In March 2013, the General Assembly of the Organization of American States (OAS) plans to hold a special session in which it will consider and potentially adopt a series of controversial proposals for reforming the Inter-American Commission on Human Rights (“Commission” or “IACHR”). The adoption of the proposals will mark the culmination of a nearly two-year process that began in June 2011, when the Permanent Council of the OAS created a Special Working Group to study the work of the Commission and make recommendations as it deemed necessary.
Ostensibly, the recommendations are intended to strengthen the Commission, but the process has been marred since its inception by concerns expressed by civil society and the Commission itself that the process has the potential to undermine the Commission’s autonomy, restrict its discretion and alter its procedures in favor of States (and at the expense of victims), and weaken the Commission’s ability to report on and protect human rights throughout the Americas.
The reform process is all the more controversial because: 1) several of the States pushing the reforms have been openly hostile to the Commission and its decisions in cases brought against them; 2) the power to decide whether and how to accept and implement the proposed reforms has been placed with the OAS political organs, rather than with the Commission itself; and, 3) consultation by the political organs with victims and civil society users of the Inter-American system has been extremely limited.
Special Working Group’s Mandate
Following its creation in June, 2011, the Special Working Group has focused on specific perceived weaknesses of the Inter-American human rights system, as well as on parts of the Commission’s mandate that are controversial to some States. These issues were first loosely defined by the Special Working Group in July, 2011 and included the following issues of concern to Member States:
- appointment of the Executive Secretary
- medium and long-term challenges facing the Inter-American system, including:
- non-universality of the American Convention on Human Rights and other regional instruments among Member States
- insufficient focus by the Commission on its promotion mandate
- mechanisms for consultation with all users of the system
- lack of transparency regarding criteria for setting priorities and measuring results
- non-permanent functioning of the Commission, especially its president
- presentation of rapporteurs’ reports
- criteria for granting precautionary measures
- timeframe and decision-making criteria in processing of individual petitions
- procedure and criteria for supporting the negotiation of friendly settlements
- structure and focus of Chapter IV of the IACHR annual report, which highlights States with particularly worrisome human rights conditions
- financial support for the Inter-American system
The Proposed Reforms
In December, 2011, the Special Working Group adopted its Report of the Special Working Group to Reflect on the Workings of the Inter-American Commission on Human Rights with a View to Strengthening the Inter-American Human Rights System, which was subsequently approved by the Permanent Council in January, 2012. The report includes proposed changes to the Commission’s Rules of Procedure and to its institutional policies and practices.
As summarized by the Commission, the proposals concerning potential changes to the Rules of Procedure address: individual petitions and cases, including friendly settlements; precautionary measures; monitoring of the situation in Member States, including in Chapter IV of the Annual Report; and promotion of human rights (versus protection). Other proposals focused on: a permanent presidency for the Commission; its financing and allocation of resources to competing priorities (e.g., to the Special Rapporteur on Freedom of Expression); content and organization of the Annual Report; and, dissemination of criteria and jurisprudence (including preparation of manuals).
The most controversial of the proposed reforms include those that would:
1. restrict the Commission’s discretion in granting precautionary measures, in particular by requiring:
- “more precise objective criteria” for granting measures and in determining whether the situation is serious and urgent
- that precautionary measures granted without previous consultation with the State be reviewed as soon as possible in consultation with the State
- that the Commission provide the legal and factual justification for granting precautionary measures including by listing the articles protecting the human rights raised in the request for and any related petition, and
- that the Commission refrain from granting precautionary measures where the Inter-American Court has declined to do so. See Report of the Special Working Group, § VIII(ii)(2(A).
2. modify Chapter IV of its Annual Report, by recommending the Commission:
- revise the criteria, methodology, and procedure for preparing Chapter IV;
- cover all countries of the region in Chapter IV of the Annual Report, as opposed to only those with the most pressing human rights concerns. Id. § VIII(ii)(5).
3. reduce the activities of and funding for the Special Rapporteur on Freedom of Expression, including by:
- incorporating all rapporteur’s reports under a single chapter of its annual report, as opposed to allowing the Special Rapporteur to continue publishing her own annual report. Id. § VIII(ii)(1)(A)(i))
- assigning “balanced resources” to all its rapporteurships, working groups, and units. Id. § VIII(ii)(7)(B)(c).
4. require the Commission to dedicate more time and resources to promotion of human rights (at the expense of deciding individual complaints). See id., § VIII(ii)(6)(A).
