Will Chavez Remove Venezuela from the Inter-American Commission?

by Doug Cassel

[Doug Cassel is Professor of Law at Notre Dame Law School]

Venezuelan President Hugo Chavez on April 30 directed his Council of State (a policy advisory body) to study Venezuela’s “withdrawal” from the Inter-American Commission on Human Rights.  He asked for their recommendation within days, not weeks.  This is the latest move in the Bolivarian Republic’s long record of denouncing the Commission and the Inter-American Court of Human Rights as tools of US imperialism, supposedly biased against socialist Venezuela.

But the real reason for Chavez’ pronouncement, say human rights groups – in my view correctly – is that the Commission and Court hold the Chavista regime accountable for its systematic violations of the independence of the judiciary (1, 2), and of freedom of the press, (3, 4), as well as other serious violations of human rights (5, 6).

Chavez’ call was promptly cheered by other high officials in Caracas.  It seems a foregone conclusion that the Council will recommend withdrawal.  Since Chavez has already declared that Venezuela should have withdrawn a long time ago, he is all but certain to heed such a recommendation.

Withdrawing from the Commission, however, is not so simple. The Commission has a dual status, both as a treaty body under the American Convention on Human Rights, and as a body established by the Charter of the Organization of American States (OAS).  Under the Convention, the Commission monitors human rights and receives complaints of violations by states parties, such as Venezuela.  If States (such as Venezuela) which accept the contentious jurisdiction of the Inter-American Court fail to comply with Commission recommendations, the Commission can refer the case to the Court for a legally binding judgment.

Venezuela cannot exit merely from the Commission or from the Court.  When Peruvian strongman Alberto Fujimori tried to withdraw from the Court in the 1990s, the Court ruled that countries cannot withdraw from its jurisdiction while remaining in the Convention.  Their only exit route is to withdraw from the Convention entirely.

But denouncing the Convention requires a year’s advance notice, during which countries remain bound by the Convention.  During that year, any new violations may be brought before the Commission and eventually – even after the expiration of the year – may be referred by the Commission to the Court.

Even denouncing the Convention and waiting a year would not free Venezuela from the Commission.  For States not party to the Convention, the Commission as an OAS Charter body receives complaints and assesses human rights violations by the standards of the American Declaration on the Rights and Duties of Man.  Only by withdrawing from the OAS altogether could Chavez “withdraw” from the Commission as a Charter body.

So how far will Venezuela go?  Beyond the first step, the answer is not clear.  Although Chavez seems likely to initiate the one-year notice of withdrawal from the Convention, presidential elections are scheduled for October.  Chavez has serious health problems.  The opposition has united around a single candidate, Henrique Capriles, who has reportedly called a withdrawal from the Commission “irresponsible.”

Capriles is currently running well behind Chavez in public opinion polls (if polls are to be trusted, in a country where each individual’s votes in past elections are recorded and used as criteria to dispense government benefits).  If Capriles does manage to win, or even if he loses but Chavez then succumbs to the cancer for which he regularly goes to Cuba for treatment, a new leader could cancel the withdrawal.  (Something like this happened in Peru.  Once Fujimori left office, one of the new government’s first acts was to revoke his purported withdrawal from the Inter-American Court.)

Venezuelans are not the only Latin Americans threatened by Chavez’ effort to withdraw.  The Commission’s vigorous defense of human rights has offended the sensibilities of other governments as well.  Ecuador’s President Rafael Correa has also spoken of withdrawal, and could well decide to follow Chavez’ lead.

Even governments which generally support the Inter-American Human Rights system have grievances against the Commission, and have supported “reforms” which could weaken it (7, 8). Although the Commission has made mistakes, most of this tension is inherent in a system in which the Commission is called upon to police the human rights conduct of governments.

It does not help that the US and Canada – the principal funders of the OAS, and thus of the Commission’s regular budget – have not joined the Convention.  If Chavez withdraws from the Convention, he can say – in fact he has already said – that he would thereby do no more than the US has done by remaining outside the Convention.

Following Chavez’ announcement, the US State Department spokesman warned that Venezuela’s withdrawal from the Commission would send a “bad signal” and be “deeply regrettable.”  True.  And the US refusal to join the Convention likewise sends a bad signal and is deeply regrettable.

http://opiniojuris.org/2012/05/11/chavez-removes-venezuela-from-iachr/

3 Responses

  1. I am Venezuelan and I live in Venezuela, and this is a pretty accurate summary about what’s going on with this situation. I would add that our current constitution contemplates a progressive system for human rights, meaning that there can be no law or executive decision for that matter that may eliminate or damage human rights in any way, not even in case of emergency; furthermore, all human rights treaties ratified by Venezuela automatically achieve a supraconstitutional range, as mandated by the constitution, which is a pretty strong way to secure our human rights and I think it is a rare example where international law is superior to our domestic law. I say all of this because one of the most prominent human rights established in our constitution is the access to international organs in case of violations, and the Inter-American Court of Human Rights has been the main receptor of our constant complaints against the current government; so the point I was trying to make is that yes, it’s true that from the international point of view the main worry is the potential disintegration of a good part of the OAS (I just hope the Venezuelan example should not be repeated by any of our neighbors) and for Venezuela becoming somewhat of a rogue state (if it isn’t already), but from a domestic point of view the problem is much more delicate, it deals with some of our most elemental human rights which theoretically cannot be eliminated or even touched, specially on a very confusing electoral period where we don’t even know for sure if there will truly be elections in october

  2. Thanks for your comment, Rodny.  I fully agree with your observations.

  3.  
    I couldn’t agree more with Professor Cassel’s  article. I would like to add three ideas:
     
    1. – Chavez and Correa are playing with the idea to create their own “Bolivarian” human rights system. This idea has a lot of implications, most of them negative in my opinion. It has to do with the debate about universal/regional systems. It has to do with the fragmentation of international human rights law, because they surely would make their own interpretation of certain human rights like free speech. Finally, it has to do with the subordination of human rights promotion to national and revolutionary needs. I think that a “Bolivarian” human rights system risk to lack institutional, economic and political strength to effectively defend human rights in those countries.
     
    2. – Chavez may be using this new outcry against the Inter-American system merely as a tool for the inner political debate, facing the coming elections. Nothing creates more union than an external enemy. In some cases was “communism”, in some cases is the Islam. In Chavez’ case it is US, the imperialism and the Inter-American system. It is possible that he won’t really withdraw after the elections.
     
    3. – I personally read this move from Chavez more as raising the bet in the process to elect a new Executive Secretary of the Inter-American Commission. It wouldn’t be the first time that Venezuela tries to gain political influence within the IACHR – and soften IACHR’s remarks on Chavez’ regime- by  the election of IACHR’s officials. The threat to withdraw from the IACHR may be working as a non-legal veto to independent and strong candidates.
     

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