|
I. Topics discussed
Civil society's quest for justice.
Positive aspect of non-governmental organizations' active participation in the inter- American human rights system: strengthening the rule of law; reinforcing domestic institutions; legitimizing governments; and enabling dialogue between civil society and governments.
NGOs and the Inter-American Commission on Human Rights and Inter-American Court for Human Rights: independent NGO representation before the Court; improved access to the Court; and ability to request advisory opinions from the Court.
Recommendations on increasing the role of NGOs in the OAS: NGOs should be informed of the agenda of the OAS, be able to make proposals and speak at OAS meetings; their presence should be formalized by granting them consultative status as exists at the UN.
Comparison of the United Nations Committee on Human Rights (UNCHR) and the Inter- American Commission on Human Rights (IACHR): length of procedures; rules on confidentiality; standards; form of the petition; admissibility; on-site visits and country reports; and the limitation period.
II. Presentations
Alain Dupuis opened the round-table by recounting the history of OAS-NGO relations. A Canadian-sponsored movement developed in the early nineties to improve OAS-NGO relations, but he indicated that no consensus had been reached yet among member states as to the direction the changes should take. He then highlighted three additional questions that he felt should be addressed by the round-table: First, how could the OAS better focus its work in relation to NGO activities and priorities? Second, as many OAS delegates feel there should be a tighter collaboration with institutions such as the World Bank and the IDB, how can this be encouraged in order to put multilateral banking resources closer at hand to the political bodyand to what extent is this desirable? Finally, how can we revitalize the OAS in light of the claim by some member states that NGO participation and human rights issues translate into infringement on their national sovereignty?
Mariclaire Acosta, human rights activist and active user of the inter-American system, indicated that although the inter-American human rights system had been conceived to complement domestic legal systems, it has become the protector of human rights, due to the current inability of domestic judicial systems to protect basic human rights such as the right to life and physical integrity. This is illustrated by the fact that the inter-American system faces grave human rights violations, in particular the right to life which constituted approximately 70% of all cases in 1996.
Ms. Acosta then recalled that the inter-American system was created to serve people, not governments. She added that one of the main demands of civil society in Mexico today is justice, as she was told time and time again during a recent trip to Chiapas. Impunity for serious human rights abusers undermines the rule of law and domestic institutions. The inter-American human rights system provides governments a mechanism to improve human rights conditions by strengthening the rule of law, domestic institutions, and the legitimacy of governments. Thus, any attempt to undermine the system's role in protecting human rights goes against the improvement of human rights domestically.
She continued by highlighting the role played by non-governmental organizations in the inter-American system. NGOs are often an effective conduit for transmitting human rights concerns on violations from their networks to the system. NGO advocacy work also plays an important role in holding governments to their obligations set out in the inter-American human rights instruments. However, in some cases, NGOs can undermine the system and lose credibility because of their lack of competence in the field. Nonetheless, this problem could be solved if the system were to provide training to less experienced NGOs.
Ms. Acosta then focussed on the recent debate on NGO access to the inter-American system. She recounted the reaction of NGOs to the Mexican and Peruvian governments proposal to curtail NGO involvement in the inter-American human rights system. At the last OAS General Assembly meeting in Lima, NGOs successfully mobilized public opinion against the Mexican and Peruvian government positions. The Lima NGO Declaration called on the OAS and member states to keep the human rights system accessible to NGOs and also requested that NGOs be consulted on any future changes to the system. Also, the final resolutions on the promotion of human rights, but not on the protection of human rights, contained a call on governments to consult with non-governmental organizations in the discussion on how the system could be strengthened.
In conclusion, Ms. Acosta listed several NGO concerns. First, the inter-American system is very slow in delivering justice and follow-up methods to ensure government compliance require strengthening. Second, there is a need for more equality between the parties. In this regard, a consensus exists within the NGO community on the fact that NGOs need to be given consultative status such as exists at the UN.
Sharryn Aiken stated she was presenting the perspective of a Canadian user of the inter- American human rights system. She recognized the Canadian government's commitment to human rights and illustrated its progressive stance on involving civil society in the human rights debate. Indeed, government-supported NGOs are freely able to criticize government policy. Nevertheless, a discrepancy exists between the external and internal promotion and protection of human rights. The Department of Foreign Affairs and International Trade, which promotes human rights internationally, is often praised for its positive contribution in furthering the respect of human rights whereas in Canada, the Department of Citizenship and Immigration often is culpable of violating basic rights.
