Rethinking Free Trade, Economic Integration and Human Rights in the Americas 9781849467445, 9781782257585, 9781509904518

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RETHINKING FREE TRADE, ECONOMIC INTEGRATION AND HUMAN RIGHTS IN THE AMERICAS This monograph offers the first systematic overview of the protection of human rights in trade agreements in the Americas. Traditionally, trade agreements in the Americas were concerned with economic questions and paid little attention to human rights. However, in the wake of the ‘new regionalism’, which emerged at the end of the last century, more clauses addressing social issues such as labour rights and environmental standards were inserted in trade agreements. As economic integration increased, a framework for the protection of human rights evolved. This book argues that this framework allows for human rights protection on a transnational level, while constructing regional identities. Looking at the four key regional integration processes, namely the Caribbean Community, the Central American Integration System, the Andean Community of Nations and the Southern Common Market, and also at the North American Free Trade Agreement, it shows how regional integration has reached a considerable degree of consolidation. Writing on key sources in English for the first time, this book will be essential reading for all free trade and human rights scholars.

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Rethinking Free Trade, Economic Integration and Human Rights in the Americas

María Belén Olmos Giupponi

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © María Belén Olmos Giupponi 2017 María Belén Olmos Giupponi has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2016. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-84946-744-5 ePDF: 978-1-50990-451-8 ePub: 978-1-50990-452-5 A catalogue record for this book is available from the Library of Congress Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

For Kirsten Anna

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Preface My research agenda has examined regional integration in the Americas and in comparative perspective over the last 15 years. In the final dissertation for a Master in International Relations (1998–2000) I explored the influence of the democratisation process on regional integration in the Americas. During my doctoral studies (2001–2004) I investigated the intersection between regional economic integration and protection of human rights. After that, I conducted intensive research in the region, carried out several academic research projects funded by external agencies, participated as a guest lecturer in several seminars specialised in regional integration and edited and published five books and more than 30 articles on regional integration in the Americas. In particular, in 2009–2010 I had the opportunity to lead a research team to critically examine the adoption of common policies in the European Union and SICA funded by the AECID (Spanish Agency for International Cooperation). My participation in the Jean Monnet Project ‘Constitutional Rights vs Free Trade Agreements’ (CriFT) under the direction of Dr Philippe De Lombaerde contributed to further developing a critical and interdisciplinary approach to regional integration, fostering the academic exchange on regional integration with colleagues from different continents. I started working on the manuscript of this book in 2012, when I was a visiting scholar at Stanford Law School. A number of colleagues have offered valuable feedback on different sections of the book; I have benefited enormously from these comments. I would like to thank all of them for their comments and generosity. The list is so long that space precludes me from thanking each of them. Finally, I would like to thank the Alexander Von Humboldt Foundation for supporting part of my research on citizenship and migration in sub-regional integration agreements in Latin America (with a focus on Argentina and MERCOSUR). 7 October 2016, London

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Contents Preface���������������������������������������������������������������������������������������������������� vii Acronyms and Abbreviations���������������������������������������������������������������� xvii Introduction���������������������������������������������������������������������������������������������� 1 1. Free Trade and Protection of Human Rights in the Americas����������� 12 I. Introduction����������������������������������������������������������������������������� 12 II. Historical Overview of Integration in Latin America and the Caribbean��������������������������������������������� 13 III. Free Trade Agreements and Integration in the Americas: The Current Scenario������������������������������������� 21 IV. Making Free Trade Agreements More ‘Human Rights-Friendly’��������������������������������������������������������� 25 V. Trade and Development in the Americas: Balancing Trade and the Protection of Human Rights������������������������������ 27 A. Human Rights as ‘Non-trade’ Issues��������������������������������� 33 B. Inter-systemic Relations in the Field of Human Rights within the Framework of Subregional Free Trade Agreements���������������������������������� 41 VI. Principles Governing the Recognition and Protection of Human Rights in the Integration Agreements��������������������������������������������������� 46 A. The Democratic Principle in the Integration Processes��������������������������������������������������������������������������� 49 B. The Link between Democracy and Human Rights in the International Order: Special Consideration of the Americas������������������������������������������ 50 C. The Democratic Principle and Regional Integration Agreements����������������������������������������������������� 54 D. Respect for and Guaranteeing of Human Rights as a Qualitative Component of Development�������������������� 68 E. Social Development in Latin American and Caribbean Integration������������������������������������������������ 71 F. The Relationship between Development and Human Rights in Trade Agreements��������������������������� 72

x  Contents G. Features of Subregional Legal Systems and a ‘System’ of Human Rights�������������������������������������� 75 H. The Legal Standing of the Regulations Issued by the Integration Agreements������������������������������� 77 I. Autonomy, Direct Effect and Primacy of the Law of Integration����������������������������������������������������������� 79 II. The Social Dimension and the Protection of V Human Rights in the Integration Process in Latin America and the Caribbean�������������������������������������������� 87 A. The Progressive Inclusion of ‘Social Issues’ in Economic Integration Agreements������������������������������� 88 B. The Social Dimension and the Protection of Human Rights������������������������������������������������������������� 93 C. The Articulation of the Components of the Social Agenda and their Implications in the Field of Human Rights����������������������������������������������������� 96 D. The Adoption of ‘Common Social Policies’ and their Impact on the Field of Human Rights��������������� 97 E. The Participation of Civil Society and the Articulation of Social Dialogue�������������������������������������� 107 F. The Development and Consolidation of the Concept of ‘Regional Citizenship’������������������������ 116 2. The North American Free Trade Agreement (NAFTA) and The Protection of Human Rights��������������������������������������������� 124 I. Introduction�������������������������������������������������������������������������� 124 II. NAFTA as an ‘Asymmetric Trade Agreement’����������������������� 125 A. NAFTA’s Main Goals and Intergovernmental Bodies����� 126 III. Human Rights: Environmental Protection and Labour Rights���������������������������������������������������������������� 128 A. Introducing Human Rights Issues in NAFTA����������������� 129 B. Main Achievements������������������������������������������������������� 130 C. The Case Law of NAFTA Tribunals: International Investment Law and International Human Rights Law���������������������������������� 131 IV. NAFTA Environmental and Labour Side Agreements����������� 135 A. The NAFTA Environmental Side Agreement������������������ 136 B. The NAFTA Side Agreement on Labour Cooperation������������������������������������������������������ 138 V. NAFTA and Migration����������������������������������������������������������� 140 VI. Perspectives of NAFTA Regarding the Protection of Human Rights�������������������������������������������������������������������� 141

Contents xi 3. The Protection of Human Rights in the Caribbean Community (CARICOM)��������������������������������������������������������������� 143 I. Introduction��������������������������������������������������������������������������� 143 II. Evolution and Instruments on Human Rights Adopted within CARICOM��������������������������������������������������� 146 A. The Charter of Civil Society: Most Relevant Human Rights Legal Instrument in CARICOM�������������� 148 i. Nature, Characteristics and Content of the Charter of Civil Society for the Caribbean Community�������������������������������������������� 149 ii. Key Features of this Legal Instrument���������������������� 149 iii. Legal Standing of the Charter���������������������������������� 151 iv. Content of the Charter: Civil and Political Rights�������������������������������������������������������� 152 v. The Human Rights Mechanism Established by the Charter of Civil Society��������������������������������� 157 III. The Protection of Economic, Social and Cultural Rights within CARICOM����������������������������������������� 158 A. The Charter of Civil Society and the Recognition of Economic, Social and Cultural Rights������������������������� 160 B. Key Features and Legal Standing of the Declaration of CARICOM on the Principles Governing Labour and Industrial Relations�������������������� 168 C. The CARICOM Agreement on Social Security���������������� 172 D. Other Legal Instruments of the Social Dimension and the Recognition of Rights����������������������������������������� 174 IV. The Recognition of the Right to Freedom of Movement and the Creation of the ‘Caribbean Citizenship’��������������������� 181 V. The Institutions of the Caribbean Community and the Protection of Human Rights�������������������������������������� 186 A. The CARICOM Conference of Heads of Government and Human Rights��������������������������������� 188 B. The Caribbean Court of Justice and the Protection of Human Rights�������������������������������������������� 190 C. The Parliamentary Assembly of the Caribbean Community and Human Rights�������������������������������������� 195 D. CARICOM’s Council for Human and Social Development�������������������������������������������������� 197 VI. Assessing the Implementation of the CARICOM Human Rights Provisions in Practice�������������������������������������� 198

