OAS Elects Four Commissioners to Inter-American Commission on Human Rights
On June 28, 2019, the 49th General Assembly of the Organization of American States (OAS) re-elected Commissioners Margaret May Macaulay (Jamaica) and Esmeralda Arosemena de Troitiño (Panama) to serve a second full term on the Inter-American Commission on Human Rights (IACHR), and elected two new commissioners, Julissa Mantilla Falcón (Peru) and Edgar Stuardo Ralón Orellana (Guatemala). [OAS Press Release] By January 2020, when the elected commissioners begin their terms, the IACHR’s composition will consist of five female commissioners and two male commissioners – the highest female to male ratio in the history of the IACHR. Mantilla Falcón was endorsed as a qualified commissioner in the 2019 report by the Independent Panel for the Election of Inter-American Human Rights Commissioners, a part of the Initiative on Transparency and Election Monitoring housed at American University’s Washington College of Law. See Mariclaire Acosta, et al., Abridged Version of the Report from the Independent Panel of Experts for the Evaluation of Candidates for the Inter-American Commission on Human Rights (2019). However, the Panel and civil society members objected to Ralón Orellana’s nomination and election, citing concerns over his limited human rights experience as well as his independence and impartiality.
The Commissioners’ Profiles
Esmeralda Arosemena de Troitiño (Panama) is a judge and professor who has served on the IACHR since 2015 and is the current IACHR President. See IJRC, Inter-American Commission on Human Rights: 2019 Elections. See id. Prior to joining the IACHR, she was a Justice and Vice President of Panama’s Supreme Court. See id. She also presided over the Chamber for Criminal Cases and was a judge on the High Court on children and adolescent affairs. See id. Previously, she participated in the Special Commissions that proposed and elaborated the Code of Constitutional Procedures in Panama. See id.
Margaret May Macaulay (Jamaica) is a lawyer and professor, whose work has focused on human rights, constitutional, property, and family law. See id. She has served as a Commissioner on the IACHR since 2016. Formerly, she also served as a judge on the Inter-American Court of Human Rights from 2007 to 2012. See id. Macaulay has experience serving as Mediator in the Supreme Court of Jamaica and took part in reforming and drafting laws in the country. See id.
Julissa Mantilla Falcón (Peru) is a lawyer and professor. See id. She also works as an international consultant on gender, transitional justice, and international human rights law. See id. Formerly, she participated in the work of the International Missions on Promotion and Protection on Human Rights in Colombia and El Salvador, and has been appointed as an expert in cases before both the IACHR and the Inter-American Court. See id.
Edgar Stuardo Ralón Orellana (Guatemala) is a partner and founder of the law firm Ralón Orellana y Asociados, mostly representing business interests. See id. He has litigated constitutional rights cases before Guatemalan courts and provides legal commentary in the media from the viewpoint of constitutional “originalism.” See id. He has also taught at various universities in Guatemala. See id.
The Independent Panel
Civil society organizations convened the Independent Panel for the Election of Inter-American Human Rights Commissioners to assess the five candidates and the election process. [CEJIL Press Release] The Panel conducted its assessment of each candidate based on five criteria: 1) high moral authority, 2) recognized competence in the field of human rights, 3) independence, impartiality, and conflict of interest, 4) contribution to a balanced and representative composition of the organization, and 5) processes of nomination at a national level. See Abridged Version of the Report from the Independent Panel of Experts for the Evaluation of Candidates for the Inter-American Commission on Human Rights, 6. The Panel reviewed candidates’ responses to a questionnaire, writings and statements they have made, and the content of the work they have produced throughout their careers to determine if they were qualified for recommendation by the Panel. See id. It also received and analyzed information submitted by civil society organizations and conducted research of its own to aid in the corroboration of that information. See id. Additionally, on May 21, 2019, three of the candidates participated in a dialogue with civil society organizations to share their views on challenges in the Inter-American human rights system and to discuss their qualifications.
While the Panel concluded that Mantilla Falcón, Macaulay, and Arosemena de Troitiño are all well qualified to serve on the IACHR, the Panel found that Commissioner-elect Ralón Orellana lacks sufficient experience in international human rights to serve on the IACHR and poses a risk to independence and impartiality given that his positions on human rights matters align with those of the Guatemalan government. See id. at 11-12, 15. The Panel considered that his extensive career as a constitutional attorney did not imply “knowledge or adequate use of international, human rights rules, jurisprudence, and doctrine,” and noted with concern that Ralón Orellana’s law firm and a company in which he holds shares were included in the Panama Papers, suggesting potential tax evasion. See id. at 15.
