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Is Ecuador that Wrong? Analyzing the Ecuadorian Proposals Concerning the Special Rapporteurship on Freedom of Expression of the Inter-American Commission of Human Rights

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Is Ecuador that Wrong? Analyzing the Ecuadorian Proposals Concerning the Special Rapporteurship on Freedom of Expression of the Inter-American Commission of Human Rights

Abstract

This article analyses the proposals made by Ecuador during the debates that were conducted in the Organization of American States regarding the functioning of the Special Rapporteurship on Freedom of Expression of the Inter-American Commission of Human Rights. The author concludes that, despite the political motivations Ecuador might have had, its proposals have some basis, since there is in fact an unexplained preferential treatment to the right to freedom of expression that might cause some unwanted consequences.
26
Is Ecuador That Wrong?: Analyzing the Ecuadorian
Proposals Concerning the Special Rapporteurship on
Freedom of Expression of the Inter-American Commission
on Human Rights
by Oswaldo R. Ruiz-Chiriboga*
IntroductIon
In June 2011, the Permanent Council of the Organization of
American States (OAS), following the instructions given
during the 41st regular session of the General Assembly of
the OAS, decided to create a “Special Working Group to Reflect
on the Workings of the Inter-American Commission on Human
Rights with a View to Strengthening the
Inter-American Human Rights System”
(Working Group). The Permanent Council
directed the Working Group to submit its
final recommendations at the Council’s
regular meeting in December 2011.1
In the course of the 23 meetings the
Working Group held during six months
of passionate debate, it focused its atten-
tion on eight topics: 1) the appoint-
ment of the next Executive Secretary
of the Inter-American Commission; 2)
challenges and medium and long-term
objectives of the Commission; 3) pre-
cautionary measures; 4) procedural mat-
ters in processing cases and individual
petitions; 5) friendly settlements; 6) criteria for constructing
Chapter IV of the Commission’s Annual Report; 7) promotion
of human rights; and 8) financially strengthening the Inter-
American Human Rights System.2
The Working Group opened its meetings to delegations from
all OAS Member States and received presentations that were
subsequently published in a combined document.3 The States
were also allowed to submit proposals.4 Furthermore, the Group
received recommendations from the Secretary General of the
OAS and from civil society organizations.5 The Commission had
the opportunity to attend all meetings.
The creation of the Working Group was
viewed with suspicion by the Commission
and by many civil society organizations
because it was considered a reaction of
the States to several “uncomfortable”
decisions adopted by the Commission.
The Working Group’s true intention was,
according to some, to weaken the system
of protection and to silence or control the
Commission, affecting its independence
and impartiality.6 The Ecuadorian pro-
posals were viewed as an example of such
intention, the most controversial being
the ones related to the Commission’s
rapporteurships.7
Ecuador’s proposals on this issue consisted of four sugges-
tions: 1) The OAS should finance the Commission from its
own resources, and until this goal is achieved, the Commission
should establish a policy that voluntary contributions it receives
cannot be conditioned or earmarked; 2) the Commission should
correct the imbalance of economic and human resources in its
rapporteurships; 3) a Code of Conduct should be established to
govern the management of the rapporteurships; and 4) the report
presented annually by the Special Rapporteurship on Freedom of
Expression (SRFE) should be presented the same way as that of
the other rapporteurships.8
Described as a “blow,” “swipe,” and “stab” against the SRFE,9
the Ecuadorian proposals were approved by the Working Group
— although with less confrontational wording than originally
presented10 — and subsequently by the Permanent Council.11
The OAS General Assembly welcomed the Working Group’s
report on June 5, 2012, and instructed the Permanent Council,
on the basis of said report, to draw up proposals for its appli-
cation, which would be presented for the General Assembly’s
* Doctoral researcher, Human Rights Centre, Department of Public
Law, Ghent University; L.L.M. in International Human Rights
and Criminal Justice (Utrecht University); L.L.M. in International
Criminal Law (Granada University); Postgraduate Degree in Legal
Argumentation (Alicante University); Postgraduate Degree in Human
Rights (Andean University Simón Bolívar); Postgraduate Degree in
Human Rights and Democracy (Pontifical Catholic University of
Ecuador); former Senior Staff Attorney of the Inter-American Court
of Human Rights. The author owes special thanks to Prof. Dr. Yves
Haeck (Ghent University), Francisco J. Rivera Juaristi (Santa Clara
University), and the editors of the Human Rights Brief for their
thoughtful comments and editorial review. Of course, the author
assumes personal responsibility for any remaining errors. He can be
contacted at Oswaldo.RuizChiriboga@UGent.be or through his blog
at http://corteidhblog.blogspot.com.
[T]he current Ecuadorian
government has been accused
of attacking freedom of
expression [. . .] but apart
from the government’s
potential political
motivations, does Ecuador
have a point?
27
consideration within six months or no later than the first quarter
of 2013.12
The current Ecuadorian government has been accused of
attacking freedom of expression and having a hostile relation-
ship with the press, the SRFE, and the Commission, but apart
from the government’s potential political motivations, does
Ecuador have a point? Is there an imbalance in the attention the
Commission devotes to the right to freedom of expression, or is
this only a delusional idea of an upset government? If such dis-
tinction truly exists, is Ecuador correct when it denounces a lack
of independence or impartiality of the Commission?13 In order
to answer these questions, a brief analysis of the Commission’s
rapporteurships is needed.
the commISSIonS raPPorteurShIPS
The Commission’s rapporteurships are classified by country,
theme, and type. Country rapporteurs monitor the human rights
situation of a specific country. According to the Commission’s
Rules of Procedure, it may designate its commissioners as coun-
try rapporteurs, “in which case the Commission will ensure that
each Member State of the OAS has a rapporteur.”14 The Rules of
Procedures strive for a balance in the attention the Commission
gives to all the countries in the region. All 35 OAS Member
States have a country rapporteur.