xii  Contents 4. The Protection of Human Rights within the Central American Integration System (SICA)���������������������������������������������� 202 I. Introduction�������������������������������������������������������������������������� 202 II. The Main Features of the Central American Integration Process and the Issues Relating to Human Rights������������������������������������������������������������������ 204 III. The Gradual Adoption of Legal Instruments Relating to the Protection of Human Rights������������������������� 221 IV. The Central American Social Dimension and the Safeguarding of Human Rights��������������������������������������� 223 A. The Legal Standing and Scope of the Central American Social Integration Treaty�������������������������������� 225 B. The Alliance for the Sustainable Development of Central America (ALIDES)���������������������������������������� 230 C. Other Instruments Adopted within the Framework of the Central American Integration Relating to Human Rights��������������������������� 234 D. Towards the Adoption of a Regional Policy on the Protection of Human Rights������������������������������� 238 i. The Protection of Environmental Rights��������������� 239 ii. Right to Development and the Fight against Extreme Poverty��������������������������������������� 239 iii. Rights of Migrants����������������������������������������������� 239 iv. Strengthening the Protection of Social Rights��������������������������������������������������������� 239 v. The Right to Food and Food Security������������������� 240 vi. The Right to Equal Treatment and Gender Equality��������������������������������������������� 240 vii. Rights of Indigenous Peoples and Cultural Rights����������������������������������������������������� 241 viii. The Protection of Public Safety as a Fundamental Right����������������������������������������������� 241 ix. Children’s Rights�������������������������������������������������� 241 x. The Right to Education and Reducing Inequality���������������������������������������������� 242 V. The Hierarchy of the Legal Instruments on the Protection of Human Rights��������������������������������������� 242 VI. The Gradual Emergence of a ‘Central American Citizenship’����������������������������������������������������������� 244 VII. The Institutions of the Central American Integration System and the Protection of Human Rights������������������������� 247 A. The Central American Court of Justice and the Protection of Human Rights������������������������������ 248 B. The Central American Parliament (PARLACEN) and its Role in the Protection of Human Rights������������� 251

Contents xiii C. Human Rights and the Relevance of the Consultative Committee of the Central American Integration System (CC-SICA)���������������������� 253 D. Other Bodies���������������������������������������������������������������� 255 III. Challenges for the Protection of Human V Rights in SICA��������������������������������������������������������������������� 256 5. The Andean Community and the Protection of Human Rights�������������������������������������������������������������������������������� 259 I. Introduction������������������������������������������������������������������������ 259 II. Characteristics of Andean Integration Linked to Protection of Human Rights�������������������������������������������� 261 A. The Progressive Incorporation of Human Rights into the Andean Integration Scheme������������������ 263 B. Human Rights and the Design of a Democratic Framework������������������������������������������������ 267 III. Andean Social Integration and the Safeguarding of Economic, Social and Cultural Rights����������������������������� 271 A. The Participation of Civil Society in Andean Integration������������������������������������������������������� 276 B. Social Agreements Adopted at the Core of Andean Integration�������������������������������������������������� 280 C. Andean Regulation Covering the Most Relevant Aspects of the ‘Social’ Framework and its Connection to Human Rights��������������������������� 286 i. Andean Social Security Regulations���������������������� 287 ii. Recognition of Rights and Protection of Migrant Workers���������������������������������������������� 289 iii. Other Areas of Interest as Regards the Recognition and Protection of Rights�������������� 292 iv. The Andean Social Charter: The Legal Instrument most Pertinent to the Social Dimension of Andean Integration������������������������������������������������������������ 294 v. The Legal Status of the Social Charter������������������ 295 vi. The Content and Scope of the Andean Social Charter������������������������������������������������������� 296 IV. The Status of Elements of Human Rights Recognition and Protection in the Andean Area: Andean Regulations and Human Rights������������������������������������������� 300 A. The Machu Picchu Declaration on Democracy, the Rights of Indigenous Peoples and the War against Poverty���������������������������� 302

xiv  Contents B. The Andean Charter for the Promotion and Protection of Human Rights������������������������������������� 304 i. The Nature, Content and Scope of the Charter���������������������������������������������������������� 305 ii. The Content, Scope and Targets of the Andean Charter������������������������������������������������������� 305 iii. Protection Mechanisms Advocated in the Charter���������������������������������������������������������� 315 V. The Progressive Construction of the ‘Andean Citizenship’ from a Human Rights Perspective����������������������� 317 I. Challenges for the Andean Community Concerning V the Protection of Human Rights��������������������������������������������� 321 6. The Common Market of the South (MERCOSUR) and the Protection of Human Rights���������������������������������������������� 324 I. Introduction��������������������������������������������������������������������������� 324 II. Step-by-Step: The Creation of a MERCOSUR ‘Human Rights System’���������������������������������������������������������� 327 A. The Adoption of Provisions Regarding the Protection of Human Rights Issues in MERCOSUR����������������������������������������������������� 329 i. The Declarations Issued by the Presidential Summits and the Protection of Human Rights��������� 330 ii. Other MERCOSUR Instruments Relating to the Protection of Human Rights�������������������������� 332 iii. The Ushuaia Protocol and the Montevideo Protocol: Strengthening the Relation between Democracy and Human Rights�������������������������������� 335 B. The Draft Charter of Fundamental Rights of MERCOSUR�������������������������������������������������������������� 337 C. The Charter of Buenos Aires on Social Commitment������������������������������������������������������������������� 343 D. The Protocol of Asunción on the Commitment with the Promotion and Protection of Human Rights�������������������������������������������� 346 III. The Role of MERCOSUR Bodies in the Promotion and Protection of Human Rights�������������������������������������������� 348 IV. The Social Dimension in MERCOSUR and its Contribution to the Protection of Human Rights������������������� 360 A. The Evolution of the Social Dimension��������������������������� 360 B. Main Instruments Adopted Within the Framework of the Social Dimension and the Protection of Human Rights������������������������������� 366

Contents xv



V.



VI.

VII. VIII. IX.

C. The Social and Labour Declaration as the Key Instrument of the MERCOSUR Social Dimension���������������������������������������������������������� 367 i. Legal Standing of the MERCOSUR Social and Labour Declaration������������������������������ 368 ii. Content and Scope of this Legal Instrument���������� 369 iii. Mechanisms for Implementation of the Social and Labour Declaration������������������������������ 371 D. Other Relevant Human Rights Instruments Adopted in the Framework of the MERCOSUR Social Dimension���������������������������������������������������������� 372 E. Social Dimension, Sustainable Development and Environmental Protection in MERCOSUR������������ 374 An Appraisal of the Implementation of MERCOSUR Legal Instruments�������������������������������������� 376 The Actors of the Social Dimension in MERCOSUR and Human Rights Issues������������������������������ 376 New Perspectives of the Social Dimension of MERCOSUR: The Consolidation of a ‘MERCOSUR Citizenship’��������������������������������������������������� 382 UNASUR and the Protection of Human Rights������������������� 393 Challenges for the Protection of Human Rights in MERCOSUR�������������������������������������������������������� 395 A. MERCOSUR’s Institutions������������������������������������������� 395 B. The Enforcement of MERCOSUR Legal Instruments on the Protection of Human Rights��������������������������������������������������������������������������� 396 C. Supranationality versus Inter-governmentalism������������ 397 D. MERCOSUR Citizenship��������������������������������������������� 397

