Historically, there were two opposite reasons for countries to pursue regional integration: where they had similarities and seek to collaborate to leverage shared values, and where nations had nothing in common but integrated to complement what lacked in one but was abundant in the other (Scuira 2017:110).
The Organisation of the American States (OAS) was a product of intense grips of military rule and revolution and lack of foreseeable democracy for the region. Many governments remained unreceptive to a regional threshold of human rights and the idea of being held accountable for their actions. The judicial systems were not comprehensive enough to be relied on to uphold a consistent human rights regime. Powers of detention and arrest were exercised arbitrarily and unexplained disappearances, systematic torture and widespread oppression of freedom of expression were in abundance. It was against this chaotic backdrop did the OAS attempt to maneuver a consistent standard of human rights, which both prevented the gross violations of fundamental rights and effectively engaged all member states. Similarly, European Union (EU) was a result of the union exploring its options for regional unification. Following the human rights violations of the Second World War, continuing security concerns of the region needed a collaborative multinational response. Therefore, the Union aimed at progressing economic and political integration. All members states have pledged allegiance to the rule of law, and fulfil the prerequisites to actively promote human rights and fundamental freedoms within the territory.
As aforementioned, the causes which led to the development of OAS and EU both related to human rights. The following study aims to amplify the key features of each region to compare the successes and shortcomings in their respective approaches to human rights. It is observed that while they have both been equally successful in laying stable institutional frameworks and comprehensive mechanisms to advocate regional human rights, the OAS has been less successful in promoting human rights in regional solidarity.
Measuring ‘Success’
In comparing the successes of the two regions in handling human rights, their achievements over time will be measured on two scales.
Firstly, it will be questioned how far the regions have progressed in fashioning comprehensive institutional frameworks for the protection and promotion of human rights in the regions. Comparing and contrasting against the political and social backdrop that led to the development of human rights mechanisms, it is imperative if the implementation processes have been efficiently put in place and how the circumstances have changed since then.
The whole purpose of regional effort is interstate collaboration and harmonised progression, to achieve benchmarks that states are unable to achieve in isolation. Therefore, to have succeeded as a region, all states should have progressed simultaneously, to promote regional solidarity. Though may not be at the same pace, it will be questioned if all states are showing motion in the same positive direction, relying on the norms of the rest of the region.
Institutional Framework: Organization of the American States (OAS) and Human Rights
In content, the American Declaration on the Rights and Duties of Man (1948) shows broad similarities to the Universal Declaration on Human Rights. The rights therein encompass civil and political rights – life, liberty, religious freedom, inviolability of home and correspondence, fair trial – and economic, social and cultural rights – benefits of culture, leisure, work, social security. Though is not a treaty, the Inter-American Court has indicated the possibility of the Declaration having binding status.
It also places numerous duties incumbent upon citizenship, ranging from civil and military service to duty to pay taxes. Many of these duties correlate and thus are reliant on specific rights. For instance, as per Article XXXI, every citizen has a duty to acquire at least an elementary education, whereby the right to education is ensured. In similar fashion, the right to vote and participation in government relate to the duty to vote and the duty to work (Article XXXVII). Regional democracy is thus considered in reciprocity.
The Inter-American Commission on Human Rights (1959) is under obligation to protect the norms enunciated in the Declaration. The Commission functions to maintain vigilance over the observance of human rights in the region. Its main function is to ‘promote respect for and defense of human rights’ (Article 41) and is an autonomous organ of the OAS. The Commission prides itself to have done more for the strengthening of democracy, rule of law and advocacy of human rights in the region more than any other intergovernmental organization (Canton 2013).
The Commission receives, analyses and investigates individual petitions alleging violations of human rights. It also stimulates public consciousness regarding human rights in the Americas via organizing mutual discussions, disseminating relevant information of human rights to the publics, advising states on their human rights obligations and requesting the employment of precautionary measures.
