Roundup
After seeming to evolve into a constitutional assemblage with wide recognition of its binding jurisdiction and a respectable compliance record, the Inter-American Human-Rights System has been undergoing a lethal crisis. It bore the brunt of the storm during the 2010s and has had to cope with ongoing aftershocks. Throughout, several regimes—most conspicuously the Venezuelan, Ecuadorian, Bolivian, and NicaraguanFootnote 1 or “Bolivarian”Footnote 2 faction—fiercely attacked the main organs, namely, the Commission and the Court. They chastised each for overstepping its bounds and questioned its legitimacy.
Not surprisingly, high-profile figures spearheaded the onslaught. For example, Ecuador’s President, Rafael Correa, held the overseeing Organization of American States (OAS) accountable for the alleged transgressions and urged it to “revolutionize itself or disappear.”Footnote 3 Bolivia’s Commander in Chief, Evo Morales, in turn, proclaimed that it should either “die at the service of the empire or be born again to serve the peoples of the Americas.”Footnote 4
This Part will probe into these transcontinental challenges. Ultimately, it will read them as an appealing yet partly problematic call for the politicization of human rights. According to this undergirding assertion, internationally instated decision-makers should largely defer to governmental defendants, especially those implementing such entitlements within a broader project of popular emancipation. From the presently proposed perspective, they should probably grant latitude on any required policy, while monitoring for arbitrariness or abandonment, but must exactingly enforce obligatory actions or abstentions.
Revolt
Critics of the regional regimen did not limit themselves to delivering rousing rhetoric. Additionally, they condemned with unusual ferocity certain detrimental determinations.Footnote 5 In the same breath, the dissenting coalition recommended depriving the Commission of the ability “to adopt precautionary measures for the protection of potential victims” or “to consider individual petitions” altogether.Footnote 6 It strove to bar organizational constituents that had not ratified the relevant treaties, whether the United States or Canada, from nominating commissioners.Footnote 7
The Ecuadorian emissaries articulated their own additional demands, such as the discontinuation of the so-called blacklist of delinquent nations under Chapter IV of the Annual Report of the actualizing agency and the relocation of the seat of this institutional agent from Washington to Buenos Aires.Footnote 8 Moreover, they submitted a written proposal in 2011 exhorting the overarching outfit (1) to embrace, “in the shortest order possible,” the “objective” of funding the scheme solely out of internal “resources”; (2) to forbid external donors right away from earmarking their “contributions” for specific purposes; and (3) to equalize the funds available to—as well as the exposure enjoyed by—the various institutionalized “Rapporteurships.”Footnote 9 The submission stresses that the decisional bodies should treat every state equally. It foregrounds that they should uphold “not only civil and political but also economic, social, and cultural” guaranties.Footnote 10
After formally complaining about the agents’ bias, “politicization,” and “partiality,”Footnote 11 Venezuela exercised its prerogative under Article 78 to denounce the American Convention on Human Rights.Footnote 12 In 2012, it filed a Denunciation Notice, signed by Foreign Minister Nicolás Maduro, who now wears the presidential sash, and which became effective on September 6, 2013.Footnote 13 Ecuador and Bolivia threatened to follow suit.Footnote 14
“Other countries, such as Colombia or Costa Rica,” distanced themselves from these complaints, filings, or menaces and supported the embattled establishment.Footnote 15 They “argued that the Commission must preserve its autonomous and international” characters.Footnote 16 The United States’ chief diplomat John Kerry signaled a somewhat similar position on it:
We’ve heard a lot of talk about [it] lately, and I think that’s good, actually. Dialogue is … key [for democratization], and we want … the [instrumentality to] work better. But we [must] bear in mind that the Inter-American [actualization-apparatus] is already making a significant difference. It’s promoting representative democracy and fundamental freedoms, and these are principles that the [sponsoring institution’s membership champions]. When we advance [the democratic process] anywhere …, when we take a stand against restrictions on … rights, when we push for greater opportunity, we are acting in solidarity with all … .Footnote 17
More directly, César Gaviria, a onetime occupant of the Colombian presidency and subsequent Secretary General of the underwriting entity, affirmed that the systemic alterations advocated for the arrangement by the rebels “would gravely debilitate” the installed commissioners in their labors and “enable” those in command locally “to disregard” basic liberties and “to restrict free expression.”Footnote 18
In March of 2013, the sponsor’s plenary session overwhelmingly rejected the reform plan espoused by the Ecuadorian executive.Footnote 19 Nevertheless, it resolved to instruct the Permanent Council to “continue” the conversation on central “matters related to strengthening” the structure.Footnote 20 In fact, Argentina had tendered and pressed for this resolution in response to a “threat by Ecuador” to jump ship too.Footnote 21
Without doubt, the described showdown constituted a defining moment for the Western Hemisphere. It could have transformed or even subverted the existing paradigm. The region might have ended up with a multiplicity of micro-frameworks for the enforcement of the entitlements at issue or, in the worst-case scenario, regressed to a situation of barely national effectuation.