7. Conclusions������������������������������������������������������������������������������������ 399 I. Regional Integration and Human Rights in the Americas: Accomplishments and Challenges������������������������ 399 A. The Construction of a Social Dimension Within the Integration Processes����������������������������������� 399 B. The Adoption of Legal and Political Instruments to Protect Human Rights���������������������������������������������� 399 C. The Gradual Development of Common Policies and the Improvement of the Institutional Mechanisms Related to Human Right Issues���������������� 400 D. The Creation of a Common Legal Status for the Citizens of the Member States (an Emerging Sub-regional Citizenship)������������������������ 400

xvi  Contents E. The Role of Judicial Courts and Arbitral Tribunals in the Economic Integration Vis-à-vis the Protection of Human Rights������������������������ 400 F. The Emergence of New Integration Processes������������������ 400 Index����������������������������������������������������������������������������������������������������� 403

Acronyms and Abbreviations ACHR

American Convention on Human Rights

ACS

Association of Caribbean States

ALBA

Bolivarian Alliance for the Peoples of Our America

ALCSA (South American Free Trade Area/Área de Libre ­Comercio de Sudamérica) APC

Andean Presidential Council

ACCP

Assembly of Caribbean Community Parliamentarians

CAFTA

Central American Free Trade Agreement

CAN

Andean Community

CARICOM

Caribbean Community and Common Market

CARIFTA

Caribbean Free Trade Association

CACM

Central American Common Market

CCJ

Caribbean Court of Justice

CC-SICA Consultative Committee of the Central American ­Integration System CEFIR

Training Centre For Regional Integration

ECLAC UN Economic Commission for Latin America and the Caribbean EU

European Union

FTAA

Free Trade Area of the Americas

FTC

Free Trade Commission

GATT

General Agreement on Tariffs and Trade

GATS

General Agreement on Trade in Services

IACHR

Inter-American Commission of Human Rights

IACtHR

Inter-American Court of Human Rights

IDB or IADB

Inter-American Development Bank

xviii  Acronyms and Abbreviations ILO

International Labour Organization

LAFTA

Latin American Free Trade Association

LAIA

Latin American Integration Association

MERCOSUR

Common Market of the South

NAFTA

North American Free Trade Agreement

NGO

Non-Governmental Organisation

OAS

Organization of American States

ODECA

Organización de Estados Centroamericanos

OECS

Organisation of Eastern Caribbean States

PARLACEN

Central American Parliament

RTC

Revised Treaty of Chaguaramas

SELA

Sistema Económico Latinoamericano (Latin American Economic System)

SICA Central American Integration System (called SICA from its Spanish abbreviation—Sistema de la Integración Centroamericana) SG-SICA

General Secretariat of SICA

TA

Treaty of Asunción

TC

Treaty of Chaguaramas

UNASUR/USAN Union of South American Nations

Introduction

T

HIS BOOK FOCUSES on the analysis of the protection of human rights in the framework of different subregional economic integration processes in the Americas.1 Little attention has been dedicated to the links between these two phenomena in the specialised literature. This book attempts to fill this lack of doctrinal analysis from an international law perspective by providing an in-depth and critical study of human rights provisions adopted within these integration processes. Traditionally, trade agreements among developing countries in Latin America have focused on economic matters. However, the ‘new regionalism’ which emerged in the 1990s moved towards the inclusion of social clauses requiring member states to observe certain labour and environmental standards. In particular, subregional agreements2 incorporated binding standards and mechanisms for enforcing them. Indeed, a recent feature of these trade agreements consists of the inclusion of social clauses. Hence, the 1990s witnessed a proliferation of various trade agreements and the revitalisation of integration organisations in Latin America and the Caribbean. This new era in Latin American and Caribbean integration also 1  The term ‘economic integration agreements’ broadly defined is used to refer to different forms of integration. According to Balassa, integration denotes a process, but also a state of affairs. In this book we subscribe to this specific meaning. According to the degree of economic integration, seven different stages can be distinguished: preferential trading area; free trade area; customs union; common market; economic union; economic and monetary union; and complete economic integration. A Preferential Trade Agreement (PTA) has a defining characteristic that ‘lower tariffs are imposed on goods produced in the Member countries than on those produced outside’ (ST Snorrason, Asymmetric Economic Integration, Contributions to Eco­ nomics (Berlin, Springer-Verlag, 2012) 10). In a ‘free trade area’ (FTA), ‘tariffs (and quantitative restrictions) between the participating countries are abolished, but each country retains its own tariffs against non-members’ (B Balassa, The Theory of Economic Integration (Westport, Greenwood Press, 1961) 175). A ‘customs union’ ‘involves, besides the suppression of discrimination in the field of commodity movements within the union, the equalization of tariffs in trade with non-member countries’ (ibid 175), which implies the introduction of unified common external tariffs. A ‘monetary union’ introduces a shared currency. A ‘common market’, as a higher form of integration, adds to an FTA the free movement of factors (services, capital and labour). An ‘economic union’, as distinct from a common market, ‘combines the suppression of restrictions on commodity and factors’ with ‘policies in order to remove discrimination that was due to disparities in these policies’ (ibid 176). Finally, ‘total economic integration’ implies ‘the unification of monetary, fiscal, and countercyclical policies and requires the setting-up of a supranational authority whose decisions are binding for the member states’ (ibid). 2  Subregional agreements are those in which member states have a shared history, cultural links and a sense of inter-dependency. Within this category we include MERCOSUR, the Andean Community, the SICA and CARICOM. Also, in a broader sense, for the purposes of this book, NAFTA is considered within this category.

2  Introduction brought new dimensions into play, both non-traditional and extra-economic in nature. Among these new features, the creation of human rights systems has materialised, where by human rights system we mean the adoption of legal instruments and the establishment of mechanisms for the protection of human rights. The main argument advanced in the book is that, in particular, subregional integration processes in Latin America and the Caribbean have created distinct transnational spaces for the protection of human rights and the construction of regional identities or, in a broader sense, ‘regional citizenships’. This is particularly true in these integration processes operating on a subregional level, ie, processes including neighbouring states with generally similar levels of economic development and which share cultural and historical ties. In the book, four key subregional integration processes are examined: the Caribbean Community (CARICOM), the Central American Integration System (SICA), the Andean Community of Nations and the Southern Common Market (MERCOSUR). Inspired by ‘European Union model’, all these integration processes aim to establish a common market and have reached a considerable degree of consolidation. All of them have also developed institutional set-ups modelled upon EU law, even if they are still inter-governmental processes. By way of comparison, the treatment of human rights issues in the context of the North American Free Trade Agreement (NAFTA) as an ‘asymmetrical agreement’ is also addressed in the book. These subregional integration processes show signs of growing attention being devoted to human rights issues. Human rights issues, however, were not taken into consideration within these integration processes in the beginning. Indeed, due to the predominantly economic nature of the integration, the protection of human rights was overlooked. In recent years, particularly the 2000s, this initial situation has changed and the subregional integration agreements in Latin America and the Caribbean have started to gradually include aspects which, to some extent, can be seen as closely linked to human rights in a gradual and complementary way. At the present stage of the integration in Latin America and the Caribbean, a coherent and comprehensive system for the recognition of human rights is not yet in place. Nevertheless, different embryonic ‘human rights systems’ can be identified in MERCOSUR, Andean, Caribbean and Central American integration processes. In other words, the subregional integration processes have been developing more or less binding legal instruments which address issues relating to human rights. One of the specific and most characteristic features of contemporary international law is its constantly changing nature that has been reflected, specifically, in the emergence of new international actors in the international community that create new legal orders, including regional

