SLIDE 1
From Compliance to Implementation: National Human Rights Institutions and the Interamerican Human Rights System
University College London Dr Tom Pegram
10 October 2014
SLIDE 2 The IAHRS and the Implementation Gap
- Shift in focus from rule-making to rule-
compliance
- Linkages between international and domestic
levels remain theoretically under-specified
- Human rights “from above”
- Rule contestation and conflict at local level
- Bottom-up accounts of the effects of int’l
human rights instruments
- Spotlight on sub-state actors
- Importance of local contextual reality
SLIDE 3
Country Year created Nomenclature Guatemala 1985 National Human Rights Prosecutor Mexico 1990 National Commission of Human Rights Honduras 1990 Commissioner for the Protection of Human Rights Colombia 1991 National Human Rights Ombudsman El Salvador 1991 National Human Rights Prosecutor Costa Rica 1992 National Human Rights Ombudsman Paraguay 1992 National Human Rights Ombudsman Argentina 1993 National Human Rights Ombudsman Peru 1993 National Human Rights Ombudsman Bolivia 1994 National Human Rights Ombudsman Nicaragua 1995 Commissioner for the Protection of Human Rights Ecuador 1996 National Human Rights Ombudsman Panama 1996 National Human Rights Ombudsman Venezuela 1999 National Human Rights Ombudsman Chile 2009 National Human Rights Institute Uruguay 2011 National Human Rights Institution
SLIDE 4 National human rights institutions (NHRIs)
- Formally independent, state-funded, national
agencies mandated to protect human rights
- Defensorías del Pueblo y Comisiones Nacionales de
Derechos Humanos or Human Rights Ombudsmen
- Shift in focus to:
- Domestic compliance constituents (Dai 2005)
- Implementation partners (Open Justice 2013)
- Local rights stakeholders (Hafner-Burton 2013)
- Bridging IR and comparative politics:
- Horizontal accountability agencies (O’Donnell 1998)
- Social accountability (Peruzzotti & Smulovitz 2006)
- Coalitions-formation: Reformers in the state
bureaucracy and CSOs (Fox 2007)
SLIDE 5 NHRI engagement with the IAHRS
- Article 25(1) right to judicial protection
- Legal prerogatives of NHRIs: amparo and habeas
- OAS Assembly
- OAS electoral missions
- Ideational and material support
- Interamerican Commission on Human Rights
- Petition powers on behalf of individuals and groups
- Participation in review of admissibility
- Monitoring of friendly settlements
- Interamerican Court of Human Rights
- No formal framework for NHRI participation
- Nevertheless, played multiple roles
- Well placed to monitor implementation
SLIDE 6 Value-added of NHRI engagement
- Facilitate access
- Individual protection and class action submissions
- NHRIs as integrants of new Interamerican Public Defender
- Informational conduits
- Expert witness to IACtHR proceedings
- Fact-finding (special reports as documentary evidence)
- Amicus curiae submissions
- El Salvador: Hermanas Serrano Cruz. Vs. El Salvador
- Urgent actions (provisional measures)
- Providing recourse to individuals under threat
- Compliance and reparation mechanism
- NHRI legal petitions 4% of the total, but compliance rate
- f 71.4 % compared to average of 35.7%
SLIDE 7
SLIDE 8 Indirect human rights accountability through
- rchestration (Abbott & Snidal 2014)
SLIDE 9
HRO-specific hypotheses
HRO-specific hypotheses HROs are more likely to orchestrate with IAHRS when: Goal divergence There is divergence of goals among government actors and/or between the HRO and government State oversight Government principals have weak institutional control mechanisms Engagement with International bodies Cooperation is developed, formalized and maintained with the IAHRS Intermediary availability CSO intermediaries with correlated goals and complementary capabilities are available Focality HRO is the national focal actor in human rights Local salience of issue-area norms IAHRS norms resonate in local context and are responsive to specificities (“vernacularization”)
SLIDE 10
HRO-specific hypotheses
HRO-specific hypotheses HROs are more likely to orchestrate with IAHRS when: Goal divergence Guatemala: January 2014 the government sought to restrict IACtHR jurisdiction pre-1987 State oversight Mexico: CNDH is restricted by law in its ability to litigate before the IACtHR (but not the CDHDF)* Engagement with International bodies Ecuador & Peru: The IACtHR has entered into Agreements of Cooperation with these NHRIs Intermediary availability El Salvador: NHRIs rarely engage without CSO CR: CEJIL invitation rejected by NHRI Focality Argentina: the focal actor engaging with the IAHRS is the Defensoría General Local salience of issue-area norms Guatemala & Peru: death penalty advocacy at national level (anti-populist position)
SLIDE 11
HRO-specific hypotheses applied to Colombia
HRO-specific hypotheses HROs are more likely to orchestrate with IAHRS when: Goal divergence Divergence pronounced under leadership of Cifuentes (00-03) e.g. Urabá State oversight No formal restriction on engagement with IAHRS. Presidential role in appointment of Defensor Engagement with International bodies Interaction ad hoc, no agreement. However, early engagement (public audiences by Triviño (93-96) Intermediary availability 1992: NHRI worked with NGOs on case of massacre in Trujillo to arrive at friendly settlement Focality Focality diminished significantly 2003; Volmar Perez de-prioritized engagement with IAHRS Local salience of issue-area norms Thematic resonance: violence against women in conflict; transitional justice. But highly politicized.
SLIDE 12 HRO-specific hypotheses applied to Peru
HRO-specific hypotheses HROs are more likely to orchestrate with IAHRS when: Goal divergence Combative relationship btw Defensoría & gov’t pre and post-transition in 2000 State oversight No formal restrictions. Janet Espinoza case (2002) confirmed NHRI standing before IACtHR Engagement with International bodies Formal cooperation agreement signed with the IACtHR (but “general attitude of indifference”) Intermediary availability Active collaboration between Defensoría & CSOs. 2001: joint petition by DP and Movimiento Manuela Ramos re: women voting rights Focality Defensoría del Pueblo is the national focal actor in human rights (OAS mission: 2000) Local salience of issue-area norms Important impact on process of transitional
- justice. Highly politicized, growing obstruction
SLIDE 13 HRO-specific hypotheses applied to Peru
HRO-specific hypotheses HROs are more likely to orchestrate with IAHRS when: Goal divergence There is goal convergence among government actors and/or between the HRO and government State oversight No formal restrictions. Janet Espinoza case (2002) confirmed NHRI standing before IACtHR Engagement with International bodies Formal cooperation agreement signed with the IACtHR (but “general attitude of indifference”) Intermediary availability Active collaboration between Defensoría & CSOs. 2001: joint petition by DP and Movimiento Manuela Ramos re: women voting rights Focality Defensoría del Pueblo is the national focal actor in human rights (OAS mission: 2000) Local salience of issue-area norms Important impact on process of transitional
- justice. Highly politicized, growing obstruction
