Human Rights Treaty Bodies in the field: The Inter-American Regional System and sessions away from headquarters

by Elizabeth Abi-Mershed, former Assistant Executive Secretary of the Inter-American Commission on Human Rights Blog, By invitation, International human rights institutions, mechanisms and processes

Following the post from Christof Heyns and Abiola Idowu-Ojo of July 10, 2018 on this site, the present post reviews the inter-American experience with holding sessions away from headquarters, and considers the many advantages, as well as some challenges.


Public hearing of the Inter-American Commission on the follow-up mechanism for the disappearance of 43 students in Ayotzinapa, Mexico, 168 special period of sessions, Dominican Republic, May 8, 2018

Both the Inter-American Commission on Human Rights (Commission or IACHR) and the Inter-American Court of Human Rights (Court) carry out periods of sessions away from headquarters. Both consider such sessions an important and beneficial measure to bring their work closer to the users of the system, and to promote their work and human rights generally.[i]

In February of 2018 the IACHR for example carried out an extraordinary period of sessions in Santo Domingo, Dominican Republic, which is where it first carried out meetingsaway from headquarters in 1961.[ii] As of mid-2018, the Commission has held approximately 168[iii] periods of sessions of which at least 25 were held away from its headquarters in Washington D.C. The Commission has placed renewed emphasis on this option since 2016, and eight sessions away from headquarters have been carried out since then. These sessions, hosted by different member states, depend on invitations from those states and their financial assistance.

The Inter-American Court started to implement the practice later in its history, beginning in 2005, and has made an effort to carry out an average of two sessions away from its headquarters in San José, Costa Rica, every year. Of its 125 sessions, it has already carried out 28 in various countries of the region.[v]

Sessions of the Inter-American Commission and Inter-American Court away from headquarters

(Click here for full size map)

Periods of sessions

The Commission meets in at least two regular and as many special periods of sessions as it deems necessary during the year, and may hold sessions in member states subject to agreement or invitation. Historically, the Commission has held a total of six to seven weeks of sessions a year. As noted above, it is currently carrying out more sessions away from headquarters.

During a typical regular period of sessions, the Commission holds public hearings on a range of thematic issues and, less frequently, hearings on cases being processed at the merits stage.[vi] It carries out non-public meetings between the parties negotiating a friendly settlement, or to follow-up on precautionary measures or cases at the compliance stage. It conducts internal deliberations on individual cases, precautionary measures, planning of on site and working visits, preparation or approval of thematic initiatives and reports, and emerging issues that require attention. It typically meets with civil society organizations, and may organize public promotional events.

A regular Commission period of sessions may cover any member state depending on the matters requiring deliberation. A special period of sessions away from headquarters – as the vast majority of those in member states are – will usually not include deliberations or public hearings on the host country, and public hearings may be limited to neighboring countries in the sub-region.

The Court may hold the number of regular and special periods of sessions it deems necessary during the year, and may meet in a member state subject to the latter’s prior agreement. The Court has gradually increased its meeting time over the years and anticipates meeting for more than eight weeks in 2018. The Court clearly separates periods of sessions at headquarters as regular, and sessions in member states as special. During its meetings, the Court typically holds public hearings on contentious cases, and may hold private or occasionally public hearings on provisional measures or cases in the compliance stage. Non-public deliberations concern pending sentences, and the review of reporting by parties on the status of provisional measures in effect and cases in compliance, among other matters.

Benefits of periods of sessions in different Member States

A first level of impact of sessions away from headquarters relates to the opportunity to engage with the public. The advantages and benefits of meetings away from headquarters depend, in large measure, on the kinds of activities they include. During sessions away from headquarters, public hearings are one of the key ways in which participants and potential participants in the system observe the bodies in action, and understand more concretely their mandates and objectives.