Introduction 3 integration organisations.3 Within the framework of the current international community, integration translates into social, legal, economic and political inter-relations. Amongst these different regional integration organisations, a distinction must be drawn between organisations that possess a supranational character, in which case the international organisation assumes functions and responsibilities that were previously attributed to the member states, exercising these powers within the legal framework that has been designed by the founding treaty. The rules that have been set up create, in some cases, an autonomous and unique legal system. In contrast, there are regional integration organisations in which sovereign powers remain with the member states, being therefore of a marked intergovernmental nature. These two types of international organisations are qualitatively very different. In supranational international organisations, bodies are endowed with powers to adopt binding legal acts that are directly applicable in the internal system of the member states.4 In the Americas, integration processes have set mainly economic objectives that essentially define any integration process.5 In particular, with regard to integration in Latin America, the current era has seen the progress of integration agreements after overcoming obstacles that previously impeded its development.6 However, these integration processes have not yet achieved the same degree of integration as the EU; therefore, there is no a system of community law, strictly speaking, endowed with the characteristics of autonomy, primacy and direct effect.7 While it is true that in Latin America and the Caribbean, the integration has not evolved in a similar manner as in the EU, however, certain integration processes have achieved a significant degree in terms of legal development.8

3 From a legal perspective, a ‘regional integration organisation’ means ‘an organization constituted by sovereign States of a given region, to which its member States have transferred competence (sic)’. See UN Convention on the Protection of Convention on the Rights of ­Persons with Disabilities, art 44. The Convention entered into force on 3 May 2008 and is available at: www.un.org/disabilities/convention/conventionfull.shtml. 4  C Gutiérrez Espada, Derecho Internacional Público (Madrid, Trotta, 1995) 16. 5 See generally A Mangas Martin and D Liñán Nogueras, Instituciones y Derecho de la Union Europea, 6th edn (Madrid, Tecnos, 2010). 6 Integration agreements at present face new challenges arising from regional conditions and the international context. On the one hand, there are the problems of consistency between the commitments made by each state in the external relations; on the other hand, there is the potential impact of the new agreements on member states’ economic and social policies, which would be conditioned by the external relations. See SELA, Líneas de acción y bases de un pro­ grama regional, Cusco, Peru, 23 and 24 May 2003 (this briefing document was prepared by the Permanent Secretariat in support of the XVII Summit of Heads of State and Government of the Rio Group, held in Cusco, Peru, between 23 and 24 May 2003). 7  See P Daillier, M Forteau, N Quoc Dinh and A Pellet, Droit International Public, 7th edn (Paris, LGDJ, 2009) 577. 8  At the moment, regional integration in Latin America and the Caribbean is regarded as a necessary and possible endeavour. Previous efforts have fallen short or have not fulfilled the

4  Introduction In the aftermath of the Washington Consensus, Latin America and the Caribbean states have chosen different alternatives in terms of external relations and have made commitments at bilateral, subregional, regional and global levels.9 The diversification of objectives and dimensions of integration in Latin America and the Caribbean has led to the inclusion of non-trade issues. This trend becomes important in the framework of the social dimension of the integration processes. Hence, the incorporation of the social aspects of integration processes taking place in Latin America is inseparable from the very existence of integration.10 Against this background, the need to address the protection of human rights has emerged. This translates into the inclusion of human rights issues on the agenda of the summit or presidential meetings of Latin American and Caribbean integration processes. As a result of all these developments, at the present stage there is a set of provisions adopted on the subject of human rights within the legal system created in the context of these subregional agreements. Although integration in Latin America and the Caribbean has shown a clear economic bias, it is also true that, in a progressive manner, development occurred in the social dimension, has further incorporated social development as the goal of integration. These changes are clearly oriented towards achieving equitable development and reducing asymmetries among the respective member states, which have adopted regulatory systems that operate in areas relating to human rights.11 The progress experienced by subregional processes in the field of human rights, even if they are modest, nevertheless allow us to affirm the existence of a set of specific human rights standards that deal with both the recognition of specific rights and possible mechanisms for the promotion and protection of human rights. Moreover, one could say that there are at least clear signs or indications that ‘human rights systems’ (more or less elaborate, more or less effective) are being created.

proposed objectives. The ‘new wave’ requires that the subregional, regional, hemispheric and multilateral integration may include as main objectives the promotion of equity and development of the member states to reduce asymmetries. See SELA, La Integración latinoamericana y caribeña: empresa necesaria y posible, SP/ Di no 6-2001 (Caracas, SELA, 2001) 1. 9  C Silva Flores and C Eduardo Martins, Nuevos Escenarios para la Integración de América Latina, Grupo de Trabajo Integración Regional y Unión Latinoamericana CLACSO Colección Grupos de Trabajo (Santiago de Chile, CLACSO/Editorial ARCIS, 2013); SELA, Tendencias de la Integración Regional y Opciones de Articulación y Convergencia, SP/XXIII CL.O/Di no 8 (Caracas, SELA, 1997). 10  See, in particular: E Bascuñán and J Durston, Aspectos sociales de la integración (Santiago de Chile, ECLAC, 1997); B Podestá, ‘Integración Económica y formación de un espacio social: la Unión Europea, la Comunidad Andina y el Mercosur’ and R Pérez, ‘Participación social en los procesos de integración regional’ in CEFIR (ed), Participación de la sociedad civil en los procesos de integración (Montevideo, CEFIR, 1998); B Podesta, Políticas sociales, integración regional y participación de la sociedad civil (Lima, Instituto de Estudios Europeos, 1997). 11  SELA (n 8).

Introduction 5 In the analysis of these human rights systems, various aspects must be taken into consideration. First, one should be aware of the peculiarities of the law of integration, acknowledging that regionalism is part of complex processes of international relations.12 Second, the feasibility of so-called ‘legal transplants’ taking the European integration process as a benchmark presents serious dilemmas. In this sense, integration processes in Latin America and the Caribbean do not possess supranational legal systems. In other words, the rules enacted by the subregional institutions are endowed with almost the same legal standing as other norms of public international law. Each integration process is a system that responds to its own needs and cannot be transposed from a particular regional context to another.13 In sum, every integration process follows its own model. After all, institutional systems are means of social organisation that must be in line ith real needs and objectives.14 Even with the limitations that entails the absence of a community law ‘in the same fashion’, within the subregional integration processes examined in this book we can distinguish signs that characterise the processes and that will determine ultimately peculiarities in shaping human rights systems. As regards the recognition and protection of human rights specifically, in the regional scenarios there are international organisations that have been dealing with the protection of human rights. Undoubtedly, international organisations such as the Council of Europe15 or the Organisation 12 

See Daillier and Pellet (n 7) 658. Mangas Martín, ‘Unión Europea y Mercosur: Perspectiva jurídico-institucional y política’ (1997) VII Anuario Argentino de Derecho Internacional 97. 14  See M Yonis Lombano, ‘Regionalism and Globalization in the Americas’ in Multilater­ alismo y Democracia: procesos globales y regionales (Caracas, Universidad Central de Venezuela, 2002). See also A Manrique de Luna Barrios, ‘El Multilateralismo en las Relaciones Internacionales’ (2009) 39 Ius et Veritas 286–96. 15 There is an extensive literature on the protection of human rights in the Council of Europe. See, among others: E Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31(4) New York University Journal of International Law and Politics 843; G Cohen-Jonathan, La Convention européenne des droits de l’homme (Aix-en-Provence, Economica-Presses Universitaires, 1989); G Cohen-Jonathan, ‘Le 50th anniversaire of the Covention européenne des droits de l’homme’ (2000) 4 Revue Générale de Droit International Public (RGDIP) 849; G Cohen-Jonathan, ‘Cour européenne des droits de l’homme et droit international général’ (2000) XLVI Annuaire Français de Droit International (AFDI) 614; G Cohen-Jonathan, ‘Les lignes de force de l’evolution du droit de la Convention europeenne des droits de l’Homme et du controle de son application’ (2000) 13(1) Revue Quebecoise de Droit International 63; P van Dijk and JH van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague, Martinus Nijhoff Publishers, 1998); MW Janis et al., European Human Rights Law, 3rd edn (Oxford, Oxford University Press, 2008); E Lambert-Abdelgawad, The Execution of Judgments of the European Court of Human Rights (Strasbourg, Council of Europe, 2002); R Mcdonald, F Matscher and H Petzold, The European System for the Protection of Human Rights (Dordrecht, Martinus Nijhoff Publishers, 1993); F Sudre, La Convention européenne des droits de l’homme (Paris, PUF, 1993); C Tomuschat, ‘The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions’ in R Wolfrum and U Deutsch (eds), The European Court of Human Rights Over­ whelmed by Applications: Problems and Possible Solutions (Dordrecht, Springer, 2007); J and R Ergec Vellu, La Convention européenne des droits de l’homme (Brussels, Bruylant, 1990). 13 A

