Family members and supporters of 43 missing students in southern Guerrero State protest in Mexico City. 26 April 2016. AP Photo/Rebecca Blackwell.
The regional human rights institution in the Americas, the Inter-American Commission on Human Rights (IACHR), publicly announced on 23 May that it is in deep financial crisis. If no emergency funding is found by mid-June, the Commission will lose 40% of its staff by the end of July. The impact of these forced cuts on the human rights protection and promotion in the 35 member states of the Organization of American States (OAS) will be devastating.
Human rights on a shoestring
The Commission has historically been operating on a shoe-string budget, stemming from the combination of a continuously increasing workload and a failure of OAS Member States to allocate anything near the necessary resources for it to adequately carry out its mandate. Yet, the financial situation of the Commission has now become particularly acute. As reported by the Commission in its 23 May press release:
“There is a deep discrepancy between the mandate the Member States of the Organization of American States (OAS) have given the IACHR and the financial resources they allocate to it. The regular budget of the IACHR this year is less than 5 million dollars, which amounts to $0.005 per person in the hemisphere per year. The staff of the Commission financed by the OAS regular fund consists of 31 people; in other words, it has fewer employees than countries under its jurisdiction. The other 47 employees are financed with donations, which can be unstable and unpredictable, as the current crisis shows.”
In addition to the announced loss of 40% of its staff, the Commission will cancel all fact-finding and promotional visits to countries that it had planned for this year and it will not carry out its July and October regular sessions at which, among other core activities, thematic and country-specific hearings are held.
To make matters even worse, the Inter-American Court of Human Rights, which together with the Commission makes up the Inter-American Human Rights System (IAHRS), is in a similarly grave financial situation. The Court is already operating with the smallest budget of any international tribunal. In March this year, moreover, the Court’s President stated before the OAS Permanent Council that the Court had lost 25% of its budget following the withdrawal of funds from international donors. What is currently at stake, in other words, is the very future of the IAHRS, as the financial crisis facing the Commission threatens to effectively dismantle the most important human rights institution in the Americas region.
The Inter-American Human Rights System matters
The Commission was created in 1959 by OAS Member States with the mandate to ensure that human rights were promoted and protected in the hemisphere. Since then, the Commission has travelled across the region documenting human rights violations through on-site visits. It has published multiple thematic and country reports on a broad spectrum of rights. Through its thematic reports, development of policy guidelines, and technical assistance to governments, the Commission has advanced human rights standards, in such diverse areas as freedom of expression, women’s rights, rights of persons deprived of liberty, indigenous rights, land rights, and LGBTI rights, to name just a few. The Commission has granted protection measures to people in imminent danger, particularly in response to demands from human rights defenders in Latin America facing serious threats and intimidation, but also in aid of prisoners facing the death penalty in the U.S. Together with the Inter-American Court, the Commission has also played a central role in dealing with human rights violations committed in times of conflict or repression and has crafted significant transitional justice standards on truth, justice, reparation and guarantees of non-repetition.
Above all, the Commission has become a central international justice mechanism for people in the hemisphere who have been denied justice at home. There is an ever increasing demand for the Commission, as demonstrated in the rising number of complaints submitted against States by individuals and organisations across the Americas. For example, the number of complaints filed with the Commission increased by 61.4% in the period 2005-2015, based on information provided in the Commission’s 2015 Annual Report.
The Commission also performs a hugely significant indirect advocacy role by providing a platform for human rights NGOs in the region, some of which have been very adept at integrating the Commission into their international advocacy strategies in order to bring pressure for change at home. The Commission has also been an active promoter of innovative responses to human rights crises. Most recently, the Inter-disciplinary Group of Independent Experts (GIEI for its acronym in Spanish) fundamentally challenged the Mexican government’s account of the disappearances of the 43 students in Ayotzinapa in 2014. Although neither truth nor justice is far from being achieved in this case, the support to the affected families of the students provided by the GIEI and the publicity generated both in Mexico and internationally has at least challenged the routine of impunity that otherwise characterises responses to violations in that country. The case offers a notable example of the capacity of the Commission to respond promptly to serious human rights violations. Without doubt, as we have amply documented elsewhere with colleagues of the Inter-American Human Rights Network in recent years, the Commission has significantly contributed to human rights protection and promotion in the Americas, and it serves as an example to human rights institutions worldwide.
Chronicle of a death foretold?
Despite its successes, or arguably because of both its potential and real impact, chronic underfunding has limited the capacity of the Commission to conduct proactive rights work and investigations since its creation half a century ago. The limited resources available to the Commission have contributed to the emergence of a several-year long backlog of petitions. According to its 2015 Annual Report, by the end of that year, a total of 9,673 petitions were pending initial evaluation and 1,903 petitions were at the admissibility and/or merits stages. The Commission is trying to address this backlog of cases with its already limited resources. Losing 40% of its staff simply means that the Commission’s capacity to process petitions will diminish even further with devastating consequences for victims of human rights violations, for many of whom the System is the last hope of achieving justice.
