Financing the Inter-American Human Rights System
April 28, 2000
A Report Prepared by the Office of the Secretary General of the Organization of American States for the Ad Hoc Working Group on Human Rights, created by the Foreign Ministers meeting of 22 November 1999 held in San Jose, Costa Rica.
Financing the Inter-American Human Rights System
I. Finances of the OAS: A Bad Situation Getting Worse
A. Understanding This Year's Budget : The Regular Fund
B. Specific funds
II. Finances of the Human Rights Organs
Appendix I: Priority Areas Financed by the 1999 Regular Budget and Specific Funds
Appendix II: Additional Ideas and their Cost
Human rights promotion and protection has always stood among the principal mandates of the OAS. To make real that vision of collective action, the member states of the Organization created the inter-American human rights system. Its two organs, the Washington based Inter-American Commission on Human Rights (IACHR) and the San Jose based Inter-American Court of Human Rights (the Court) have earned a respect perhaps unequalled in the history of our hemispheric institutions.
There has emerged, however, a clear sense that funding for the human rights system has grown inadequate. What is required is, first and foremost, is greater resources dedicated to the system. Additionally, a more rational and predictable source of funding would dramatically redress some of the system's current difficulties.
This paper seeks to address a specific issue posed by the ad hoc group on human rights, which was created by a group of the hemisphere's foreign ministers meeting in San Jose, Costa Rica on 22 November 1999. That specific concern goes to the implications for the OAS's regular budget of servicing the needs of the human rights organs.
To answer the question, we propose first to frame the issue within the larger picture of the current OAS financial state, followed by a focus on the finances of the human rights organs themselves. Next, we will lay out two projected financing scenarios using data provided by the IACHR and Court. For the sake of simplicity, the scenarios essentially assume that the basic operation of the mechanisms themselves will be largely unchanged over that time. But, it is also useful to illustrate the separate cost of new and additional ideas, which we do in APPENDIX 1. In the final section, we attempt to tie together and contextualize the money discussion, and analyze the implications this has for the OAS, its regular budget and for the member states as well.
I. Finances of the OAS: A Bad Situation Getting Worse
The financial picture of the OAS has been difficult for years, and is likely to get worse. We expect that the Organization's revenues will continue on a downward track in both nominal and real terms. There are a number of explanations for this trend.
In the first place, revenues received by way of quotas, the most important source of financing for the Organization (95% in 1999) have been steadily declining, in both real and nominal terms, since 1996.
In nominal terms, quota revenues amounted to only $67.5 million in 1999, compared to $67.6 million collected under this heading in 1998. Moreover, it must be noted that of all the revenues received during the past year, $36.0 million (53.3.%) corresponded to quota payments for the year 1999. The difference, $31.5 (46.7%), came in the form of makeup payments on previous years' quotas.
The Organization's quota revenues in real terms have been falling since 1995. This is because the quota schedule has not been amended since 1994 when it was set at $73.7 million (effective as of 1995), meaning that increases in inflation have since reduced the financial capacity of the Organization.
Since the Organization has operated each year with fewer resources in real terms, it may be said that the Secretariat has generated savings for member countries in the order of $25 million in real terms between 1995 and 2000. These savings have in effect been achieved two ways: on the one hand, by increasing the Secretariat's productivity and efficiency, and on the other hand by reducing the amounts devoted to certain mandates for which sources of funding could not be obtained. Some of the cutbacks we have achieved are the result of reduced activity in areas that were indicated as priorities by member countries, but which, because of financial constraints, could not be executed.
The Secretary General has reiterated his belief that making cuts in this way is not a proper function of the Secretariat, since our duty is to carry out and comply with the mandates of the member states as effectively as possible. When saving means failing to carry out everything we have defined as priorities, this is not saving, but rather a loss in terms of the services that the Organization should be providing. Nevertheless, because of budgetary problems (the freezing of quotas) and liquidity problems (failure to pay quotas), the Secretariat has been obliged to tailor its services to its financial constraints.
A. Understanding This Year's Budget : The Regular Fund
The budget of an organization such as ours reflects its political priorities; in our case these are expressed through the mandates approved by the General Assembly. For example, this year the budget presented amounts to $80 million from the Regular Fund, a figure that results from valuing and quantifying the priorities earmarked in the budget for the year 2000, with additional provisions for new mandates and obligations.
By instruction of the General Assembly the draft budget will not exceed $80 million, assuming the sum actually received in quotas payments reaches that level. This represents the sum of member state quotas, estimated interest income, technical and administrative support contributions from the Specific Fund, as well as other revenues.
This year, in order to reflect the General Assembly's mandate with respect to sources of financing, the Secretariat has opted to divide the presentation of the budget into two broad categories:
The first corresponds to activities currently performed by the Secretariat. This budget of $76 million, which, as discussed below, would be financed with revenues that the Secretariat expects to receive during the year 2001. This assumes that member countries will pay all of their assigned quotas for the year 2001, in a total amount of $73.7 million.
The second category, amounting to $4 million, corresponds to mandates and activities for which no source of funding has as yet been secured. This $4 million in activities will only be executed if the Organization obtains additional revenues through an increase in current quota levels, higher interest revenues, or increases in technical and administrative support contributions from the Specific Funds.
The budget for the year 2001 represents an effort to maximize available resources, taking account of the economic situation facing our member countries, as well as the political priorities that they have established. Still, it must be noted that during the process of preparing the budget, additional mandates and requirements were identified, which could not be included within the $80 million. These requirements amount to an additional $3.7 million. The shortfall between the Court's 2001 proposed budget of roughly $1.5m and the allocated budget of $1.1m falls into this category.
