SUR file on Regional Human Rights Mechanisms SUR file on Regional Human Rights Mechanisms

Cooperation Between the Universal and Inter-American Human Rights Systems in the Framework of the Universal Periodical Review Mechanism

Antonio M. Cisneros de Alencar

+ ARTICLES

ABSTRACT

Enhancing human rights protection at the international level through cooperation between the universal and regional human rights systems has been a common aspiration for both systems since their inception. The establishment of the Universal Periodic Review mechanism in the United Nations has created new opportunities for such cooperation, by outlining various avenues for regional mechanisms to contribute to the process. Widespread interest from Governments, civil society organisations, and human rights mechanisms in both systems, to make effective the Inter-American system’s participation in the process, has resulted in the Inter-American system being present in each of the stages of the UPR process, from the first country reviews onward. The article argues, however, that more can be done for the Inter-American system to fully take advantage of the mechanism.

Keywords

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01

1. Cooperation between the Universal and Inter-American Systems, a common aspiration

The potential of achieving enhanced protection at the international level through cooperation between the universal (United Nations) and regional human systems was envisaged ever since the United Nations (UN) and the Organisation of American States (OAS) were established. The UN Charter, for example, devotes one of its chapters to cooperation with regional arrangements and regional agencies, encouraging States to work with these in the settlement of disputes, prior to any UN intervention ( UNITED NATIONS, 1945, c. VIII, art. 52-2 )1. The OAS Charter, on the other hand, tasks its General Assembly with strengthening and coordinating cooperation with the UN and its specialized agencies ( ORGANIZATION OF AMERICAN STATES, 1951, art.54-c ); it also tasks its Permanent Council with preparing agreements to facilitate cooperation with the UN ( ORGANIZATION OF AMERICAN STATES, 1951, art.91-d ).

The issuing of the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Right, with only a few months difference2 and with a very similar set of civil, cultural, economic, political and social rights to be protected, confirmed that the potential which led each organisation to promote cooperation with the other in their respective Charters, also applied to the protection of human rights.

As each system developed an increasingly more comprehensive and complex set of norms and mechanisms to translate these international precepts into effective human rights protection for all, the avenues for cooperation between both systems multiplied; in the Inter-American system, through the work of the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACourt); in the UN’s system through the work of the former Commission for Human Rights (UNCHR), the numerous Committees established to monitor the implementation of human rights treaties, and the Office of the High Commissioner for Human Rights (OHCHR).

Examples of cooperation between both systems have since multiplied. Mandate holders in both systems have undertaken joint actions, such as issuing joint press releases in response to specific human rights situations3; the IACHR has often encouraged States to ratify UN human rights treaties, along with the regional treaties4; the IACHR and OHCHR have already elaborated and issued joint thematic reports5; and both systems have even deployed joint missions to the field, to verify the respect of human rights6. Many of these initiatives, however, have remained isolated examples, and cooperation between both has largely depended on favorable circumstances.7

02

2. A new UN Human Rights Council, new opportunities for cooperation

Given this history of cooperation between both systems, it came as no surprise that, when the UN replaced the UN Commission for Human Rights with the UN Human Rights Council (HRC) in 2006, new possibilities for cooperation arose; the UN General Assembly specifically calling for the new HRC to work in close cooperation with, inter alia, regional organisations ( UNITED NATIONS, 2006, p. 3, para. 5-h ).

One such new avenue for cooperation between both systems is the Universal Periodic Review (UPR). Established as a cooperative mechanism to review fulfilment by all States of their human rights obligations and commitments ( UNITED NATIONS, 2006, p. 3, para. 5-e ), the UPR presents several innovations vis-à-vis other human rights mechanisms developed until now in both systems:

1. Universal coverage – while there are human rights bodies in both systems with mandates which are both geographically (all member States) and/or thematically (all human rights) universal, the UPR represents a first concerted and systematic effort to review all countries on all human rights, within a specified time-frame (four years for the first cycle).

2. State-driven process – while human rights evaluations by other mechanism in both systems rely on independent experts to analyze the situation and issue recommendations, the review of the State in the case of the UPR is undertaken by the States themselves (based, inter alia, on a background document summarizing observations and recommendations by independent experts).