Ms. Aiken then compared the United Nations Committee on Human rights (UNCHR) and the Inter-American Commission on Human Rights (IACHR). Her main points were:
i. Length of procedures: Both institutions share a slowness in processing cases (at the IACHR, the average is 7 years, whereas at the UNCHR, it is 5 years).
ii. Rules on confidentiality: The UNCHR and the IACHR both possess strict rules on confidentiality (although the UN's are stricter). These rules are asymmetrical and create a real problem for NGOs working within the system. For example, publicity is often the only way to force a government to comply with orders for precautionary measures. The rules on confidentiality restrict access to this information.
iii. Standards: The human rights standards are quite similar although those of the inter- American system may be higher.
iv. Form: Both institutions have a very simple petition form. It is not necessary to be represented by a lawyer and there are no direct costs in using the system.
v. Admissibility: Both require that domestic remedies be exhausted, which in some cases allows governments to block international recourse for years.
vi. On-site visits and country reports: Article 40 of the International Covenant on Civil and Political Rights requires countries to submit a report on their compliance with their obligations. Non-governmental organizations may also submit written briefs evaluating the country's performance. The ensuing UN country report is an effective tool enabling NGOs to lobby the government for improvements. In the inter-American system, there is unfortunately no country obligation to report nor a follow-up procedure to monitor compliance with obligations.
vii. Limitation period: In the OAS, a petition must be filed within 6 months of the alleged violation whereas there is no time limitation imposed by the UNCHR. For this reason, when making a petition it would be wise to use the inter-American system first, due to the existence of the limitation period, and then if required proceed to the UNCHR.
Ms. Aiken concluded that the major difference between the two systems is that under the IACHR, NGOs may submit a petition on their own behalf, whereas under the UNCHR it is necessary to represent a victim. In the inter-American system, NGOs can request a "general hearing" wherein they ask that the Commission examine a general aspect of a country's compliance or non compliance with its obligations. The Canadian Council for Refugees participated in such a hearing in October 1996 and called attention to Canada's immigration and refugee policy. The IACHR then conducted an on-site visit to Canada in 1997. However, the findings of this visit were not made public.
Mr. Dupuis reiterated at the conclusion of Ms. Aiken's presentation that Canada has often intervened in multilateral fora in favour of increased NGO participation. For example, during the preparatory meetings leading up to the Draft Inter-American Convention on the Elimination of Discrimination for Disabled Persons, Canada stressed the need to include NGOs in the process and added that such a Convention is the quintessential example of the need for NGO participation in the inter-American lawmaking process.
Viviana Krsticevic addressed two issues: first, NGO access to the Commission and the Court and second, NGO status and access within the OAS.
1. Access to the Commission and the Court
The Commission provides broad access for NGOs. The inter-American system is very generous in its standing rules. Standing rules determine who can submit a complaint, and thus, are a key measure of access to the system. An NGO or an individual is able to lodge a complaint on behalf of a victim before the Commission pursuant to Article 42 of the Convention. The Commission's regulations allow it to initiate a case requesting information from a government without having received a complaint. The open relationship NGOs have with the Commission and the flexibility given to them by the American Convention in representing victims of human rights abuses is however under attack, particularly from the Mexican government, which is seeking to limit NGO involvement in the case system.
Moreover, NGOs have had a crucial role in other aspects of the workings of the Commission such as providing information for on-site visits and country reports. NGOs have also been instrumental in the development of substantive legal standards and procedural roles. Access to the Court, on the other hand, is considerably more limited, as only the Commission or a State may refer a case to the Court. Furthermore, once cases are before the Court, NGOs have a limited role. They cannot independently present the case before the Court although petitioners are always involved in the litigation or assistance to the Commission. The requisition is handled by the Commission. The Court has given NGOs a certain role however, by allowing them independent representation at the last stage of the litigation process when reparations are being determined.
Ms. Krsticevic explained that this situation has led at times to friction between the NGOs and the Commission, as each seeks to adequately represent the victim. The Commission is also in a difficult position, as in the first stage of the proceedings it must be a neutral arbitrator (when the case is before the Commission) and later, when the case is submitted to the Court, it becomes the advocate for the victim before the Court.
Another limitation is that NGOs cannot ask for an advisory opinion from the Court, although they can be amicus curiae, thus presenting their views and sometimes even presenting their arguments in public hearings before the Court.
2. NGO status and access within the OAS
The OAS has a poor track record with respect to involving civil society. For example, neither NGOs, nor members of the Commission, nor Court judges were invited to participate at the April 1997 meeting convened by the Committee on Political and Juridical Affairs on the transformation of the inter-American human rights system. The Mexican government even attempted to make the meeting entirely private by restricting the access of NGOs, observers, and the press, but this was successfully opposed by members of the Canadian delegation. The current rules do allow participation in certain areas but this is subject to the discretion of the states sitting at the meeting.
