A helping hand
The Inter-American Commission for Human Rights is swamped with thousands of cases a year but lacks the resources and systems to guarantee each the attention it deserves. Marieke Breijer looks into the structural problems of the system and asks whether business lawyers could help alleviate the pressureThe Inter-American Commission for Human Rights (IACHR), an independent organ within the Organization of American States (OAS), has been a defender of human rights ever since it came into existence in 1959. The commission has exposed systematic human rights abuses from authoritarian regimes of the past and helped in instances where democratically elected governments of the present either fail or are unable to guarantee the rights of their public. Together with the Inter-American Court of Human Rights, established 20 years later, the IACHR works towards building case law, setting clear precedents and producing jurisprudence in an effort to reduce human rights abuse in the Americas. As a last port of call for many, the system has been responsible for landmark cases and significant progress in the region. Thanks to its success and exposure, it now receives more petitions than ever, but this is making it dangerously overstretched.The number of individual petitions brought to the commission has dramatically increased over the last decade, with the 979 cases it received in 2002 rising to 1,936 petitions in 2012. Today, the commission is faced with a backlog of 7,208 petitions that are still waiting for an initial evaluation. Even once approved, it can take years for a case to pass through the system, making it harder and harder for victims of human rights abuses to gain access justice. Individual petitioners caught up in the clogged system are understandably frustrated. José Ugaz, partner at Peru’s Benites, Forno & Ugaz Abogados, has a case regarding the due process of law that had been going on for 17 years in Peru before he decided to take it to the commission. There, they were asked: “Is someone in prison, or in danger of death?” The answer was no, so they were told they would have to wait three or four years before the commission would review it. “I wanted a prompt response in the system and not one similar to the one I am complaining about,” says Ugaz. The situation paints a picture of how dire the circumstances within the Inter-American human rights system can be. Currently, cases can take up to eight years to pass through the system, if not more, says Juan Pablo Olmedo, a Chilean lawyer who speaks from experience, having seen a case regarding the censorship in Chile of the film The Last Temptation of Christ finally emerge from the Inter-American Human Rights court in 2001 after being brought to the commission in 1997. Inherent weaknesses Behind this serious backlog lies a significant lack of funds, says Santiago Canton, a former IACHR executive secretary who stepped down last year after 11 years with the commission. “The number-one problem of the commission and the court is mainly a problem with the budget. While of course this is true in every institution, if you compare different regional mechanisms with the Inter-American system, it is probably the least funded mechanism, and one that had been extremely effective, even with little funding,” he says. His position is supported by many others that have ties to the system. Claudio Grossman, dean at the American University Washington College of Law and IACHR commissioner from 1993 to 2001, believes the commission needs a “dramatic increase of resources” to exercise its functions. In its analysis of the system’s financial situation, the Center for Justice and International Law (CEJIL) states that the commission lacks the resources to cope with its current workload, let alone for taking on more year after year. Next to handling casework, the commission’s functions include observing the general human rights situation in the Americas through country visits and writing comprehensive country reports, while it also works on preventing irreparable harm through the requesting of provisional measures from the court and adopting precautionary measures in urgent cases.The commission said it needs over US$20 million to carry out its 2013 duties, but it receives nowhere near this amount. The OAS general budget of 2013 allocates close to US$8 million to the commission and the court combined. That represents an increase of close to US$1 million compared to 2012, but CEJIL argues that the increase is not proportional to the increase in volume of cases and activities undertaken within the Inter-American system. In contrast, the European Court of Human Rights receives around US$86 million from its 47 member states to cover salaries and operational expenditure in 2013. Meanwhile, Mexico allocated close to US$90 million to its National Human Rights Commission over 2011, while Paraguay spent over US$22 million on its national ombudsman over the same year. The system is also understaffed as a consequence of its small budget. The IACHR has seven commissioners and is supported by an executive secretariat of around 64 team members, but that number can vary as many are part time. In comparison, the European human rights court’s registry is composed of 640 people, of which 270 are lawyers working there on a full-time basis.The allocation of resources is a complex matter, and tied in to institutional weaknesses and the increased politicisation of the system, says Ugaz: “When you have a transnational system that’s imposing on countries a situation regarding the rights of the people, our governments will react in a very tough manner and I think that is part of a dynamic that will be present forever.” By exposing what it perceives to be human rights violations, the commission is often on the receiving end of political stick from governments. The situation is further compounded by the constant tension between the commission and a revolving of set OAS countries, which arises from the fact that the system relies on financial contributions from the very states that the commission and courts are there to monitor. Over the years governments have suspended relations and cut funding for the body in response to perceived threats to their