6  Introduction of American States16 pursue the goal of establishing systems of recognition and protection of human rights. In those international organisations whose primary purpose is to establish an integration or cooperation framework among the member states, human rights concerns are absent in most cases. Although human rights considerations were not included in the EU from the beginning, the integration process evolved towards the inclusion of human rights in different rulings, leading to the adoption of specific provisions regulating on human rights.17 Fundamental rights were not comprised in the legal scope of the European integration because, on the one hand, the founding treaties did not contemplate a comprehensive system of recognition and protection of these rights. Only since the late 1960s has the Court of Justice of the European Union started devoting its attention to the question. Latin American and Caribbean integration processes have experienced a similar evolution. In most cases, after the initial silence of the founding treaties, human rights issues were introduced in the integration processes as a result of the development and consolidation of the integration process. In particular, Latin American and Caribbean integration processes that are analysed in this book that could be regarded as the most advanced cases of integration, ie, the integration blocs created at the subregional level, such as SICA, the Southern Common Market, the Andean Community of Nations and CARICOM, in which ‘integration’ has reached a higher degree of evolution and development.18 16  There is a vast literature on the Inter-American System see, T Buergenthal, RE Norris and D Shelton, Protecting Human Rights in the Americas, 3rd edn (Strasbourg, Kehl, NP Engel Publisher Verlag, 1995); A Cançado Trindade, ‘The Evolution of the OAS System of Human Rights Protection: An Appraisal’, (1982) German Yearbook of International Law 498; A Cançado Trindade, ‘The Inter-American Human Rights Protection System’ (1996) Recueil des Cours de l‘Académie de Droit international 221; A Cançado Trindade, ‘Le système inter-Americain de protection des droits de l’homme: Etat actuel et perspective à l’aube d’évolution du XXI siècle’ (2000) 46 Annuaire Français de Droit International 548; H Gros Espiell, ‘Le système interaméricain comme régime régional de protection internationale des droits de l‘homme’ (1975) 145 (II) Recueil des Cours de l‘Académie de Droit international 1; H Faúndez Ledesma, The Inter-American system of human rights protection. Institutional and procedural aspects 3rd edn (San Jose, Inter-American Institute of Human Rights, 2007); L Burgorgue-Larsen and A Ubeda de Torres, The Inter-American Court of Human Rights: Case Law and Commentary (Oxford, Oxford University Press, 2011); Organisation of American States (OAS), ‘Towards a new vision of inter-American human rights system’ (Washington, OAS, 1996). 17  There is an extensive literature on this issue. For a fairly complete analysis, see: P Alston (ed), L’Union Européenne et les droits de l’homme (Brussels, Bruylant, 2001). See also G De Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (2013) 20(2) Maastricht Journal of European and Comparative Law 169. In Spanish, two classic and landmark books on the issue are: A Chueca Sancho, Los Derechos Fundamentales en la Unión Europea, 2nd edn (Barcelona, Bosch, 1999); and M Pi Llorens, Los Derechos Fundamentales en el ordenamiento comunitario (Barcelona, Ariel, 1999). 18  Therefore, the subregional schemes currently make up the core of the integration process, complemented by bilateral and trilateral free trade agreements. Subregional schemes work in the praxis as imperfect customs unions. In addition, the integration agenda has moved towards the inclusion of cooperation in areas that transcend strictly commercial issues.

Introduction 7 In other words, these subregional integration agreements in Latin America and the Caribbean have been addressing certain issues that have an impact on the protection of human rights in a gradual and complementary way. Consequently, they may be evolving towards the existence of a comprehensive and coherent system for the recognition of human rights within the framework of these agreements. Furthermore, the possible creation of ‘human rights systems’ within MERCOSUR, the Andean Community, Caribbean and Central American integration show both ad intra and ad extra manifestations concerning the protection of human rights. Strictly speaking, these are not complete human rights systems. Nevertheless, as will be examined in this book, subregional integration processes in Latin American and the Caribbean have developed different legal instruments which address issues relating to human rights. In this vein, the adoption of certain legal instruments on the protection of human rights has been parallel to the developments obtained in the social dimension of the different integration processes that are analysed in this volume. The central arguments underlying this book can be succinctly summarised as follows. First, the book outlines the features that define integration as taking place in the Americas, giving special consideration to the elements which, in one way or another, characterise subregional integration processes. Since the recognition and protection of human rights in free trade agreements is articulated in regulatory frameworks which have allowed the development of systems or, at least, of standards of protection of ­fundamental rights. Thus, the analysis will focus on the Latin American and Caribbean processes of subregional integration which share the common feature of establishing international organisations of integration. Indeed, the Treaty of Asuncion and thereafter the Protocol of Ouro Preto conceived MERCOSUR as an international organisation with legal personality.19 Despite its strong inter-governmental character, MERCOSUR carries out its functions within the same specific areas of joint cooperation, among which can be included those relating to human rights. In turn, the changes that took place in the Andean integration through the adoption of the Protocol of Trujillo in 1996. This treaty reformed the Cartagena Agreement and created the Andean Community as a complete framework for cooperation and integration in different areas with different nature and scope including also human rights, which paramount achievement is the adoption of the Andean Charter for the promotion and protection of Human Rights in 2002. This process of integration is presented,

19  See O Stahringer de Caramuti (ed), Mercosur en el nuevo orden mundial (Buenos Aires, Ciudad Argentina, 1996).

8  Introduction as well as a pioneer in this area (at least from the perspective of the adoption of legal instruments) specifically dealing with the protection of human rights.20 In the early 1990s, the Protocol of Tegucigalpa boosted the Central American integration process by creating a regulatory and institutional framework, including non-trade issues, including those relating to human rights.21 The adoption of instruments and practice of the member states shows that human rights questions are being addressed progressively.22 However, beyond the standards that specifically define each of these integration processes, it is important to bear in mind that the link between trade and the recognition and protection of human rights cannot be understood without taking into account the characteristics of the different integration processes. Among these characteristics, the adoption, establishment and consolidation of democratic systems and the development of the social dimensions appear in each integration process as the integration develops. It can be argued that the most obvious obstacles to the strengthening of Latin American and Caribbean integration seem to have disappeared or at least weakened. Peace has been consolidated in most countries. Democratic regimes have been restored in most countries of the region, although concerns about their stability remain. The problems of delimitation of territories have been channelled through diplomatic means and in most cases are not expected to become more acute or disturb the normal development of economic life.23 As many scholars have pointed out, in this new wave of integration, there has been a revival of social and cultural objectives traditionally inserted in the agreements.24 There is more or less emphasis on these objectives in the different subregional schemes and the issue has become part of the agendas of regional organisations, as in the case of UN Economic Commission for Latin America and the Caribbean (ECLAC) and Latin American Economic

