America’s reluctant, and contradictory, approach to the Inter-American Human Rights System must end
“The situation of the United States of America in relation to the Inter-American Human Rights System is characterised by its reluctance to engage fully in the system.”- María Díaz Crego [international law expert]
Ever since the IAHRS was created in 1948, the United States (“US”) has been non-committal in its dealings with the System. Nevertheless, states, NGOs, individuals, and academics are clamoring for more US involvement with the Inter-American System. Now more than ever, this issue is becoming increasingly relevant. Deeper US engagement with international human rights bodies is crucial to combat the most pressing crises of our globalized world. This is especially the case when dealing with transnational human rights violations, like the ongoing problem of migrant disappearances in the Central-American and North-American region. To address this regional problem the US must accept its share of responsibility, by cooperating with the IAHRS and other involved States to build a regional solution.
The origins of the IAHRS are tied to the creation of the Organization of American States, a regional institution that brings together 35 States across the Americas. The OAS was created in April of 1948 through the adoption of the American Declaration of the Rights and Duties of Man (“American Declaration” or “Declaration”) and the Charter of the OAS in Bogotá, Colombia. Within the OAS structure, the IAHRS is composed by two main bodies. First, the Inter-American Commission on Human Rights (“IACHR”) who functions since 1960 as one of the principal organs of the OAS and has the mandate to promote the observance and protection of human rights. Second, the Inter-American Court of Human Rights which was created nine years later, in 1969, with the adoption of the American Convention on Human Rights (the “American Convention” or “Convention”).
At present, not all OAS member states have signed or ratified the American Convention and not all have accepted the jurisdiction of the IACtHR. Among them, the United States has signed the American Convention, but has not yet ratified it — which means that the IACtHR has no jurisdiction over the US. Nonetheless, given its status as an OAS member State the Inter-American Court and the Inter-American Commission on Human Rights consider that the US is still bound by the American Declaration. However, despite the opinion of these institutions, and also despite the US’ initial involvement with the IAHRS — perhaps without which we would not have the system today — the US now takes a reluctant and contradictory approach in its engagement with the IAHRS.
The US has not always been so indifferent its dealings with the IASHR. In fact, in OAS history, the US initiated the periodic conferences of the OAS, which would then become the forum that created the IAHRS. According to political scientist David Forsythe and international legal scholar Lea Shaver, the Roosevelt administration’s strong support for human rights gave way to the adoption of both the OAS Charter and the American Declaration. Additionally, they also posit that the American Convention — another of the founding treaties of the Inter-American system — would not have come to pass if not for the influence of the Carter Administration. Given his administration’s emphasis on human rights, President Carter solicited America’s neighboring States to ratify the Convention — of which a dozen ratified during his term. But while the President Carter advocated and even signed and the Convention, the Senate never ratified it, and thusly US is not bound by the Convention.
Since those initial engagements with the IAHRS, and up until this day, the US has not established clear criteria regarding the legal status of its obligations under the American Declaration. For instance as described in the 2011 IACHR merits report on the case of Jessica Lenahan et al. v. United States, the US “asserts that any petition must be assessed on its merits, based on the evidentiary record and a cognizable basis in the American Declaration.” However, on the other hand, when the IACHR issued its 2015 Report on Human Rights Situation of Refugee and Migrant Families and Unaccompanied Children in the United States of America, the US “considers that many of the sources referred to by the Commission do not give rise to binding legal obligations on the United States. According to the position of the [United] State[s], the American Declaration is a ‘non-binding instrument that does not itself create legal rights or impose legal obligations on signatory States.’” These two positions reveal how the engagement of the US towards the IAHRS oscillates between a cautious openness to engage with the Commission and an outright rejection of its legal authority.
Unfortunately, the latter position is most common whenever the US has had to deal with migration-related issues before the IAHRS. The United States simply does not seem to be interested in cooperating with the IACHR to protect the human rights of migrants — preferring to pass off its responsibilities to Mexico and Central American countries. This presents an additional challenge to all human rights advocates working to defend the rights of central American migrants that travel to the US.
While it is difficult to identify a single root cause of the violence that Central American migrants experience in their way towards the US, a major contributing factor is the US’ failure to meet its human rights obligations. Since 1994, more than 10,000 people have died in their attempt to cross the US southern border. The US government has instituted a “Prevention through Deterrence” policy that deliberately pushes migrants into the most life-threatening routes. This policy has been thoroughly criticized by civil society as it condones the violation of multiple human rights — including the right to life protected under article 1 of the American Declaration. This issue has been raised before the IACHR at least since 2012.
Additionally, the US government has also failed to provide the necessary mechanisms to protect the rights of migrants from preventable harm or abuse; and to ensure their families’ access to justice and reparation. The detrimental effects of this failure have also been addressed before the IACHR, for example, through the 2016 thematic report on Inter-American Standards.
All of this indicates that the crisis of migrant disappearances is a regional problem which requires a regional solution. The US needs to be held accountable for the its role in migrant disappearances — as well as any other of its human rights violations- and needs to take proper action to address the crisis, prevent and repair further violatiosn. The instruments and bodies of the IAHRS would provide both government officials and civil society the tools and a forum to tackle these issues at a regional scale. But without full US engagement with the system, there will continue to be questions about its legitimacy and effectiveness.
The IAHRS is still a promising forum to address human rights problems within the US, and especially to push the US government to assume its share responsibility for transnational or regional violations — such as migrant disappearances. However, to make it more effective, domestic civil society actors would need to keep pushing to get the US to the table. The most ambitious and important step to rectifying America’s blasé approach to the Inter-American system would be to call for ratification of the American Convention. Ratification will force the US to officially accept jurisdiction of the IACtHR and will give an opportunity for more cases regarding migration to be brought before the IACtHR.
Indeed, this would be a gigantic challenge in the present political context; however, there are many other steps that civil society actors can take today to move towards that horizon. Advocates could lobby local politicians on the importance of the IACHR; lawyers can make use of IAHRS standards in domestic litigation; law schools could also should train lawyers to use the IAHRS so they can bring more US before the IACHR. By pushing the US towards greater engagement with international human rights bodies, these actions would also be contributing to the solution of those transnational crises that would require the US government to assume its share of responsibility for human rights violations.
Whether it is the crisis of migrant’s disappearances or climate change, if we are ever to tackle the most pressing human rights challenges of today, America’s reluctant, and contradictory, approach to the Inter-American Human Rights System must end — and can end with the help of civil society.