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Thursday, February 11, 2016
- Ecuador’s attempt to introduce institutional changes in the Inter-American Commission on Human Rights has been frustrated for now. Quito is seeking allies to create parallel regional mechanisms, but the risks of losing at this game are high, according to experts and users of the regional justice system.
The proposal that Ecuador took to the 44th Extraordinary General Assembly of the Organisation of American States (OAS) focused on three aspects: limiting the IACHR’s power to impose precautionary measures, debating the financing of the Special Rapporteurship on Freedom of Expression, and changing the IACHR’s headquarters from Washington to a city in Latin America.
Because of the lack of support for its proposal, Ecuador threatened to withdraw from the Inter-American system of human rights. But in the end, an alternative solution put forward by Argentina caused the Ecuadorean government to back down.
The debate on reforming the IACHR remains open, and that is “a victory,” according to Ecuador’s foreign minister, Ricardo Patiño. But he stated emphatically that one of the main goals of his government is to create a human rights system within the framework of the Union of South American Nations (UNASUR) or the Community of Latin American and Caribbean States (CELAC).
“We have proposed building a South American human rights system,” he said on his return from the OAS meeting, held Mar. 22. There were “several meetings and we are very close to reaching an agreement,” he said.
But while waiting for this proposal to crystallise, Ecuador is hoping for further progress in the forthcoming OAS meeting in June.
The inter-American system for the protection of human rights is made up of two autonomous organs: the Washington-based IACHR, and the Inter-American Court of Human Rights, based in San José, Costa Rica.
Their main function is to oversee compliance with the American Convention on Human Rights, adopted in 1969.
There are voices in Ecuador who say that in some cases, the inter-American system has achieved results that the national justice system has not.
Harold Burbano, a legal adviser with the Regional Human Rights Advisory Foundation (INREDH), says “80 percent of the 25 cases we have litigated are in the inter-American system, which shows that (Ecuadorean) justice has been ineffective,” he told IPS.
Several cases did not reach the Inter-American Court because the state “accepted friendly settlements,” he acknowledged.
Burbano clarified that most of the cases are at the investigation stage, awaiting “a report with recommendations to the state in order to avoid being taken by the IACHR to the Inter-American Court.”
The IACHR’s political powers include carrying out on-site visits and issuing recommendations and reports. It also has quasi-judicial functions: receiving complaints, determining their admissibility, requesting precautionary measures by states and taking cases to the Inter-American Court.
The Court adjudicates cases referred to it, issues opinions on legal matters and adopts provisional measures for the protection of persons or groups. Its rulings are binding and are not subject to appeal.
According to the Attorney General’s Office, the IACHR took on 83 Ecuadorean cases and issued 12 friendly settlements, while another 12 cases have been referred to the Court.
An emblematic case involved the indigenous Quechua people of Sarayaku, who in 2003 filed a complaint against the state to the IACHR for oil industry actions that threatened human rights within their territory.
In June 2012 the Court issued a sentence condemning the Ecuadorean state. But the government has not yet paid reparations, and it has not complied with the requirement of previously consulting indigenous communities about economic activity in their territories.
The reforms of the IACHR spearheaded by Ecuador would have affected the independence and effective capacity of the Commission to promote and defend human rights in the region, Xavier Buendía, the president of the Centro de Observación Ciudadana (Citizens’ Observatory), told IPS.
Buendía concurred with one of the things Quito emphasises: the need for the IACHR to improve actions to promote human rights.
“In addition to prevention, it should increase the levels of awareness, information and empowerment, and foment more activism among both the public authorities and society as a whole,” he said.
According to Buendía, “a major problem is that there are no deadlines for the Court’s rulings.”
However, in his view, it is “rather strange” to attempt to create a human rights system at the heart of UNASUR, as “this means creating a logical counterweight to the inter-American system.”
A parallel justice system “is not that easy to create,” and the idea is more likely to be “an escape clause” for Ecuador, Burbano said. “The Commission and the Court have been fundamental underpinnings for human rights in the region.”
From a different point of view, the legal adviser for the Ecumenical Commission on Human Rights, César Duque, said “the government’s proposals are intended to strengthen” the IACHR.
But on the other hand, “they could lead to its weakening, when it comes to restricting the IACHR’s capacity to dictate precautionary measures and to raise funds to carry out the full extent of its mission,” Duque told IPS.
Now the countries in the region are awaiting the outcome, but “most states are not interested in reforming, but rather in strengthening, the IACHR; none of them have spoken of changing its competencies,” he said.
The state of Ecuador itself has used the system. In 2011 it requested, and obtained, from the IACHR precautionary measures to prevent the execution of Nelson Serrano, an Ecuadorean man sentenced to death in the United States.
And in 2010, for the first time since it was created, the IACHR accepted a lawsuit against another state, when Ecuador accused Colombia of killing Ecuadorean citizen Franklin Aisalla during Colombia’s bombing of a Revolutionary Armed Forces of Colombia (FARC) camp located within Ecuadorean territory.
Duque does not think Ecuador will really pull out of the system; this is a “last ditch effort” that will get it nowhere, he said.
It’s a strategy to exert pressure, in the face of possible rulings on the violation of free expression in the current confrontation between the government and the media, he said. “The state is on the defensive because it sees the media as political actors opposed to the administration.”