—Alexandra Huneeus, University of Wisconsin
Hugo Chavez’s election victory last Sunday bodes badly for the Organization of American States’ Human Rights System. On September 10, 2012, Venezuela denounced the American Convention of Human Rights so as to remove itself from the oversight of the Inter-American Court of Human Rights . Chavez’s challenger had promised to rescind the denouncement, but his ballot loss means Venezuela is definitely leaving the Court. With jurisdiction over 22 Latin American states, and in tandem with the Inter-American Commission, the Inter-American Court has become an important if at times controversial regional actor. In recent years it has ordered states to prosecute authoritarian-era crimes, to provide indigenous communities with formal land title to traditional lands, to restrict military jurisdiction, to lift limits on freedom of expression, to reform prisons, and to treat sexual minorities with equality.
For scholars of constitutionalism, Venezuela’s exit is a reminder that, even as legal journals are abuzz with Latin America’s “new constitutionalism,” and even “Inter-American judicial constitutionalism,” a group of countries are moving their political systems in a decidedly different direction. Chavez’s government has been accused (by the Inter-American Court, among others) of undermining judicial autonomy. After 13 years of Chavez in the presidency, and with six more on the horizon, the Supreme Court is firmly on board with enabling – rather than checking – the Boliviarian Revolutionary agenda. Whereas high courts in Argentina, Chile, Colombia, Guatemala and Mexico have declared themselves to be directly bound by Inter-American Court rulings, the Venezuelan Supreme Court in 2008 called on the Venezuelan government to flout the Court’s orders and to denounce the American Convention.
The denouncement comes at a critical time for the Inter-American System. Governments across the political spectrum, but especially on the Chavez-allied Left, have begun to criticize its ever bolder insertion into their affairs. Ecuador and Bolivia have even threatened to create an alternative human rights system excluding the United States. The United States is not under the jurisdiction of the Court, which is based in Costa Rica. However, as part of the OAS it influences the D.C.-based Commission (through, for example, General Assembly votes on appointments), and the Commission, in turn, chooses which cases go to the Inter-American Court. These states argue that the OAS is compromised by United States influence, and that its rights bodies target Leftist governments for ideological rather than legal reasons (Venezuela’s 33-page denunciation letter highlights many examples of what it views as bias). The governments of Bolivia, Ecuador and Venezuela have been particularly galled by the Commission’s focus on freedom of expression in their countries.
But it is not only Chavez’s close allies that are bothered: Brazil, Argentina and Peru have piled onto the criticisms. The Commission has been a particular target due to its assertive use of preliminary measures. It recently riled Brazil by calling for a halt to a multi-million hydro-electric dam while further impact studies were done. In response to criticisms, the OAS has opened what it calls “the process for strengthening the Commission,” but will most likely do just the opposite. The Inter-American Court has also come under fire. Over time, and with the aid of national courts, it has begun to behave more like a constitutional court, claiming power to review legislation under the American Convention, to issue detailed remedial orders mandating regulatory reform, and to supervise compliance to its rulings. That Chavez would go to the trouble of formally exiting suggests that the Court and Commission begin to have bite. But it also suggests that they misjudged how far they could push states without backlash.
Local actors have challenged the denunciation on constitutional grounds. Recent Latin American constitutions give human rights treaties a high rank within the hierarchy of laws. Article 31 of the Venezuelan Constitution grants every person the right “on the terms established by the human rights treaties, pacts and conventions ratified by the Republic, to address petitions and complaints to the international organs created for such purpose, in order to ask for protection of his or her human rights.” By restricting this right, critics argue, the executive’s denunciation violates the Constitution. Further, the withdrawal illegally amends the Constitution, which makes explicit mention of the American Convention in its section on States of Exception (Article 339). More deeply, critics say the denunciation strikes against the rights-enhancing essence of the Constitution. At least one lawyer argues that the framers intended to “constitutionalize the [American] Convention and to make it a norm of internal law…as well as its institutions of control and supervision.” Such an interpretation aligns with the theories of new constitutionalism spreading in the region. But in Venezuela it seems to have lost the day.
When the denunciation takes effect on September 11, 2013, Venezuela will be the second state, after Trinidad and Tobago in 1998, to have denounced the American Convention. (Peru denounced toward the end of the Fujimori era, but Fujimori’s successor withdrew the denunciation before it could take effect.) An interesting question looking forward is whether the Court and Commission will change their behavior in light of the current backlash.