The Commission may also create rapporteurships to cover
areas “deemed of special interest.”15 These are called thematic
rapporteurships. So far the Commission has created eight such
rapporteurships: indigenous people, women, migrant work-
ers, freedom of expression, children, human rights defenders,
persons deprived of liberty, and Afro-descendants.
Finally, there are two types of rapporteurships: regular and
special. Regular rapporteurships are the ones assigned to a
Commissioner, that is to say, to persons elected by the General
Assembly of the OAS as members of the Commission for a
renewable term of four years. Conversely, special rapporteurships
are assigned to other persons designated by the Commission.
Special rapporteurs are not commissioners since they were not
elected by the General Assembly. So far the Commission has only
created one special rapporteurship: the SRFE.
the SPecIal raPPorteurShIP on freedom of
exPreSSIon
The Commission created the SRFE during its 97th period of
sessions, held in October 1997, with the purpose of “strengthen-
ing the capacity of the [Commission] to promote and protect full
observance of this important right in the Americas, and thus help
to ensure its effective exercise.”16
Whether the Commission had the power to create the SRFE is
an issue that deserves further research. The American Convention
on Human Rights17 and the Statute of the Commission,18 both
instruments adopted by the General Assembly of the OAS, do
not explicitly mention this power. The only instrument that
gives explicit legal support to this type of rapporteurship is the
Rules of Procedure of the Commission, which the Commission
itself adopted, not the OAS Member States. The Commission’s
initiative to create the SRFE, however, was supported by
Member States.19 The question then is not whether the States
supported the creation of the SRFE but whether this support
was required for the SRFE’s functioning or as an approval of
the Commission’s decision. It seems that the Commission does
not consider the support of the States necessary in either of
these senses. According to its Rules of Procedure, the creation
of special rapporteurships is a decision of the Commission and
the Commission alone. States are not even informed of this deci-
sion. They will find out that a new special rapporteurship will be
created when the Commission makes a call to fill the vacancy.20
Another issue that deserves further research is the binding
power of the recommendations and conclusions of special rap-
porteurs. Since they are not commissioners, their remarks should
not have the same binding power as those of the commissioners
(whatever this might be). Usually, the conclusions of the SRFE
are later approved or otherwise supported by the Commission,
but this is not always the case. The SRFE issues documents,
such as press releases, where it presents its observations as an
office of the Commission but without mentioning whether the
Commission agrees.
As to the creation of the SRFE, two questions arise: 1) why
did the Commission decide to create this particular rapporteur-
ship, and 2) why did it decide that the rapporteurship should be
special?
the decISIon to create the Srfe
The only explanation given by the Commission for its
decision to create the SRFE was that the right to freedom of
expression is an important right in the Americas that needed
to be promoted, protected, and whose effective exercise needed
to be ensured.21 But the same explanation could be given for
any other right. The rights to freedom of association, freedom
of religion, social rights, and basically all other human rights
are also important rights in the Americas that need promotion
and protection.
the “SPecIal” character of the Srfe
At the time the SFRE was created there were only three
regular thematic rapporteurships: indigenous peoples, women,
and migrant workers. In other words, only three of the seven
commissioners were assigned a thematic rapporteurship; the
other four commissioners acted only as country rapporteurs.
Why the Commission decided to hire an outside expert as a
special rapporteur, when four of its members could have easily
assumed the new rapporteurship of freedom of expression as a
regular rapporteur, is a question the Commission has not answered.
Furthermore, the Commission seems to have no uniform
criteria for the creation of rapporteurships and their mandates.
dIfferent ProceSS of creatIon
Although the SRFE was created from the beginning as a
special rapporteurship, other rapporteurships had to transit
a more difficult road. That is the case of the Rapporteurship
on Human Rights Defenders, which started in 2001 as a
“unit” under the framework of the Commission’s Executive
Secretariat. Only after ten years of gathering information
28
and receiving several requests from civil
society organizations was it “promoted”
to a regular rapporteurship, but not to
a special rapporteurship, despite the
fact that human rights defenders face a
critical situation in the Americas.22 All
the rapporteurships that followed (chil-
dren, persons deprived of liberty, and
Afro-descendants) are also regular
rapporteurships.
dIfferent tyPeS of mandateS
The SRFE is the only rapporteurship
devoted to a specific right, with all
others rapporteurships devoted to groups
in a situation of vulnerability. Although journalists could be
considered a group at risk in certain countries in the region,
the SRFE is not a rapporteurship on journalists. It studies all the
aspects of the right to freedom of expression, including but not
limited to journalists’ rights.23 Why the Commission decided to
create a rapporteurship that monitors only one right, while all
the other rapporteurships monitor the rights of individuals in a
vulnerable situation, is an unanswered question. Moreover, other
vulnerable groups, such as persons with disabilities, the elderly,
LGTBI communities, and people with HIV/AIDS do not have a
rapporteurship.24
Having a rapporteurship on a right (whatever this is), instead
of a rapporteurship on individuals in vulnerable situations, is
not an irrelevant issue. If we accept that all human rights are
supposed to be indivisible and interdependent,25 the natural
consequence is that there is no hierarchy of rights because every
right is as important as the others.26 Giving extra protection to
one right over others could be read as de facto hierarchization.
This does not mean that the Commission should never create
rapporteurships on specific rights. It only means that if a right
is going to have a special mechanism of protection, such as a
special rapporteurship, compelling reasons should justify the
prioritization and such prioritization should not be indefinite.
On the contrary, persons in a situation of vulnerability are
“segments of the population which are or should be the recipi-
ents of extra care and attention,27 which mandates particular
attention of States but also of international bodies like the
Commission. Vulnerability does not focus on the right itself but
on the holders of that right, who for one reason or another cannot
exercise that right as freely as others, or who suffer a greater risk
of infringement of that right.
