On September 10, 2012 the Government of Venezuela denounced the American Convention on Human Rights (the American Convention). Pursuant to Article 78 of the American Convention, the Government of Venezuela officially made its denunciation through a letter delivered to the Secretary General of the Organization of American States (OAS), José Miguel Insulza.
When the withdrawal takes effect in one year’s time, Venezuela will no longer be bound by the American Convention, meaning complaints against it cannot be brought before the Inter-American Court of Human Rights. Additionally, while the Inter-American Commission on Human Rights will retain its authority to monitor human rights conditions in Venezuela, its jurisdiction over individual complaints will extend only to alleged violations of the American Declaration of the Rights and Duties of Man (as is the case with other OAS Member States not party to the American Convention, such as the Bahamas, Canada, and the United States). For a comprehensive explanation of the Inter-American system for the protection of human rights, see IJRC’s animated video and accompanying manual on advocacy before the Inter-American Commission and Court.
Venezuela’s decision to withdraw from the American Convention has been met with concern by both the Inter-American Human Rights System and the international community as a whole, and comes amid a movement led by Venezuela and other Latin American countries to “reform” the Commission by limiting its authority.
Secretary Insulza stated that he “regrets the decision taken by the government of Venezuela to denounce this legal instrument, one of the pillars of the legal regulations that protect the defense of human rights in the hemisphere.” This sentiment was echoed by the Commission itself in a press release. Meanwhile, United Nations High Commissioner for Human Rights Navi Pillay, urged Venezuela to reconsider its withdrawal, expressing her concern that the decision would be “a serious setback for human rights protection in Venezuela and the region as a whole.”
Prior to Venezuela’s formal decision to withdraw from the American Convention, Venezuelan President Hugo Chávez announced the formation of a committee to look into withdrawing from the Inter-American Commission. This announcement was also met with concern from the international community. In Resolution 2012/2653(RSP), the European Parliament expressed its fear that “withdrawal from the Inter-American System could lead to the isolation of Venezuela and the further deterioration of its human rights record” and urged Venezuela to reconsider and comply with its international and regional treaty obligations.”
Venezuela’s denunciation of the American Convention does not come as a surprise, considering the longstanding tension between the South American country and the Inter-American System. President Chávez has accused the Commission of “campaigning against his government and acting at the behest of the United States.” [Washington Post]
The Venezuelan president, who is seeking reelection to a fourth term, has long asserted that the Commission demonstrated its bias against him by recognizing the de facto government that took power during a short-lived coup d’état in April, 2002, when the Commission wrote the government asking for information regarding the whereabouts of Chavez in response to a request for precautionary measures made on his behalf. At the time, the Commission expressed its concern that the coup – reported at the time as a resignation – could violate the democratic order and condemned the related acts of violence. Later in 2002, the Commission accepted an invitation by Venezuela to visit the country and its resulting report documented a series of human rights abuses principally committed by or with the apparent acquiescence of the Chávez government. Venezuela has not permitted the Commission to visit the country since. [European Parliament Resolution 2012/2653(RSP)]
In recent years, the Commission has provoked the ire of President Chávez by criticizing his government’s human rights record. For nearly every year of the past decade, Venezuela has been included in Chapter IV of the Commission’s annual report, which highlights the small group of countries with the worst human rights practices in the Americas. In 2009, the Commission published its report Democracy and Human Rights in Venezuela, in which it drew attention to a range of persistent human rights concerns in the country. The report includes the government’s statement to the Commission that:
the only way the government of president Chávez would accept another on‐site visit would be if the following requests were complied with: (1) that the Commission publicly acknowledge its error in recognizing the coup d’état of April 11, 2002; (2) the substitution of the executive secretary [and] the naming of a new Rapporteur for Venezuela; [and] (3) the reformation of the rules of procedure of the Commission to guarantee transparency, independence, and plurality of thought in the heart of the system for the protection of human rights.
Democracy and Human Rights in Venezuela, para. 7.
The 2009 report and recent decisions and judgments issued by the Commission and Court have focused on: the poor conditions in Venezuelan prisons, attacks on the independence of the judiciary, harassment and restriction of journalists and non-State media outlets, and politically-motivated prosecution and disqualification of opposition politicians, in addition to extrajudicial executions by police. See, e.g., I/A Court H.R., Case of the Barrios Family v. Venezuela. Merits, reparations and costs. Judgment of November 24, 2011. Series C No. 237; Case of López Mendoza v. Venezuela. Merits, reparations and costs. Judgment of September 1, 2011. Series C No. 233; Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary Objection, merits, reparations and costs. Judgment of August 5, 2008. Series C No. 182; Matter of Certain Venezuelan Prisons. Provisional Measures regarding Venezuela. Order of July 6, 2011. Matter of “Globovisión” Television Station. Provisional Measures with regard to Venezuela. Order of January 29, 2008. See also precautionary measures granted by the Commission in 2010 and 2011.
Most recently, President Chávez objected to the ruling of the Inter-American Court in the case of Raul Díaz Peña. The Court held that Venezuela had violated Díaz Peña’s rights under the American Convention because he did not receive adequate medical treatment while he was detained prior to his trial for his alleged participation in the 2003 bombings of the Spanish Embassy and Colombian consulate in Caracas. I/A Court H.R., Case of Díaz Peña v. Venezuela. Preliminary Objections, merits, reparations and costs. Judgment of June 26, 2012. Series C No.244. President Chávez accused the Court of “supporting terrorism” by ruling in favor of Díaz Peña. [Washington Post]
The Venezuelan president has publicly criticized the Commission and its Executive Secretariat, directing particular animosity toward former Executive Secretary Santiago Canton, who since leaving the Commission earlier this year, has denounced Venezuela’s attempted interference with the IACHR’s independence.
