As is well known, in 2021, there are four vacant seats that the Member States of the Organisation of American States (OAS) will have to find a way to fill on the Inter-American Court of Human Rights.
This specialised regional human rights jurisdiction, based in San José (Costa Rica), is composed of seven judges (see current composition), elected for a six-year term. The respective curricula vitae of the current judges of the Court of San José can be found in this official link.
In the last election, which took place in June 2018, the Mexican and Colombian judge were re-elected as judges for the period 2019-2025, while the candidate from Uruguay was elected for the same period.
The 2021 elections: the renewal of a majority (four)
Renewing four judges’ seats on the Court in 2021 represents a challenge, especially considering that there are seven judges that make up the entire Inter-American Court of Human Rights. This renewal may contribute to reaffirming and consolidating its jurisprudential line or, on the contrary, it may seek to alter and modify it.
The above statement is particularly relevant at a time when, for some sectors in Latin America, the jurisprudential line followed by the Inter-American Court of Human Rights is seen as a real threat to their convictions, interests and pretensions. These political sectors not only oppose its recent decisions on the recognition of the rights of sexually diverse populations and the independence of the judiciary, but also on the rights of indigenous peoples and environmental issues. In these last two areas, the strong polarisation of the discussion around the Escazú Agreement since 2018 in various parts of the American container illustrates the fierce opposition of some of these sectors to the idea of protecting environmental defenders and guaranteeing much more effective citizen participation in environmental matters.
It has also been considered, this time by other entities and specialists (see for example a letter signed by twelve renowned women human rights experts), that 2021 is a real opportunity to better balance gender equality in this Inter-American jurisdiction by urging States to nominate female candidates to the future Inter-American Court.
With regard to the Escazú Agreement, it is noteworthy that, of the many States that have formally nominated a candidate in these elections and have not withdrawn their nomination, only one (Argentina) has ratified this innovative regional instrument.
The system foreseen for the election of future inter-American judges
It should be recalled that it is the states themselves who choose, by means of a vote, who will occupy this type of post (individual nominations), as opposed to official nominations (nominations/country).
In the first case (expert candidacy), the person chosen, once in office, must maintain total independence with respect to the State that appointed him/her.
In the second case (candidacy/country), it is the State that nominates itself and, once it has obtained the necessary votes to realise its claims, designates its official representative to participate in the sessions of the body to which it was elected: in this regard, we had the opportunity to analyse the recent election of Argentina, Honduras and Paraguay to the United Nations Human Rights Council in October 2021 (Note 1).
In the particular case of the election of judges of the Inter-American human rights system, it is necessary to specify that although the OAS formally has 34 Member States, only the 24 States that are Parties to the American Convention on Human Rights (ACHR, better known as the Pact of San José) participate in the vote to elect judges: for example Canada, the United States, and, since 2012 Venezuela (see brief note) until 2019 (Note 2), as well as Trinidad and Tobago (since 1998) do not participate in this election.
The current status of signatures, ratifications, reservations and denunciations of the ACHR is available at this official OAS link: a detailed reading allows one to appreciate just how inter-American the human rights protection system in force in the hemisphere is.
Nominations and lobbying by state diplomatic apparatuses
In order for a state to obtain sufficient votes in favour of its candidate, it is often necessary for the candidacy departments of the multilateral affairs (or human rights departments, where they exist) of each of the foreign affairs ministries to exchange support.
These exchanges of votes usually respond to criteria of opportunity as part of a political negotiation. It should be noted that this type of candidacy is often negotiated by states in exchange for support for another candidacy in another international organisation.
These exchanges of favours are not limited to the candidatures of individual nationals, but can sometimes include a candidacy/country: for example, in 2005, Costa Rica’s support for Nicaragua for a seat on the UN Security Council was reported in the Costa Rican press, thus honouring a commitment made to Nicaragua by asking it to vote in June 2003 in favour of Costa Rica’s candidate for the post of judge on the Inter-American Court of Human Rights (see La Nación article of October 2005).
States that have presented candidates to fill vacancies on the Court
At the time of writing, a total of eight states have nominated a candidate for the 2021 election: Argentina, Brazil, Chile, Costa Rica, Panama, Paraguay, Peru and Suriname. To these nominations, we can add a judge of the Inter-American Court of Human Rights who until a few months ago was seeking state sponsorship for his re-election, as we will see below.
The CV of Argentina’s candidate can be found at this official OAS link, as well as the CV of Brazil’s candidate (see link).