5. impose restrictions on the Commission’s decisions regarding individual complaints, including by proposing the Commission:
- “rigorously apply” criteria for admissibility of petitions;
- broaden the criteria for archiving (closing) petitions that have been opened for processing;
- impose deadlines for each procedural stage;
- provide justification and reasoning for joining the admissibility and merits reports;
- establish mechanisms for determining and individually identifying alleged victims;
- provide an updated version of the facts to States when petitions are opened for processing a considerable time after being submitted (requiring the Commission to request additional information from petitioners before deciding that the complaint meets the minimum requirements for processing);
- grant “reasonable deadlines and extensions” to States to provide observations on petitions and to report on implementation of the Commission’s recommendations.
While other proposals included within the recommendations would likely improve the transparency of the Commission’s work and increase access for victims – such as through the proposed mechanism allowing parties to access their case records electronically, and an improved database of Commission decisions and materials – these initiatives are already priorities for the Commission, as identified in its 2011-2015 Strategic Plan.
Moreover, the implementation of these and other recommendations requires additional financial support for the Commission, which despite getting an increase for next year, will be allocated only around 6% of the OAS regular budget. In fact, some of the same States pushing the reforms, voiced their objection to any increase in the Commission’s budget, with Venezuela and Nicaragua finding the increase an “unacceptable” support of “intolerable practices and policies,” while Bolivia opined that the Commission’s budget should be contingent on its implementation of the Special Working Group’s recommendations.
Civil Society Reaction
Civil society organizations have also criticized the process for what they consider to be a lack of transparency. In addition to limited opportunities for engagement with the OAS, these organizations have expressed concern over the fact that a number of countries that have criticized the Commission’s rulings in the past – such as Brazil, Colombia, Venezuela, and Peru – are members of the Special Working Group.
In April 2012, the Commission issued its own response to the Report, in Position Document on the Process of Strengthening of the Inter-American System for the Protection of Human Rights. The Commission identified four challenges it is currently facing: universality, resources, compliance, and effective access of victims. The Commission welcomed the fact that several of the Special Working Group’s recommendations called for increasing the resources of the Commission. Nonetheless, the Commission also included a statement issued by civil society expressing concerns over the content and timing of the recommendations. The Commission also highlighted progress it has already made in several areas covered by the Report and stated its intention to carry out its own reflection process, one which has included consultation with Member States and civil society, with a view to strengthening the Inter-American System.
In October, 2012, after the Permanent Council began developing proposals for implementing the Special Working Group’s recommendations and invited stakeholders to contribute, the IACHR prepared a second Reply to the proposed reforms. The Reply reviews the Commission’s plan and activities to strengthen its procedures and functioning, and identifies in detail the steps the Commission is willing to undertake, or has undertaken, to implement some of the Special Working Group’s recommendations.
On specific proposals, however, the Commission makes clear that it does not intend to implement the proposed changes and cites opposition from civil society and States. For example, the Commission resisted the recommendation that it combine all rapporteurs’ reports into one report (thereby eliminating the Special Rapporteur on Freedom of Expression’s report), referring to vociferous opposition by civil society and by some governments.
It similarly resisted the proposal that the IACHR adopt additional means of individually identifying victims and beneficiaries of precautionary measures, explaining that there must be some flexibility with regard to groups and communities collectively facing a specific human rights violation. And, on the issue of giving States additional time to implement Commission decisions on petitions and precautionary measures, the IACHR reiterated that any accommodation of States should not “have the effect of thwarting the useful purpose of precautionary measures” and “must recognize” the “uneven playing field” between victims (who may be without counsel and come from impoverished, marginalized communities) and States ” in order to not extend to the supranational arena the obstacles to access to justice, which unfortunately are prevalent in some countries of the region.”
With regard to Chapter IV of the Annual Report, the Commission rejected the proposal that all States be analyzed, stating:
The purpose of Chapter IV is to analyze the situation in certain countries regarding which the Commission has particular concerns. That does not prevent the situation in countries not included in Chapter IV from being addressed by the Commission through its other mechanisms.
In other aspects, the Commission highlighted the need for additional resources in order to implement the recommendations.
The Commission sees the reform process, particularly if the result is a series of changes imposed on it without its consent, as a true threat to its legitimacy and mandate. In the words of the Commission’s Chair, José de Jesús Orozco:
What is at stake, let no one doubt, is the legacy that the States, civil society, and the inter-American bodies themselves have built so that current and future generations throughout the hemisphere can enjoy their human rights. This is about regional guarantees and effective mechanisms to ensure that nobody in the Americas feels defenseless when it comes to his or her most basic rights and that the States—through their current and future governments—see themselves as bound to respect those values that at some point, in the exercise of their sovereignty, they embraced and made an international commitment to safeguard.
The Reform Process Going Forward
In June 2012, the General Assembly of the OAS adopted Resolution AG/RES.2761, which instructed the Permanent Council to draft proposals for application of its recommendations “in dialogue with all the parties involved.” The Resolution scheduled the presentation of the proposals for consideration by the General Assembly “within a period of six months or no later than the first quarter of 2013.” The Permanent Council has since adopted a Work Plan for carrying out this task in four phases, with its proposals to be finalized by the end of February, 2013. The timeline below identifies the steps that have been taken and those that will be carried out over the next four months.
