrugProblem.aspx. The report was prepared by the OHCHR at the request of the UN Human Rights Council in its first resolution on drug policies and human rights. See, Human Rights Council, ‘Contribution of the Human Rights Council to the Special Session of the General Assembly on the World Drug Problem of 2016’, A/HRC/RES/28/28, 2 April 2015, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/28/28
45. IACHR, hearing on ‘Drug Policies and Human Rights in the Americas’, 25 March 2014, https://www.oas.org/es/cidh/audiencias/hearings.aspx?lang=en&session=134
46. Included here are considerations set forth in a document that we presented during a regional hearing on ‘Social Protest and Human Rights’ before the IACHR (16 March 2015). See in this regard: http://oas.org/es/cidh/multimedia/sesiones/154/default.asp
48. Since October 2013, the commission has held two hearings on the ESCR of peasants in Latin America. They were granted at the request of the Latin American Coordinator of Rural Organisations (CLOC, Vía Campesina) and CELS. See: http://www.oas.org/en/iachr/media_center/PReleases/2013/083A.asp. A video of the first hearing is available at: http://www.oas.org/es/cidh/multimedia/sesiones/149/2martes29b.asp. See also CELS, ‘The ESCR Situation of Peasants in Latin America’. http://cels.org.ar/comunicacion/index.php?info=detalleDoc&ids=4&lang=es&ss=46&idc=1701
49. In recent years, the IACHR has advanced on analysing this issue. In this framework it has carried out several public hearings in which it was at the centre of the agenda. See, for example, IACHR, hearing on ‘Corporations, Human Rights, and Prior Consultation in the Americas’ (Empresas, derechos humanos y Consulta previa), 154th period of sessions, Tuesday, 17 March, http://www.oas.org/es/cidh/multimedia/sesiones/154/default.asp
50. The sole provision that refers to economic, social and cultural rights in the Convention is found in Chapter III, Article 26.
51. Among them are the reports entitled, ‘Access to Justice as a Guarantee of Economic, Social, and Cultural Rights’, http://www.cidh.oas.org/countryrep/AccesoDESC07eng/Accesodesci-ii.eng.htm; and ‘Guidelines for Preparation of Progress Indicators in the Area of Economic, Social and Cultural Rights’, http://www.cidh.org/countryrep/IndicadoresDESC08eng/Indicadoresindice.eng.htm
52. The author appreciates Camila Barretto Maia’s contributions on this point.
53. V. Abramovich, ‘From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-American Human Rights System’, Revista Sur, no. 11 (2009). Please see: http://www.scielo.br/scielo.php?pid=S1806-64452009000200002&script=sci_arttext&tlng=en
55. In this sense, see the IACHR’s report after its visit to Mexico between 28 September and 2 October 2015, http://www.oas.org/en/iachr/reports/pdfs/Mexico2016-en.pdf