Distribution of funds by sectors and priority areas
Resources from the Regular Fund are distributed in accordance with priority areas. We have set out this information below, and additionally in APPENDIX 1 in chart form:
B. Specific funds (previously known as voluntary funds)
In 1999 about $37.0 million was received in country contributions to specific funds. These resources have allowed the Secretariat to finance programs in priority areas through the use of external funds.
In particular, for four areas, resources from the specific funds were essential for the conduct of the Organization's activities during 1999:
The Secretariat will continue seeking to attract external resources for financing the Organization's mandates and activities during the year 2001.
II. Finances of the Human Rights Organs
Compared to other areas of the OAS in the budget, the Human Rights system has fared well. This is, of course, a reflection of the priority the member states give to this part of the organization's work. In significant ways, however, the human rights organs are also casualties of this difficult financial picture.
Specific Funds and Human Rights
Although our analysis concentrates heavily on the system's funding from within the regular fund, it is important to understand the impact on this discussion of specific funds.
The general financial difficulties has meant that both organs of the system rely heavily on specific funds. Specific funds are open to contributions from virtually any source or country, including member states contributing over and above their regular fund quota. It is important to stress that these specific funds have been, and are today, used for basic mandated operations. For example, the IACHR has used specific funds for onsite visits, costs associated with arguing cases before the Court, the relatorias, information management development, document publication -- including the Annual Report -- and for improving library services. Representing a more traditional use for specific funds, the IACHR has also used them to supplement work on indigenous rights, publishing a manual on Human Rights, and donating human rights materials to Latin American Universities.
The Court, in turn, has used specific funds to support the publications department (equipment and human resources) and with documents, articles and books -- as well as the Court's web page. Additionally, the Court uses specific funds to support costs of local hiring of administrative personnel and legal assistants. The European Union completed a one-time grant to the Court this year to update the Court's publications, including their Annual Report.
Specific funds in particular are tied to expressed interests of individual member states. They are also closely linked to member states ability and willingness, perhaps responding to their own fiscal difficulties, to donate funds. They are not funds that can be counted on year to year to fund operations. Put another way, given general hard times, reliance on specific funds over the years has introduced distortions into the financing scheme in which both the IACHR and Court must operate. The issue is not unique within the OAS system to its human rights organs. But a strong case can be made that because of the nature of the human rights system and its unique relationship to the member states, the problem in this sphere is particularly prejudicial. For example, far from planning human rights work depending on where the needs are most pressing, often times the available or forecasted budget will drive the year's human rights work-plan, including that year's number of onsite visits, the number of sessions, the number of publications, etc.
A critical part of the problematique of the financing issue for the human rights organs, then, is to rationalize the issue of funding sources.
A. Inter-American Court of Human Rights: Finances and Projections
1. GENERAL CONSIDERATIONS
The return to democracy in most of the countries in the region has not meant a downturn in the numbers of human rights cases filed before the system. Quite the reverse. As repressive regimes release their grip, greater social transparency exposes a large number of areas where fundamental rights are violated, and also the relative incapacity of some of the countries' judicial systems to find an adequate solution for dealing with the high number of violations.
Notwithstanding the successes achieved by the inter-American system for the protection of human rights over the past 20 years, the proposed budgets set out below are intended to permit a systematic review of mechanisms, normative standards and effectiveness of the system. These are matters of great urgency given the rising tide of suits filed for human rights violations and the evident need to improve direct access for victims. From multiple vantage points --- of the member states themselves, of experts, and of the citizens of the region --- the system urgently needs a carefully planned process of change to make it more accessible, effective, efficient, dynamic and capable of meeting the increasingly demanding requirements of a democratic society and its protection of human rights.
It is almost universally agreed that, despite the huge progress and hemisphere-wide presence it has achieved, this is a system of protection that is, in significant respects, hobbled by its financing scheme. That scheme increasingly does not give the system the dynamism needed to provide and ensure swift justice, a basic principle of human rights recognized by the American Convention itself.
2. THE COURT'S CURRENT FINANCIAL POSITION: Current (2000) and Proposed (2001) Budgets
Not being a permanent organ, the Inter-American Court of Human Rights carries out its activities at regular and special sessions held at its headquarters in San José, Costa Rica. This requires the judges to travel from their respective countries to San Jose for those meetings. In the past five years the Court has encountered a considerable increase in the number of cases, advisory opinions, and provisional measures submitted for its consideration.
The Court's budget, however, has remained fixed over the past three years at the sum of US$1,114,900.00, which has not enabled it adequately to cover, year after year, the ongoing increase in operating expenses associated with its case load, to say nothing of additional costs due to inflation.
This budget provides the Court with the minimum resources that it needs to function, with the resulting decline of the services that must be provided to the tribunal in order for it to perform its activities adequately. Normally, cutbacks are made and/or important activities eliminated in order to avoid closing or ending the fiscal year with a budget deficit.
For this reason, the Court has prepared a proposed budget in the amount of US$1,521,682.27 for the year 2001 to be a submitted to the upcoming OAS General Assembly. That figure represents an adjustment that would allow the Court, on a non-permanent basis, greater room for maneuver in performing its functions in the coming year. The aim of the proposed budget is to give the Court access to the additional human resources that it needs to function suitably, to service better the four sessions projected for this year, to the visits to OAS Headquarters.
General Information on the Court's Finances
Following is a general description of the goals or targets which explain the functioning of the Inter-American Court of Human Rights and are reflected in its budget and in the charts below. Footnotes in the first chart also provide explanations on additional issues.