3. Nature of the recommendations – while recommendations by other human rights mechanisms in both systems are made by independent experts on behalf of the organisation, UPR recommendations remain ascribed to the issuing State, and States under review have the possibility of choosing which recommendations they will give further consideration to, and which they will only note.

4. Voluntary commitments – unlike other mechanisms in both systems, which are focused on measuring advances against obligations previously acquired by the State, either implicitly (through membership in the organisation, for example), or explicitly (through treaties ratified, for example), the UPR allows States to also present voluntary commitments against which they would also like to be reviewed.

The new mechanism’s stated objectives are comprehensive, and include: improving the human rights situation on the ground; enhancing the States’ capacity and that of technical assistance; sharing best practices; supporting cooperation in the promotion and protection of human rights; and encouraging cooperation and engagement with other mechanisms ( UNITED NATIONS, 2007, p. 3, para. 4 ). Its effectiveness in achieving these goals will probably require some time to be evaluated properly (especially given that the first cycle is yet to end). However, States, international organisations and civil society organisations have generally provided positive assessments of this new mechanism, as can be evidenced by the current discussions regarding the HRC Review8.

03

3. Cooperation with regional mechanisms, as envisaged for the Universal Periodic Review

Participation by regional organisations in this new mechanism, as a relevant stakeholder, was contemplated from the beginning as one of the mechanism’s principles (UNITED NATIONS, 2007, p. 2, para. 3, Principle-m )9. But the resolution establishing the mechanism goes further than stating this as one of its principles; it outlines four avenues for regional organisations to contribute in the process, namely:

1. The preparation of the documents which will serve as the basis for the review – The resolution states that regional organisations, as a relevant stakeholder, can provide credible and reliable information for the UPR, for OHCHR to summarize, along with other contributions, in a 10-page report (UNITED NATIONS, 2007, p. 3, para. 15, Documentation-c ).

2. The review by the UPR Working Group – The resolution states that regional organisations, as a relevant stakeholder, may attend the review sessions, when it takes place (although the interactive dialogue and issuing of recommendations is limited to States only) (UNITED NATIONS, 2007, p. 4, para. 18, Modalities-c ).

3. The adoption of the outcome – The resolution states that regional organisations, as a relevant stakeholder, have the opportunity to make general comments before the adoption of the outcome by the plenary. These are then recorded in the HRC session’s report (UNITED NATIONS, 2007, p. 5, para. 31 ).

4. The follow-up to the review – The resolution states that the outcome of the UPR, as a cooperative mechanism, can be implemented with other relevant stakeholders, such as regional organisations, when appropriate ( UNITED NATIONS, 2007, p. 5, para. 32 ). The resolution also calls for the international community to assist the State reviewed with capacity-building and technical assistance, with its consent ( UNITED NATIONS, 2007, p. 5, para. 36 ).

04

4. The first cycle of the UPR and cooperation in practice

The relevance of including information regarding the Inter-American System in the UPR review was recognized by States, from the beginning. The Inter-American system is mentioned in all but three of the national reports presented by the 26 American countries reviewed by the UPR Working Group during its first 9 sessions10. In these reports, Governments noted the efforts their country had undertaken to ratify regional instruments, integrate them into national legislation, cooperate with its mechanisms, or take measures to address the mechanisms’ findings or recommendations.

The compilation of relevant official UN documents prepared by OHCHR – the second background document for the review – also included observations regarding cooperation with the Inter-American system from the start. These reports include mentions by UN mechanisms of issues such as: responses provided by the State to inquiries from regional mechanisms (Argentina); follow-up provided by the State to appeals (Barbados) or recommendations (El Salvador) made by regional mechanisms; calls for technical cooperation from OAS entities (Brazil); compliance with judgements (Peru), compensations (Nicaragua), and precautionary measures (Panama) from regional mechanisms; and on amicable settlements in cases before regional mechanisms (Ecuador). In the case of the United States of America, the document recalled a pledge made by the country before UN mechanisms, to cooperate with the IACHR and other regional human rights bodies, by responding to inquiries, engaging in dialogues and hosting visits.