Additionally, the Panel analyzed deficiencies in the Inter-American nomination and election process, and made recommendations to both the OAS and States parties. See id. at 16-18. The Panel considered that the OAS has not established minimum requirements for selecting candidates to the IACHR, and recommended that the OAS establish an Advisory Committee to ensure that nominees are qualified to serve as commissioners and to publish a report on the nominees in a timely manner. See id. 19-20. Moreover, the Panel recommended that States and the OAS take into account the need for diverse candidates in the areas of gender and gender identity, sexual orientation, ethnic origin, and areas of expertise, for example. See id. at 19-20.
These efforts are part of an initiative that began in 2015 as a collaboration among Open Society Justice Initiative, the Due Process of Law Foundation, and the Center for Justice and International Law to increase transparency in the Inter-American human rights system. See Washington College of Law, The Initiative on Transparency and Election Monitoring in the Inter-American Human Rights System. This year, the Panel members were: Mariclaire Acosta, President of Oxfam Mexico; Carlos Ayala, Vice President of the International Commission of Jurists; Catalina Botero, Dean at the Universidad de los Andes Law School; Juan Mendez, Professor of Human Rights Law at American University Washington College of Law; and Judith Schönsteiner, Associate Professor of Law at the Human Rights Center of the Universidad Diego Portales. See id. The Center for Human Rights and Humanitarian Law at the American University Washington College of Law served as the Independent Panel’s Secretariat. See id.
The OAS General Assembly, which meets annually in June, elects commissioners to the IACHR from a list of nominees that have been proposed by OAS Member States, as described in Article 36(1) of the American Convention on Human Rights. To be considered “qualified” under the American Convention, each candidate must be a national of an OAS Member States, be of “high moral character,” and have “recognized competence in the field of human rights.” See American Convention on Human Rights, art. 34. Article 8 of the Statute of the Inter-American Commission on Human Rights further states that “Membership on the Inter-American Commission on Human Rights is incompatible with engaging in other functions that might affect the independence or impartiality of the member or the dignity or prestige of his post on the Commission.” Commissioners are elected to a four-year term that takes effect on January 1 of the year following their election, with the possibility of being re-elected once. See id. at art. 37.
At least six months prior to the end of a commissioner’s term, the OAS Secretary General asks Member States to submit candidates for nomination within 90 days. See Statute of the Inter-American Commission on Human Rights, art. 4(1). The Secretary General then sends the list of candidates to Member States at least 30 days prior to the General Assembly session when elections will be held. States cast their votes by secret ballot. See id. at art. 4(2). Candidates who receive an absolute majority and the largest number of votes are elected as commissioners. See id. at art. 5. The General Assembly may hold successive rounds of voting, eliminating the nominees that receive the fewest number of votes, until one candidate receives a majority for each open position. See id.
Gender Parity in Human Rights Bodies
The greater female representation on the IACHR comes despite a lack of formal requirements to ensure adequate gender representation. While the OAS General Assembly has issued resolutions calling on States to “ensure balanced gender representation and equitable regional geographic representation…while guaranteeing the requirements of independence, impartiality, and recognized competence in the field of human rights,” there are no formal rules or standards imposing specific obligations on States. See OAS General Assembly, Promotion and Protection of Human Rights, AG/RES. 2928 (XLVIII-O/18), 5 June 2018, para. xviii(1). However, other human rights bodies do impose rules regarding gender composition. For example, the Protocol to the African Charter requires an adequate gender balance in the selection of judges to the African Court of Human and Peoples’ Rights with details for implementation spelled out in a formally adopted decision. See African Union Commission, Decision on the Modalities on Implementation of Criteria for Equitable Geographical and Gender Representation in the African Union Organs, Doc. EX.CL/953(XXVIII), paras. 1-2. Additionally, when electing judges to serve on the European Court of Human Rights, the Parliamentary Assembly of the Council of Europe will consider a single-sex list of candidates when one sex composes less than 40 percent of the total judges on the court. See Committee on the Election of Judges to the European Court of Human Rights, Procedure for Electing Judges to the European Court of Human Rights (2018), para. 8.
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