On August 8, 2022, the Inter-American Commission on Human Rights (IACHR) approved Resolution 2/22, with the aim of regulating the individual votes of its members. Among other controversial aspects, the resolution authorizes the publication of these votes in country and thematic reports, breaking decades of institutional practice that restricted this possibility to reports on contentious cases. This article analyzes the resolution in light of the discussion paper “Reasoned votes of IACHR members: comments on Resolution 2/22 and its application,” recently published by the Due Process of Law Foundation (DPLF). The article describes the inter-American regulatory framework applicable to reasoned votes, the practice of other supranational human rights bodies, and highlights the drawbacks of unrestricted publication of the individual opinions of commissioners in thematic and country reports.
The inter-American normative framework
Reasoned and especially dissenting votes play an essential role in a judicial or quasi-judicial body such as the IACHR. These votes promote greater argumentative rigor, preserve minority reasoning for future jurisprudential development, and serve as a tool for the collegiate body to be accountable to the recipients of its decisions.
While Article 50(1) of the American Convention on Human Rights (ACHR) provides for the publication of individual votes in reports on contentious cases, neither this treaty nor the Statute of the IACHR mention such possibility with respect to thematic and country reports. These instruments do not refer to the aforementioned reports, which were adopted by the IACHR several decades ago, by virtue of its general faculties of promotion and monitoring established in Article 41 of the ACHR and Article 18 of its Statute.
Although Article 19 of the IACHR Rules of Procedure is quite specific regarding the power to issue reasoned votes, its text does not clarify whether the publication of such votes applies to any type of decision or whether it is limited to reports on contentious cases. Given this normative gap, it is important to resort to methods of interpretation to extract from the aforementioned regulatory provision a normative statement consistent with the ACHR and the Statute. Under the literal, systematic, and teleological methods of interpretation, the ACHR appears to incorporate a restrictive criterion regarding the publication of reasoned votes. In effect, that treaty allows for the confidentiality of final reports on the merits [Article 51(3)] and, by default, of the reasoned votes that comprise them.
Following the historical method of interpretation, it can be noted that the IACHR has not published reasoned votes in decisions on thematic and country reports over the last six decades. Under the evolutive method, the IACHR could modify its interpretation of the scope of Article 19 of the Rules of Procedure and incorporate a new institutional policy. This is precisely what Resolution 2/22 introduced, but in an abrupt manner and with legal inaccuracies and political-institutional recklessness, which are described below.
Inaccuracies in Resolution 2/22 and the practice of other human rights bodies
Recital paragraphs four and five of Resolution 2/22 state that “most of the IACHR’s reasoned votes have been adopted in reports on petitions and individual cases” and that “the concept of reasoned votes has also been used, albeit very exceptionally, in resolutions on precautionary measures, country reports, and thematic reports” (emphasis added). By omitting the fundamental difference between reasoned votes and their publication, the highlighted paragraph seems to suggest that the use and publication of such votes were merely exceptional in country and thematic reports, without clarifying that publication is a practice that began on August 7, 2020. On that date, for the first time in almost six decades, the IACHR referred to a dissenting vote in a thematic report, namely the Report on Trans and Gender-Diverse Persons and Their Economic, Social, Cultural, and Environmental Rights.
Therefore, this is not an exceptional practice, but rather a non-existent one, at least until August 20201. Prior to that, the IACHR limited the publication of such votes to the petition and case system, a practice consistent with the way that other quasi-judicial human rights bodies operate. In the Universal System, for example, members of thematic committees may issue individual opinions that are attached to the collegiate decision, exclusively in relation to the complaints mechanism. Pronouncements on monitoring and promotion, such as general observations and thematic studies by Working Groups and other special procedures, do not provide for the publication of individual votes by their members.
According to the information available on the African Commission on Human and Peoples’ Rights website, there are no reasoned votes published in any of the resolutions, reports, or pronouncements issued by its special thematic mechanisms, nor in its activity reports, similar to the IACHR’s annual report. In this regard, Resolution 2/22 departs from the practice of other supranational human rights bodies with a mandate similar to that of the IACHR.