The third background report – namely the summary of information provided by relevant stakeholders – which is also prepared by OHCHR, also mentions the IACHR from the initial sessions, despite the fact that the IACHR only began providing information on the Inter-American system from the 6 th Session of the UPR Working Group onward; it has since consistently presented submissions on all the countries being reviewed by the UPR Working Group, for which it has information (either from the IACHR or the IACourt)11, which have been integrated in the summary reports. Prior to the 6 th Session, the Inter-American mechanisms were featured in stakeholders’ summaries because they had been cited by submissions by civil society organisations12.

Based on this first cycle then, one can say that there is ample precedent in example, for the Inter-American system to be part of the background information considered by UN member States for the review of American countries in the following UPR sessions. Therefore, the interest of States to ensure the participation of regional organisations, as relevant stakeholders, in the work of the mechanism when it was created, seems to have been met in the case of the Inter-American system; at least in terms of the information made available to States for the review.

But, the key question is: Has the inclusion of information on the Inter-American system in the background documentation that serves as a basis for the UPR translated into the consideration of the issues it raises, in the review of American States? Evidence clearly suggests it has.

Mentions of the Inter-American system, the OAS, its human rights bodies, or its instruments are not many, in the reports of the interactive dialogue held between the reviewing States and the States under review during the first nine UPR Working Group sessions. Mentions however, are present in the majority of the reviews of American countries undertaken so far13.

Notably, it’s the States under review that refer most to the Inter-American system in their presentations and/or responses during the interactive dialogue. During their respective reviews, the delegations from Barbados, Belize, Bolivia, Dominica and Peru, all alluded to their country’s ratification of Inter-American instruments; Argentina and El Salvador referred to dialogue and friendly settlements reached with victims on cases before the IACHR; Belize, Bolivia, Panama, and Guatemala noted the follow-up they had provided to recommendations or provisional measures by the IACHR, while Chile and El Salvador noted their compliance with decisions by the IACourt; Brazil, Honduras, Jamaica, and Uruguay cited their cooperation with the Inter-American human rights mechanisms. The Peruvian delegation stated that their country would in no circumstances move away from the Inter-American system.

But considerations on the Inter-American system have also been made by the States reviewing American States in the review session. What’s more surprising, mentions of the Inter-American system are not limited to American States, but have also been included in interventions by non-American States. Some interventions simply recognized areas in which the State under review had cooperated with the Inter-American system14, but other interventions noted relevant findings and decisions by Inter-American mechanisms. In Chile’s review, for example, Paraguay asked the country to elaborate on its experience as party to cases brought before the Inter-American human rights bodies; Slovenia, asked Colombia for an update on a request for provisional measures made in 2005 by the IACHR, also stating that it hoped to see new draft legislation on reparations for victims of the armed conflict in line with recommendations made by the IACHR. Also in Colombia’s review, Uruguay noted that an OAS mission in charge of oversight of the mobilization process had identified over 20 paramilitary groups, recommending Colombia expedite the process to demobilize paramilitary chiefs and combatants. In Honduras’ review, Australia expressed support for OAS’ recommendations for a continued investigation into the high murder rate, especially with regard to journalists and human rights activists.

The impact of the Inter-American system on the discussions in the review, however, goes beyond these specific mentions of its instruments and organs. Issues that have been followed closely by the Inter-American mechanisms have often been part of the interactive dialogue held during the UPR reviews, even though the Inter-American system was not explicitly mentioned in the statements. It would be difficult to objectively measure the degree to which the Inter-American system contributed in these cases, considering that several of these issues are also followed by UN system mechanisms and by national stakeholders; but there is evidence that its contribution has been significant, even when other stakeholders were involved in the issue.