In January 2021, Paraguay officially presented its candidate (see official diplomatic note of 19/01/2021), followed a few days later by Panama, which also officially presented its candidate (see official diplomatic note of 25/01/2021): it should be noted that never before in history have these two States had a national serving as a judge at the San José Court. In the case of Mesoamerica, Panama is not alone in this situation, sharing this situation with El Salvador as well as Guatemala. A month after its candidacy was officially announced, Panama opted to withdraw its candidate’s nomination (see press release of La Estrella of 26/02/2021).
A few days after Panama, it was Costa Rica that announced it would nominate a female candidate (see official communiqué of 27/01/2021), a decision that was officially taken “following the decision of the current judge and president of the IACHR Court, Dr. Elizabeth Odio Benito, not to seek re-election”. Costa Rica has had members of her nationality on four occasions in the past (Note 3), the last Costa Rican jurist being elected in June 2015 (Note 4).
A few days after Costa Rica, it was Chile that announced the candidacy of a national (see official note of 6/02/2021) and five days later, it was Peru that officially announced the candidacy of a national in February 2021 (see official diplomatic note of 11/02/2021). Both Andean states have already had nationals on the Inter-American Court of Human Rights in the past (Note 5). In the Andean sub-region, Bolivia is the only state never to have had a national sitting on the Court.
On 6 April 2021, a note from the Suriname Mission to the OAS circulated the name of a candidate for membership of the Inter-American Court: Suriname has never had a national as a member of the Court. It is quite possible that the existing solidarity between the three Anglophone Caribbean island states and Suriname is seeking to gather votes in an attempt to gain the necessary support for the Surinamese candidate.
Interestingly, on 24 May, Bolivia announced that it was withdrawing the nomination of the current Ecuadorian judge, who is running for re-election (see press release), without subsequently announcing the nomination of a national. It is quite possible that the current Ecuadorian judge (and Vice President of the Inter-American Court of Human Rights) is in search of a nominating state, given that it appears that his national authorities in Ecuador do not wish to nominate him.
In recent days, as part of the campaign in favour of its candidate, Costa Rica formally presented her at a meeting held at the OAS headquarters in Washington (note 6).
Costa Rica, like Argentina and Chile, are seeking to keep a person of their nationality on the Court in these 2021 elections, given that the four vacancies that are the subject of these elections correspond to those left by jurists from Argentina, Costa Rica, Chile and Ecuador.
Nominations for human rights judges and their suitability
One might assume that the choice of persons to be appointed to the highest human rights body in the region would be subject to careful selection, in order to find the most suitable people, with the best preparation and commitment to the cause of human rights; and that in this selection process, a way would be sought to involve civil society organisations, universities and specialised human rights centres to present a final shortlist of candidates to the political decision-makers. Nothing could be further from the truth.
In Panama, as soon as the name of the candidate was made public, there was strong resistance and a heated debate (see press release) that culminated in the withdrawal of the candidate proposed by the Panamanian authorities themselves at the end of February 2021. For some reason, Panama did not consider it appropriate to re-nominate another national, thus losing the possibility of having, for the first time in history, a judge of Panamanian nationality at the heart of the Court. The questions that many observers may ask is the following: was there no other candidacy in Panama of a human rights specialist other than the initially nominated candidate, and is Panama so limited in terms of human rights jurists?
In Costa Rica, the significant regression of the jurisprudence of its constitutional judge in environmental matters in recent years was highlighted when analysing the way in which its Constitutional Chamber unnecessarily complicated the approval of the Escazú Agreement (see the forum held by the American Association of Jurists on 4 June) (Note 7); To such an extent that a recognised ecological collective such as Bloque Verde asked, following strange statements heard during the presentation of a book, to reconsider the nomination of the judge presented by Costa Rica (see note published in Surcos digital). For its part, one of the public employees’ unions also called for the withdrawal of this candidacy, for very different reasons to those expressed by the Green Bloc (see ANEP’s statement). Note that in 2017, the Constitutional Chamber of Costa Rica, in an unusual decision, decided that citizen participation in environmental matters no longer qualifies – according to it – as a human right … (Note 8); while in 2016, it considered that freedom of enterprise prevails over a municipal agreement establishing a moratorium on new pineapple plantations, taken in order to protect the public health of communities surrounding this monoculture in the canton of Los Chiles (Note 9).
Regarding the nomination process in Costa Rica, a recent report states that the Costa Rican candidate herself told an international panel of experts that:
“… the candidate referred to the nomination procedure indicating that the President of the Republic, together with her team of advisors, and the Ministry of Foreign Affairs of the Republic, chose her for the nomination. She added that she was subsequently informed directly by the President of the Republic through a telephone call of his intention to nominate her” (p.76).