The proposed budgets prepared by the Court break down into ten goals. The first goal refers to the human resources of the Court Secretariat composed of attorneys, legal assistants, and administrative personnel. Goals three to six relate to the holding of regular sessions; the seventh goal has to do with the attendance of the President, the Vice-President and the Secretary of the Court at the General Assembly of the Organization; the eighth and ninth goals refer to meetings at the Headquarters of the Organization with various specialized committees; and the tenth goal relates to the regular business of the Secretariat of the Court.
Goals Three to Six: Regular Sessions of the Court
The Organization of American States recently approved the necessary funds to hold four yearly sessions, each of which lasts, on average, two weeks. The hope is that these four yearly sessions will enable the Court efficiently to carry out the duties assigned to it by the American Convention on Human Rights.
Over the last half-decade the Court has experienced a considerable increase in the number of cases, advisory opinions, and precautionary measures that are submitted for its consideration. As a result, the Court’s proposed budget was adjusted in order to ensure that its human and material resources were equal to the task of carrying out the annual program of sessions designated in 1998. These remain unchanged for 2000 and for the proposed 2001 budget. The situation is different with respect to the draft budget prepared for a permanent functioning of the Court. [see Appendix 2, A Permanent Court] There, sessions would be held as needed. For this reason, the proposed budget submitted for consideration by the honorable Committee on Administrative and Budgetary Matters of the OAS also proposes holding four regular sessions in 2000 and 2001, with the aim of maintaining an optimal rate of activity given an increasingly large workload.
A basic function of these sessions is to resolve cases referred to the Court at any of the following four stages of proceedings in a case: preliminary objections, merits, damages, and enforcement of the judgment. Each of these procedural stages concerns a different set of issues and, consequently, the expenses they incur vary. For instance, whereas public hearings are an exception during preliminary objections, such hearings are essential in proceedings on merits and damages, in order to furnish the Court with the necessary evidence on which to base its judgment.
In the hearings, the Court hears the testimony offered both by the respondent state and by the Inter-American Commission on Human Rights. In practice, the testimony consumes considerable portions of each session. On average, in one day of public hearings the Court will hear testimony of between four and six witnesses. On that basis, given the number of cases pending to date, in one year of business it would take the Court far longer than 30 days of public hearings to hear only the testimony of witnesses and experts. The gravity of this situation becomes plain when one notes that in the whole of 2000 --and the same applies for 2001-- the Court will meet in session for a total of 44 days (as provided for in the budget). Of those, it has been possible to reserve only a few for public hearings.
Once the oral proceeding has concluded the Court deliberates on the merits of the case. Deliberations generally take place just after testimony is heard. In the practice of the Court, deliberations have been limited to one session and the respective judgment delivered and notified to the parties at the end of that session. It usually takes the Court four to five days to issue a judgment and requires painstaking work that involves thorough analysis of the body of evidence; study and research of specialized doctrine and case law; deliberation, drafting and discussion of a proposed judgment; and approval of that judgment.
However, the size of the Court’s current caseload has made it necessary to devote fewer days to deliberations on each case. Indeed, of the total number of days that the Court will meet in session in 2000 or 2001, it is expected that more than half will be devoted to delivering judgments and advisory opinions. In other words, on average, the Court will spend less than three days on each judgment and advisory opinion. As such, the Court will issue its judgment on the merits of the cases most recently referred to it in 2000 or 2001. Deliberation on cases that reach the Court in the second half of 2000 may have to be scheduled for 2001 or 2002.
Currently, in a case brought before the Court, an average of 28 months elapses between filing the petition and delivery of judgment on the merits. Unless effective and lasting solutions are implemented, the time interval will gradually lengthen. In the past five years the Court’s caseload has tripled, and the effective number of session days has only risen by a third.
As for advisory opinions, the average duration of these proceedings before the Court has been ten months. Ordinarily, requests for advisory opinions involve exceptionally delicate issues that concern the inter-American system for protection of human rights. For this reason the Court devotes several days to their study, to conduct specialized research, and to discussion, preparation and review of the matter. However, the budgetary constraints with which the Court must contend have forced it to allot only a few days to deliberations on advisory opinions.
When the Court orders provisional measures, it imposes on the State concerned the obligation not only to adopt certain measures, but also to submit periodic reports on those measures. It also imposes on the Inter-American Commission the obligation to present its observations on such reports. Consequently, this practice requires the Court to set aside one or two days in each session for the study of these periodic reports.
It should be noted that in an effort to take the greatest possible advantage of the resources that the Organization provides, during its regular sessions the Court convenes on both working and non working days, as well as on weekends.
Operating Expenses of the Court (Goal 10)
Since the Court is not a permanent tribunal, its Secretariat handles a variety of ongoing tasks to provide permanent support and follow-up for the Court to issue decisions on the different matters brought before it during the short periods it is in session. Some of the activities that the Secretariat carries out to that end are as follows:
However, severe material and budgetary problems hamper the Secretariat's work in these areas. Increasingly, fluid and regular communication is needed between and among President of the Court and the other judges in order to obtain their observations and opinions on matters connected with the development of proceedings. This too is an added operating expense. In the proposed 2001 budget these costs, like the figures associated with the previous goals, have had to be increased in line with the growth and development of the system for protection of human rights in the hemisphere.
3. Budget for Fiscal Year 2000
The 2000 budget was approved by the OAS General Assembly in the amount of US$ 1,114,600. This sum is the same as that approved for the years 1997, 1998, and 1999. Accordingly, 2000 will be the fourth consecutive year that the Inter-American Court has operated with the same budget, notwithstanding the increase in operating expenses from year to year.