As part of the third phase of its plan, the Permanent Council has begun a dialogue with Member States and the Commission on the recommendations contained in the Report for the purposes of drafting proposals. Civil society continues to call on the Permanent Council to provide more opportunities for civil society and users of the inter-American system, including victims of human rights violations and their relatives, to participate in these sessions. Pursuant to its pledge to study the Report’s recommendations and evaluate its own work, the Commission has held a series of hearings on the matter.
Given the significant role the Commission has played in promoting and protecting human rights in the region, the proposed reforms have attracted the attention of those outside the human rights community, as well. The LA Times called on the thirty-five Member States that make up the OAS to reject the Special Working Group’s recommendations. The Economist, also skeptical of the recommendations, has noted that if the reforms are adopted they will mark the first change to the Commission’s powers without the Commission’s own consent since its creation.
Timeline of the Reform Process
- June 29, 2011: Permanent Council of the OAS creates the Special Working Group, which meets through the summer of 2011
- December 13, 2011: Special Working group issues its Report
- January 25, 2012: Report of the Special Working Group is approved by the Permanent Council
- January 27, 2012: Permanent Council adopts recommendations of the report. Representatives of civil society deliver their concerns over the reform process to the OAS; document is later incorporated into the Commission’s Position Paper
- March 28, 2012: Commission holds a hearing on the Process for the Strengthening of the Inter-American System of Human Rights during its 144th Session. The hearing is part of the Commission’s in-depth examination of its procedures and mechanisms launched during the Session. Representatives of over 700 civil society organizations present their concerns during the hearing
- April 9, 2012: Commission issues its Position Paper on the strengthening process
- May 30, 2012: Commission holds the first Regional Seminar on the Report recommendations
- June 5, 2012: OAS General Assembly adopts Resolution AG/RES.2761, charging the Permanent Council with drafting proposals for implementing the Special Working Group’s recommendations, for consideration during a future special session of the General Assembly. The Commission presents its Annual Report to the General Assembly, highlighting the Commission’s history and calling for universal ratification of Inter-American instruments and increased funding by States.
- July 16-20, 2012: During its 145th Session, the Commission develops an agenda for its process of reform, which includes addressing the concerns and recommendations presented in the Special Working Group’s report
- August 22, 2012: Commission holds the first in a series of Regional Forums throughout the hemisphere on strengthening the Inter-American System
- September 10, 2012: Permanent Council adopts its Work Plan to prepare proposals on implementing the Special Working Group’s recommendations, comprising a four-phase drafting and consultation process. Long-time critic of the Commission and member of the Special Working Group, Venezuela denounces the American Convention on Human Rights.
- September 11, 2012: The Center for Justice and International Law (CEJIL) launches “Now is the Time to Defend the Inter-American System of Human Rights” campaign. Human rights activists, individuals, and former government officials sign the Bogota Declaration, affirming their commitment to human rights and the Inter-American Human Rights System.
- September 20, 2012: Permanent Council invites all stakeholders to submit written proposals for implementation of the recommendations by October 31. Member States and civil society organizations respond.
- October 23, 2012: Commission presents its Reply to the recommendations to the OAS
- October 31, 2012: Commission holds two hearings on the Strengthening of the Inter-American System of Human Rights during its 146th Session
- November 7, 2012: OAS Member States, in a special meeting of the Permanent Council, begin a dialogue with the Commission on the Strengthening of the Commission
- November 15, 2012: Secretary General of the OAS announces that the budgets of the Commission and Inter-American Court of Human Rights have been increased by eleven percent at a Special Meeting of the General Assembly
- November 26, 2012: Permanent Council scheduled to hold a public meeting for discussion of the recommendations regarding Chapter IV of the Annual Report, the Commission’s promotion mandate, and financial support for the Inter-American System. This meeting had been originally scheduled for November 16.
- December 5, 2012: Permanent Council scheduled to hold public meeting for discussion of the recommendations
- December 7, 2012: Permanent Council scheduled to hold two Extraordinary Sessions for civil society to provide input on the proposed reforms, from 10:00 a.m. to 1:00 p.m. and 2:30 to 5:30 p.m., in the Hall of the Americas at the OAS headquarters in Washington, DC.
- January 1 – February 28, 2013: As part of its Work Plan, the Permanent Council plans to prepare a report containing its proposals, as well as their budgetary implications, for consideration by the General Assembly
- March 2013: Planned special session of the General Assembly where the proposals of the Permanent Council will be considered for adoption
For additional information, see IJRC’s instructional video and advocacy manual on the Inter-American System, in addition to a recent IJRC news post and Inter Press Service news article on the reform process.