20  See, in general: J Córdoba Zuloaga, Situación actual del Proceso Andino de Integración (Lima, Junta del Acuerdo de Cartagena, 1996); Instituto de relaciones europeo-latinoamericanas (IRELA), Tres décadas de integración andina: logros y nuevos retos (IRELA, Madrid, 1999); G Salgado, El Grupo Andino. Eslabón hacia la integración de Sudamérica, 2nd edn (Quito, Universidad Andina Simón Bolívar, 2007); L Tello Vidal, ‘¿“Reingeniería” o extinción de la Comunidad Andina?’ (2014) 10 (1) Construyendo nuestra interculturalidad 20. 21  See MB Olmos Giupponi and E Ulate Chacón, El Sistema de la Integración Centroameri­ cana (SICA): Estructura institucional, ámbitos de actuación y perspectivas de futuro (Madrid, Plaza y Valdés, 2009). See also ECLAC/CEPAL, La integración centroamericana: beneficios y costos: documento síntesis (Mexico City, United Nations, 2004); and R Monge, ‘Síntesis subregional centroamericana’ in CEFIR (ed) (n 10). 22  A López Coll, La Comunidad del Caribe (CARICOM) en la encrucijada (La Habana, Centro de Investigaciones de Economía Internacional de la Universidad de La Habana, 2000). 23  SELA (n 9). 24  C Fernández Liesa, MB Olmos Giupponi and B Barreiro Carril, La cultura en la cooper­ ación e integración iberoamericana (Madrid/Mexico, Plaza y Valdés, 2009) 9–30.

Introduction 9 System (SELA); which combine efforts to collaborate with the authorities in charge of conducting these processes in the formation of the so-called social agenda of integration. Several meetings have been held in recent years for reflection, discussion and analysis of the social dimension, which is conceived as an inseparable objective of the integration processes.25 Second, it is relevant to analyse those instruments, either within the framework of the social dimension or specifically relating to human rights, enshrining human rights or even creating and establishing certain mechanisms for protection. Undoubtedly, the instruments vary in terms of scope and content. In any case, these instruments cover central aspects that, in future, could constitute a ‘system’ of recognition and protection of human rights in MERCOSUR, the Andean Community, NAFTA, CARICOM and SICA. Overall, one must bear in mind that on many occasions, the most decisive advances have been produced by adopting legal instruments that recognise social or labour rights. Thus, the integration processes in Latin America and the Caribbean under scrutiny devote their efforts to the development of legal instruments in which economic, social, cultural and environmental rights are recognised, once rights civil and political nature are already enshrined and ‘guaranteed’ by other systems, namely the Inter-American system. Finally, it is worth emphasising the evolving and open nature of all and each of the analysed integration processes, which largely contribute to the possibility that these are gradually laying down the groundwork for the development of a true ‘system’ of recognition and protection of human rights in each of them. From the perspective of their normative and institutional evolution, the development of these integration processes leads to various issues arising in the field of human rights. In this regard, at least two areas should be noted in which these processes could develop their activity in this field. On the one hand, the development of the integration is giving rise to a unique and singular legal system in each of the aforementioned processes of integration. Such a legal system is sometimes characterised in the treaties by the notes of primacy and direct effect. More importantly, the integration law enjoys certain legal autonomy. Thus, the eventual violation of the fundamental rights which has its origins in rules adopted within the framework of the integration process in question should be solved within the same, which somehow should have a ‘system’ of recognition and protection of fundamental rights.

25  T Pulgar, ‘La integración como alternativa de desarrollo social’ (2001) 61 Capítulos del SELA 55.

10  Introduction On the other hand, the progress that has been taking place in each of these processes can lead, as is ascertained in this book, to the development of specific instruments on human rights. The emergence of a ‘regional citizenship’ can be observed as part of the process of subregional integration in Latin America and the Caribbean, as is explained in depth in this book.26 In sum, the Latin American and Caribbean processes of integration are at a stage of definition. Even though there was an unusual dynamism in regional integration since the 1990s, it has not been sufficient to achieve the economic, political and social development of the countries of the region.27 As far as these integration processes are concerned, it has been clearly determined that they have developed norms and have dealt with human rights issues. Moreover, the existence of a large body of rules to protect human rights demonstrates a certain specialisation in the field.28 Therefore, it can be said that, for the purposes of this book, almost all integration processes have been addressing the protection human rights with greater or lesser detail, or, at least, one might say that at present, the development of Latin American and Caribbean integration comprises the protection of human rights. Clearly, there are still open questions regarding the articulation of these different systems. This book explores the development of such systems from

26 This concept has been developed, as is well known, within the EU. There is an extensive legal literature on the subject, which includes: G De Búrca, EU Law and the Welfare State: In Search of Solidarity (Oxford, Oxford University Press, 2005); G De Búrca, ‘Report on the Further Development of Citizenship in the European Union’ (2001) 120(2) Zeitschrift für schweizerisches Recht 39; C Closa, ‘The Concept of Citizenship in the Treaty on European Union’ (1992) 29(6) CMLR 1137; R Davis, ‘Citizenship of the Union … Rights for All?’ (2002) 2 European Law Review 121; P Dollat, ‘Vers la reconnaissance généralisée du principe de l’egalité de traitemente entre les personnes dans l’Union Européenne’ (2002) Journal des Tribunaux Droit européen 57; D Liñán Nogueras, ‘Ciudadanía de la Unión Europea’ in JC Rodríguez Iglesias and D Liñán Nogueras, La aplicación judicial del Derecho Comunitario (Madrid, Civitas, 1993) 271; JM Rodríguez Barrigón, La ciudadanía de la Unión Europea (Madrid, Centro de Estudios Políticos y Constitucionales, 2002); M Pérez González, La ciudadanía de la Unión: un estatuto evolutivo, in FM Mariño Menéndez (ed), El Tratado de la Unión Europea. Análisis jurídico (Madrid, Ministerio de Justicia e Interior, 1995) pp 77–100; E Pérez Vera, Citoyenneté de l’Union européenne, nationalité et condition des étrangers (1996) 261 Recueil des Cours de l’Académie de Droit International, pp 243–425; N Reich, ‘Union Citizenship-Metaphor or Source do Rights?’ (2001) 7 European Law Journal 4. 27  SICA (n 9). 28  In 2000–03, new agreements were adopted that have shaped a new strategic framework for integration processes. The adoption of the Inter-American Democratic Charter (defining commitments on strengthening of democratic institutions, participation and protection of human rights) has advanced towards a comprehensive and shared vision, with greater emphasis on human rights, which are at the centre of the concerns of the states of the Americas. As A Chueca Sancho has accurately defined it, a ‘human rights protection system’ involves an international organisation and one or more agreements between member states of this international organisation establishing the rights protected, the organs of protection and procedural safeguards: Chueca Sancho (n 17) 12.

Introduction 11 an international law standpoint. Consequently, the emphasis is put on institutional legal reforms, emerging regional international organisations, lawmaking processes and dispute resolution as set up in these various economic integration agreements. Undoubtedly, the book takes into consideration the current challenges and constraints in the implementation of the respective normative systems. The systematic analysis put forward in this volume is situated in a rather complex scenario of globalisation with the interaction of various legal orders. Therefore, attention is paid to the complex relations between different legal orders. This book seeks to shed light on this question, yet, more importantly, it also aims to contribute to a better understanding of the circumstances surrounding the modifications and dynamics of regional integration in the Americas, with a focus on subregional integration processes. The book is structured as follows. Chapter 1 begins by defining the scope and coverage of regional integration in the Americas. It also addresses the features pertaining to the intricate balance of human rights, objectives and new dimensions in the various free trade agreements. Subsequent chapters deal with selected cases that will serve to provide an overview of the issues that have emerged and the controversies that surround them. Chapter 2 takes account of the NAFTA and the questions related to the protection of human rights; in particular, it analyses the content and operation of the side agreements and the emergence of human rights issues in the case law of NAFTA arbitration tribunals. In turn, Chapter 3 deals with CARICOM and the progress attained in the protection of human rights in this subregion. An in-depth account of the developments in SICA in terms of the safeguarding of fundamental rights and the articulation of the sustainable development strategy is featured in Chapter 4. Undeniably, economic integration in the Andean Community (CAN) constitutes a paradigmatic case in terms of the adoption of provisions regarding the protection of social and labour rights and human rights, which is the object of analysis in Chapter 5. Last but by no means least, Chapter 6 is devoted to examining the role played by MERCOSUR and the deeper implications of the Union of South American Nations (UNASUR) for the protection of human rights.