That budget only provides the Court with the minimum resources that it needs to function. With a growing workload, the numbers are alarming. The Secretariat's operating expenses are kept to a minimum, with the attendant decline in the services that must be provided in order for the Court to perform its activities adequately. Normally cutbacks have to be made or important activities eliminated so as to avoid closing the year with a budget deficit.
As of March 23, 2000, the Court received notice from the OAS Assistant Secretary for Management in which he explained that due to the difficult financial situation of the OAS, all areas must take measures to reduce by 10% their year 2000 budget executions. For the Court, this represents a reduction in the order of US$150,000.00 for what remains of the year. This will force the Court to rethink and revise its work strategy for the rest of the year. Above all, however, it will impact negatively on at least two sessions scheduled for this period.
The Court has submitted for approval by the OAS General Assembly a proposed operating budget for fiscal year 2001 that marks an increase of 37% over the budget for fiscal year 2000. This proposed budget amounts to US$1,521,682.27. The aim of this budget is to give the Court access to the additional human resources that it needs to function suitably, and to better address the four sessions projected for this year, the visits to OAS Headquarters, and the operations of the Secretariat overall.
As of this writing, the plan of the member states is to reduce the Court's proposed 2001 budget by $400,000. As discussed in the previous section, the member states have moved this shortfall to the category of activities for which no source of funding has yet been secured.
5. Projecting Upcoming Financial Needs of the Court
Below we set out a projected financial scenario for the Court in the medium term. The numbers are provided by the Court itself, and represent an estimate of where the system will be and what its financial needs will be in the future. Note that the figures do not incorporate new ideas or work methodologies. For illustrative purposes, we deal with a few such ideas and their related costs in Appendix 2.
The Court has prepared a projected budget shown in the chart below for financing its operations in the medium term. It tries to balance and take account of the financial and budgetary constraints currently affecting the Organization of American States, and a reasonable estimate of the costs of its future work.
B. Inter-American Commission on Human Rights: Finances and Projections
Analyzing the evolution of the inter-American system of human rights, particularly the Commission, from the perspective of the human and financial resources at its disposal is revealing. We see the changing level of support that the states have contributed to the Commission’s budget. W also see the degree to which that budget has varied with time, and the fundamental correlation between that input and the system’s output -- in its investigations, hearings, on-site visits, friendly settlements, cases referred to the Court, reports, etc..
During its early years the Commission did not have its own secretariat. The work of the Commissioners depended on the logistical and administrative support provided by one or two lawyers at the Department of Legal Affairs --as it was then called-- of the General Secretariat of the OAS. This lack of structure reflected the vision with which IACHR was created in 1959. In 1967 the Commission became independent from the Department of Legal Affairs and was furnished with an Executive Secretariat, made up of four professionals, and a budget of $85,000.
Throughout the 1970s, an era of widespread human rights violations and proliferation of dictatorships in Latin America, the IACHR progressively cemented a well-earned prestige for its defense of human rights.
The 1980s, years of transition toward democracy in the hemisphere, were also a period of transition for the Commission. As systematic violations and dictatorships began to recede, new and varied demands were placed on the Commission.
As relations between the states strengthened, so did the Commissions' with a broad network of non-governmental human rights organizations.
The Commission and its Secretariat strove to tailor its personnel and resources to a demanding new reality. In 1990 the Commission had a staff of eight lawyers, five administrative employees and a librarian hired on a performance contract. Today, the Commission’s staff consists of 16 lawyers and nine administrative employees. Added to this number are two lawyers and a librarian on performance contracts and six secretaries hired through temporary employment agencies.
Throughout the 1990s the Commission’s workload has grown steadily, the nature and variety of demands on it has multiplied, and the Commission has embarked on a series of efforts and initiatives to meet them.
To illustrate, let us look at some representative work of the IACHR: in the 1980s, only four contentious cases were referred to the Inter-American Court, while in the 1990s that number rose to 31. In the 1980s only one request for provisional measures was filed with the Court, compared to 20 requests the following decade. Since its creation the IACHR has also conducted 77 on-site visits.
There has been an even greater workload increase in the case system. The Commission is receiving more petitions, processing more cases, and producing more reports. There are currently over 1,000 cases being processed by the Commission. Reports on cases have grown in breadth, detail and depth of legal analysis.
The most visible manifestation of this increase in the individual case system is the size of the annual report that the IACHR presents to the General Assembly of the OAS. The 1989-1990 Report, of which 80% was devoted to reports on individual cases, was 195 pages long. The 1998 annual report, on the other hand, consisting of three volumes, had a total of 1,600 pages. Added to this mountain of work are the reports on different countries and on special studies.
The surge in the Commission’s workload and output has been particularly apparent in the last four years. This is true of all areas, as reflected in the increasing number of reports published on individual cases and countries. The number of on-site visits has doubled. So too the number of cases referred to and heard by the Inter-American Court. There has been an increase in the number of precautionary measures granted by the Commission, and of requests for provisional measures filed with and examined by the Court. Friendly settlement procedures and activities have increased as well.
Without contributions from specific funds it would have been impossible for the Commission to carry out certain activities, such as on-site visits, hearings before the Inter-American Court of Human Rights, publication of a number of reports, publication of the annual report, and maintenance of the library. In this category are also a number of special projects, including "Strengthening the Inter-American System for the Defense of the Human Rights of Indigenous Communities, Ethnic Minorities and Other Vulnerable Groups Affected by Conflicts in Central America" and the work of the "Special Rapporteur on the Migrant Workers."