The Commission holds a range of public hearings during sessions away from headquarters that generally focus on a particular country or sub-region, a particular theme, or both. Public hearings promote awareness of rights, challenges in the region, the system and its mandate. The possibility to observe hearings helps to keep the public informed about the way in which the system operates and may also serve to make the process seem less rarified and more concrete for potential users. For students of law and other relevant disciplines, these hearings can transform abstract academic training into something more concrete. The observation of hearings by the public can also contribute to a sense of state accountability.

The Court’s public hearings on contentious cases held in different countries of the region serve similar goals and provide observers with an opportunity to hear testimony from those directly affected by human rights violations as well as expert witnesses, understand the legal positions of the parties and consider the issues the Court must analyze to make its determination.

Normally, both the Commission and Court take the opportunity during sessions away from headquarters to organize promotional activities to reach out to people in the countries concerned with information about their mandates and work, and human rights more generally. Promotional activities seek to engage actors in the state sector and civil society already working in human rights, and to reach out to new users and potential users of the system. Often, these activities are organized with the participation and support of academic institutions. For students, this provides a learning opportunity, and such activities can also strengthen ties between the monitoring bodies and institutions that engage with the work of the monitoring bodies.

Part of the usefulness and attraction of regional systems is that they are closer to home both conceptually — in terms of legal approaches and specific challenges — and practically — in terms of geography. Sessions in different member states help bridge the conceptual and/or practical distance between those covered by the system and the monitoring bodies. Particularly in the case of the Commission and its public hearings, as travel to Washington D.C. may be costly, sessions closer to home may enable new voices to be heard and the presentation of new problems and challenges.

A second level of impact concerns activities that are not public, but which involve states, victims and their representatives.

The Commission regularly organizes working meetings with the parties for the purpose of facilitating friendly settlement negotiations, and in order to address challenges in the implementation of urgent measures of protection. It does this in connection with working visits, as well as being an important aspect of sessions in member states. With respect to friendly settlement, such meetings enable the Commission to monitor the negotiation processes to ensure that they produce results. With respect to urgent measures of protection, the meetings provide an opportunity for the parties to identify difficulties and aim to help them move forward with solutions to ensure the efficacy of the protection. Doing this closer to home may facilitate participation for state officials/decision-makers, the persons directly affected and their representatives, and hopefully offer more effective progress.

A significant measure that the Court initiated in 2015 is the holding of hearings, almost always private, on compliance in cases previously decided. A number of these hearings have been conducted during periods of sessions in the country concerned. For example, while the Court was in Guatemala for sessions in March of 2017, it held two private hearings in Guatemala City, one to deal jointly with problems in compliance with justice and accountability measures in 14 cases, and the other to address compliance with reparations in the Dos Erres massacre case. A few days later the Court visited two sites in the town of Rabinal in Baja Verapaz to evaluate compliance in the cases of the massacres of Plan de Sanchez and Rio Negro. This enabled the Court to speak directly with survivors and those most affected, facilitated the involvement of state officials directly responsible for implementation, and promoted increased commitments to resolve obstacles.[viii]

During sessions away from headquarters, both the Commission and Court also tend to organize meetings with state officials with direct responsibility in the area of human rights, as well as with civil society organizations working at the national and local levels. With state officials, for example, opportunities for direct dialogue can be important for emphasizing or clarifying what human rights obligations require in terms of effective delivery. Direct engagement with a range of officials in the country can help promote a greater sense of ownership and investment on the part of the state sector in positive outcomes. This can also be done at headquarters, but for practical reasons, it can often be more inclusive and expansive when done in the host country. As indicated below, it presents challenges in terms of balancing time and access, and utilizing the information to good effect.