The Commission’s key success was its stature during the 1970s human rights violations committed by brutal dictatorships and the return of democracy in the 1980s and 1990s. The Commission’s work, including country visits, requests for information from states, and comprehensive reports on human rights conditions, maintained an objective overview and helped reduce the magnitude of violations. It also further alerted the external international community of grave human rights violations that arise in similar circumstances. For instance, the Commission’s 1970 country visit to Argentina was pivotal, in a sense that it defined its role as a preventer of violations and an advancer of the rule of law in Latin America. It was held in confidence at the time that the Commission’s activities would surely “curb the abductions and weaken the genocidal dictatorship; that from then on, it would be less likely that prisoners would be dragged from their cells and shot” (Taiana cited in Canton 2013:6).
Three decades later, in 2009 to be exact, following the coup d’état in Honduras, the work of the Commission remained equally important. Immediately after the coup, the Commission issued a formal statement condemning the coup, and conducted country visits to keep the international community informed of the human rights violations being carried out by the police and the military. Furthermore, the Commission also granted precautionary interim measures to protect victims. These measures called the Honduran government to protect the lives and personal integrities of those curbing the threat of violation in the country (Canton 2013:6).
The Commission’s objective perspective has offered necessary independent evaluation of human rights in the region and states’ role in protecting them.
The American Convention of Human Rights (1978), as articulated in its preamble, aims to further the intentions of the States – thus the region – ‘to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man’. It thus establishes the necessary tools for the indiscriminate protection of the rights of all Americans.
Established by the American Convention, the Inter-American Court of Human Rights is an autonomous judicial institution whose primary purpose is the application and interpretation of the Convention (Article 1 of the Statute of the Court).
Given the multitude of regional human rights violations that led to the formulation of the OAS, other complementary The Inter-American Convention to Prevent and Punish Torture 1985, defines torture and specifies liability of individuals for it. It provides for the training of police officers and public officials responsible for detainees in order to eliminate torture in the course of interrogation, detention or arrest. The Convention can be construed as a result of many problems faced in the Americas in the aspect of treatment of detainees – particularly in period of military rule. The Convention guarantees impartial review of torture allegations and to address jurisdictional issues for the trial and extradition of those implicated in the crime of torture.
Also, consequent to period of military rule, the Inter-American Convention on the Forced Disappearance of Persons 1994 was developed. Thousands of people disappeared without a trace in the Americas during periods of military rule. Article II defines ‘forced disappearance’ as the deprivation of persons of their freedom, as perpetrated by agents of state. Contracting parties thus agree not to practice, permit or tolerate forced disappearances and to adopt legislation aimed at the punishment of those implicated in such crime. Similar to the above, arrangements are made for trial and extradition. As reaffirmed in the Preamble of the OAS, member states hereby agree that the systematic practice of forced disappearances of persons constitutes a crime against humanity – corroborating the Article 7 of the Rome Statute, International Criminal Court.
Around the same time as the above, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women 1994 was established. The convention reflects a commitment for the prohibition of violence against women – physical, sexual, psychological – regardless of class, race, ethnic group, income, culture, education, age, religion (Preamble). This explicitly includes domestic violence. Via this convention, states go beyond mere efforts to investigate, prosecute and punish, to take necessary measures for the modification of social and cultural patterns and conduct to counteract prejudices based on inferiority of women and stereotyping gender roles. These duties of states are reasonably comprehensive, thus attempting to reach the heart of the matter. As recognized by the American States, education is key. Furthermore, government-sponsored campaigns against domestic violence, and mechanisms allowing communication with individuals and non-governmental organizations further facilitate the promotion of women’s rights.
The Inter-American Court of Human Rights
European Union
The Council of Europe
The Council of Europe has the most comprehensive regional system for protection of human rights, so much so that there is a blatant gap between that and other regional systems.
Founded in 1949 with ten Member States, the Council now members 47 countries, that is 800 million people. In addition to the member states are the Observers to the Parliamentary Assembly (Canada, Israel and Mexico) and Observers to the Committee of Ministers (the Holy See, Japan, and three North American States of US, Canada and Mexico).
European Convention
The European Court of Human Rights (ECtHR)
The ECtHR is an international institution established by the European Convention to receive and address complaints from both member states and individuals alleging the violation of human rights as established by the Convention. The Convention is thus meant to be an international treaty embodying fundamentals of politics and civil rights, not only protecting citizens of the Union but all those living in the region.
As one of the oldest and proactive international courts, the ECtHR has established over 18,000 judgments since inception. Judges are democratically elected, and hold independent and impartial position in the system of justice.