As to its financial history, the IACHR’s 1990 budget was $1,305,500. Slight increases came in the years that followed. But 1996 saw a substantial hike, with the Commission receiving twice its 1990 budget allocation. This significant gain provided the Commission with the basic means to tackle, in some measure at least, the challenges of the 1990s. The budget for 2000 is $3,133,700.
The Commission’s budget has risen very little since the considerable boost it received in 1996. Of the approximately US$3 million that the Commission is currently allocated, $2,091,300 is spent on the salaries of its employees.
The amount left over for operating expenses is barely enough to pay for the meetings of the Commission. The IACHR annually holds two regular sessions lasting three weeks each, in addition to one or two special sessions. Each two-week session costs nearly US$150,000.00. The main area of expense at these meetings are interpretation and translation costs in two languages; at recent sessions of the Commission these expenses have amounted to $75,000.
Due to its budgetary constraints, the Commission has had to make adjustments as the year's workload plays out. However, in order to make up some financial shortfalls the IACHR has requested and obtained specific funds both from member states of the OAS and from friendly countries in Europe. In recent years the Commission has secured an additional $2,767,000 in this way. Unfortunately, owing to the nature of these contributions, the IACHR is unable to plan its activities on the expectation of these funds. It is impossible at the start of the year to predict either the contributions that will be available, the amount of those contributions, or the date on which the monies will become available.
In order to cover all its needs the Commission will continue to seek additional resources from cooperation agencies and friendly countries that wish to contribute to special projects and specific funds. The primary responsibility, however, rests with the member states, which created the system and must provide it with the resources it needs to perform its task of defending and promoting human rights throughout the hemisphere.
The proposed budgets prepared by the Commission have been developed by grouping together the most important activities it carries out. Following is a general description of the goals entailed in the activities of the Commission as reflected in its budget and in the charts below.Goal Nº 1
This goal relates to the human resources of the Secretariat, composed of an Executive Secretary, two Assistant Executive Secretaries, and professional, technical, and administrative personnel. This goal also includes an amount for hiring support personnel, be they lawyers or secretaries, since the IACHR budget line does not permit the hiring of permanent staff.
Also, this goal includes the Secretariat’s operating expenses, such as processing cases for friendly settlement; hearing of cases before the Inter-American Court of Human Rights; promotion trips; attendance at conferences and seminars; office lease; procurement of office equipment and supplies; and postal, telephone and photocopying expenses, etc.
Goal Nº 2
Not being a permanent organ, the Inter-American Commission on Human Rights carries out its activities at regular and special sessions held at its headquarters in Washington, D.C., to which the members must travel from their respective countries of residence. The sessions of the Commission are normally held at headquarters. However, by vote of an absolute majority of its members, the Commission may meet at an alternative venue, with the consent or at the invitation of a member state of the Organization.
At its regular and special sessions the Commission devotes itself to the examination and adoption of reports on admissibility, friendly settlement, and merits of individual cases presented in accordance with its regulations, and to consideration of their referral to the Inter-American Court of Human Rights. The Commission also analyzes and adopts reports on the general situation of human rights in OAS member states. It also sets aside several days in its sessions to hold hearings on individual cases, for following up on cases, and for reviewing the general situation of human rights in the member states.
The Commission members also discuss other matters connected with its mandate to promote respect for and defense of human rights in the hemisphere, such as on-site visits, the activities of special rapporteurs, and adoption and presentation to the General Assembly of the OAS of the annual report.
GOAL Nº 3
The IACHR carries out on-site observations based on the criteria of need and advisability. In grave and urgent cases the IACHR can conduct an on-site investigation with the prior consent of the state alleged to be responsible for a violation of human rights.
GOAL Nº 4
This goal relates to writing and publication of documents on IACHR activities in exercise of its authority to defend and promote respect for human rights. To give an idea of the voluminous nature of this activity by the Commission, we mention the following publications:
a) Inter-American Yearbook on Human Rights, an annual publication that is sent to law schools at universities in Latin America and the Caribbean;
b) Annual Report of the IACHR, which is presented to the General Assembly of the OAS. The 1998-1999 Annual Report was 1,600 pages long;
c) Situation of Human Rights in different countries. The following such reports have been published in the last decade:
- Report on the Situation of Human Rights in Haiti,
- Report on the Situation of Human Rights in Peru,
- Report on the Situation of Human Rights in Guatemala,
- Report on the Situation of Human Rights in Colombia,
- Report on the Situation of Human Rights in El Salvador,
- Report on the Situation of Human Rights in Ecuador,
- Report on the Situation of Human Rights in Brazil,
- Report on the Situation of Human Rights in Mexico
- Report on the Situation of Human Rights in the Dominican Republic.
- Report on the Situation of the Human Rights of Asylum Seekers in the Framework of the Canadian System for Determining Refugee Status.
- Report on the Situation of Human Rights in Amayapampa, Llallagua and Capasirca, Northern Potosí, Bolivia.
The following reports are currently under preparation:
d) Other publications of the IACHR include the following:
GOAL Nº 5 includes maintenance, on a minimal budget, of the Commission’s Documents Center. The operating expenses of the Secretariat are kept low. Normally important activities often must be eliminated due to lack of resources.
2. Budget for Fiscal Year 2000
The budget itemized below provides the Commission with the minimum resources that it needs to function. The operating expenses of the Secretariat are kept to a minimum. Normally important activities have to be eliminated due to lack of resources.
On March 23, 2000, Mr. James R. Harding, Secretary for Administration sent out a memorandum informing that, due to the current financial difficulties of the OAS, all areas should adopt the necessary measures to reduce budget execution by 10% in 2000.