Public hearing of the Inter-American Court on the case of Benito Tide Méndez et al. v. Dominican Republic, 48 special session, Mexico, October 8, 2013

There is a third level of impact, in terms of the monitoring bodies themselves. For both the Commission and the Court, sessions away from headquarters are a way to benefit from the financial support of the inviting states. Both bodies work with limited resources, and of necessity both seek external donations to supplement regular OAS funding. The Court has incorporated sessions away from headquarters into its planning on a consistent basis since 2005 as part of its effort to gradually expand its meeting time. The Commission has been less consistent. However, when it experienced what it termed a financial crisis in 2016, the Commission placed heavy emphasis on sessions away from headquarters, financed by the inviting state, as a way to ensure the continuity of sessions. While funding is clearly necessary, as mentioned below, the more direct the relationship between funding and an activity (beyond strictly promotional) in a member state, the more particular the potential challenges with respect to independence.

A last level of impact relates to the relationship between the inter-American monitoring bodies and the UN mechanisms. Both the Commission and Court take advantage of sessions in member states to meet with representatives of UN agencies and mechanisms based there to strengthen ties going forward.

Questions and challenges

Core principles that must always inform the activities of monitoring bodies include independence, efficacy and efficiency. Sessions away from headquarters can raise some challenges.

A first challenge concerns meeting the objectives and expectations the Commission, Court and users of the system have for sessions. If the objective is to bring the system closer to the users, it may seem counterintuitive that public hearings usually exclude the situation in the host country. Of the 12 periods of sessions away from headquarters since Commission hearings have been public, only two have included public hearings on the host country. As a result, nationals of the host country have the benefit of seeing the Commission and Court in action on issues and themes of relevance, but they usually don’t have the chance to observe the bodies in action on the situation in their own country.

As a matter of settled practice, when away from headquarters the Court does not hold public hearings on contentious cases concerning the host country. It may hold private hearings or more rarely public hearings on follow-up in cases already decided.

For the meetings away from headquarters to have maximum impact, it is important that the public activities of the sessions have strong participation and are well reported in the media. Participation and coverage depend on multiple factors, including the location and accessibility of the venue (for example, is it served by public transportation?), and the extent to which the local human rights community, the press, academic institutions and others are informed about the hearings and other activities. The Commission has had mixed experience with this. It has organized public hearings with hundreds of participants, but it has also held such hearings with a few observers and no media present.

With sessions at headquarters, the Commission press office for example has developed means to ensure a level of press coverage, with prior information and good follow-up. This is also true with levels of observer participation – the experience at headquarters makes it easier to predict and facilitate reasonable outcomes. Hearings in member countries present different challenges and require significant preparation.

In the case of Washington D.C., periods of sessions also offer informal opportunities for information sharing. Sessions bring together state representatives, victims, local and regional civil society representatives, and ambassadors and officials from Organization of American States missions, among others. There is ample opportunity for a range of parallel meetings between different state and non-state actors in the system. Well-attended sessions often bring together hundreds of human rights defenders, with opportunities for coalition building. While this can be replicated in part in sessions away from headquarters, and it is in any event important to reach new participants and incorporate new voices, the interchange facilitated by the OAS context has its role.

Another challenge during sessions away from headquarters is ensuring a correct and transparent balance in access to and time with the Commission. When a host government proposes meetings with its officials to the Court or Commission to provide information on human rights initiatives, it may be highly relevant, and, in any event, it is not easy to refuse. The host country also has the possibility to propose receptions, lunches or dinners as a matter of protocol, and the line between protocol and exchanges of information and views on substance is fluid. Both bodies also meet with civil society representatives, but it can be challenging to ensure that these opportunities are organized with a format and duration that are equitable and effective.

For the Commission, the line between protocol and substance may present a further question. By rule and practice commissioners do not participate in deliberations, decisions or pronouncements concerning their own countries. This has been a key principle to protect against any appearance of influence. For a long time, the practice was that during sessions away from headquarters or country visits, nationals of the host country would not participate in meetings organized by the host for the plenary. More recently the Commission has relaxed this practice when the event in question was understood to be social, such as a lunch, dinner or reception. Given that even social events may include the exchange of views on matters of substance, this is not an easy line to draw.