A good example of this is the Dominican Republic’s review. OHCHR’s report summarizing stakeholders’ contributions notes IACHR information indicating that in 2005, the IACourt ordered the Dominican Republic to adopt within its domestic law, legislative, administrative and other measures needed to regulate the procedure and requirements for acquiring Dominican nationality based on the late declaration of birth. It also reported that in 2007, the IACourt had declared it would continue monitoring compliance with this order, which it had found pending fulfillment ( UNITED NATIONS, 2009k, p. 9, para. 44 ).

While the IACourt’s findings were not cited during the review of the Dominican Republic itself, the Governmental delegation did indirectly refer to the issue, by citing advances since 2007 such as the establishment of a three-year amnesty for late birth registrations for nationals under the age of 16 ( UNITED NATIONS, 2010a, p. 3-4, para. 8 ). Likewise, at least three reviewing delegations referred to the issue; all of them also members of the Inter-American system15. Canada recommended that the Dominican Republic “ensure that appropriate legal frameworks are in place in line with the international conventions governing the issue of nationality”; a recommendation which closely follows the information provided by the IACHR in the stakeholders’ summary report. The recommendation finally did not enjoy the support of the Dominican Republic, on the grounds that the State under review considered that nationality is already established in the Constitution and is not open to interpretation ( UNITED NATIONS, 2010a, p. 19, para. 89-1 ). This, however, shows the interesting interplay that can occur during the UPR review, on issues followed by both the Inter-American and universal human rights systems.

Like Canada’s recommendation above, there are various cases of recommendations that do not mention the Inter-American system explicitly, but that deal with issues related to those highlighted by its mechanisms. In the first eight sessions of the UPR Working Group, there are only a few recommendations in which Inter-American system is explicitly mentioned; most are related to the signing or ratifying of regional instruments, but not all. Brazil and Mexico both recommended Canada to consider ratifying/adhering to the American Convention on Human Rights, during its review ( UNITED NATIONS, 2009c, p. 7, 9, 17, para. 29, 40, 86-Recommendation 8 ); while Brazil and Uruguay asked the same of Guyana, when its review took place ( UNITED NATIONS, 2010f, p. 17-18, para. 70-Recommendations 7, 8 ); and Brazil, Uruguay and Venezuela, all asked the United States of America to accede, sign or ratify all pending Inter-American human rights instruments, with Brazil also asking for it to recognize the jurisdiction of the IACourt (UNITED NATIONS, 2010k, p. 13-16, para. 92-Recommendations 92.1, 92.42, 92.43 ). The case of Honduras is different, Brazil and Ireland both asked the state to comply with the precautionary measures requested by the IACHR, showing that recommendations can go beyond the ratification of regional instruments (UNITED NATIONS, 2010l, p. 15, 17, para. 82-Recommendations 82.35, 82.58 ). As with the interactive dialogue, however, this limited number of mentions, does not necessarily mean that reviewing States did not take into account other issues raised by the Inter-American system in their review of American States, but rather, that the Inter-American system was not cited in the recommendations.

Of course, the possibility States have under review, of choosing which recommendations they will give further consideration to, and which they will only note, means some of the above recommendations explicitly citing the Inter-American system means some, in the end may only be noted. Those addressed to Canada were not accepted by the State under review, which explained that at present, Canada is not considering becoming a party to the American Convention on Human Rights, although it said that the treaty could be reviewed at a later date (UNITED NATIONS, 2009i, p. 2, para. 9 ). But Guyana voluntarily committed itself to actively consider those remaining international human rights instruments, noting that although Guyana has not signed the American Convention on Human Rights, as a member of the OAS, it is obligated to report and to respond to matters raised by Inter-American mechanisms, and does so as requested. ( UNITED NATIONS, 2010i, p. 4, para. 23, 29 ). The recommendations made by Brazil and Ireland in relation to precautionary measures by the IACHR were accepted by Honduras (UNITED NATIONS, 2010l, p. 15, 17, para. 82). The United States of America has yet to pronounce itself on the recommendations on the Inter-American system made by Brazil, Uruguay and Venezuela.