In Paraguay, this time it was a women’s collective that denounced the inadequate profile of the Paraguayan diplomat’s nominee (see press release).
These (and many other situations and questions) could be avoided if states accepted in an open and transparent manner that civil society organisations, the academic sector, and human rights professionals were associated in an attempt to appoint a shortlist of people with the ideal profile; and that groups of lawyers, professional associations, and human rights defenders, through a public competition, could participate fully in the selection of the best human rights professionals available.
It should be noted that many of these professionals also have a solid training, completed with diplomas obtained abroad: American, Canadian and European universities graduate a large number of Latin American jurists in the field of human rights in the framework of postgraduate, doctoral or post-doctoral studies, without this necessarily appearing on the curriculum vitae of those nominated by the national authorities to fill a vacancy in the only inter-American court specialising in human rights.
In 2018, a group of international experts reviewed the suitability of the candidates proposed to fill the three vacant seats on the inter-American jurisdiction: see note and in particular the full text of the valuable report prepared by the panel of experts and in particular its final recommendations. This is a first initiative in the right direction, promoted by civil society, and which for this year 2021, it was considered appropriate to revalidate for the remaining four chairs: in this report published on 5 October, you can read the various observations made by the panel of experts constituted for this purpose, in relation to the candidates proposed to integrate both the Inter-American Commission and the Inter-American Court of Human Rights. In several parts of this recent report, it is noted – with regard to the candidates for membership of the Court – that no information that could call into question the independence, impartiality and/or lack of ethics of the proposed candidates reached the panel of experts.
With regard to possible advances in the transparency, publicity and openness of the nomination procedure within each State, in the aforementioned report released in the first days of October 2021, the experts point out that:
“Nomination procedures at the national level are still mostly controlled in a discretionary and exclusive manner by the executive branch” (p. 6).
Note that in Argentina, a draft bill entitled “National Law for the Selection of Judges for the Inter-American Court of Human Rights” (see full text) seeks to establish a much more open and transparent mechanism for the appointment of a shortlist of three judges, involving various Argentinean bodies. It is not known of any other similar legislative initiative discussed in other congresses.
This academic article published by the Inter-American Institute of Human Rights (IIDH) in 2007 noted that, in the European human rights system, the selection process has led to the creation of a specific body within the Parliamentary Assembly of the Council of Europe:
“In the ECtHR, the possibility of appointing a committee in charge of examining the candidatures to the court benches has been enacted. Thus, the Parliamentary Assembly created a permanent76 subcommittee to the Committee on Legal Affairs and Human Rights that is responsible for reviewing state-made nominations. This committee guarantees that the candidates meet the requirements for judges at the ECtHR as set out in the ECHR, examining their curricula vitae and carrying out individual selection interviews with each candidate prior to voting in the Parliamentary Assembly” (p. 209).
A felt and persistent absence
It is noteworthy that several English-speaking Caribbean states are parties to the American Convention on Human Rights. However, unlike in the not so distant past, the current Court is composed entirely of nationals of Spanish-speaking states: Argentina, Chile, Colombia, Costa Rica, Ecuador, Mexico and Uruguay. There is not a single national from an English-speaking Caribbean state in the American hemisphere, nor from Guyana or Suriname.
This situation has persisted since 2012: during the period 2007-2012, Judge Margarette May Macaulay from Jamaica was present; during the period 1995-2006, Judge Oliver Jackman (Barbados) was present; and during the period 1979-1985, Judge Huntley Eugene Munroe (Jamaica) was present.
This absence may contribute to reinforcing public disinterest in inter-American human rights bodies in the ten English-speaking Caribbean island states, as well as in Belize, Guyana and Suriname on the container: human rights activists and organisations must confront this disinterest in their daily work, in the face of a regional human rights protection system that does not seem to value the contributions of Anglo-Saxon legal culture when choosing potential future judges.
It is to be expected that English-speaking states will try in 2021 to unite their efforts to ensure that Suriname succeeds in nominating its candidate, in order to make up for this significant absence.
In conclusion: a new and decisive diplomatic contest
In our aforementioned note on the elections to fill four vacancies on the Inter-American Court of Human Rights held in 2015, we indicated that it was Ecuador’s diplomacy that obtained the best results in this vote, while Uruguay obtained the worst: “Ecuador’s candidate obtained 22 votes, Costa Rica’s candidate 20 votes, and Argentina’s candidate 18 votes. With 20 votes, the current Chilean judge was re-elected, leaving Uruguay’s candidate out of the race (and out of the Court) with only 9 votes” (Note 10).