Legal Ramifications of Venezuela’s Withdrawal
Venezuela is not the first country to attempt to withdraw from the Inter-American System. In 1999, Peru announced it was withdrawing from the contentious jurisdiction of the Inter-American Court, reportedly to avoid a ruling in a case pending before the Court concerning three constitutional justices who had allegedly been removed for ruling against then-President Fujimori running for another consecutive term. See Jo M. Pasqualucci, The Practice & Procedure of the Inter-American Court of Human Rights, p. 115-116 (2003). In the Ivcher Bronstein and Constitutional Court cases, the Inter-American Court held that Peru’s withdrawal from its jurisdiction was invalid because no provision in the American Convention provides for a State to withdraw its acceptance of the Inter-American Court’s jurisdiction.
The American Convention does, however, provide for withdrawal from the Convention itself. Article 78 states that a State party may withdraw from the American Convention by sending an official letter to the OAS General Secretary which the General Secretary must then make public to the other OAS Member States. The withdrawal does not take effect until one year following the denunciation of the Convention. The denouncing State Party therefore remains bound by the obligations set forth in the Convention with respect to any actions taken by the State prior to the effective date of the denunciation.
On May 26, 1998, Trinidad and Tobago announced its withdrawal from the American Convention in accordance with Article 78. The government had requested that the Inter-American Commission expedite its procedures in reviewing Article 5 claims pending before the Commission in order to enable Trinidad and Tobago to carry-out the death sentences of several convicted murderers in a time for their scheduled executions. See Natasha Parassram Concepcion, Comment, The Legal Implications of Trinidad & Tobago’s Withdrawal from the American Convention on Human Rights, 848 Am. U. Int’l L. Rev. 847, 850 (2002).
When the Commission refused, the Government announced its withdrawal from the Convention. Trinidad and Tobago still remained bound by the Convention between May 26, 1998 and May 26, 1999, during which time the Inter-American Court issued provisional measures ordering Trinidad and Tobago to suspend the executions until the prisoners’ claims had been resolved. Id. at 872. (These orders were ignored.)
Although Trinidad and Tobago validly withdrew from the American Convention, they did not completely withdraw from the Inter-American Human Rights System. In order to completely withdraw from the jurisdiction of the Inter-American Commission and the Inter-American Court, a State must withdraw its membership from the OAS. See,e.g., Opinio Juris. This is because the Commission serves a dual role as both a treaty-monitoring body under the American Convention and a charter body established by the Charter of the OAS. [Id.] As a charter body of the OAS, the Commission hears complaints of violations of the American Declaration on the Rights and Duties of Man. Therefore, while the Commission may no longer hear complaints alleging violations of the American Convention by a State that has denounced the Convention, it may still hear complaints alleging violations by that State of the American Declaration. [Opinio Juris; Concepicon]
Thus, so long as Venezuela is a member of the OAS, it will still be bound by the American Declaration and will remain subject to the Commission’s jurisdiction in so far as individuals assert violations of the American Declaration. However, the Commission may not refer complaints against OAS Member States not party to the Convention to the Court. Instead, the Commission may only issue non-binding recommendations to such States where the Commission has determined the State has violated the American Declaration.
Proposed Reforms and the Future of the Inter-American System
Venezuela’s withdrawal from the American Convention comes at a critical time for the Inter-American Human Rights System. Described as “one of the oldest and most effective regional human rights mechanisms,” the Inter-American Commission is credited with saving the lives of human rights defenders and other individuals through its filing of protective orders, holding military dictatorships accountable for human rights violations committed during their regimes by prohibiting amnesties for their crimes, and effectively ordering countries to try soldiers accused of human rights abuses in civilian, rather than military courts. [LA Times; Economist]
The Commission’s willingness to hold governments accountable, however, has resulted in several OAS Member States questioning the role it should play in the hemisphere. Countries including Venezuela, Ecuador, Bolivia, and Brazil, have all taken issue with unfavorable rulings issued by the Commission and the Court. The frustration of these countries and others has taken the form of calls to reform the Commission as well as threats to withdraw if the Commission is not reformed. [Economist]
In December, a Special Working Group of the Permanent Council of the OAS issued recommendations for reforming the Commission’s Rules of Procedure. During its last session, the OAS General Assembly approved the recommendations of the Special Working Group and voted to draft a new reform plan incorporating the recommendations to be confirmed at an Extraordinary Session following a six month debate. [CEJIL]
Representatives of civil society have complained that the ongoing debate within the OAS lacks transparency and fear that some of the recommendations will weaken the Commission. [CEJIL] Human rights organizations have noted that countries that have recently criticized the Commission, such as Brazil, Colombia, Venezuela, and Peru, are members of the Special Working Group. [CEJIL] According to these organizations, some of the recommendations – particularly those concerning the procedures for filing precautionary measures and the work of Special Rapporteur on Freedom of Expression – could be seen as reactions to recent actions of the Commission.
Human rights defenders throughout the Americas have advocated for public solidarity with, and defense of the Commission, including on this site. Last week, representatives of over 700 civil society organizations across the Inter-American System as well as former heads of State signed a declaration proclaiming their support for the work of the Commission and the need maintain the Commission’s authority and independence. If the draft plan for reform is approved, it would mark the first change to the Commission’s authority without its consent since its founding over fifty years ago. [Economist]
In parallel, the Commission is undertaking its own initiatives aimed at assessing the need for reform, in consultation with civil society and governments. Throughout 2012, the IACHR is hosting a series of events, including public forums and hearings, as part of its Process for Strengthening the IACHR.