Successive rounds of institutional reforms, reorganisations, and expansion of activities – for example, the gradually increasing number of thematic Rapporteurs – have added to the pressures being put on resources. Additionally, decisions to prioritise particular areas or activities are often not subject to the Commission’s discretion or strategic priorities. Institutional initiatives are often dependent on voluntary funds and external donors. This is manifested, for example, in the difficulties of the Commission to secure funding for its newly established Unit on Economic, Social and Cultural Rights, which in part is an initiative to seek to address long-standing criticisms of the Commission for privileging of civil rights (disappearances, torture, due process) over socio-economic rights. Seeking to boost funding from European donors and discretionary funding by the United States and Canada (the two top contributors of specific funds to the OAS) may be necessary in the short-term, although this would continue to expose the Commission to criticisms by the Latin American and Caribbean governments that are at the receiving end of its scrutiny.
The current financial crisis exacerbates a recurrent problem. The immediate cause of the crisis is not financial however; it is rooted in the absence of the necessary political will by OAS Member States to support the Commission’s work. As pointed out by James Cavallaro, current President of the IACHR, in 2015 Latin American and Caribbean countries provided 13.7 million US dollars to the International Criminal Court – which is not exercising jurisdiction on any situation involving an OAS Member State (only one situation is under preliminary examination: Colombia) - and a paltry 199,000 US dollars to the Inter-American Commission.
The causes of the Commission’s current predicament are deeply political. Throughout its history, the Commission has consistently been subject to fierce criticisms, and it has operated in an often politically hostile regional context. One of the reasons why the Commission struggled in its early days, for example, was the perception that it had been created by the United States as part of its efforts to undermine the Cuban revolution. The IAHRS has also faced challenges from States and officials hostile to its interpretation of its mandate and/or to certain decisions and rulings issued by the Commission and the Court. One crisis in the late 1990s arose as a result of attempts by the government of Alberto Fujimori in Peru to withdraw from the Court’s jurisdiction. Over the past few decades, Brazil, the Dominican Republic, Ecuador, Nicaragua, Peru, Trinidad and Tobago, and Venezuela have all variously suspended payment of organisational dues, (temporarily) withdrawn their ambassadors, claimed not to be bound by a particular Court judgment, and threatened to or actually denounced the American Convention following contested decisions.
Resistance may, in part, be an inevitable consequence of being an international human rights institution fulfilling its institutional mandate of monitoring and scrutinizing the human rights records of states. However, increasingly trenchant criticisms in recent years from several member states may suggest that the Commission, as well as the Court, are pushing the very limits of what governments in the region can politically tolerate. Debates within the OAS in recent years highlight an enduring and deep disquiet towards external monitoring and sanction of the human rights records of governments. This suggests that it is precisely the Commission’s increasing clout and political relevance, in the process escaping the control of states, which has prompted significant pushback by certain groups of states within the OAS.
In parallel, the rise of sub-regional organisations in Latin America in particular, such as the Union of South American Nations (UNASUR), has seen other incipient human rights mechanisms expand into areas that were previously the exclusive institutional remit of the IAHRS. Relatedly, the continued lack of universal ratification of the System’s major human rights instruments, particularly by Anglophone parts of the region, is a constant source of criticism for those seeking to undermine IAHRS decisions and operations. Moreover, governments in the Americas are today nearly universally elected by popular vote. The democratic credentials of governments have made the balancing act for the IAHRS between its role as a supranational human rights arbiter on the one hand, and the principle and practice of subsidiarity on the other, increasingly delicate.
While the current crisis might provide an opportunity to advance the human rights agenda of the Inter-American System in order to make it both politically and financially viable, the many long-standing challenges facing the Commission make it hard for it to perform its vital role of promoting and protecting human rights. It is therefore time to adopt the necessary measures to prevent a death foretold.
#SalvemosLaCIDH: A call to action
Clearly, it is important to recognise the very real limitations of the Commission and to be sober about the many challenges the IAHRS, more generally, is facing. Yet, as reflected in steadily increasing petitions to the Commission, the system continues to be turned to by those who have been denied justice at home. The demand from victims and their relatives, and human rights organisations across the region remains, in other words, robust and growing. It is for this reason that a growing chorus of voices in the Americas and beyond (see, for example here, here, here, here, and here) deplore the current financial crisis that the Commission is facing, and urge OAS Member States, in the first instance, to ensure that the necessary funds are urgently made available to the Commission.
It has also become painfully apparent in recent days that the Commission lacks the necessary resources to deal with human rights protection and promotion across the region in the years to come. To address this requires far more than dealing with the present financial crisis. If human rights matter to States, as all OAS Member States solemnly declare in the act of ratifying international human rights treaties, in their National Constitutions as well as in their domestic laws, they need to show this politically as well as financially. As the current crisis demonstrates, the funding of a regional human rights institution such as the Inter-American Commission cannot continue to depend on external funding sources. Funding has to come from OAS member States. What is at stake is the future of the Inter-American System and the protection of millions of persons across the Americas.