1 Free Trade and Protection of Human Rights in the Americas I. INTRODUCTION

I

T GOES WITHOUT saying that the current landscape of the various trade and economic integration agreements in the Americas cannot be understood without looking at the historical evolution and the features that are shaping economic integration in the region. This chapter presents a detailed analysis of the regional complex scenario as it canvasses the various factors underpinning the evolution of trade and economic integration agreements. Incontestably, democratisation and the restoration of the rule of law in many Latin American countries during the early and mid-1980s, after the predominance of autocratic regimes and regional conflicts, boosted the ‘new wave’ of regional integration. Thus, the 1990s were praised as a ‘new era’ for regional integration in the Americas, with the revamping of existing economic integration processes such as the Caribbean Free Trade Association (CARIFTA), the Andean Group or the Organisation of Central American States, and the signing of new agreements, namely, NAFTA (the North American Free Trade Agreement) and Mercosur (creating the Southern Common Market). Nevertheless, by the end of the decade, there was a significant shift after the failure of the Free Trade Area of the ​​ Americas (FTAA) and some countries of the region were entering a state of economic crisis. This gave rise to yet more new approaches which proclaimed a ‘thicker’ integration, including not only free trade and economic integration as the ‘usual suspects’ but also incorporating human rights questions. Thus, the 2000s brought new approaches and challenges to the integration processes, accompanied by the establishment of new integration initiatives such as La Alianza Bolivariana para los Pueblos de Nuestra América, or Bolivarian Alliance for the Peoples of Our America (ALBA), the Unión de Naciones Suramericanas, or Union of South American Nations (USAN/UNASUR), la Comunidad de Estados Latinoamericanos y C ­ aribeños, or Community of Latin American and Caribbean States (CELAC) and the Pacific Alliance. Moreover, this chapter goes on to highlight the features observed in the development of the different economic integration processes, focusing on

Overview of Integration in Latin America and the Caribbean 13 those of a subregional character. In particular, it looks into the democratisation and the conception of integration as a more comprehensive project that should also include other ‘dimensions’, such as social aspects and the protection of human rights. Evidence suggests that subregional integration processes have moved into a new paradigm that encompasses the protection of human rights extending their scope beyond traditional economic concepts. The chapter also discusses the influence of the European Union (EU) on the institutional aspects of subregional integration process in the Americas. In addition, it critically examines attempts to ‘mimic’ the adoption of a truly community law and common policies. Furthermore, the chapter scrutinises the potential emergence of ‘systems of human rights’ as defined previously and their interaction with the inter-American human rights system. Finally, the last section is devoted to analysing the development of a ‘social dimension’ in economic integration,1 specifically the components of the ‘social dimension’ (the adoption of labour and environmental standards, common social policies and the participation of civil society in the regional integration process). The chapter concludes by discussing the concept of ‘regional citizenship’ based on the free movement of persons and the recognition of certain social rights to the citizens of member states of Latin American and Caribbean subregional integration processes. II.  HISTORICAL OVERVIEW OF INTEGRATION IN LATIN AMERICA AND THE CARIBBEAN

The scenario of economic integration in the Americas2 can be conceptualised as a multiple and complex reality in which various integration i­nitiatives 1 MB Olmos Giupponi, Nuevas perspectivas del principio democrático en el continente Americano (Córdoba, CONICET-Advocatus, 2007) 97–104. 2  The literature on Latin America and Caribbean integration is abundant. This list does not by any means attempt to be exhaustive: ALADI, V Seminario Internacional sobre la Dimen­ sión Jurídica de la Integración (Montevideo, ALADI-General Secretariat, 1998); PE Andrieu, Desarrollo regional e integración latinoamericana (Washington DC, IADB, 1983); A Aninat del Solar, ‘Idearios de la integración regional’, (1989) 149–50 Integración Latinoamericana 25; H Arbuet, ‘Naturaleza y objetivos de los procesos de integración’ in Dimensión jurídica de la integración (Montevideo, ALADI-General Secretariat, 1996) 33–39; E Best, ‘Sistemas institucionales para la integración regional’ (1994) 202(2) Integración Latinoamericana 11; J Briceño Ruiz and A Simonoff (eds), Integración y cooperación regional en América Latina: una relectura a partir de la teoría de la autonomía (Buenos Aires, Editorial Biblos, 2015); CEPAL, The Crisis in Latin America: Present situation and future outlook (Montevideo, United Nations, 1984); Centro Interuniversitario de Desarrollo (CINDA), Manual de integración latinoamericana (Caracas, Universidad Simón Bolívar. Instituto de Altos Estudios de América Latina, 1987); WD Coleman and GRD Underwill (eds), Regionalism and Global Economic Integration: Europe, Asia and the Americas (London, Routledge, 1998); Central American Court of Justice, Régimen Jurídico, 2nd edn (Managua, Central American Court of Justice, 2007); P De ­Lombaerde, S Kochi and J Briceño Ruiz (eds), Del regionalismo latinoameri­ cano a la integración interregional (Madrid, Siglo XXI, 2008); A Di Filippo, Integración regional latinoamericana, globalización y comercio Sur-Sur (Santiago, CEPAL/ECLAC, 1998);