3. Proposed Budget for Fiscal Year 2001
The Commission has submitted for approval by the OAS General Assembly a proposed operating budget for fiscal year 2001 in the amount of US$3,114.7, which is the figure assigned to the IACHR. However, as explained above, this figure does not reflect the reality of the Commission’s current requirements.
4. Projections of the Commission for the medium term
The projected figures shown in the table below are an estimate of the growth the Commission will experience given the increase in its workload: in number of petitions alleging human rights violations, in cases brought before the Court, in on-site visits, in activities of promotion of human rights, etc.
A comparison of the growth rates of 1985/1995 with that of 1995/2005 indicates that the projected figures are conservative.
III. Analysis and Implications
At the outset of this paper, we have emphasized that the OAS is operating within severe constraints and limitations. The fairly conservative projections for the Court and Commission set out in the second part of this study give us an indication of the scale of necessary efforts to meet future human rights budgetary demands. The mandate from the Ad Hoc Working Group asks that we set out implications for the organization of finding those monies within the OAS's regular budget.
Before entering that discussion, it is useful to place a few related ideas on the table.
Quota Increases: Quota increases have been the object of some discussion recently within the OAS. Making no judgement regarding where those discussions are headed, one figure on the table is a 3% increase. However likely or unlikely, a general quota increase of 3% still only yields roughly $2m --- for the whole organization. Earmarking a large portion of any quota increase for human rights is a possibility, but it is achievable only with a clear and specific consent of the member states in a General Assembly resolution and or its budget resolution.
It must be mentioned, as well, that currently a group of member states are in arrears to the organization for a total amount of roughly $45m. The OAS General Standards dictates that arrears will be deposited to the Working Capital Sub-fund and can be used for short term cash needs in expectation of quota increases. The Permanent Council can approve an extraordinary appropriation from that fund for one-time activities. Realistically, it is unlikely that a plan to direct arrears monies to any specific area would be successful.
External Funding: Irrespective of our capacity to meet these finance goals within the regular budget, the human rights organs could and should look to external funding to bolster their operations. This is the practice at the moment for many areas within the OAS, as the reader can appreciate from the chart in APPENDIX 1 of this report. It must be stated, however, that for the human rights area in particular the arguments set out earlier relating to specific funding still apply. A basic operating premise from which our human rights mechanism derives much of its power and legitimacy, is that the member states themselves fund it. There is even some tension that derives from the fact that some countries within the system donate more funds to the system than others. The farther we move away from the notion that the entire membership funds their own human rights enforcement mechanism, the more distortions and tension are likely to obtain.
Still, there are operations and programs within the OAS that are more straightforwardly fundable with external monies. That is, the difficulties of external funding are fairly unique to the highly political nature of the human rights system. The external funding idea still has merit, then, in the sense that it can be used to create headroom elsewhere within the regular budget, which funds, in turn, might be dedicated to specific areas such as human rights.
Finding monies from within the regular budget: Playing the zero Sum Game
Even using a fairly generous set of assumptions relating to quotas, arrears, and inflation it is inescapable that the OAS regular budget is tapped out. The nominal budget has decreased almost 11% from $84.5m to $80m (minus $4m for which we do not yet have financing) since roughly 1995. In real terms much more. Finding the required monies from within the regular budget can no longer be an exercise in finding and eliminating inefficiencies. That process has been in place for a considerable time and is unlikely to yield significant further benefits.
Nevertheless, it has been the objective of the General Secretariat to move monies into areas on the cutting edge of the new hemispheric agenda. Since human rights already sits atop the priority list, even with a shrinking nominal budget of the organization, the inter-American human rights system has not experienced the punishing budget shortfalls of other areas in the OAS. Still, the gains of human rights, of course, have meant the loss to some other area within the Organization.
Herein lies the crux of the discussion of finding funds within the regular budget.
The Secretary General, by statute, can move monies within the budget by a cumulative 5% each year, as long as it does not materially affect any approved program. If the change does, he must seek Permanent Council approval. Certain areas, including human rights, have to some extent benefited from this. And we might do more here. The member states might direct that the Secretariat, to the extent money is freed up in the budget --- move it into priority areas, perhaps with the certification of the inspector general to make the process as transparent and automatic as possible. But just as clear is that a diminishing results curve has set in for this device; it is difficult to envision that it will achieve what is sought here.
What is required is a more comprehensive and rationalized sorting and recasting of budget priorities. In the recent past, the member states have directed the Secretary General to attempt this, for approval of the member states. And time and again that process has not yielded sufficient consensus to come to a useful conclusion. It has become clear that the instruction alone by the Ministers to the Secretariat will not be sufficient to achieve the desired result. Even formal mandates within a resolution to grant budget priority to a specific area, such as human rights, have not generated results.
Recasting the priorities of the regular budget is not an impossibility. But it can be achieved only within a fairly strict process directed and agreed upon by the member states themselves. This could be accomplished at an OAS General Assembly, or a special General Assembly called for the purpose. The critical and indispensable product must be a decision, memorialized, for example in a resolution, which sets out a clear roadmap reorienting budget priorities of the OAS in a zero sum game. That is to say, it must articulate where the money would go and where it would come from.