05

5. The way forward for cooperation, in the framework of the UPR

As this brief review shows, despite the novelty of the UPR, there are now several and varied examples of participation by the Inter-American system in the mechanism. These examples are probably enough so as to conclude that – in the case of the Americas – the mechanism is on the path towards ensuring the kind of participation by regional organisations that had been contemplated when the mechanism was created; the exception being the use of the opportunity granted by the mechanism for the Inter-American mechanisms to make general comments before the adoption of the outcome by the plenary, as no Inter-American bodies have so far taken the floor during the adoption of UPR reports.

The review, however, also shows that there is still ample space for participation, and opportunities for closer cooperation between the Inter-American and the UN human rights systems through this mechanism, that have not been fully exploited in other areas.

One could envisage, for example, the Inter-American mechanisms utilizing it as a basis for bilateral discussions with the States, either during the preparation of their national reports, or in the follow-up to its review, as other stakeholders (such as civil society organisations and national human rights institutions) have done by publishing their submissions, and organizing meetings with the State to be reviewed. Given the UPR’s universal nature; such an initiative could be particularly beneficial for the Inter-American mechanisms to establish closer engagement with countries with which they have not worked closely with in the recent past, or on issues they have not followed as closely as others.

One could also envisage member States (especially those from the region) being more proactive in advocating for attention to the findings and recommendations of Inter-American mechanisms, in their interventions during the sessions, when American countries are being reviewed. As the UPR is a State-driven process, there is really no impediment for this. By bringing issues relevant to the Inter-American mechanisms to a fora such as the UPR, States would be reaffirming the important role regional arrangements play in reinforcing universal human rights standards, as they have reiterated in several UN resolutions in the past (for example UNITED NATIONS, 2009d ).

Recommendations and voluntary commitments made by States reviewed by the UPR, which are particularly relevant to the work of the Inter-American system, could also be picked up by its own mechanisms, and integrated into their ongoing dialogue with these countries, as has been done in the past with recommendations from other UN mechanisms. This process could include discussing recommendations that have not enjoyed the support of the State under review, or are under consideration by the State. This would be particularly important when the issues are explicitly or implicitly relevant to findings and recommendations from the Inter-American mechanisms.

Finally, the Inter-American system could become a key partner for the UN and for the States reviewed, in providing advice on the implementation of the UPR outcome, since the mechanism envisages implementation to be carried out with other relevant stakeholders, such as regional organisations, when appropriate. Also, since UPR recommendations remain ascribed to the issuing State, the Inter-American mechanisms could help cement bilateral relations between reviewing and reviewed countries for effective cooperation in implementing some of the recommendations emanating from the UPR.

In short, the opportunities for closer cooperation between the Inter-American system, the UN system, and the American States, within the framework of the UPR mechanism, are considerable, and possibly the broadest to date, in terms of UN human rights mechanisms. Considering the potential that was observed for cooperation between both systems from their inception, it would be unacceptable not to seize on these opportunities now, to strengthen the links that unite both systems together.

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Notes

1. Chapters VI (articles 33, 36 and 37), and VII (article 47) also refer to the involvement of regional agencies or arrangements in pacific settlements of and solution to disputes.

2. The American Declaration of the Rights and Duties of Man was adopted at the Ninth International Conference of American States in April 1948. The UN General Assembly adopted of the Universal Declaration of Human Rights on 10 December 1948.

3. See for example Organization of American States (2009a) where the Rapporteurs for Freedom of Expression of the UN and of the OAS express their concern regarding comments made by high authorities of the Colombian government against a journalist.

4. For these and other examples of cooperation, see the Report of the Secretary-General on the workshop on regional arrangements for the promotion and protection of human rights, held in Geneva on 24 and 25 November 2008 (UNITED NATIONS, 2009e, p. 12).

5. The IACHR Report on Citizen Security and Human Rights was issued jointly by the IACHR, UNICEF and OHCHR in 2010 (ORGANIZATION OF AMERICAN STATES, 2009b).

6. The International Civilian Mission in Haiti – MICIVIH deployed in 1993. For more information on the mission: <http://www.un.org/rights/micivih/first.htm>.

7. Statement by the United Nations High Commissioner for Human Rights at the International workshop on “Enhancing cooperation between regional and international mechanisms for the promotion and protection of human rights”, 3 May 2010.

