The ‘Latin Americanization’ Thesis

Tom Farer’s ‘Latin Americanization’ thesis deserves comment; i.e. that recent anti-terrorism / Guantanamo  measures by the Bush administration are comparable to tactics that certain authoritarian Latin American regimes undertook, in that (i) states of emergency were proclaimed in conjunction with incursions on human rights, and that (ii) neither judicial nor congressional oversight effectively limited the executive’s power.

The analogy between the current US administration’s behavior towards terrorism and the techniques of some Latin American governments is an interesting one.  As Farer notes, an important difference is that the Latin American governments that came under scrutiny by the Inter American Human Rights mechanisms had proclaimed states of emergency, whereas the US government did not formally suspend human rights or habeas corpus guarantees in the name of the safety of the nation.  (This is in contrast with the UK which did formally derogate from certain human rights guarantees following 9/11).  Of course for emergency measures to be legitimate, they must be valid as a matter of law (requiring notification, a public emergency, and the preservation of nonderogable rights).   In other words, the requirements are well defined and technical.   Nonetheless, in substance, there are similarities between the situations that Farer describes: detentions, acts of torture, restrictions on habeas corpus guarantees, and use of military and/or administrative trials.

Farer’s analogy shows weaknesses in the compliance system generally:  expansive definitions of ‘war’ that go far beyond active armed conflict . The Cold ‘War’, the ‘war’ between North & South Korea, in which there has been a sustained absence of conflict; the ‘war’ on terror are all examples that demonstrate the potential for abuse of the “emergency” exception.   Indeed, during the examination of the US Report before the Human Rights Committee in 1996, the US delegation stated that the ICCPR does not apply during times of war, and a similar rationale appears to have informed the US’s decision not to proceed with a formal notice of derogation, as required under Art. 4 of the ICCPR.  Lessons follow: (i) more specific legal definitions of ’emergency’ and ‘war’ are necessary, particularly given national legislative reactions to sustained, external threats such as terrorism; (ii) self reporting mechanisms such as the Art. 4 derogation system have not strengthened international supervision of human rights treaties, requiring bodies such as the Human Rights Committee to make the most of its limited powers; and (iii) because it remains an issue of domestic competence as to whether human rights are enforced in the face of an emergency, international law must find incentives to effect compliance with human rights.