The inter-American human rights system is rightfully among the principal priority of the organization's work. It is perhaps also true there is a great chasm between the articulated priority of the human rights system in our hemispheric agenda, and the relative paucity of funds we have been able to direct to that work. As such, we can and should find ways to meet the system's budgetary needs to retain its effectiveness and its protagonism in our hemispheric architecture. We can and should, as well, look for creative ways to meet those budget requirements. To the extent we look to the regular budget of the OAS to meet those needs, it is indispensable that the member states themselves set down specific markers regarding budget priorities, which is then memorialized as a specific legislative product. The General Secretariat stands ready to assist in any way it can, and to implement the directives of the member states.
Appendix II: Additional Ideas and their Cost
In order to provide a fairly clean set of figures for the analysis of the Ministers and their representatives, the projected scenarios outlined in this study intentionally do not contemplate major new initiatives. However, we believe it is important to have an educated sense of what additional costs might be associated with some of the ideas already on the discussion table.
The ideas and their costs should not only be understood not merely as additional costs, however. The Secretariat believes that as part of our streamlining and constant work toward finding new efficiencies, some fairly bold solutions might be found in new ways to do business ---even though these may have an additional up-front cost.
The figures are, of course, estimates. But we believe that the data may be useful to the member states.
I. A Permanent Court
The proposed budget in the amount of US$ 6,116,530.57 would enable the Inter-American Court of Human Rights to function, albeit modestly, on a permanent basis with seven resident judges at the Seat of the Court, and discharge its duties under the American Convention on Human Rights. It includes the salaries of the judges, the Secretariat, the legal department, the library and necessary administrative personnel. However, this budget does not envisage any substantial expansions or improvements to the building where the Seat of the Court is currently housed. The budget estimates: arrangements to be made to ready the Court for 28 public hearings a year, to present the Annual Report of the Court to the Committee on Juridical and Political Affairs of the Permanent Council, and all Court operating expenses for a projected increased workload.
The budget takes into consideration the permanent presence at the Seat of the Court of the seven incumbent judges, while leaving largely unchanged the other services that the Secretariat currently provides in the normal course of Court business. Taking into account the number of cases for settlement at present in the system, this yearly budget could sustain the Court’s operations at least in the medium term (five years). Any increase in case load would, of course, make it necessary to revise the projection. This projection assumes that the Court will remain in the same building where it is currently housed.
II. Proposal to reinforce the Investigative Capabilities of the inter-American Human Rights System
In the ongoing debate on measures to strengthen the Interamerican human rights system, there has been some consensus surrounding the need to (1) strengthen the system’s investigative capabilities; (2) reduce the duplication of tasks between the Commission and the Court (3) create stronger links with national authorities; (4) provide citizens with greater access to the system; (5) increase the case load the system can handle; (6) decrease the time it takes to investigate and try the cases; (7) increase the number of cases sent to the Court; and (8) adopt uniform and transparent procedures.
In the short term and at a very low cost relative to the potential benefits, the system should take measures to protect and utilize as efficiently as possible the limited resources available to it. The Secretary General has reason to believe that with only minor changes to the applicable regulations and without need to modify the American Convention, it might be possible to substantially contribute to the achievement of these goals. We propose to (1) strengthen the investigative capabilities of the system through the creation, both within the Commission and the Court, of units specialized in investigating and preparing evidence ("investigative units"); and (2) adopt mechanisms that harmonize the practices of both institutions with respect to the collection of evidence.
None of the measures proposed in this document limit in any way the authority or jurisdiction of the Commission or the Court. Their only purpose is to allow the system to use its limited resources in the most efficient way, without having to make great investments or complicated regulatory adjustments.
We begin with a general analysis of the contribution that strengthening the investigative capabilities and harmonizing the evidentiary procedures of the Commission and the Court would make to solve the problems set out in the first paragraph. Then, we move to a presentation of the elements, structure and costs such a measure might take in our system.
III. Strengthening the investigative capabilities of the system
Today, the organs charged with uncovering the facts which give rise to a complaint within our system have a set of responsibilities that preclude them from focusing exclusively on evidentiary matters. Investigative units with a structure and personnel to deal exclusively with such matters could fill this enormous vacuum.
The investigative units would (1) reassign resources exclusively to perform investigations, and (2) incorporate the principle that specialized organs are generally more competent, efficient, and qualified to fulfill a particular mission.
In the field of criminal law, the principle of specialization has been successfully employed by the accusatory system. This system clearly separates the authorities that investigate and accuse from those that make judicial decisions in a trial. This has developed into the function of a prosecutor, specialized in investigating and accusing. The beneficial effects have been considerable, and are hard to achieve within an inquisitorial system --- which as we know --- imposes on the judges the burdens of directing the trial, deciding the merits of the case, investigating, and preparing the case for trial. As a response, the accusatory system has been increasingly held up as the dominant model to strengthen the investigative capabilities of a judicial system. The Inter American system could derive similar benefits.
The existence of investigative units would not in any way imply that the members of the Commission or the members of the Court would be left out of the investigation. The members of the Commission retain the authority at all times to order the collection of any evidence it considers necessary. But contrary to what occurs today, they would not have to spend a substantial part of their time in the collection of such evidence. In this way, they could, if they choose, focus on the primary task of preparing their decisions. Likewise, the Court. While the investigative unit works with the Commissions’ investigative unit in the appropriate collection of evidence, the Court could concentrate more of its time in preparing its decisions.
Reduce work duplication
Today, the Court generally duplicates most of the evidentiary proceedings undertaken by the Commission. The proposed structure would contribute to substantially reduce such duplication. It would (1) adopt evidentiary procedures acceptable to the Court, which would be used from the beginning of the investigative proceedings before the Commission; and, (2) seek the active involvement of the Court, through its similar investigative unit, in the evidentiary proceedings before the Commission’s investigative unit.