Rumination
The whole confrontation provides the worldwide community of nationalities, whether nationalized or not, and their members with a unique chance to reflect upon the nature of rights. This partial lucubration will seize the occasion and dare an initial step in that direction. It will ruminate questions like: What role do principles and politics play respectively in the vindication of such guaranties? To what extent may an ideologically diverse group of governments collaborate on this front? What place, if any, should these prosecutable pledges occupy in an emancipatory political program?
The proffered meditation will recast the intercontinental quarrel as a philosophical disputation on the cardinal characteristic of the concerned commitments. It will tease out of the protestation of the leftist alliance the argument that these amount to progressive politics. From this prism, the elected leadership sets the political agenda, and nationally or transnationally invested adjudicators should respond supportively rather than critically.
This reflection will initially identify the underlying claim. It will analyze three alternative formulations in terms of their relevance to today’s transnational debate on any human right, as well as their accuracy. The next two chapters will contemplate whether the claimants are primarily (2) deploying the notions of sovereignty and nonintervention, or (3) repudiating a number of discrete decisions issued by the responsible forums. Upon discarding these twinned possibilities, the reflective study will interpret the assertion under analysis instead as (4) a plea for the politicization of the pondered judicable promises. Inevitably, this interpretation will assume the form of a reconstruction of the actual argumentation.
Then, the contemplation will assess the claim. It will (5) refuse to associate the examined entitlements exclusively with their corresponding norms and (6) recognize their crucial though far from exhaustive political or goal-oriented dimension. After underscoring the significance of both (1) precept and (2) policy, the contemplative deliberation will (7) contend that officials deserve deference with respect to the latter but much less than the dissidents seek. It will next (8–10) illustrate the point by exploring the exercise of free speech and of the guaranty of healthcare in a series of concrete controversies.
Beyond reviewing the entire discussion, the “Postlude” will venture some concluding thoughts. First, as a collectivity deepens its engagement on behalf of rights, it ordinarily relies heavily on policy and consequently widens its margin of discretion. Regardless, tribunals should not shirk their duty to control for capriciousness or inaction. Meanwhile, they should not neglect to keep in check any direct normative violation.
Secondly, the paramount official quest for societal justice sometimes collides with or trumps these entitlements. Nonetheless, it does so very exceptionally. Therefore, a polity profoundly committed to the creation of a just society neither needs nor merits a free pass on them.
Thirdly, the self-styled “Bolivarian Axis”Footnote 22 and its opponents appeared to agree that these guaranties must involve either deontological principles or teleological politics. In addition, they have seemingly converged upon a utopianism of sorts, pursuant to which the administration and the judiciary should approach such safeguards hand in hand with one of these authoritative units leading forward and the other tagging along. Apparently, the disagreement boils down to whether a judge should happily yield to the executive or legislative branch as an expert on policy or vice versa insofar as her expertise lies in the construal of norms.
As previously noted, however, any such guaranty simultaneously touches upon precepts and policies. Furthermore, political and judicial (or quasi-judicial) authorities partake coequally in its safekeeping. They ineluctably engage in a power struggle in this domain and must accordingly accept conflict as a way of life.