In June 2018, Mexico obtained the best results and Bolivia the worst, while Uruguay substantially improved its previous record: for three vacancies, the Mexican judge (re-election) obtained 21 votes, the Colombian judge (re-election) 20 votes, and Uruguay’s candidate received 16 votes; while Bolivia’s candidate was not elected, with only 7 votes in her favour (see press release).
With seven candidates for four vacancies in 2021 (and perhaps an Ecuadorian Vice President who manages – finally – to obtain last-minute state sponsorship), the diplomatic contest is expected to be intense among the states that have decided to nominate a candidate for membership of what is considered the highest human rights body in the American hemisphere.
The forecasts are reserved as to the capacity of each diplomatic apparatus to manoeuvre in order to gather the necessary votes: intense negotiations must be taking place at different levels, including meetings and consultations at the highest level, reconsideration of votes and support, as well as the use of the different diplomatic channels foreseen for the lobbying involved in bringing a candidacy of this nature to a successful conclusion.
As each state tries to convince the other states of the suitability of its candidate, it is the diplomatic battle that will decide the outcome of the vote. If for some observers, the current human rights situation in Brazil could work against their candidate, it is well known that the Brazilian diplomatic apparatus is usually extremely efficient in the multilateral arena when it comes to gathering votes in favour of the nationals it nominates.
The vote and the official results should have been announced in the framework of the OAS General Assembly, which should have taken place in June 2021. Finally, due to the epidemiological conditions of this year 2021, this General Assembly will be held in November 2021 in Guatemala.
-Notes
Note 1: See BOEGLIN N., “Argentina, Honduras and Paraguay elected as members of the United Nations Human Rights Council”, Constitutional Law, 17/10/2021 edition, available at this link.
Note 2: The case of Venezuela is quite unusual in the annals of public international law, having formally denounced the American Convention on Human Rights in September 2012. Legally, however, Venezuela appears to have fully reintegrated into the Inter-American system of human rights protection, through a letter from the self-proclaimed legitimate President of Venezuela Juan Guaidó, which the OAS bodies recognise as such (see his letter of 31/07/2019).
Note 3: The following Costa Ricans served on the Court throughout its history: Rodolfo Piza Escalante (1979-1988), Sonia Picado Sotela (1989-1994), Manuel Ventura Robles (2004-2009) and (2010-2015) and Elizabeth Odio Benito (2016-2021). Note that the American jurist, Thomas Buergenthal, was proposed by Costa Rica as a candidate and was elected in 1979 as a judge of the Court: see this article by Thomas Buergenthal himself, available here, especially p. 12, in which he indicates that he initially thought it was a bad joke by one of his students: “Convinced that it was some prank by a student in my seminary, I thanked him and asked for his telephone number so that I could contact him after I had consulted my wife”.
Note 4: In this regard, see our brief note: BOEGLIN N., “Elections in the framework of the OAS General Assembly: a brief analysis”, published on the legal site DerechoalDia, edition of 17/06/2015, available here.
Note 5: In the case of Chile, these are Máximo Pacheco Gómez (1992-1997) and (1998-2003), Cecilia Medina Quiroga (2004-2009) and Eduardo Vio Grossi (2010-2015) and (2016-2021). In the case of Peru, these are Máximo Cisneros Sánchez (1979-1985) and Diego García Sayán (2004-2009 and 2010-2015).
Note 6: On 29 September, Costa Rican diplomacy circulated the following press release:
“Costa Rican candidate presents to the Permanent Council of the OAS the principles of her nomination for judge of the Inter-American Court of Human Rights”. San José, September 29, 2021 – Judge Nancy Hernández López presented today, in an extraordinary and open session of the Permanent Council of the Organization of American States (OAS), the principles and basis of her candidacy for judge of the Inter-American Court of Human Rights, whose election will take place on the margins of the 51st OAS General Assembly to be held virtually from 10 to 12 November 2021.
Foreign Minister Rodolfo Solano Quirós, during his speech at the session, highlighted the extensive career and achievements of Judge Hernández López, including her 34 years of experience in the defence and promotion of human rights, of which 30 years have been dedicated to her professional practice in the Judiciary, of which the last 8 years she has served as a Constitutional Judge of the Supreme Court of Justice.
Judge Hernández, for her part, emphasised the fundamental role of the Inter-American Court in the efforts of States to achieve standards of respect for human dignity, justice and equity, and therefore reiterated her commitment to strengthening the Court, always safeguarding its subsidiary nature and the fair balance that must exist between the protection of human rights as the purpose of the inter-American system, legal security and procedural fairness that ensure the reliability of international protection.
