Closing the Gap: Why the New Inter-American Special Rapporteur on Economic, Social, Cultural and Environmental Rights is Crucial to Advance Social Rights in the Region

The Inter-American Commission on Human Rights is about to select its first Special Rapporteur on Economic, Social, Cultural and Environmental Rights. Human Rights Clinic alumna María Emilia Mamberti LL.M. ’17 discusses the challenges and opportunities the new Rapporteurship will create.  

June 19, 2017, NEW YORK - The Inter-American Commission on Human Rights (IACHR) is currently selecting its first Special Rapporteur on Economic, Social, Cultural and Environmental Rights (ESCER). This position will bring much-needed attention to ESCER issues and bolster the work of the Commission in the field. If the Rapporteurship is led successfully, the new position will create an exceptional opportunity to address many of the challenges faced by the Inter-American Human Rights System. Advocates should therefore engage in the selection process to ensure the Rapporteurship receives adequate support.

The new mandate is crucial in three important ways. First, the Rapporteur will provide a chance to enhance the implementation of ESCER in the region.  Second, it can help fix the “second-class” nature ESCER in the System. Third, it can trigger discussions about the structural challenges that the IACHR faces.

The position is essential to advance the implementation of ESCER in the Americas, and has also great symbolic value. In the words of one of the current Commissioners, establishing the Rapporteurship is a “momentous step in the history of the IACHR and the history of human rights in the region.” The Rapporteur will be fully devoted to ensure ESCER through a range of the Commission’s activities:  preparing reports, processing petitions and individual cases, representing the IACHR in litigation before the Inter-American Court, and assisting in the promotion of international instruments related to ESCER.

The previous work of other Rapporteurships confirms the relevance that the ESCER Rapporteur can have. For example, the Special Rapporteurship for Freedom of Expression, created in 1997, has helped develop robust and progressive Inter-American standards and raised the visibility of under-discussed threats to free expression in the region, such as the criminalization of libel and slander, the excessive concentration of media outlets, and governments’ pressure on journalists to reveal sources in high-profile cases.

The selection of the new Rapporteur will also help balance the existing thematic Rapporteurships. Although since 2012 there has been a Unit on Economic, Social, and Cultural Rights (ESCR) that carried out consultations on certain thematic priorities (in which Columbia Law School Human Rights Institute participated), none of the 9 current Rapporteurships specializes on ESCR. This is only one symptom of the “second-class” nature of socio-economic rights in the Inter-American System.

ESCR receive an unusual recognition under the American Convention on Human Rights, which in a special one-article chapter (Article 26) refers to the progressive achievement of the “rights implicit in the economic, social, educational, scientific, and cultural standards contained in the OAS Charter.” It is not entirely clear what “progression” means in the article, which is consequently not often applied by the Inter-American bodies. In fact, the Court has never found a violation of Article 26 as such, and some of its judges consider that the direct justiciability of ESCR through that article is beyond the Court’s competence.

While there is another instrument that defines states obligations regarding ESCR more precisely, the Protocol of San Salvador, only 6 of its 16 State Parties have complied with their reporting obligations under the Protocol (based on a set of previously defined indicators), even though they were given much flexibility to do so. This seems slightly ironic given that Latin American constitutions include more socio-economic (specifically justiciable) rights than constitutions in any other region of the world. The work of the IACHR is key to ensure that those formally recognized rights are actually respected on the ground.

While establishing ESCR expertise and standards is critical, it is also an uphill battle. The process of selecting the Special Rapporteur is taking place in the context of a serious crisis of the Commission. It is well known that this year the U.S. has failed to even show up to IACHR hearings, but the Commission faces deeper, structural challenges in relation to countries all over the region, the clearest of which is its major under-funding. For example, in 2016 the Commission received only meager voluntary contributions, made specifically for the IACHR, from 9 countries of the region (figures can be seen here). The following example illustrates the dimension of the problem: if Argentina had collected income tax from its judges during 2015, it could have funded on its own the whole Inter-American System of Human Rights for 45 years, maintaining the tiny budget that the System had in 2015.

In this context, the IACHR is offering the new Rapporteur a contract for only one year (facially inadequate for the mandate) that could only be renewed “depending on the availability of funds.” It is therefore important for both states and civil society to use the selection process as an opportunity to discuss the threats faced by an institution created to promote and protect human rights, and commit to support the System.

Efforts of civil society to participate in the process, such as those led by the ESCR-Net, are essential to ensure advocates will find an ally in the next Rapporteur. The new Rapporteur must not only have recognized competence and professional experience in ESCER, but also a genuine and verifiable commitment to human rights and to victim-centered approaches. Ideally, the next candidate should also have strong moral character, bring diversity to the IACHR, and have the compromise to work closely with affected communities. It is therefore essential for all of us to monitor the selection process to ensure it is transparent and participatory.