CIDH

Reform process 2012

Background

The monitoring of human rights in the region stems from Article 106 of the OAS Charter, according to which the principal function of the Commission is “to promote the observance and protection of human rights.“   This mandate is reflected in Article 41, subsections (a), (b), (c), and (d), of the American Convention on Human Rights, which, in turn, is reflected in Article 18, subsections (a), (b), (c), and (d), of the Statute of the IACHR.

The exercise of this authority is described in the Rules of Procedure of the Commission, especially in Articles 53 to 57 (On-site observations), Chapter VI (country hearings), and Articles 59 and 60 (Annual Report and Report on Human Rights in a State):

Article 59.  Annual Report

1. The Annual Report presented by the Commission to the General Assembly of the OAS shall include the following:
   
   a.                  An analysis of the human rights situation in the hemisphere, along with recommendations to the States and organs of the OAS as to the measures necessary to strengthen respect for human rights;
   
   […] 
   
   h.       any general or special report the Commission considers necessary with regard to the situation of human rights in Member States, and, as the case may be, follow-up reports noting the progress achieved and the difficulties that have existed with respect to the effective observance of human rights; and
2. For the preparation and adoption of the reports provided for in paragraph 1.h of this article, the Commission shall gather information from all the sources it deems necessary for the protection of human rights. Prior to its publication in the Annual Report, the Commission shall provide a copy of said report to the respective State. That State may send the Commission the views it deems pertinent within a maximum time period of one month from the date of transmission.  The contents of the report and the decision to publish it shall be within the exclusive discretion of the Commission.

Article 60.  Report on Human Rights in a State

The preparation of a general or special report on the status of human rights in a specific State shall be done according to the following rules:

1. after the draft report has been approved by the Commission, it shall be transmitted to the government of the Member State in question so that it may make any observations it deems pertinent;
2. the Commission shall indicate to that State the deadline within which it must present its observations;
3. once the Commission has received the observations from the State, it shall study them and, in light thereof, may maintain or modify its report and decide how it is to be published;  
4. if no observation has been submitted by the State as of the expiration of the deadline, the Commission shall publish the report in the manner it deems appropriate;
5. after its publication, the Commission shall transmit it through the General Secretariat to the Member States and General Assembly of the OAS.

On the basis of those provisions, the IACHR requests information from the States, conducts on-site and working visits, convenes hearings during its periods of sessions, and maintains ongoing dialogue with the States to assist in the design of laws, government policies, and practices consistent with their obligations in the area of human rights. 

The preparation of reports on the status of human rights in countries of the region has been one of the Commission’s main tools since it began its work.  In these reports, and in the Annual Report to the OAS General Assembly, the IACHR presents up-to-date information on the situation in countries that have received its particular attention.

In 1996, the Commission established four criteria for identifying member states whose domestic circumstances or practices in the area of human rights merit special attention and therefore the inclusion of an analysis of that situation in the Annual Report.  In the 1997 Annual Report, the Commission added a fifth criterion:

The first criterion encompasses those states ruled by governments that have not come to power through popular elections, by secret, genuine, periodic, and free suffrage, according to internationally accepted standards and principles.  The Commission has repeatedly pointed out that representative democracy and its mechanisms are essential for achieving the rule of law and respect for human rights.  As for those states that do not observe the political rights enshrined in the American Declaration and the American Convention, the Commission fulfills its duty to inform the other OAS members states as to the human rights situation of the population.
 
The second criterion concerns states where the free exercise of the rights set forth in the American Convention or American Declaration have been, in effect, suspended totally or in part, by virtue of the imposition of exceptional measures, such as state of emergency, state of siege, suspension of guarantees, or exceptional security measures, and the like.
 
The third criterion to justify the inclusion in this chapter of a particular state is when there is clear and convincing evidence that a state commits massive and grave violations of the human rights guaranteed in the American Convention, the American Declaration, and all other applicable human rights instruments.  In so doing, the Commission highlights the fundamental rights that cannot be suspended; thus it is especially concerned about violations such as extrajudicial executions, torture, and forced disappearances.  Thus, when the Commission receives credible communications denouncing such violations by a particular state which are attested to or corroborated by the reports or findings of other governmental or intergovernmental bodies and/or of respected national and international human rights organizations, the Commission believes that it has a duty to bring such situations to the attention of the Organization and its member states.
 
The fourth criterion concerns those states that are in a process of transition from any of the above three situations.
 
The fifth criterion regards temporary or structural situations that may appear in member states confronted, for various reasons, with situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention or the American Declaration.  This criterion includes, for example:  grave situations of violations that prevent the proper application of the rule of law; serious institutional crises; processes of institutional change which have negative consequences for human rights; or grave omissions in the adoption of the provisions necessary for the effective exercise of fundamental rights.

In the 2011 Annual Report, the Commission specified the procedure employed in preparing Chapter IV. At that time, it emphasized that it evaluates the situation of human rights in all member states during the year and gathers information from multiple sources so as to apply the five criteria cited above. The Commission stressed that, in conducting its evaluation, it draws on reliable information from the following sources:

1. Official governmental acts, at any level and in any branch of government, including Constitutional amendments, legislation, decrees, judicial decisions, statements of policy, official submissions to the Commission and other human rights bodies, and any other statement or action attributable to the government.
2. Information available in cases, petitions and precautionary/provisional measures in the Inter-American system, as well as information about state compliance with recommendations of the Commission and judgments of the Inter-American Court.
3. Information gathered through visits in loco by the Commission, its rapporteurs, and its staff.
4. Information obtained through public hearings held by the Commission during its sessions.
5. Findings of other international human rights bodies, including UN treaty bodies, UN rapporteurs and working groups, the Human Rights Council, other UN organs and specialized agencies.
6. Information from human rights reports of governments and regional bodies.
7. Reports of civil society organizations and reliable, credible information submitted by them and by individuals.
8. Public information widely disseminated in the media.

In specifying the procedure for preparing Chapter IV in the 2011 Annual Report, the IACHR emphasized that improving that mechanism required a broader process of reflection and dialogue with the stakeholders of the inter-American system.  The IACHR is now examining possible reforms in that regard.

Purpose of the consultation

The Commission, as part of its careful and thorough consideration of its governing provisions, policies, and practices, and of an ongoing 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:

1. Observations on:
2. the structure and content of Chapter IV;
3. the criteria for preparing Chapter IV;
4. the methodology for preparing Chapter IV;
5. the procedure for preparing Chapter IV.

The period to send comments ended October 5, 2012.

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