Ms. Krsticevic concluded her presentation by describing the objectives of non-governmental organizations in the future OAS system. Certain NGOs wish to be informed of the OAS agenda and be able to propose items on it (as is done at the UN); or to speak at OAS meetings and distribute statements through official channels. These arrangements are not part of the current rules governing NGO cooperation. In general, NGOs desire to see the OAS become as responsive as the UN is towards them. NGO presence should be formalized, not in the sense of being able to vote at OAS meetings, but rather by being allowed to demand accountability from governments.
Mr. Dupuis added that OAS meetings are not closed unless a member state requests it. Such requests are unusual and only arise under extremely exceptional circumstances such as when the 34 Ambassadors met to examine the need for Resolution 1080 (return to democracy), following an attempted coup.
III. Questions and Comments
David O'Brian, ICHRDD, asked Mr. Dupuis what were the obstacles to granting NGOs consultative status.
Mr. Dupuis responded that the OAS, the oldest intergovernmental organization in the world, has existed for the past 120 years and under its present form for the past 50 years. The OAS carries a cultural and historical weight entrenched in sometimes outdated customs, procedures, and traditions concerning many of the new members (since the 1980s) and some of the older members as well. The OAS has been quite different from other international organizations, such as the UN, where NGO participation is encouraged. Mr. Dupuis does not believe that there currently is a consensus at the OAS to encourage such formalized NGO participation, although some member states like Canada, the USA, Chile, and Argentina are very vocal on the need to increase this participation.
Furthermore, the somewhat strange structure of the OAS where the small Secretariat and the Permanent Council (Ambassadors) form a small and sometimes almost "family grouping" does not compare at all with the heavy, more distant and sophisticated machinery of the UN. As an institution, the OAS often has been accused, with some reason, of working toward its own survival rather than responding to inter-American challenges. The overall OAS budget is small: approximately US$80 million, with roughly US$60 million going to salaries. In light of this, Secretariat staff members are increasingly trying to justify their own priorities and link them as best they can to the inter-American agenda. But clearly some of these efforts do not translate well into the agenda the 34 member states approve at the annual session of the General Assembly, and NGO priorities can also be a casualty of circumstances in this questionable process.
However, the vision of the OAS has changed significantly with César Gaviria and the Summit of the Americas implementation process, where a clear effort is being made to better focus on priorities. But the institution urgently needs to reinvent itself and streamline its mandates and priorities. This may take time, given the current rule that all decisions must be taken by consensus in the General Assembly and the Permanent Council, often meaning that, in fact, every member has a veto. Some member states exercise this veto on a regular basis, blocking changes and holding back badly needed modernization. Formal consultative status for NGOs at the OAS is inevitable but at this time, the current attitude of some member states is not conducive to formalizing greater NGO participation.
George Wright agreed with Alain Dupuis' analysis and the historical background of the OAS. He also expressed his concern that although he supports the Secretary-General's initiative to reform the OAS, much good will and energy will be needed to change the system. It is frustrating to note that despite an excellent juncture, with support from the Secretary General's office and the Canadian and US missions, and the work by NGOs, this issue is still not moving forward.
Mr. Dupuis responded that it is true that decisions may take longer at the OAS, even compared to the UN. This is an argumentative system and agreements take a very long time to reach.
Ms. Krsticevic remarked that forming coalitions of NGOs and sympathetic governments has been a very effective strategy in pluralizing the OAS. She also added that NGOs are strengthening their voice in the system.
Ms. Acosta underlined the fact that even though governments may be reluctant to admit it, numerous actors are present on the international scene today. She gave the example of the NAFTA agreement, where trade unions, corporations, and governments all have a role to play.
Ms. Aiken expressed her concern that in order to change the system, NGOs must share their experiences across borders.
Mr. Leuprecht, visiting professor at McGill and UQAM, asked whether the rules on confidentiality did not have a positive aspect. Second, can NGOs act as amicus curiae to the Inter-American Court?
Ms. Acosta answered that the rules on confidentiality do not really serve their purpose because the perpetrators of violations know that precautionary measures have been issued (they are notified to ensure that they respect the measures), and the safety of the victim is not ensured because the mechanism of informing the press is not available due to the confidentiality order. She also added, in response to Alain Dupuis's earlier question, that unfortunately in her country, although national sovereignty is less and less a concern in economic and trade affairs, it seems to take disproportionate importance when human rights and NGOs are involved.
Ms. Krsticevic specified that according to the Convention, the general rule is publicity. She also stated that it was possible for NGOs to act as amicus curiae to the Court.
|