sovereignty. For example, Brazil temporarily cut ties in 2011 after the IACHR issued interim measures asking the country to suspend licensing for the Belo Monte dam, while in September last year, Venezuela opted to leave the body completely. These tensions have prompted some OAS countries to push for reforms. According to Robert Goldman, professor at the American University Washington College of Law and IACHR commissioner from 1996 to 2004, attempts at reforms usually are “variations on a theme” brought on by states uncomfortable with the work of the commission, and thus focus on what the commission should change, rather than what the countries themselves can do to improve the system. The IACHR’s greatest triumphs have come in the years where there was the least interference, says former IACHR executive secretary Canton, and yet “over the last 20 years or so there has been a constant process of reforms”. The most recent reform process was initiated in early 2011. Asserting that the states and not the commission are the ultimate guarantors of the system, Canton warns that, however minor, every reform chips away a little bit of the commission’s power and independence. The latest reform saw the commission formalise the procedure for precautionary measures, whereby it will have to invest more time in issuing them – a move which some say decreases the mechanism’s effectiveness, and without extra resources, puts the entire system under more strain. Dealing with reforms itself also eats into the commission’s already limited time and resources. Due to its lack of budget and muscle, the organisation is swamped to such a point that lawyers who have acted for petitioners agree that the system for individual cases is close to collapse. Hernán Pérez Loose of Coronel & Pérez in Ecuador notes the irony of the system being at its most critical state now Latin America has gotten rid of its dictators. Pérez helped the owners and a journalist of Ecuadorean newspaper El Universo obtain a precautionary measure from the IACHR after a libel case brought by President Correa saw the individuals looking at three years in prison, while the newspaper faced bankruptcy thanks to a US$40 million fine. Having experienced the system he says, “I understand the concern and share the concern.”The role of the private lawyerThere is an initiative in place to encourage business lawyers to help relieve the burden. Led by the New York City Bar Association’s Cyrus R Vance Center for International Justice and Chile’s Fundación Pro Bono, it seeks to strengthen access to justice through improving pro bono systems and spreading human rights law. The organisations held a meeting in Washington, DC, in November last year to inform private lawyers of the Inter-American system and the role they could play. Speaking to Latin Lawyer at the event, Elizabeth Abi-Mershed, assistant executive secretary of the IACHR, said private lawyers could “help many users who come to the commissions without any representation at all,” thereby improving access to the Inter-American human rights system. As well as providing pro bono representation, corporate law firms, especially those with established pro bono programmes, are likely to have the resources that are so often lacking in the NGOs and other civil society groups helping petitioners before the IACHR. Initially of course, an increase in representation for victims would lead to more cases being brought to an already overloaded system. Abi-Mershed thinks that private practice lawyers could also play a role in helping the IACHR promote the prevention and non-repetition of human rights abuses. By taking on pro bono human rights cases, she argues that the private bar can help to improve the better integration of human rights standards in the administration of justice applies at a national level. Not only that, “having national level private lawyers more involved in the system helps us with that process of integration of human standards in all the different areas of law”, she adds, listing trade relations, environmental development activities or development activities more generally. Pérez Loose, himself a corporate lawyer, agrees that human rights issues are present in multiple areas and are far more than a political issue. His work in the El Universo dispute is a case in point, where he, as a business lawyer with little experience in human rights, turned to the Inter-American system to defend his clients.Professor Goldman also favours the idea of more involvement from the private bar: “I have seen people who I know and respect, from among the top establishment firms [in the US], defending Guantanamo detainees, much to the discomfort of certain people in the Bush administration. These are the same people who are representing the Fortune 500 companies – it is not incompatible,” he says.By investing in the stability of the Inter-American system, business lawyers are helping themselves, Goldman argues. “What’s good for democracy will be good for business,” he says. “Look more broadly at human rights today, it features on the agenda of every country’s foreign offices. It is in their bilateral and multilateral policies, and businesses have found themselves in trouble with repressive governments.” In Venezuela for example, the country’s bad human rights track record sits alongside an unattractive investment environment. By getting involved in human rights cases corporate lawyers can play an important rule in spreading access to justice, strengthening their national institutions through the development of strong and clear precedents, improving their business environments and hopefully helping to diminish the need for citizens to turn to the IACHR, thereby providing relief to a system in dire need of back-up. Despite its inherent flaws and difficulties, former IACHR executive secretary Canton still believes the Inter-American Human Rights system is excellent and has the strength to continue. “No other institution has done more than strengthen the rule of law than the Inter-American system through its decisions.” Olmedo agrees. “It is the best that we have, so we have to take care of it. We have to defend what we have created.”
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