The points presented so far should not be read as a false
dichotomy that either the Commission must create rappor-
teurships concerning each and every vulnerable group and/or
right, or it must not create any rapporteurship concerning any
particular group and/or right. The Commission does not have
enough resources to cover everything, and even if it did, creating
a rapporteurship for each right or group could be unnecessary.
Rather, the Commission should explain why it decided to cre-
ate this particular rapporteurship and why it should be special.
If a rapporteurship is going to cover the rights of persons in a
situation of vulnerability, the explanation of the Commission is
much easier: vulnerable persons need special protection. A more
detailed explanation is needed if the new
rapporteurship is going to cover a right.
All human rights are equally important
but in certain scenarios, some rights
might be in a greater danger of infringe-
ment. The Commission has failed to
explain why freedom of expression needs
special protection over other rights and,
moreover, why this right has a rappor-
teurship with many more privileges that
the other rapporteurships.
the SPecIal PrIVIlegeS of the
SPecIal raPPorteurShIP
Being a special rapporteurship brings
along a number of benefits that regular rapporteurships do not
have, for instance:
1. The head of the SRFE, the Special Rapporteur, works on
a full-time basis. The Special Rapporteur has a permanent
office at the seat of the Commission. Regular rapporteurs,
that is to say, the commissioners, work on a part-time
basis. They meet a couple of times per year during the
Commission’s periods of sessions.
2. The staff of the SRFE is composed of the Special
Rapporteur, one project development specialist, three
human rights specialists, one press coordinator, and
one administrative assistant.28 This is an A-team that other
rapporteurships do not have. For instance, the Rapporteurship
on Migrant Workers has a part-time Rapporteur and one
human rights specialist.29
3. The one and only concern of the SRFE is the right to
freedom of expression. Regular rapporteurs must divide
their attention between their country and thematic rappor-
teurships, plus their regular duties as commissioners. For
instance, Commissioner Dinah Shelton, former President of
the Commission, had to divide her time between her duties
as President, her duties as Commissioner, her duties as
Rapporteur of Antigua and Barbuda, Barbados, Bahamas,
Belize, Dominica, Ecuador, Grenada, Guatemala, Guyana,
Jamaica, St. Kitts and Nevis, St. Lucia, St. Vincent and the
Grenadines, Suriname, and Trinidad and Tobago, and her
duties as Rapporteur on Indigenous Peoples.30
4. The SRFE is the only rapporteurship that presents a separate
annual report to the OAS General Assembly. The reports of
the regular rapporteurships are included in the Commission’s
Annual Report. In 2010 the section of the Commission’s
Annual Report reserved for the regular rapporteurships'
reports contained 10 pages, an average of 1.4 pages for each
regular rapporteurship.31 Conversely, the annual report of the
SRFE contained 415 pages.32
5. The SRFE is financed wholly through external funds
specifically donated for this purpose by States from both
inside and outside the region, as well as private donors.
For reasons that need further research, the SRFE budget is
considerably larger than those of other rapporteurships. For
2010, the SRFE had projects for approximately USD $1.7
million. This is 3.09 times the budget of the Rapporteurship
on Women’s Rights ($556,350); 3.77 times the budget of
the Rapporteurship on Indigenous Peoples ($453,000); 5
If we accept that all
human rights are supposed
to be indivisible and
interdependent, the natural
consequence is that there
is no hierarchy of rights
because every right is as
important as the others.
29
times the budget of the Rapporteurship on Persons Deprived
of Their Liberty ($349,498); 5.86 times the budget of the
Rapporteurship on Migrant Workers ($299,624); and 17
times the budget of the Rapporteurship on the Rights of the
Child ($105,969).33
One may say that some of the facts presented above are
merely administrative issues that do not raise juridical issues,
but as will be explained latter, the favoritism to one right does
have implications for States, victims, and the Commission itself.
Before that, the prospects for the future shall be considered.
ProSPectS for the future
The prospects for the near-future do not seem to suggest that
there will be any changes in the preferential treatment freedom
of expression receives. According to the Commission’s Strategic
Plan 2011-2015, the SRFE’s activities will greatly exceed those
of the other rapporteurships.34 The Commission’s plans are:
1. to hold twenty thematic hearings per year, which means that
each regular rapporteurship will have approximately three
hearings per year — during the same period, the SRFE plans
to have ten hearings on freedom of expression;
2. to issue a report on each of the seven thematic areas every
eighteen months — the SRFE will continue to issue a report
on freedom of expression every twelve months;
3. to send eight cases to the Inter-American Court of Human
Rights — the SRFE has the goal of moving at least nine
cases per year through the System;
4. each regular rapporteur will make one working visit per year
to countries in the region — the SRFE plans two visits per
year to assess the situation regarding freedom of expression;
5. finally, the SRFE plans to give thirty seminars in fifteen dif-
ferent countries for journalists, academics and other mem-
bers of civil society — there is no mention that other rap-
porteurships will conduct seminars on their thematic areas.
This imbalance brings to mind at least two questions: a) what
are the consequences of giving preferential treatment to one
right, and b) why does the SRFE have the budget necessary to
conduct all its previous and future activities.
the conSequenceS of haVIng a PreferentIal rIght
Giving preferential treatment to the right to freedom of
expression has consequences. Firstly, since the situation of
freedom of expression is not the same throughout the region,
because some countries have more problems than others, the
countries with doubtful records on freedom of expression feel
targeted by the Commission. They would rather have an active
rapporteurship on thematic areas in which they think they have
better records. Such rapporteurships would thus focus on other
countries that have worse records in those thematic areas. No
state likes to be singled out. This may be the case of Ecuador and,
therefore, those that argue that the true intentions of Ecuador are
to stop the Commission from focusing on the country may not
be entirely wrong. However, this is not the only consequence.