She also highlighted the fundamental points that motivate her aspiration as a candidate for the Court, among them the strengthening of the legitimacy and independence of the Court, its greater transparency and efficiency, greater permanence and diversity in the representation of judges, as well as the strengthening of dialogue with States, victims and civil society in order to bring justice closer to them.
The other candidates for the Court, nominated by Argentina, Brazil, Chile, Peru, Paraguay and Suriname, also participated in the session.
The candidacy of Judge Hernández López is of great importance in line with the country’s commitment to the Inter-American Human Rights System, which has been fundamental in laying the foundations for the values of democracy, freedom and protection and respect for human rights in the region.
Institutional Communication / (1979 CR IACHR candidacy Nancy Hernández) / Wednesday 29 September 2021″.
Note 7: On the unusual fact that Costa Rica persists in not being a State Party to the Escazú Agreement (an international instrument adopted in March 2018 in Costa Rica and already ratified by 12 States), see in particular our section “El Poder Judicial en la mira” in BOEGLIN N. La entrada en vigencia del Acuerdo de Escazú: una celebración en América Latina y un profundo sinsabor en Costa Rica”, DerechoalDia, edition of 4/05/2021, available at this link. Recently, given the lack of political will to approve the Escazú Agreement in Costa Rica, and the real disinformation campaign deployed against the Escazú Agreement by some sectors, the University of Costa Rica (UCR) produced two short videos, which I personally recommend: “El Acuerdo de Escazú y los defensores del ambiente”, available on You Tube here and another video entitled “UCCAEP y el Acuerdo de Escazú”, available here.
Note 8: Regarding such a disconcerting conclusion by the Costa Rican constitutional judge in paragraph V of judgement 1163-2017 (see full text), it is worth noting that it was the subject of only two dissenting votes (signed by judges Fernando Cruz and Paul Rueda) while the remaining five judges considered that going against the jurisprudence of the Constitutional Chamber itself and the Inter-American Court of Human Rights does not merit any particular reflection. On this dangerous regression of the Costa Rican constitutional judge, see our brief note on the matter. In order not to cause greater embarrassment than that provoked by this decision of the Costa Rican constitutional judge in February 2017, we refer our esteemed readers to paragraph 231 of the Advisory Opinion of the Inter-American Court of Human Rights released in 2018 (see full text), which states: “231. Therefore, this Court considers that, from the right to participate in public affairs, derives the obligation of States to guarantee the participation of persons under their jurisdiction in decision-making and policies that may affect the environment, without discrimination, in an equitable, meaningful and transparent manner, for which they must have previously guaranteed access to relevant information”. In paragraph 242 of the same advisory opinion of the Inter-American judge, it is stated that: “g. States have the obligation to guarantee the right to public participation of persons under their jurisdiction, enshrined in Article 23.1.a of the American Convention, in decision-making and policies that may affect the environment, in accordance with paragraphs 226 to 232 of this Opinion”. In a recent study by jurist Alvaro Sagot Rodríguez on the repeated environmental regressions of the Costa Rican constitutional judge, the author cites a 2012 decision of the Constitutional Chamber in which it is stated that: “In this sense, environmental law could not lead to a tyranny of citizen participation” (sic) (p. 30 of the aforementioned study).
Note 9: See the full text of judgement 11545-2016, which states: “Having said the above, municipalities do not have the power to prohibit a certain licit economic activity in their territories or to declare moratoriums, definite or indefinite. This competence corresponds to the State, since the law of the Constitution (values, principles and norms) is clear and precise, in the sense that the regime of public freedoms is reserved to the law. In the case at hand, there is no legal provision with the force of law that authorises the municipality in question to prohibit the cultivation of pineapples in its territory, or to declare an indefinite moratorium on the cultivation of this product, and therefore its action is arbitrary and, consequently, contrary to the legal system”. As this is a moratorium for a period of 5 years, it is questionable whether the Chamber considers it to be an “indefinite moratorium”. Once again, a reading of the dissenting opinion of Judge Fernando Cruz shows how erratic and whimsical the decision taken by the majority of his colleagues is: Judge Cruz concludes by explaining that “given the threats and harmful effects to health and the environment caused by pineapple cultivation, the communities have full legal and political legitimacy to dictate temporary preventive measures to ensure that their citizens are not harmed by an agro-export activity that causes damage and threats to biodiversity”.
Note 10: See BOEGLIN N., “Elections in the framework of the OAS General Assembly: a brief analysis”, published on the legal website DerechoalDia, edition of 17/06/2015, available here.