Increase the number of cases processed by the system
The purpose of creating the proposed investigative units is to use more efficiently the limited resources of the system, not to increase the number of cases before it. But it is reasonable to think that strengthening its investigative capabilities and lightening the load on the members of the Commission and the Court with respect to evidentiary proceedings would result in an increase in the number of cases the system can process before it.
Establish stronger links with national authorities
One of the clear advantages of establishing stronger links with national authorities is that significant economic and logistical benefits could be obtained in the short run simply by leaning on them --- that is, engaging them to assist with specific field support in cases. Of course, such support would remain at the discretion of the Commission and the Court.
Because they are technical and specialized organs, the investigative units could turn into important tools to advance the important task of establishing with the national authorities links which are more agile, solid, and productive.
We understand the difficulty of establishing such links; often cases themselves inherently contain the seeds of tension between domestic judicial authorities and those of the Inter-American system. However, we are convinced that here and now potential benefits are greater than the potential problems. Democracy has given the Inter-American system and domestic authorities enhanced possibilities to operate as allies. It has also created favorable conditions for the creation and strengthening of institutions, like the ombudsman and the prosecutor, which could eventually provide important support to the system.
Naturally, the Inter-American system would not lose the right to decide whether it is convenient to receive support from a national system. If it finds that it is convenient to do so, the system would specify the institutions and judges from which support would be received and the terms under which such support would be acceptable.
The possible benefits of such cooperation are significant. For example, the system would benefit from the active support of national institutions, particularly those in charge of administering justice and protecting human rights. It would also create favorable conditions for national systems to cooperate and learn more about the Inter-American system for the protection of Human Rights system.
Elements and structure
The elements and the structure of the proposed investigative units are simple, do not require great regulatory or financial efforts, are adjustable depending on case-load, contribute to harmonize the evidentiary practices of the Commission and the Court, and can be implemented with available resources. Since the point of this effort is to use the resources of the system in the most efficient way possible, it is assumed that each of the investigative units will be created using available resources to the extent possible.
The changes consist specifically in creating both within the framework of the Commission and the Court units specialized in investigating and preparing cases. These units would use uniform procedures to collect evidence and would work closely to eliminate the need to repeat before the Court the steps taken to collect evidence during the proceedings before the Commission. These practices would not in any way limit or preclude that authority of the Court under its regulations, even if such evidence had already been collected before the Commission. But the proposed changes are aimed precisely at reducing the need to collect the same evidence twice.
Investigative unit of Court: This unit would be based in San José, Costa Rica and be subject to the regulations of the Court and authority of its judges. It would perform multiple functions. It would investigate and collect evidence. It would specify the protocols, procedures, and practices that should be followed by a similar unit within the Commission, ensuring that the evidence would be acceptable and usable before the Court. It would provide counsel to the investigative unit before the Commission with respect to such protocols, procedures, and practices. It would collect the evidence ordered by the Court. It would recommend mechanisms to strengthen coordination with the investigative unit before the Commission. In addition, the unit would ensure that the investigative unit before the Commission adheres to such protocols, procedures, and practices. The investigative unit before the Commission would be accountable for adherence to these practices and standards.
As a first step towards the formation of the unit, we propose the creation of the post of director of the investigative unit before the Court. The costs of the position are described at the end of this document. He or she should have the authority to select the unit’s personnel, ensuring that such officers meet the requirements with respect to education, training, professionalism, and competence. These functions assigned to the director of the investigative unit would be performed under the authority of the Court, and when the Court is not in session, under that of its presidency.
At the outset, the directors of the units should select the members of their teams from among the personnel of the Commission or the Court. This is likely to mean initial dislocation in the staff. But its advantages would soon become evident, and could eventually result in significant economies for the system as a whole. In forming his team, the director should pay special attention to the professional qualities of those selected. Only professionals of high intellectual caliber and with the appropriate training, motivation, experience, and track record should be selected.
Investigative unit of the Commission: As with the Court, the first step we propose is the creation of the post of director of the investigative unit before the Commission. Costs of the position are listed at the end of this document. As we develop uniform criteria to govern the collection of evidence, the directors of both units would have the essential and critical task of ensuring that the evidence collected, particularly before the Commission, is governed by demanding uniform criteria. This should minimize objections to the validity of that same evidence should it be required in a case before the Court. Throughout the proceedings, the director will remain subject to the authority of the Commission, and when the Commission is not in session, to its presidency.
As we suggested regarding the Court, and based on the same arguments, we respectfully submit that the Commission should fill the ranks of its investigative team through its existing professional staff, with the same potential system-wide benefits.
Under the proposed structure, once the Commission opens a case, it would instruct the investigative unit to proceed with the investigation and to collect specific evidence. As the unit performs this function, the members of the Commission may, without losing control of the investigation, devote themselves to preparing their decisions. At the same time, the investigative units should maintain permanent contact and cooperate to ensure that the collection of evidence conforms to the requirements of the Court. These activities might also help further develop an institutional link to promote and facilitate fluid communication and cooperation between the Commission and the Court.
The costs of the investigative units would, to a great extent, be a function of the number of cases before the system. A grander vision than that described above would look to investigative units with greater personnel. It might also possess the capabilities to maintain offices in Washington and San José and, temporary offices in countries that so request. It could have human, financial, technical, and logistical resources to deploy groups of investigators to any part of the hemisphere where events warrant.
For now, the budgetary and institutional reality forces us to think of the more modest but no less important or significant vision of this idea.
Cost Breakdown: Directors of the Investigative Units of the Commission and Court
Amounts in thousands of U.S. dollars