In its role as an advocate for regional justice, it has first proven to be home to a plethora of organizations demanding state accountability for human rights protection in the region. The social development in Europe to one that respects and accounts for these rights is inextricably linked to this advocacy.
Regional Solidarity
OAS
Since not all member states of the OAS have not ratified the Convention, it remains doubtful of the Declaration can see its optimal efficacy in shaping a regional human rights obligation. As will be observed below, rather than acting a tool promoting solidarity, OAS has become a tool of disparity and disharmony in the region.
The role of United States of America (USA) in the OAS plays the most controversial membership. Though the most politically and economically powerful, USA which has signed but not yet ratified the Convention. In the signing of the agreement, Washington conceived OAS as an elaborate Cold War instrument to fight ‘communist penetration’ in the Western Hemisphere. But considering the political stamina leading up to the agreement, Bogota – Colombia – Major Jorge Eliécer Gaitán was mysteriously murdered, allegedly by the CIA, with no material evidence of the operation to be found (Nikandrov 2010). Nonetheless, evidence was found in reference to him as potential threat to the politics of United States. In the absence of USA’s ratified participation, it is speculated that Washington will be at conflict with the intents and purposes of OAS. In the prolonged dominance USA has held over Latin America, the leaders of the latter view prospects of ‘coexistence’ quite uniquely: “The populists are determined that all future community members should pull out of the OAS. The populists see the OAS as a punitive agency that the United States has used all along to neutralize any potentially dangerous opponents in the region” (Nikandrov 2010). Fidel Castro, on this account, compared the OAS to be like the ‘Trojan Horse’, that it safeguarded all the crimes Washington had committed against Latin American countries (cited in Nikandrov 2010). This is made blatantly evident by OAS’s long game tactics to cover up scandals such as that of Guatemala (1954), Panama (1964 and 1991) and Haiti (1994).
Cuba is a member, but political reasons had its active participation suspended from 1962 to 2009. And this is demonstrative of US’s undue upper hand in the OAS. Although an overwhelming majority of member states have since harvested relations with Havana, Washington’s dominant and superior attitude remains. It continues to disapprove of Castro’s ‘dictatorial regime’ and marks it as inadmissible to the fundamentals of OAS (Nikandrov 2010). In response to the above manipulated accusations by US, Cuba thought that the OAS should be dissolved. President Raul Castro made a direct statement that Cuba was intending to not return to the OAS “because the organization had, since its creation, never risen in defense of a single Latin American country that was subjected to US aggression” (cited in Nikandrov 2010).
Such isolationist policy of the USA’s involvement further extended its way to the Sandinista government in Nicaragua, the Omar Torrijos government of Panama and most recently, Venezuela.
Triggered by the compulsions of the US, Venezuela may leave the OAS. The deep-seated animosity between different political camps has been subject to prolonged condemnation. This involves the lack of independence of the judiciary, limits on freedom of expression and political debate amidst armed forces. The claims of the US have no thus been baseless. There are ongoing questions about the organization’s solidarity, in being unable to strengthen rule of law in Venezuela.
Though formally constituting as a democracy, Venezuela has experienced significant deteriorations in the human rights situation in the past few years. A lot of it is attributed to the concentration of power in Executive sector, reflecting on the imbalance of power on other branches of the State. For instance, the lack of judicial independence has resulted in increasing impunity in human rights violations. A report released by the IACHR in 2010 makes reference to a wide range of probable issues leading to tampering of judicial independence. These include the appointment of judges and public prosecutors behind closed doors, lack of stability in the above roles, provisions that allow broad subjectivity in the removal and indefinite suspension of judicial officers and lack of independence and impartiality of disciplinary bodies. Therefore, the institutional framework has been deconstructed and transformed into a tool of political motive, with negative consequences on human rights (Bolívar 2013).
In the ongoing danger of Venezuelan human rights status, this may be contentious to regional solidarity in human rights. the country suffers a lack of trust through its society. Firstly, the institutional framework of the OAS has come to be exclusive of Venezuelan specifics. While it welcomed President Chávez’s initiative to fire up national dialogue, the Commission commented the government’s process was not enough. It also called upon members of the opposition to abandon their fierce partisanship and participate in a productive democratic dialogue.
