Reform process 2012
Consultation on Module II:
The precautionary measures mechanism is designed to ensure a rapid response by the IACHR in serious and urgent situations where there is an imminent risk of irreparable harm to persons or groups of persons in the 35 OAS member states. It is a mechanism utilized by all global and regional human rights bodies utilizing similar criteria.
The authority to issue recommendations to member states for averting irreparable harm to persons stems from Article 106 of the OAS Charter, under which the Commission’s principal function is “to promote the observance and protection of human rights.” This mandate is reflected in Article 41.b of the American Convention on Human Rights, which in turn is reflected in Article 18.b of the IACHR Statute and in the Inter-American Convention on Forced Disappearance of Persons.
In application of these provisions, since its inception the Commission has requested member states to adopt protective mechanisms in serious and urgent situations; these it calls precautionary measures, codified since 1980 in its Rules of Procedure. Today, precautionary measures are established in Article 25 of the Rules.
From 2002 to 2011 the IACHR received a total of 3009 precautionary measures requests; of these, it granted a 15%, for a total of 474 granted precautionary measures. During 2011, the index was 13%, that is, 57 from a total of 422 requests.
Precautionary measures perform two functions related to protecting the fundamental rights enshrined in the rules of the inter-American system: they are “precautionary” in the sense of preserving a legal situation, or the subject of a petition, on which the Commission is to exercise its jurisdiction, and “protective” in the sense of preserving the exercise of human rights. As long as the basic requirements of gravity and urgency are met, the mechanism affords protection against irreparable harm to the beneficiary as a legal person under international human rights law. The irreparability requirement applies to circumstances in which the alleged victim cannot be compensated monetarily for his or her loss, or when it is impossible to restore the exercise of a violated right or indemnify the victims for the consequences of the violations that might be committed.
Because of their vital importance in the protection of persons or of the subject of matters heard by the IACHR under the System of Individual Petitions, decisions on precautionary measures are adopted by the plenary Commission.
Article 25 of the Rules of Procedure of the IACHR provides:
- In serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case.
- In serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons under the jurisdiction of the State concerned, independently of any pending petition or case.
- The measures referred to in paragraphs 1 and 2 above may be of a collective nature to prevent irreparable harm to persons due to their association with an organization, a group, or a community with identified or identifiable members.
- The Commission shall consider the gravity and urgency of the situation, its context and the imminence of the harm in question when deciding whether to request that a State adopt precautionary measures. The Commission shall also take into account:
- whether the situation of risk has been brought to the attention of the pertinent authorities or the reasons why it might not have been possible to do so;
- the individual identification of the potential beneficiaries of the precautionary measures or the identification of the group to which they belong; and
- the express consent of the potential beneficiaries whenever the request is filed before the Commission by a third party unless the absence of consent is duly justified.
- Prior to the adoption of precautionary measures, the Commission shall request relevant information to the State concerned, unless the urgency of the situation warrants the immediate granting of the measures.
- The Commission shall evaluate periodically whether it is pertinent to maintain any precautionary measures granted.
- At any time, the State may file a duly grounded petition that the Commission withdraws its request for the adoption of precautionary measures. Prior to the adoption of a decision on the State’s petition, the Commission shall request observations from the beneficiaries or their representatives. The submission of such a petition shall not suspend the enforcement of the precautionary measures granted.
- The Commission may request relevant information from the interested parties on any matter related to the granting, observance, and maintenance of precautionary measures. Material non-compliance by the beneficiaries or their representatives with such a request may be considered a ground for the Commission to withdraw a request that the State adopt precautionary measures. With regard to precautionary measures of a collective nature, the Commission may establish other appropriate mechanisms of periodic follow-up and review.
- The granting of such measures and their adoption by the State shall not constitute a prejudgment on the violation of the rights protected by the American Convention on Human Rights or other applicable instruments.
In its Strategic Plan, the IACHR has made provisions for expediting its decisions on precautionary measures and reviewing them periodically. It has also been considering possible changes to its practices and governing provisions to make the inter-American system more transparent and predictable for actors.
Purpose of the consultation
The Commission, as part of its careful and thorough consideration of its governing provisions, policies, and practices, and following upon an institution-wide process of reflection and improvement, invites all actors in the inter-American human rights system to comment, as they see fit, on the following topics:
- On requests for precautionary measures and their evaluation
- Identification and/or determination of beneficiaries (Arts. 25.3 and 25.8 of the Rules of Procedure)
- Questions regarding the consent of the beneficiary (Art. 25.4.c of the Rules of Procedure)
- Request for information from the State: practices and exceptions for requests issued by the IACHR (Art. 25.5 of the Rules of Procedure)
- Particularly, the Commission requests opinions as to whether there are certain situations or rights concerning which the request for information to the State ought to be compulsory, or that require differentiated treatment.
- On decisions on requests for precautionary measures
- Structure and content of the decision to grant measures (Arts. 25.1 and 25.2 of the Rules of Procedure)
- Decision and review procedure
- Criteria applied
- Legal reasoning
- Best practices in the design of protective measures
- Express affirmative vote of the majority of Members
- Appropriate means of publishing decisions
- Dissemination of criteria through manuals and practical guides
- On the implementation and period of effect of precautionary measures
- Period of effect
- Possibility of setting expiration dates
- Periodic review procedure (Art. 25.6 of the Rules of Procedure) and related timetables
- Confirmation of effective status
- In respect of any measure adopted, the IACHR could establish the practice of reviewing the need for its continuation at its next period of sessions.
- Deadlines within the proceedings
- Setting reasonable deadlines
- Extensions: rules and exceptions
- Best practices and means of follow-up
- On the termination or transformation of precautionary measures
- Criteria for requesting that they be lifted (Arts. 25.7 and 25.8 of the Rules of Procedure)
- Change of subject or beneficiary
- Other alternative protective mechanisms
- Additional observations on the precautionary measures mechanism
Consultation Form on Module II:
The period to send comments ended October 5, 2012.