8. See the reports of the different retreats on the HRC held this year in Algeria, Mexico, Paris and Monteux: <http://www2.ohchr.org/english/bodies/hrcouncil/HRC_review.htm>.

9. HRC resolution 5/1 (UNITED NATIONS, 2007) refers to relevant stakeholders as those defined by General Assembly resolution 60/251 (UNITED NATIONS, 2006), which says the HRC shall work in close cooperation with regional organisations, and Economic and Social Council resolution 1996/31 (UNITED NATIONS, 1996), as well as any decisions the HRC may take in the future.

10. Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Panama, Peru, the United States of America and Uruguay (of these, only Canada, Cuba, and the United States of America, failed to mention the Inter-American System in their national reports).

11. From the 6 th to the 9 th sessions of the UPR Working Group, the IACHR presented submissions for the UPR reviews of Bolivia, Costa Rica, Dominican Republic, Honduras, Jamaica, El Salvador, Guyana, Panama, Nicaragua, and the United States of America.

12. The Inter-American system is cited in the UPR stakeholders’ summary reports for Argentina, Barbados, Belize, Brazil, Canada, Chile, Colombia, Dominica, Ecuador, Peru, and Uruguay, despite the IACHR not submitting information on these countries.

13. Mentions to the Inter-American system can be found, for example, in the UPR Working Group outcome reports for Argentina, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Dominica, El Salvador, Grenada, Guatemala, Guyana, Honduras, Jamaica, Panama, Peru, the United States of America, and Uruguay.

14. Pakistan, for example, noted that Barbados had extended the right to seek redress through judicial recourse to the IACourt; the Netherlands referred to fact that Belize is party to the Inter-American Convention Against Corruption; Argentina congratulated Chile for ratifying the Inter-American Convention on Prevention, Punishment and Eradication of Violence Against Women; France welcomed the support by Costa Rica to the resolution of the OAS on human rights, sexual orientation and gender identity; Azerbaijan and Paraguay noted Costa Rica’s contribution to the entry into force of the American Convention on Human Rights; Egypt, Iraq and Lao People’s Democratic Republic commended El Salvador’s for its dialogue with petitioners before the IACourt and it’s openness to the Inter-American system, while Guatemala congratulated El Salvador on its efforts to ensure compliance with the recommendations and decisions of the Inter-American system; Mexico noted the reestablishment by Peru of the competency of the IACourt; and Canada commended Honduras for having extended an open invitation to international human rights mechanisms, including those of the OAS.

15. Canada noted with concern reports of discriminatory denial of the right to nationality to Dominicans of Haitian descent (UNITED NATIONS, 2010a, p. 7); the United States noted the Government’s efforts to improve civil registration access and procedures, but said it remained concerned by the major barriers Dominicans of Haitian descent faced in establishing their citizenship (UNITED NATIONS, 2010a, p 9); Uruguay indicated that the Dominican Republic should continue strengthening measures aimed at protecting the principles of non-discrimination and the right to an identity (UNITED NATIONS, 2010a, p. 10).

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Antonio M. Cisneros de Alencar

Antonio M. Cisneros de Alencar is responsible for North America, the English-Speaking Caribbean, Brazil and Venezuela at the Americas Section of the Office of the United Nations High Commissioner for Human Rights (OHCHR) in Geneva, where he was worked for the past eleven years in different capacities, including in the Secretariat of the Universal Periodic Review mechanism. He holds a Master’s degree in Population and Development from the Facultad Latinoamericana de Ciencias Sociales (FLACSO) in Mexico, and B.A. degrees in Journalism and Latin American Studies from the University of Florida in the United States of America. He has other published studies in his native Bolivia, including on poverty and development issues with UNFPA and Bolivia’s National Statistics Institute, and on the perception of the public on different political actors the country with the Universidad Católica Boliviana, as well as numerous articles published as a journalist in different newspapers. The views expressed herein are those of the author and do not necessarily reflect the views of OHCHR or the United Nations. 

Email: acisneros@ohchr.org

Original in English.

Received in June 2010. Accepted in December 2010.