In response to the Venezuelan situation, the Commission is in dire need of a complete, impartial and objective investigation of the violence. There is no account of fatalities and exact circumstances of death by human right violation.
Regardless of the truths to the above allegations, President Hugo Chavez also repeatedly complained about the OAS’s performance, especially in the George Bush and Barack Obama administrations. The political route of US since then has been identified as blunt attempts at curbing Venezuelan politics via well-adjusted procedures of the OAS, aiming to eventually crush political and ideological competitions of the US.
The Commission has taken a backseat in addressing individual complaints, compared to its role in undertaking detailed perspectives of States in systematic violations of human rights.
The dominance of US in the OAS is so overwhelming that it had prompted serious discussion on if an alternative OAS without the US should be built for the benefit and consideration of the interests of Latin America.
Recommendations for the Reform of Inter-American Commission and Court
Though the Inter-American System has attempted the modeling of a comprehensive mechanism to protect and defend human rights and strengthen democracy and the rule of law, there is still strong interest by some states to reform the system. The main criticism is the institutions’ inability to fulfill their advisory roles in relation to member states.
The reforms are centered around the main challenges to the system: universality and state willingness to comply.
Considering the lack of solidarity, it is inadmissible that even fifty years after the creation of the system, many countries have refused to ratify its human rights treaties. This is a responsibility of the states, and only so much can be done by the Commission and the Court in their objective placement. Therefore, if States are serious about the importance of regional solidarity, they themselves should initiate to participate. It is recommended that countries can be brought forward to participate by the selection of a group of foreign ministers from countries that have ratified all the human rights instruments to travel to those who have not, thus promoting the need for regional ratification. This needs to be a ceaseless effort.
In the architecture of international human rights, the question of compliance keeps arising. All round compliance across the region with the overseeing powers of a supervisory body is a challenge in the journey towards solidarity. Alternatively, States are recommended to pass internal legislation that ensures the necessary compliance with the decisions of the Commission and Court. So far only three countries in the region have successfully implemented such legislation – Peru, Costa Rica and Colombia. Nonetheless, they too have not provided an adequately comprehensive ideal to follow.
The main inspiration for restructure is the Venice Commission – European Commission for Democracy through Law. It is an advisory body on constitutional matters constituting independent experts on constitutional rights and liberties. The restructure is thus recommended to compose such an independent entity that responds to the requests received with equal importance (Canton 2013: 11).
Financial Insecurity and Commitment to OAS
This lack of solidarity has led to financial insecurity in the OAS, leaving it with insufficient funds to fulfill its mandate. The Commission is funded partly by voluntary grants from OAS members and others. As a key defender of human rights in the Americas, the Commission faces a financial deficit that threatens justice and ability to protect against abuse. In 2016, the Commission itself proclaimed its financial crisis, forcing its hand to the prospect of laying off staff and comprehensive proceedings. The lack of commitment of member states to directly address the financial crisis resonates their commitment to human rights, and raises substantial suspicion if they want to do away with the Commission’s scrutiny.
European Union
The European Convention on the Protection of Human Rights and Fundamental Freedoms (the European Convention)
Human rights high on their respective agendas, states drafted the convention on human rights and fundamental freedoms, signed and ratified by all states. It acts as the prime instrument on human rights within the region.
The drafters sought to provide the region with a mechanism that realized civil and political rights and freedoms as extensively and vehemently as the Universal Declaration of Human Rights (UDHR) does. So much so that, the rights enshrined therein are essentially extracted from the first half of the UDHR. With dominant focus on civil and political rights, the Convention is not that wide an extension of UDHR. However, the Convention elaborates more on specific rights, to provide binding legal frameworks to ensure the clear realization of the rights. The Convention is the first instrument to effectively enforce a regional mechanism for the protection of human rights, whilst keeping within the realms of international law.