Sessions in member states are not less expensive than those at headquarters. In addition to the normal travel of the members or judges, who have to travel from their own countries, the organizational work and legal support for a session are necessarily carried out by the respective Secretariats. Sessions away from headquarters require travel on the part of a significant Secretariat team. Whereas years ago a trip with seven commissioners might involve travel by an equal number of Secretariat staff, in recent years, setting up a period of sessions with public hearings, deliberations, promotional events, meetings etc. may easily require 20 or more members of Commission’s staff. They deal with everything from logistics, technical and webcast support, to the presentation of draft resolutions on precautionary measures, cases or thematic reports, to receiving people who want to present a petition.

Conclusion

Sessions away from headquarters offer a range of benefits and advantages, depending on how they are organized. They can be more inclusive and expansive in terms of access and participation by those affected by human rights challenges, reach new users and potential users, and better engage officials at the state level. Achieving effective results requires careful consideration of how to maximize impact. In this regard, the initiative of the Court to carry out (usually private) hearings or visits on compliance during sessions away from headquarters provides an interesting example of a new measure seeking to enhance impact. The balance between what is public and what is private is an ongoing discussion, as part of the larger question of how to best maintain transparency in the action of monitoring bodies. Sessions away from headquarters can also pose new issues about independence, and the bodies must maintain vigilance to ensure its preservation.

 


Endnote

[i] For Commission press releases and annual reports detailing activities, see www.cidh.org; for those of the Inter-American Court, see http://www.corteidh.or.cr/index.php/en.

[ii] The Commission carried out part of its third period of sessions in the Dominican Republic while carrying out an on-site visit there.

[iii] In its early years the IACHR changed the numbering at one point, so the number 168 is sequential but with a few exceptions.

[iv] Photo published by EFE, 2 Mar. 2018, in a report on the case of the 43 disappeared students in Ayotzinapa, Mexico, the subject of an IACHR hearing during its 168 special sesion held in the Dominican Republic.

[v] Inter-American Court of Human Rights, Annual Report 2017 (2018), p. 43, http://www.corteidh.or.cr/tablas/informe2017/ingles.pdf

[vi] Commission hearings are webcast and those from recent years are archived and available at hearings by session: http://www.oas.org/es/cidh/audiencias/default.aspx?lang=en; and hearings by topic: http://www.oas.org/es/cidh/audiencias/topics.aspx?lang=en. The Court has a multimedia gallery with videos of certain public hearings at : http://www.corteidh.or.cr/galeria-multimedia-en.html.

[vii] Canal Judicial, 9 Oct. 2013 “Concluye Audiencia Pública del Caso Tide Méndez vs. República Dominicana”. https://canaljudicial.wordpress.com/2013/10/09/concluye-audiencia-publica-del-caso-tide-mendez-y-otros-vs-republica-dominicana-coidh/. This source reported more than 1600 persons observed this hearing.

[viii] For information about the Court’s sessions in Guatemala, the two private hearings and the visit to Rabinal, see Inter-American Court of Human Rights, Annual Report 2017 (2018), pp. 30-32, 71-72, 74-76, http://www.corteidh.or.cr/tablas/informe2017/ingles.pdf


Photo credit

Featured photo: Inter-American Commission on Human Rights. ‘Belice: Situación DDHH. 152 Período Extraordinario de Sesiones de la CIDH’. 12 August, 2014. Credit: DGCS UNAM, license: CC BY 2.0.

Introduction: EFE, 2 Mar. 2018, in a report on the case of the 43 disappeared students in Ayotzinapa, Mexico, the subject of an IACHR hearing during its 168 special sesion held in the Dominican Republic.

Benefits of Periods of Sessions in Different Member States: Canal Judicial, 9 Oct. 2013 “Concluye Audiencia Pública del Caso Tide Méndez vs. República Dominicana”. This source reported more than 1600 persons observed this hearing.

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