A second result of the preferential treatment affects the victims
of violations of other rights. As seen above, victims belonging
to groups in a situation of vulnerability covered by the other
thematic rapporteurships of the Commission have fewer chances
that their cases will be heard by the Court, there will be fewer
hearings, fewer in situ visits, less visibility in the Commission’s
Annual Report, and so on. The right to freedom of expression
becomes the king of the rights in the Americas, protecting a
limited number of victims from a limited number of states.
It should also be noted that freedom of expression is already
a directly enforceable right in the Inter-American System
through the mechanism of individual petitions. Victims alleg-
ing the violation of this right can submit a complaint directly
to the Commission, and the Commission may refer the case to
the Court. Other rights, namely most of the economic, social,
and cultural (ESC) rights are not directly enforceable. The
only mechanism designed for their protection is the system of
periodic reports States present to the Commission on regular a
basis.35 If any group of rights requires special protection, that
group should be ESC rights. The Commission, however, does not
have a regular nor a special rapporteurship dedicated to monitor
the compliance of ESC rights obligations. The Commission’s
regular rapporteurships sometimes study the ESC rights of the
vulnerable groups they cover, but again, regular rapporteurships
have less financial and human resources that the SRFE.
the Srfe’S bIgger budget
As mentioned before, the question of the SRFE’s budget
needs further research, but two preliminary reasons for its size
could be advanced. On the one hand, the success of the SRFE
in its fund-raising could be explained by the fact that it is the
only rapporteurship with full-time personnel. This allows the
Special Rapporteur to dedicate much more time to look for
donors to increase the budget of the office. Current and former
special rapporteurs on freedom of expression were very active
and committed to their work, so the person in charge of the
office also makes a big difference. Nonetheless, one question
arises here: if the creation of a special rapporteurship on free-
dom of expression was proven to be a big success, why has the
Commission not created other special rapporteurships, working
full-time and also financed by private contributions? The SRFE
has been functioning for fifteen years and the Commission has
not created other special rapporteurships fully funded by exter-
nal contributions and not by the Commission’s limited budget.
On the other hand, the success of the SRFE could be explained
by the receptiveness of the donors. As seen above, it seems that
donors are inclined to support this particular rapporteurship more
than the others. If that is the case, the ones that truly decide where
the attention should be, or at least the degree of this attention, are
the donors, not the Commission. This may be a good motive why
Ecuador considers that the Commission’s impartiality or indepen-
dence could be affected. At first sight, the Ecuadorian concerns
seem a little excessive, but a closer view may reveal that such
concerns are not without basis. The SRFE is a very active office
and has done the job it was expected to do. There has been no
sign of influence of external sources in the SRFE conclusions or
recommendations. This office is like an engine and the budget is
its fuel. If the machine has enough fuel, it will do the tasks it was
built to do. Without the fuel, it will stop. But fueling the machine
is the issue that should be looked at with more caution. The fuel
comes from donors whose intentions could be quite philanthropist
or the opposite, with a hidden agenda.
30
Consequently, Ecuador’s proposals on the functioning of the
Commission’s rapporteurships, approved by the Working Group
and by the Permanent Council, seem reasonable. If donors truly
want to contribute to the promotion and protection of human
rights in the Americas, they should not specify the purpose of
their voluntary contributions; rather, the Commission should
be the body to assign the resources to all its rapporteurships in
an adequate, sufficient, and balanced way, according to needs
it has identified in the region. Again, the Commission, not the
donors, should decide how to address the human rights situa-
tion in the region. Evidently, the OAS
Member States, Ecuador included, are
primarily responsible for giving enough
fuel to all the protection mechanisms
the Commission has; yet until this goal
is achieved, the recommendations of the
Working Group should be taken seriously.
the workIng grouPS
recommendatIonS and the
commISSIonS reSPonSe
The Working Group recommended
that the Commission: a) include clear
and accessible information in its Annual
Report on the management of the
resources it receives; b) invite donors to make their voluntary
contributions without specifying how the funds should be used
until the Inter-American System is sufficiently funded; c) assign
adequate, sufficient, and balanced resources to all its rappor-
teurships, working groups, and units; and d) incorporate all
rapporteurs’ reports under a single chapter of the Commission’s
Annual Report.36
The Commission responded to these suggestions on October
23, 2012.37 The Commission was willing to adopt certain mea-
sures in concurrence with the recommendations, but there is no
indication that freedom of expression’s preferential treatment will
cease in the near future. For instance, although the Commission
has already created a “basket” or common fund to provide an
incentive for financing its activities,38 the rapporteurships will
still be free to seek external donations. As such, the funding of
the rapporteurships will continue to depend on the donors’ will
and intentions.39 In fact, the Commission has openly recognized
that in the event a Member State or a permanent observer “from
the start, establishes thematic priorities for which its funds are
to be used, the [Commission] will accept them provided that the
thematic objective coincides with its strategic priorities and pre-
viously established action plans.40 Secondly, the Commission
recognized the importance of transparent management. It offered
to include all budgetary information in its Annual Report broken
down by (i) source of financing, (ii) whether regular fund or spe-
cific funds, and (iii) item expenditure.41 However, this informa-
tion is already available on the Commission’s website.42 Sadly,
the information released by the Commission is not classified by
rapporteurships. External observers cannot compare how much
each rapporteurship receives and who is financing them. On the
SRFE’s website, there is no concrete information either,43 and in
the SRFE’s latest Annual Report only the donors are mentioned,
but not the amount they contributed.44 Finally, there is no indica-
tion that the Commission is going to increase the personnel of
the regular rapporteurships or balance the number of hearings,
in loco visits, or other rapporteurship activities, nor the number
of cases these offices will to refer to the Court. Nor is there is
any indication that the Commission is planning to transform the
SRFE into a regular rapporteurship under the supervision of a
commissioner elected by the OAS Member States. Moreover, if
the mechanism of special rapporteurs is going to be maintained,
there is no indication that the Commission is planning to cre-
ate new special rapporteurships to cover other rights different
from freedom of expression or that the SRFE will cease in the
near future, giving the floor to another
right. In sum, freedom of expression will
continue to be the king of rights in the
Americas.