Success in general context is a subjective consideration. However, treating fundamental human rights as a single objective truth, the UDHR is often treated as the universally agreed prototype for human rights. Universalists of human rights believe that the same legal enforcement mechanisms exist everywhere. By definition, ‘human rights’ are based on the universal dignity of all human beings by virtue of their humanity. Here ‘dignity’ refers to the universal aspiration that all human beings are entitled to respectful treatment, to be recognized with equal worth, and to be permitted for individual advancement. These perspectives lay the foundation for any human rights claims, at whatever scale or backdrop they may be on (Le 2016: 203). The correspondence of EU’s human right institutional framework with the principles of UDHR, indicate how far the comprehensiveness has actively attempted solidarity. Due to the universality of the source of inspiration, there was notable political consensus, thus facilitating its speedy adoption. Therefore, the like-mindedness and the common heritage of political traditions, ideals, freedoms and rule of law was integral to their will to collectively enforce.
Due to the above solidarity, there are relatively few instances of flagrant violations of right to life and freedom from torture. Smith (2014) attributes this most member states adopting democratic institutional frameworks.
Doctrine of Margin of Appreciation
The greatest success of the EU in the human rights front has been its ability to pioneer the work of both the Commission and the Court to develop a fairly detailed jurisprudence on the rights. The teleological and dynamic interpretive techniques have successfully facilitated the evolution of rights and liberties, in concert with evolving social norms. The standard practice of a regional human rights measure is for the Court to operate on the presumption that regional elections function optimally in the domestic context. This may not however demonstrate the best of accuracies.
Therefore, the use of devices such as margin of appreciation have contributed to the effectiveness of the system by recognizing the discretion given to states to determine respective scopes to apply due rights and freedoms. It is a measure of discretion which allows its member states to take into account their own national circumstances and conditions, in implementing the Convention’s standards (Saul 2015:749). The main justification for this the State’s ability to have a better claim to make accurate determinations on the rights than an external Court – often referred to as democratic legitimacy (Saul 2015:751). As decided in S.A.S. v. France, “the national authorities have direct democratic legitimation and are…better placed than an international court to evaluate local needs and conditions”, especially when needs and conditions are unique to locality (cited in Saul 2015:751). Where general policy differs widely from democratic society, the role of domestic policy-makers should be emphasized for the sake of wider regional engagement.
This facilitates a healthy balance between state sovereignty and regional collaboration, enabling states to stamp their own societal norms on the generic molds of rights. This determines the strength with which state activities are scrutinized by regional standards, and sustains a balance of power between the Court and national authorities, limiting how much discretion the court can afford to the states. This is a route by which states can embed its own morals and security concerns in human rights (Smith 2014:98).
For instance, in the case of Handyside v. United Kingdom (1976), the applicant published ‘The Little Red Schoolbook’ in Denmark and a translation in a number of other European countries. The book was primarily aimed at school children and included a chapter on sex education. Handyside was convicted of ‘violating national laws on obscene publication’, as per the European Court of Human Rights. However, a question arose if the infringement of freedom of expression (Article 10) was justified by UK’s claim to maintain morals – since the book was also available in other countries in Europe. Article 10(2) permitted interference with freedoms in certain events, and UK was found to not have breached the Convention. Here court found that the respective laws and morals vary from time to time, and place to place, and cannot be restrained to a universal standard. Therefore, “by reason of their direct and continuous contact with the vital forces of their countries, state authorities are in a better position than the international judge to give an opinion” that is more relatable to the country in question (cited in Smith 2014:99).
Similarly, in the case of Hirst v. United Kingdom (No. 02) (Animal Kingdom), Court found that UK’s absolute ban on prisoner voting was in violation of Article 3 of Protocol No. 1. UK government argued the need for a broad margin on the bases in which regional legislature and domestic courts have taken consideration of the issue. The dissenting judges cautioned that it is not for the ECtHR to prescribe the specifics of the manner in which national legislature should carry out legislative functions (Saul 2015:755).
In the absence of a prescribed overview of the ambit of margin of appreciation in the Convention, states are left to draw inference by looking into precedence where Court has become more reasoning in its interpretation of the doctrine. The scope is varied according to the circumstances, subject matter and the background.
Thereby, widening states’ ability to contribute to regional solidarity, the margin of appreciation provides domestic legislators and judicial bodies the discretion to interpret and apply the law.
Brexit and Human Rights
One cannot make reference to European solidarity, without acknowledging the regional disintegration of Brexit. Though institutional frameworks for optimal solidarity have been put in place, Brexit addresses a practical void of member dissatisfaction in regionalism.
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