19 Oct The Cruel (Yet Effective) Tutelage of Defeat: A Case for More Transparency on IACHR Admissibility Decisions
[Moisés Montiel Mogollón is a lawyer advising individuals, companies, and States on matters of international law, human rights, and other international areas at Lotus Soluciones Legales. He teaches Treaty Law and LOAC at Universidad Iberoamericana (Mexico City) and Universidad Panamericana (Guadalajara).]
As lawyers and advocates, we are trained since school to frame our arguments in a persuasive manner by using legal reasoning. Even when the fit between the legal prescription and the factual situation is clear we strive to support our arguments on sound reasoning, precedents, analogies and all the resources at hand in order to show that our claim is more firmly grounded than that of the adversary or that the situation we denounce is governed by a particular treaty or rule and thus the adjudicator ought to agree with us and grant us the relief sought. However, there is no substitute for the particularly cruel brand of scholarship that comes from rejection or dismissal of our claims. In catching up with the reasoning used by a body entrusted with performing legal determinations, we understand the shortcomings of the ideas and notions we have developed and refine our own thinking to ‘fight another day’ and do so much better armed in the service of our patrons. Sadly, bodies like the Inter-American Commission on Human Rights (IACHR henceforth) decide -arguably out of concerns of expediency and to diminish procedural backlog- not to disclose the specific reasons that motivate rejections on preliminary grounds and instead give out pro forma communications indicating that the requisites have not been met. And then, that’s that.
The idea behind this piece is to argue that more transparency and timeliness in the disclosure of the motivations behind the refusal to admit petitions or to grant precautionary measures would benefit both petitioners and potential victims, and the Commission itself, by virtue of the pedagogical value of well-reasoned rejections, which would in turn signal relief-seekers as to the doctrinal margins utilized by the Commission in arriving to its admissibility decisions (notwithstanding the existence of the Digest on Admissibility and Competence Criteria of the IACHR). This would, in all likelihood, contribute to substantially reduce the number of petitions and requests rejected by the Commission (and its gargantuan workload) by sheer virtue of more readily available knowledge and less room for educated guesswork among its users.
A few weeks ago, a scholar and practitioner I greatly admire (and whose knowledge of international law is exceptional) expressed their doubts as to the reasons why a petition against the US at the IACHR had being rejected. The petition itself -from what was disclosed- had to do with claimed responsibility for extraterritorial violation of human rights as a consequence of military/law-enforcement activities outside of US soil. While the comments exchanged as to the possible reasons for the rejection (personal/territorial competence of the Commission, material scope of applicability of the American Declaration on the Rights and Duties of Men for extraterritorial law-enforcement activities or maybe even impossible exhaustion of local remedies) were neither much nor lengthy, this did make me think about this recurring issue of petitioners ignoring the concrete reasons why their petitions get thrown out. This concerns presented themselves again very recently when a request for precautionary measures at the Commission concerning the provisional detention of a refuge-seeker (benefited by the guarantee of non refoulement) on the basis of an imminent extradition request was similarly discarded by the body. While I am all too keen to admit my own fallibility and the ample room for improvement in my litigation technique, I remain convinced that this was a text-book case of when precautionary measures could be asked for and obtained. Yet I continue to wonder why these were not granted.
As for the reason for such silence, I choose to believe it has to do with the IACHR’s 2017-2021 plan to overcome its procedural backlog. Notice how as of 2017, the IACHR had a declared total of 13,000 petitions in the admissibility stage awaiting admission with some under analysis for over 15 years. The infamous example of the Isaza Uribe v. Colombia Case illustrates all too well the consequences of the enormous workload of the Commission. In it, the petitioner claimed that the 23-year long criminal investigation carried out by Colombia violated rights under the due process stipulations of article 8 of the American Convention. The irony is that the Commission arrived at that determination after 21 years of having received the initial petition. This delay is most likely the effect of the Inter-American Human Rights system being the foremost human rights mechanism of a region containing more than one billion persons (excluding the US and Canada) who are under the jurisdiction of countries that are all too prone to trample on peoples’ rights and make short work of the rule of law. It then becomes self-explanatory why the IAHRC has so much work and simultaneously more mysterious why it would not inform in a timely manner of the reasons behind refusal of admissions for petitions and precautionary measures.
My intuition is that a significant part of the petitions and requests stuck in the system are indeed inadmissible. Not because human rights have not been violated, but because the petitioners have failed to exhaust local remedies appropriately (which is admittedly the foremost cause of dismissal); because the basis of the claim is not really concerned with human rights, or (presumably) because of covert attempts by lawyers at using the System as a fourth instance by slapping “human rights discourse” over matters that contain a negligible dimension of human rights to them, among many other possible reasons. However, the problem is that in the absence of information on the individual reasons behind the rejections, the users of the system are missing out on the most useful of tools to refine their thinking about these issues and are, thus, likely to continue to petition the IAHRC indiscriminately, further contributing to unnecessarily burden the Commission and to delay its decisions on cases which are clear-cut instances of human rights violations.
It is beyond doubt that the staff at the Commission conduct very strict assessments on the admissibility of petitions and requests for measures. I do not wish to say, at all, that this is done lightly or carelessly and, on the contrary, am convinced that they take their job seriously and are mindful of the importance of the role they are called upon to play in the protection of human rights within the American hemisphere. With little over USD 10 million in budget in the year 2020 (which progressively doubled since the 2017 Cancún Agreement as enshrined in Resolution 2908/17’s item XVI) the fact that the Commission hands out, on average, around 500 yearly decisions on admissibility is nothing short of a miracle.
If, then, they conduct this analysis for each and every petition and request received in strict adherence to the Digest’s criteria, why not share those with the petitioners? The explanation on why the request is not admissible (which entails a myriad of factors big and small, but all important) would serve for petitioners and victims to reframe the terms of their claims and present better petitions in the future. This is, naturally, a net positive outcome that would heighten and improve our shared understanding of human rights law in the Americas and contribute to the strengthening of the defense of human rights in the region.
Even in terms of the effort and time it would require to write and send such a report to petitioners (which, in the absence of more informed opinions, should not be too great or taxing), it does not appear disproportionate or excessive when the result would be to make the System more accessible and understandable to the billion human beings living in this hemisphere, to remove the general perception of arbitrariness in decision-making by the Commission by informing openly and in timely fashion about the reasons for refusals, and to help lawyers and advocates learn from their mistakes and aiding them in refining their own skills when appearing before the IACHR; with the added benefit of substantially diminishing the amount of completely off-the-mark petitions and requests received on behalf of potential victims.
I do not mean to settle this debate conclusively (nor do I think I could), but rather to invite comment and discussion on the desirability of more transparency as a formidable predictor in the improvement of our collective technique when taking human rights complaints and petitions before the Commission. I very much look forward to hear others’ opinions and thoughts on this matter.