the code of conduct
The Working Group recommended
that the Commission “[i]ntroduce a code
of conduct to govern the management
of [the Commission’s] rapporteurships
in order to ensure the requisite coordi-
nation between those mechanisms and
states[.]”45 According to some, the code
implies greater state control over the
different rapporteurships,46 or it could
prevent the SRFE from publishing press releases that allegedly
upset countries such as Venezuela and Ecuador.47
These positions seem to ignore that the Commission’s
Rules of Procedure already stipulate that “[t]he activities
and functions provided for in the Rapporteurships’ mandates
shall be performed in accordance with the present Rules of
Procedure and the guidelines, codes of conduct and manuals
that the Commission might adopt[.]”48 In other words, the
Working Group’s recommendation basically requires a policy
the Commission has already partially enacted. It should also
be highlighted that the Working Group’s recommendation is
directed toward the Commission and not the States; that is to
say, the Commission is the one that should introduce the code
of conduct and not Ecuador, Venezuela, or any other country.
Naturally, it is expected that the Commission make space for an
ample debate between the States and civil society organizations
before it adopts such a code. This seems to be the Commission’s
intention.49
As to the press releases that “upset” countries such as
Ecuador, one case may explain the Ecuadorian confrontation
with the SRFE, but may justify the need for a Code of Conduct.
the El UnivErso caSe
On July 20, 2011, a judge in Ecuador issued a judgment
against the newspaper El Universo, three members of its board
of directors, and one editorialist, all as a result of a defama-
tory publication of a column in the newspaper that offended
President Rafael Correa and upset many Ecuadorians. The judg-
ment sentenced the board members and the editorialist to three
years in prison and the payment of a total of USD $30 million.
The legal entity that owns the newspaper was also sentenced to
a fine of $10 million.
If donors truly want to
contribute to the promotion
and protection of human
rights in the Americas,
they should not specify the
purpose of their voluntary
contributions[.]
31
The next day, the SRFE issued a press release expressing
its concern regarding the El Universo judgment. However, the
SRFE did not limit itself to express concern or to inform on the
Inter-American and universal standards on freedom of expres-
sion. It made statements like the following:
The Office of the Special Rapporteur considers this
decision contrary to regional freedom of expression
standards and believes that it generates self-censorship
and a notable chilling effect that impacts not only the
individuals convicted but Ecuadorian
society as a whole.
. . .
In addition, the decision of July
20 constitutes a grave warning to
any citizen or media outlet that has
opinions or information about public
officials that could be considered
offensive, thus obstructing processes
that are natural and necessary in any
democracy.
. . .
For these reasons, the Office of the
Special Rapporteur exhorts the State
of Ecuador to adapt its domestic
legislation and practice to exist-
ing doctrine and jurisprudence in the area of freedom
of expression . . . .50
The alleged victims appealed the judgment and the case was
sent to the Court of Appeals (Corte Provincial), which con-
firmed the criminal and civil judgment on September 20, 2011.
On September 21, 2011, the SRFE issued a new press release
stating the following:
The judicial decisions in question generate a palpable
chilling effect on ideas or information that may offend
the authorities, an effect which is incompatible with
hemispheric freedom of expression standards. The
self-censorship that results from these types of deci-
sions impacts not only journalists and the authorities
themselves, but all of Ecuadorian society.
. . .
Given the gravity of the judicial decision in question,
the Office of the Special Rapporteur once again calls
on the Ecuadorian State to bring its normative frame-
work and institutional practices into compliance with
inter-American standards in the area of freedom of
expression.51
The alleged victims requested the intervention of the Supreme
Court (Corte Nacional), which in February 2012 confirmed the
decisions of the lower courts. The SRFE issued a joint press
release with the UN Special Rapporteur on the Freedom of
Opinion and Expression.52 This time the wording of the press
release was much less confrontational than the previous ones,
and both rapporteurs limited themselves to reminding the reader
of international standards on freedom of expression. Perhaps
this extra caution was the consequence of the involvement of the
UN Special Rapporteur, but it is hard to tell with certainty by an
outside observer.
After the Supreme Court of Ecuador confirmed the convic-
tion, President Correa decided to pardon the offenders and the
case was closed at the national level.53 No fine was collected and
none of the accused spent a single hour in jail. The case, though, is
still pending before the Commission, in the admissibility stage of
the proceedings. However, the SRFE’s July and September 2011
press releases were issued before the alleged victims exhausted local
remedies and before any type of pronouncement of the Commission
on the merits of the case. The SRFE clearly labeled the facts of the
case as “contrary to freedom of expression
standards,” an obstruction to democracy,
and a source of “chilling effects” on ideas
or information. It also requested that the
country adapt its practice and law to the
Inter-American standards.
The SRFE’s July and September
2011 press releases could be read as
pre-judgments made outside the regular
proceedings that the Commission has to
follow in all individual petition cases. A
rapporteurship should not be allowed to
essentially declare a violation of human
rights before the Commission decides the
case. This is a basic due process rule to
guarantee a forum’s impartiality.54
The SRFE does not have a vote in the Commission’s deci-
sion on its pending cases, but it does have a voice. The Special
Rapporteur participates in the Commission’s deliberations and
hearings; the Rapporteur may pose questions to the parties and
may even represent the Commission in the procedure before the
Inter-American Court. In fact, all the freedom of expression-
related cases, including El Universo, are processed in the office
of the SRFE. Is Ecuador allowed to challenge the participation
of the Special Rapporteur on Freedom of Expression in any
matter involving the pending case of El Universo if the State
considered that the SRFE pre-judged the case? It seems that in
order to preserve the Commission’s impartiality, the answer to
this question should be in the affirmative.