The freedom of expression of commissioners and other principles and values at stake
In his dissenting vote on certain provisions of Resolution 2/22, then-Commissioner Carlos Bernal Pulido stated that Article 19 of the Rules of Procedure “establishes the right of commissioners to submit reasoned votes and, consequently, gives effect to the exercise of freedom of expression by those of us who are members of this important organization.” Experts on the Inter-American System (IAHRS) have maintained similar positions, in the sense that the right to freedom of expression implies the unrestricted publicity of the individual opinions of those who make up the Commission, even in pronouncements on monitoring and promotion. This approach requires a meta-dissent venture, that is, a dissent from the praise of dissent.
The dissenting opinion of then-Commissioner Bernal Pulido provides a meticulous analysis of Inter-American jurisprudence on freedom of expression and emphasizes that the opinions of commissioners constitute specially protected speech, and therefore any restriction thereof must be subject to strict scrutiny. Although I share this position, I believe that the dissenting opinion omitted a series of rules emanating from judgments of the Inter-American Court of Human Rights and other sources of international law, which impose explicit limits on the freedom of expression of those who hold certain public offices, especially those of a jurisdictional nature. DPLF’s discussion paper cites several inter-American, European, and universal precedents that impose duties of discretion and moderation on those who serve on judicial bodies and allow for restrictions on the publicity of their opinions in certain contexts.
On the other hand, the document emphasizes that the work of monitoring and promotion relies on channels of dialogue between the IACHR and representatives of the States and political bodies of the Organization of American States. This work has an inevitable political dimension that makes it unwise to seek a solution based exclusively on the primacy of the individual freedoms of the commissioners, based on a balancing of rights.
If we blindly weigh the freedom of expression of members of other collegiate bodies whose decisions have political implications, we are likely to arrive at a reasonable solution in legal terms in favor of unrestricted publicity, but one that is politically unfortunate. Mutatis mutandis, let us consider the consequences of the impossibility of restricting the disclosure of the opinions of the cardinals participating in a conclave for the election of the Pope, or of the members of a council of ministers or national security council, in contexts of institutional crisis or risk to the security of a country. Even some supreme courts, such as the French Council of State, do not make individual votes public so as not to jeopardize the legitimacy and social acceptance of their rulings.
Although these bodies have a mandate that is completely different from that of the IACHR, my intention is to emphasize that members of collegiate bodies should accept the possibility that the publicity of their opinions may be restricted, being recorded in minutes that are kept confidential, at least for a certain period.
Final considerations
An additional element that calls into question the suitability of Resolution 2/22 is the fact that the core content of Article 19 of the IACHR Rules of Procedure has not changed since 1980. In other words, the IACHR resorted to a resolution to reinterpret the scope of a regulatory provision whose text has been in force for more than four decades.
Even before the 1980 Rules of Procedure, the practice of limiting the publication of reasoned votes to reports on contentious cases and, more recently, to resolutions on precautionary measures, which began to be adopted in 2013, had been maintained. Those who approved Resolution 2/22 would have acted with greater transparency if they had amended the text of Article 19 of the Rules of Procedure itself, rather than resorting to oracular rhetoric and raising doubts about the true scope of that provision, as if this issue had not already been resolved by previous compositions of the IACHR.
Finally, given that Resolution 2/22 implies a change in institutional policy comparable to a regulatory reform, whose compatibility with the ACHR could be questioned, it would have been prudent to maintain a process of dialogue with users of the inter-American system before its adoption. Ironically, a resolution supposedly anchored in the Commissioner’s freedom of expression, which expands the publicity of their opinions, was adopted in tenebris, without any dialogue with States and civil society.
1 In its observations on the in loco visit to Haiti, published in March 2008, the IACHR included a reasoned opinion by then-Commissioner Freddy Gutiérrez. Strictly speaking, these observations are not a country report. The title and length of the document bring it closer to the IACHR’s recent practice of publishing preliminary observations on an in loco visit before publishing a country report. In any case, this is the exception that proves the rule restricting the publicity of individual votes in country reports. It should be noted that this exception bears the signature of the only commissioner ever reprimanded by his peers in the history of the IACHR for making public statements questioning the institutional integrity of the Commission.
Daniel Cerqueira is Program Director at DPLF.
Image credit: IACHR, via Flickr.