Christian De Vos and Liliana Gamboa*
When states from across the Americas convene next week for the 49th General Assembly of the Organization of American States (OAS), they will face a solemn task: electing four commissioners to the seven-member Inter-American Commission on Human Rights, the region’s premier human rights monitoring and protection body. The problem? For the first time in the recent memory, there are not enough qualified candidates to elect.
Last week, an independent panel of renowned jurists and academics from the regional human rights community (the fourth such panel to be convened) released a 90-page report in advance of the election, assessing in detail each of the five candidates running. It concluded that only three of them – incumbent commissioners Esmeralda Arosemena (nominated by Panama) and Margarette May Macaulay (nominated by Jamaica), and Julissa Mantilla Falcón (a new candidate nominated by Peru) – satisfied the statutory requirements for election. However, the panel concluded that the two other candidates — Everth Bustamante García (nominated by Colombia) and Edgar Stuardo Ralón Orellana (nominated by Guatemala) — did not possess sufficient competence in the field of human rights, nor did they possess the requisite independence (or appearance thereof) for the job. In particular, the panel expressed concerns about Ralón Orellana’s financial integrity given that his law firm and the company where he is a shareholder appear in the Panama Papers investigation.
It did not have to be this way. For years, both previous panels of experts and a growing chorus of NGOs and civic associations throughout the region have warned that the way states nominate candidates to serve as human rights commissioners or judges is seriously deficient. There is too little transparency in the process, too few candidates to ensure a competitive process, and too much political vote trading in deciding who wins. We were confident, however, that elected candidates at least met a minimum standard for service, particularly when an independent, expert body had reviewed their qualifications and records against the statutory criteria. This year, that confidence is at risk.
So what to do? States have a legal obligation under the American Convention on Human Rights and the Commission’s statute to elect “persons of high moral character and recognized competence in the field of human rights.” With the panel’s rigorously documented, exhaustive report now public, the conclusion is clear: the candidates from Colombia and Guatemala cannot be characterized as such. Consequently, because they are not qualified, states must not elect them. To do otherwise would cast a stain on the OAS General Assembly’s institutional reputation for years to come.
There is an alternative: states should elect the three qualified candidates, leave the fourth ballot vacant, and call for a special election. Article 11 of the Commission’s statute provides the authority for this course of action. It foresees that, “When a vacancy occurs for reasons other than the normal completion of a member’s term of office, the Chairman of the Commission shall immediately notify the Secretary General of the Organization, who shall in turn inform the member states of the Organization.” An insufficient number of qualified candidates to elect is effectively a “vacancy” due to an exceptional (if avoidable) circumstance, and Article 11 thus provides a suitable remedy. New candidates (whose qualifications the same independent panel can also review) should be put forward and the OAS Permanent Council can elect an appropriate, qualified candidate from amongst them.
At the end of next week’s Assembly, OAS members should not walk away having crowned a commissioner unfit for office. Doing so would weaken a critical pillar of the region’s human rights regime. Like all international legal institutions, the Inter-American Commission’s legitimacy depends on the independence, integrity, and qualifications of its members. To fill this vacancy merely for the sake of filling it would do the region – and the rights of its people – a grave disservice. We urge states to use that power wisely and elect only those who are qualified.
*Christian DeVos and Liliana Gamboa are advocacy officers for the Open Society Justice Initiative.