The Rules of Procedure of the Commission do not answer all
these questions. The Code of Conduct then seems to be neces-
sary to fill this and other gaps.55
concluSIonS
Ecuador may have had political motives when it presented
its proposals to the Working Group but this does not necessarily
mean that the proposals are unfounded. The practice of the
Commission shows that there is no uniformity in the creation
and mandate of its rapporteurships. Only one rapporteurship,
the SRFE, is special and devoted to a single right, while all the
others are regular and devoted to persons in situations of vulner-
ability. The Commission has never explained why the right to
freedom of expression, and not other rights, deserves a special
rapporteurship. The Commission’s lack of resources does not
explain why it has not decided to create other special rapporteur-
ships that work full-time and search for private funding.
The disproportional treatment of human rights in the
Commission’s rapporteurship mechanisms produces at least
A rapporteurship should
not be allowed to essentially
declare a violation of human
rights before the Commission
decides the case. This is
a basic due process rule
to guarantee a forum’s
impartiality.
32
three consequences. Firstly, the States that (may) have poor
records on freedom of expression are more targeted than States
that have poor records on other rights. Secondly, victims of vio-
lations of the right to freedom of expression have more space and
attention than victims of violations of other rights. Finally, donors,
not the Commission, seem to be the ones that decide which right
receives more attention. The Commission needs more funding,
but it also needs more balance.
Finally, the Code of Conduct suggested by Ecuador and the
Working Group does not seem to be a preposterous idea. The
Commission itself recognized the need for a manual, guidelines,
or code of conduct for its rapporteurships. Furthermore, aspects
of the rapporteurship’s functioning, such as the content of their
press releases, seem to lack sufficient regulation.
In short, Ecuador may have had a hidden agenda, but the
Commission is the one supplying Ecuador with the ammuni-
tion used against it. If the Commission would explain better the
process of creation, mandates, duration, and other aspects of its
rapporteurships, Ecuador’s proposals would have received less
support.
Endnotes
1 Organization of American States [OAS], Permanent Council,
Working Group, Record of the meeting of July 14, 2011, Doc. OEA/
Ser.G/GT/SIDH/SA.1/11 rev. 1 (July 18, 2011).
2 OAS, Permanent Council, Working Group, Final Report, Doc.
OEA/Ser.G/GT/SIDH-13/11 rev. 2 (Dec. 13, 2011) [hereinafter
Working Group, Final Report].
3 OAS, Permanent Council, Working Group, Compilation of
Presentations by Member States on the Topics of the Working Group,
Doc. OEA/Ser.G/GT/SIDH-17/11 rev. 1 (November 7, 2011).
4 See Special Working Group to Reflect on the Workings of the
IACHR with a view to Strengthening the IAHRS, oRg. of am. sts.
(Feb. 6, 2013), www.oas.org/council/workgroups/Reflect%20on%
20Ways%20to%20Strengthen.asp (providing the collection of the
various proposals).
5 OAS, Permanent Council, Working Group, Compilación de las
recomendaciones de las organizaciones de la sociedad civil sobre
los temas del Grupo de Trabajo, Doc. OEA/Ser.G/GT/SIDH-11/11
rev. 1 (Nov. 21, 2011).
6 Victoria Amato, Una mirada al proceso de reflexión sobre
el funcionamiento de la Comisión Interamericana de Derechos
Humanos, 16 aPoRtes DPLF 4, 6 (2012); Observations on the
Process of Reflection on the Workings of the Inter-American
Commission With a View to Strengthening the Inter-American
Human Rights Protection System, CEJIL (January 27, 2012), http://
cejil.org/en/comunicados/civil-society-observations-strengthening-
inter-american-system (making accessible the Communiqué
signed by 90 NGO’s entitled “Civil Society Observations on the
Strengthening of the Inter-American System); see also inteR-
ameRiCan Commission on Human RigHts, RefoRm PRoCess 2012
note 54, available at http://www.oas.org/en/iachr/strengthening/
docs/RespCPEn.pdf (issuing the “[r]eply of the Inter-American
Commission on Human Rights to the Permanent Council of the
Organization of American States regarding the recommendations
contained in the Report of the Special Working Group to Reflect
on the Workings of the IACHR with a View to Strengthening the
Inter-American Human Rights System”) [hereinafter Reply to the
Commission].
7 See infra note 9.
8 OAS, Permanent Council, Working Group, Proposals by the
Delegation of Ecuador, Doc. OEA/Ser.G/GT/SIDH/INF.46/11
(Dec. 5, 2011).
9 La OEA le da otro golpe a la libertad de expresión. el
ColomBiano (Jan. 26, 2012), http://www.elcolombiano.com/
BancoConocimiento/L/la_oea_le_da_otro_golpe_a_la_libre_
expresion/la_oea_le_da_otro_golpe_a_la_libre_expresion.asp;
Zarpazo a libertad de expresión. el univeRsal (Jan. 17, 2012),
http://www.eluniversal.com.co/cartagena/editorial/zarpazo-libertad-de-
expresion; Laura Gil, Estocada a la CIDH. el tiemPo (Jan. 26,
2012), http://m.eltiempo.com/opinion/columnistas/lauragil/
el-consejo-permanente-de-la-oea/11009181.
10 Working Group, Final Report, supra note 2.
11 Press Release, OAS Permanent Council Approved the Report
of the Working Group to Strengthening the Inter-American Human
Rights System. OAS Press Release No. E-018/12 (Jan. 25, 2012).
12 OAS, General Assembly, Follow-up on the recommendations
contained in the “Report of the Special Working Group to Reflect on
the Workings of the Inter-American Commission on Human Rights
with a View to Strengthening the Inter-American Human Rights
System,AG/RES. 2761 (XLII-O/12) (June 5, 2012).
13 Gobierno acusa a CIDH de parcialidad en caso del diario
El Universo, el Hoy, Feb. 22, 2012, http://www.hoy.com.ec/
noticias-ecuador/gobierno-acusa-a-cidh-de-parcialidad-en-caso-
del-diario-el-universo-535688.html.
