A recent report by DeJusticia (in Spanish) examines the challenges that the inter-American system of human rights confronts in the 21st century. The central claim of the report holds that although we are entering new times and politics, the system faces the same challenges that it has endured from the 20th century. The report discusses the system’s continuing financing roadblocks, the reform process that the Organization of American States (OAS) has taken on, and the degree of implementation and compliance of the measures issued by organs of the OAS, particularly the Inter-American Commission on Human Rights (IACHR or Commission) and the Inter-American Court (Court).
The focus of this summary in English is to discuss DeJusticia’s findings on the financing of the of the inter-American system, and the degree of compliance and implementation of the IACHR & the Court’s measures on issues regarding human rights in the region.
Challenges to the financing of the OAS and its organs
One growing challenge to the financing of the OAS and its organs is the emergence of UNASUR, a bloc with similar intentions of addressing human rights and development, but also tailored to regional integration, without U.S. influence (p. 42). The report holds that, separate from its political purpose, this organization also strains OAS’ member states’ ability to contribute financially to the OAS (p. 85).
Separate from other multilateral organizations acting as competing actors, there are additional challenges to the financing of the OAS and its organs. Currently, as the report notes, there are two mechanisms by which financing for the system occurs, the “regular fund” and the “specified fund”—which are voluntary donations by member or observing states, or other institutions. The report finds that contributions made by member states in both, but particularly in the voluntary fund are minimal. According to data from 2006-2013, “Member States of the OAS were only responsible for contributing equal or greater than 50 percent of total voluntary contributions in 3 years (2006, 2008 and 2013). This means that external agents, [such as] observer states and other institutions were major donors in the total period analyzed (2006-2013)” (p. 88).
This should be cause for concern. The largest donors are not even members of the inter-American system and voluntary contributions make up 50% of the budget within the OAS (p. 88). In effect, one of the report’s recommendations is that OAS functions must “diversify” its “forms of finance” to secure its own “independence” (p. 88). This was partially already done after the reforms of the inter-American system from 2012-2013. However, mindful of this reform, the report still finds that the OAS is not meeting long-term financial needs (p. 95). Part of the reason as to why financing remains weak, (even post-reform) is attributable to the fact that even major players who paid an influential role in the reform have not donated to the system. In particular, the report cites Uruguay, Peru and, most notably, Brazil (pp. 88-89).
According to the report, in 2009 Brazil only contributed ten thousand dollars to the IACHR, and twenty thousand to the Court in 2013 (p. 94). For a country that seeks to be an influential player South America (let alone globally), speaks often of its commitment to multilateralism, and has played a considerable role in the reform process, Brazil seems uncommitted to the crucial issues that the OAS must resolve, particularly financing. The report finds that Brazil’s lack of commitment to financing the OAS and the inter-American system match the time when the IACHR had granted precautionary measures in favor of the indigenous communities of the Xingu river basin over the construction of the Belo Monte dam (p. 94). Brazil’s apparent financial retaliation for the IACHR recommendation that it disagreed with raises the concern over the independence of the IACHR. This is more than a political problem; it is an institutional problem, and the report insists that it is important for the “organs of the IACHR [to] be able to operate independently of the crisis of the organization” (p. 96). This would not only require a stronger commitment to funding from states that have already kept a consistent commitment of financing such as the United States, Canada, México, Colombia, Chile, Argentina, and Costa Rica (p. 96), but also from the states that advocated for a reform of the inter-American system in the first place, such as Brazil.
Implementation of inter-American system’s measures
The report addresses the challenge of investigating the level and degree of compliance in decisions and measures issued by the organs of the OAS. One insight from the report holds that this challenge of discerning how much measures are “implemented” and to what degree is difficult because “implementation” and “compliance” depend on a variety of factors such as, whether the measure comes from the Commission or the Court, the type of measure that is issued, and on the type of state and national entities involved in the implementation of the measure (p. 282). In consideration of these factors, the report found that although there are low levels of implementation (p. 283), the inter-American system does not entirely suffer from non-compliance. In fact, another response to the measures that are issued is “partial-compliance.” Citing other studies by “La Association por los Derechos Civiles (ADC) (Basch et al. 2010), they find that, 29 percent of the measures issued by the Court were completed in their totality, that 12 percent were implemented partially, and that 59 percent were not completed (p. 284).
Regarding the measures issued by the Commission, 11 percent were implemented entirely, 18 percent were implemented partially, and 71 percent were not implemented. The numbers above show that what also matters is what kind of measure is issued. As the report acknowledges—and other studies also support—the measures with the highest levels of implementation are the following: symbolic reparations (49 percent); financial measures (48 percent); and training programs (43 percent). Measures with lower rates of implementation include recommendations that require legislative action (92 percent not implemented); investigation of the events that led to the violation and establishes responsibility (89 percent not implemented); and institution-building measures (84 percent not implemented). (DeJusticia pp. 285-286, Citing Basch et al 2010 : Sec. III.3. ).
Consequently, any efforts to examine the implementation and compliance of a measure by a state must take into account what type of measure the state was responding to. As the numbers make clear, breaking the measures into categories helps illustrate that implementation is contingent in part on who is issuing the measure, and in part on the kind of measure that is issued. In addition, the report also finds that “who” is sanctioned also helps discern the degree of implementation. For instance, earlier studies by DeJusticia (2011); show that, “orders requiring executive action have resulted in an implementation rate of 44 percent. However, when repair orders require action by the Executive and some other state actor, the level of implementation is lower. This is explained by the fact that sometimes, the executive faces more international pressure to oblige than do actors of lower position, and a lower international profile.” (p. 288, citing Huneeus 2011, 125). In short, measures issued to presidents have a higher degree of implementation than measures issued to actors that hold a lower public office or stand on a smaller international stage.
Given differences in compliance in the inter-American system, DeJusticia lays out recommendations to enhance government’s full adoption of recommendations and decisions. For the purposes of the Court and the Commission, the report recommends using more quantitative and qualitative data as indicators, (p. 306) and to devote greater and more nuanced attention to budgets of the countries that are subjects of recommendations (p. 303).
Speaking to states, the report recommends usage of decrees and executive orders to resolve problems of accountability and poor communication (p. 307), increased coordination with state actors (p. 308), reliance on ad hoc committees for more effective responses (p. 309), and finally, the creation of governmental institutions that have an extended authority to respond to particular issues. This way these organizations as “insiders” within the government will be better equipped to communicate and coordinate across state agencies to ensure implementation of measures (pp. 309-310).
Finally, speaking to civil society, the DeJusticia report recommends a stronger mobilization (p. 310). By “mobilization” they recommend NGOs and staff to make themselves available in aiding the Court and the Commission with research and to help monitor that measures that are issued are carried out. They also recommend that civil society work to increase the profile of the inter-American system. Doing so, they argue, will help increase its legitimacy and ensure higher degrees of implementation of measures (p. 311). With these recommendations and with civil society actively and constructively engaged, DeJusticia believes that the OAS can begin to recover some of its legitimacy and effectiveness.