14 Rules of Procedure of the Inter-American Commission of
Human Rights, art. 15(2), Sept. 2, 2011 [hereinafter Rules of
Procedure].
15 Id. art. 15(3).
16 Annual Report 1998, Inter-Am. Comm’n H.R., Doc. OEA/
Ser.L/V/II.102, doc. 6 rev. (1999) [hereinafter Annual Report 1998].
17 Organization of American States, American Convention on
Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S.
123 [hereinafter American Convention].
18 Statute of the Inter-American Commission on Human Rights,
O.A.S. Res. 447 (IX-0/79), O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80,
Vol. 1 at 88 (Oct. 1, 1979).
19 History, oRg. of am. sts., www.cidh.oas.org/relatoria/
showarticle.asp?artID=52&lID=1 (last visited Feb. 6, 2013).
20 Rules of Procedure, supra note 14, art. 15(4).
21 Annual Report 1998, supra note 16.
22 Rapporteurship on Human Rights Defenders, oRg. of am. sts.
(Feb. 6, 2013), http://www.oas.org/en/iachr/defenders/default.asp.
23 However, more research is needed in order to conclude that the
SRFE is in fact addressing all the aspects of freedom of expression.
It seems that the main focus of the SRFE has been the violations
of this right produced by State actors, while violations produced by
private actors seem not to be studied enough, for instance the restric-
tions imposed by media owners to the journalists that work for them,
or the conscious release of erroneous information by the media, that
affects the right of individuals to receive truthful information.
24 However, the Commission did recently create a Unit for the
Rights of Lesbians, Gays and Trans, Bisexual and Intersex Persons.
See Rights of Lesbian, Gay, Trans, Bisexual, and Intersex Persons,
oRg. of am. sts., http://www.oas.org/en/iachr/lgtbi (last visited Feb.
6, 2013).
25 Vienna Declaration and Programme of Action, ¶ 5, adopted by
the World Conference on Human Rights on 25 June 1993, U.N.
Doc. A/CONF.157/23.
33
26 Some authors consider that there is an emerging hierarchy of
human rights, which is based on the non-derogable character some
rights have in international human rights law. The right to freedom of
expression seems not to be in such category of non-derogable rights.
See Koji Teraya, Emerging Hierarchy in International Human
Rights Law and Beyond: From the Perspective of Non-Derogable
Rights, 12 euR. J. intl l. 917 (2001).
27 Alexander H.E. Morawa, Vulnerability as a Concept of International
Human Rights Law, 6 J. intl Rel. & dev. 139, 139 (2003).
28 OAS, Inter-American Commission, SRFE, Report of the
SRFE 2010, Doc. OEA/Ser.L/V/II./Doc. 5, March 4, 2011, at 22
[hereinafter Report of the SRFE 2010].
29 Rapporteurship on the Rights of Migrants, inteR-am.
Commission, http://www.cidh.oas.org/Migrantes/migrants.team.htm
(last visited Feb. 6, 2013).
30 Rapporteurships Distribution, oRg. am. sts., http://www.oas.
org/en/iachr/mandate/composition.asp#tab3 (last visited Feb. 6, 2013).
31 OAS, Inter-American Commission, Annual Report 2010, Doc.
OEA/Ser.L/V/II/Doc.5, rev. 1, March 7, 2011.
32 Report of the SRFE 2010, supra note 28.
33 OAS, Permanent Council, Working Group, Proposals by the
Delegation of Ecuador, Annex 1, Specific Funds received by the
Rapporteurships of the Inter-American Commission on Human
Rights in 2010, Doc. OEA/Ser.G/GT/SIDH/INF.46/11, December 5,
2011 available at http://scm.oas.org/pdfs/2011/CP27705S.pdf.
34 oRganization of ameRiCan states, inteR-ameRiCan Commission
on Human RigHts: stRategiC Plan 2011-2015, available at http://
www.oas.org/en/iachr/docs/pdf/IACHRStrategicPlan20112015.pdf.
It should be noted that the presentation of the plan regarding the
work of the thematic rapporteurships is divided in two sections: one
for the seven regular rapporteurships and one just for the SRFE.
35 See Oswaldo Ruiz-Chiriboga, The American Convention and
the Protocol of San Salvador: Two Intertwined Treaties. Non-
Enforceability of Economic, Social and Cultural Rights in the
Inter-American System, netH. Q. Hum. Rts. (forthcoming, available
at http://papers.ssrn.com/abstract=1940559) (concerning the non-
direct enforceability of ESC rights).
36 Working Group, Final Report, supra note 2, at 9, 16.
37 Reply of the Commission, supra note 6.
38 Id. ¶ 192.
39 Id. ¶ 198–99.
40 Id. ¶ 196.
41 Id. ¶ 189–91.
42 Financial Resources, oRg. am. sts., http://www.oas.org/en/
iachr/mandate/financial_resources.asp (last visited Feb. 6, 2103).
43 Freedom of Expression: Financial Support, oRg. am.
sts., http://www.oas.org/en/iachr/expression/showarticle.
asp?artID=105&lID=2 (last visited Feb. 6, 2013).
44 OAS, Annual Report of the Office of the Special Rapporteur for
Freedom of Expression, OEA/Ser.L/V/II. Doc. 69, December 30,
2011, at ¶ 78.
45 Working Group, Final Report, supra note 2, at 15.
46 IFEX-ALC calls for withdrawal of three recommendations that
impact on mandate of free expression rapporteur, ifex, (Jan. 11,
2012), http://www.ifex.org/americas/2012/01/11/rapporteur_
recommendations.
47 La CIDH se juega su suerte el tiemPo, January 21, 2012
(translation of the author).
48 Rules of Procedure, supra note 14, art. 15(7) (emphasis added).
49 In its Response to the Permanent Council of the OAS, supra
note 6, ¶ 187, the Commission stated: “Given the importance of
this matter, as well as the above-mentioned background to the sub-
ject, the IACHR requested in its recent consultations with users
of the IAHRS that they comment on, inter alia, the “criteria and
procedures for improving coordination between the IACHR and its
rapporteurships with players in the system with respect to promo-
tion[.]” The existence of rules and practices applying to the work of
the rapporteurships will enable the IACHR to compile and publish
a manual or set of instructions systematizing them, in such a way
as to enhance predictability for all actors in the system and thereby
improve coordination with respect to promotion. In that way, it will
be possible to achieve the objective of “documenting and clearly dis-
closing the applicable rules and practices that establish the procedures
and duties that are binding for the rapporteurs” (emphasis added).
50 Press Release, Special Rapporteur for Freedom of Expression,
Office of the Special Rapporteur Expresses Profound Concern
Regarding Conviction of Journalist, Directors and Media Outlet in
Ecuador, OAS Press Release R72/11 (July 21, 2011) (emphasis added).
51 Press Release, Special Rapporteur for Freedom of Expression,
Office of the Special Rapporteur Expresses Concern Regarding
Confirmation of Conviction Against Journalist, Directors and
Media Outlet in Ecuador, OAS Press Release R104/11 (Sept. 21,
2011) (emphasis added).
52 Press Release, Special Rapporteur for Freedom of Expression,
UN and IACHR Special Rapporteurs for Freedom of Expression
State Deep Concern over Decision to Affirm Judgment against
Journalists in Ecuador, OAS Press Release R20/12 (Feb. 16, 2012).
53 Ecuador President Correa Pardons Paper in Libel Case, BBC,
February 27, 2012, http://www.bbc.co.uk/news/world-latin-amer-
ica-17177646.
54 Impartiality demands that a conflict-resolution body acting in a
specific dispute approaches the case subjectively free of all preju-
dice and offering sufficient elements of conviction to exclude any
legitimate misgivings or well-grounded suspicion of favoritism to one
party. See Apitz-Barbera et al v. Venezuela, Preliminary Objections,
Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser.
C) No. 182, ¶ 56 (Aug. 5, 2008).
55 But see Instituto de Defensa Legal et. al., Organizaciones
de sociedad civil de las Américas presentan su posición sobre
el informe final elaborado por el Grupo de Trabajo Especial
de Reflexión sobre el Funcionamiento de la CIDH para el
Fortalecimiento del SIDH, 16 aPoRtes dflf 54, 56 (2012).
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Follow-up on the recommendations contained in the Report of the Special Working Group to Reflect on the Workings of the Inter-American Commission on Human Rights with a View to Strengthening the Inter-American Human Rights System
  • General Assembly
12 OAS, General Assembly, Follow-up on the recommendations contained in the " Report of the Special Working Group to Reflect on the Workings of the Inter-American Commission on Human Rights with a View to Strengthening the Inter-American Human Rights System, " AG/RES. 2761 (XLII-O/12) (June 5, 2012).
Compilation of Presentations by Member States on the Topics of the Working Group
  • Permanent Council
  • Working Group
OAS, Permanent Council, Working Group, Compilation of Presentations by Member States on the Topics of the Working Group, Doc. OEA/Ser.G/GT/SIDH-17/11 rev. 1 (November 7, 2011).
Compilación de las recomendaciones de las organizaciones de la sociedad civil sobre los temas del Grupo de Trabajo
  • Permanent Council
  • Working Group
OAS, Permanent Council, Working Group, Compilación de las recomendaciones de las organizaciones de la sociedad civil sobre los temas del Grupo de Trabajo, Doc. OEA/Ser.G/GT/SIDH-11/11 rev. 1 (Nov. 21, 2011).
civil-society-observations-strengtheninginter-american-system (making accessible the Communiqué signed by 90 NGO's entitled "Civil Society Observations on the Strengthening of the Inter-American System); see also inteRameRiCan Commission on Human RigHts
  • Victoria Amato
Victoria Amato, Una mirada al proceso de reflexión sobre el funcionamiento de la Comisión Interamericana de Derechos Humanos, 16 aPoRtes DPLF 4, 6 (2012); Observations on the Process of Reflection on the Workings of the Inter-American Commission With a View to Strengthening the Inter-American Human Rights Protection System, CEJIL (January 27, 2012), http:// cejil.org/en/comunicados/civil-society-observations-strengtheninginter-american-system (making accessible the Communiqué signed by 90 NGO's entitled "Civil Society Observations on the Strengthening of the Inter-American System); see also inteRameRiCan Commission on Human RigHts, RefoRm PRoCess 2012 note 54, available at http://www.oas.org/en/iachr/strengthening/ docs/RespCPEn.pdf (issuing the "[r]eply of the Inter-American Commission on Human Rights to the Permanent Council of the Organization of American States regarding the recommendations contained in the Report of the Special Working Group to Reflect on the Workings of the IACHR with a View to Strengthening the Inter-American Human Rights System") [hereinafter Reply to the Commission].
Working Group, Proposals by the Delegation of Ecuador
  • Permanent Council
OAS, Permanent Council, Working Group, Proposals by the Delegation of Ecuador, Doc. OEA/Ser.G/GT/SIDH/INF.46/11 (Dec. 5, 2011).
  • Laura Gil
Laura Gil, Estocada a la CIDH. el tiemPo (Jan. 26, 2012), http://m.eltiempo.com/opinion/columnistas/lauragil/ el-consejo-permanente-de-la-oea/11009181. 10 Working Group, Final Report, supra note 2.
Report of the Special Working Group to Reflect on the Workings of the Inter-American Commission on Human Rights with a View to Strengthening the Inter-American Human Rights System
OAS, General Assembly, Follow-up on the recommendations contained in the "Report of the Special Working Group to Reflect on the Workings of the Inter-American Commission on Human Rights with a View to Strengthening the Inter-American Human Rights System, " AG/RES. 2761 (XLII-O/12) (June 5, 2012).