14  Free Trade and Protection of Human Rights in the Americas coexist as a result of asynchronous historical processes. Therefore, in ­practice, multiple integration processes can be observed.3 The ‘evolving nature’ of the Latin American and Caribbean integration, ie, the deepening and broadening of subregional integration processes has brought what might be called an ‘expansive effect’ on human rights. The evolution of the main subregional initiatives in Latin America and the C ­ aribbean has a long history, which began with the first experiences of ­integration at A Fuentes Hernández, Integración y desarrollo de América Latina en los años 90 (Buenos Aires, BID/INTAL, 1989); A Guerra-Borges, ‘Regionalización y bloques económicos. Tendencias mundiales desde una perspectiva latinoamericana’ (1994) 200 Integración Latinoameri­ cana 3; A Guerra Borges, ‘Regionalismo y multilateralismo, dinámicas distintas, perspectivas disímiles’ in R Páez Montalbán and M Vázquez Olivera (eds), Integración latinoamericana. Raíces y perspectivas (México, EON, CIALC-UNAM, 2008) 271–90; F Herrera, ‘Perspectivas de la integración de América Latina’ in R Almeida and G Matus (eds), Integración latinoamericana: situación y perspectivas (Buenos Aires, BID/INTAL, 1965) 169–87; AJ Jatar and S Weintraub (eds), Integrating the Hemisphere: Perspectives from Latin America and the Caribbean (Washington DC, Inter-American Dialogue, 1997); K Hall and M Chuck-A-Sang, Caribbean Community: The Struggle for Survival (Indiana, Trafford Publishing, 2012); JH Lavopa, ‘Dimensión jurídica de la integración’ (1996) 4 Contribuciones 149; N Lopes, ‘Repercusiones de la globalización en el desarrollo: la integración como respuesta’ (1997) 50 Capí­ tulos del SELA, 17; JA Mayobre, F Herrera, C Sanz de Santamaría and R Prebisch, Hacia la integración acelerada de América Latina (Mexico, Fondo de Cultura Económica, 1965); O Mejía, La Unión Europea como modelo de integración: análisis comparativo del Sistema de la Integración Centroamericana (León-Nicaragua, Ed Universitaria UNAN, 2008); K NymanMetcalf and IF Papageorgiou, Regional Integration and Courts of Justice (Brussels, Intersentia, 2005); M Odello and F Seatzu (eds), Latin American and Caribbean International Institutional Law (London, Springer, 2015); OAS, Acuerdos de Comercio e integración en las Américas: Un compendio analítico (Washington DC, OAS, 1997); R Prebisch, the Economic Development of Latin America and its Principal Problems (New York, United Nations, 1950); C Pizzolo, Derecho e integración regional (Buenos Aires, Ediar, 2010); L Tomassini (ed), Nuevas formas de concertación regional en América Latina (Buenos Aires, Grupo Editor Latinoamericano, 1990); JJ Palacios, ‘Nuevo regionalismo latinoamericano: el futuro de los acuerdos de libre comercio’ (1995) 45(4) Comercio Exterior 295; A Rivarola Puntigliano and J Briceño-Ruiz (eds), Resilience of Regionalism in Latin America and the Caribbean: Development (Basingstoke, Palgrave Macmillan, 2013); G Rosenthal, ‘La integración regional en los años noventa’ (1993) 50 Revista de la CEPAL 11; JM Vacchino, ‘En la era de la globalización. Espacios y opciones de integración’ (1996) 45 Capítulos del SELA 75; E Lizano, ‘Hacia un nuevo enfoque de la integración regional’ (1996) XLII(4) CEMLA Boletín 159; JM Vacchino and T Pulgar, ‘Articulación de acuerdos de integración y la Comunidad Latinoamericana de Naciones’ (1998) 53 Capítulos del SELA 129; A Van Klaveren, ‘América Latina: más allá del año 2000’ in P Leiva (ed), América Latina-Unión Europea: más allá del 2000 (Santiago, CELAR, 1997) 21–55; RA Vanossi, Perfil jurídico institucional del fenómeno de la integración regional in Seminario Dimensión Jurídica de la Integración (Montevideo, ALADI, 1996); C Wuthenan, ‘Procesos de integración interestatales en el continente americano’ (1996) 4 Contribuciones 7; University of Ottawa, Dimensions internationales de l’integration regionale dans le tiersmonde (Ottawa, ICI, 1975); F Villagrán Kramer, Teoría general del derecho de integración económica: ensayo de sistematización (San José, CR Universitaria Centroamericana, 1965); A Zelada Castedo (ed), Derecho de la integración económica regional: lecturas seleccionadas (Buenos Aires, BID/INTAL, 1989). 3 SELA, Una institucionalidad para la convergencia y el desarrollo de la integración en América Latina y el Caribe (SP/CL/XXVIII.O/Di Nº 9–02, Caracas, Venezuela, SELASecretaría Permanente, 2003), available at: www.sela.org/media/268098/t023600000625-0orientaciones_y_potencialidades_de_los_desarrollos_institucionales_recientes.htm.

Overview of Integration in Latin America and the Caribbean 15 the beginning of the 1960s LAFTA (Latin American Free Trade Association), CACM (Central American Common Market), ­CARIFTA (Caribbean Free Trade Association) and continued with the emergence of new subregional organisations in the late 1960s and early 1970s (Andean Group and CARICOM (Caribbean Community)). In the 1990s, new developments led to the revision and institutional changes of the existing integration agreements and the emergence of Mercosur and NAFTA in order to promote the resurgence of subregional integration processes.4 Undoubtedly, the evolution of integration in the area of human rights could be described as a ‘rollercoaster’ with ups and downs. It has undergone a major transformation since its beginnings and has taken place at varying speeds. The Latin American and Caribbean integration has achieved considerable progress with regard to the subregional processes. Clearly, the integration processes have renewed their institutional framework and objectives to adapt to the new context through a new regionalism.5 As G Rosenthal has highlighted, in response to both the effects of the prolonged crisis of the 1980s and transformations in the international arena, Latin American and Caribbean states are increasing their reactive capacity by strengthening regional integration.6 The development of this phenomenon has led to the emergence of international organisations initially with a limited scope and trade-oriented in nature, but in constant evolution, so that they have transcended the purely economic issues in order to move on to subjects which involve the protection of human rights. From this perspective, in relation to the American continent, the various Latin American and Caribbean economic processes have flourished. Indeed, in Latin America and the Caribbean, there has been a multiplicity of processes of integration that coexist with different institutional frameworks. Moreover, the outlook of Latin American and Caribbean integration is presented with different forms of integration and cooperation as a result of various political and historical conditions. Since the beginning, one can observe the phenomenon of subregionalisation, ie, integration processes between homogeneous and neighbouring states. Economic, social and political developments such as globalisation and the opening of markets have created the necessary conditions for the emergence of new integration processes. As noted, in Latin America and the ­Caribbean, various multilateral dynamics of regionalism were geared towards addressing mainly economic problems, which resulted in a ­considerable range of

4  G Noto, ‘Integración e institucionalidad’ (2001) 61 Capítulos del SELA 46; SELA, La inte­ gración y sus instituciones en América Latina y el Caribe SP/Di Nº 1–05 (Caracas, Venezuela, SELA, 2005), available at: www10.iadb.org/intal/intalcdi/PE/2007/00155.pdf. 5  F Aldecoa Luzárraga and N Cornago Prieto, ‘El nuevo orden y reestructuración del sistema mundial’ (1999) L(1) Revista Española de Derecho Internacional 59. 6  Rosenthal (n 2) 11, 12.

16  Free Trade and Protection of Human Rights in the Americas mechanisms and regional and subregional integration institutions. This trend changed by the mid-1980s due to a series of events happening in the region, which marked the beginning of change and transformation in the strategy of regional multilateralism, which is evidenced by the reform of the institutional and legal framework and the inclusion of non-traditional dimensions.7 Yet in the 2000s, when criticisms regarding the neoliberal model arose, integration processes took a new turn towards the articulation of a social dimension within the economic integration processes. Similar theoretical considerations apply to economic integration in the Caribbean, shaped by its composition of relatively newly independent states. Integration has been defined by the complex processes of independence that in previous centuries affected Cuba, Haiti, the Dominican Republic and Puerto Rico on the one hand, and the concerted autonomy and independence of the non-Hispanic Caribbean islands essentially grouped in CARICOM comprising the English-speaking Caribbean, Aruba and the Netherlands Antilles, the Departments of French or DOM (départements d‘outre-mer) overseas, and the range of territories which are autonomous under the jurisdiction of the US and the UK. The revolutionary process in Cuba led to a fragmented dialogue not only between Latin America and the Caribbean, but also between the subregions themselves in the insular Caribbean.8 In order to overcome this situation, the Treaty of Chaguaramas clearly pointed out, as one of the objectives of CARICOM, the sustained expansion of integration.9 The evolving nature therefore refers to these changes that occurred in the integration processes, mainly at the last stage, with the emergence of new agreements and the renewal of existing agreements, as will be examined in detail in the following chapters. Thus, as has been correctly argued, Latin America and the Caribbean are currently facing a period of reform after an era of stagnation in which existing integration agreements ranged from relatively simple arrangements that involved few formal requirements (‘a shallow integration’) to more advanced economic unions (‘a deep integration’).10 The evolution of the integration processes in Latin America and the ­Caribbean has experienced many historic stages. It should be noted that integration has been one of the ongoing issues in the political and economic agenda in Latin America, particularly since the 1960s, when the Latin American Free Trade Association (LAFTA) was created with the ambitious

7 See M Yonis Lombano, ‘Regionalism and Globalization in the Americas’ in Multilateralismo y Democracia: procesos globales y regionales (Caracas, Universidad Central de ­Venezuela, 2002). 8 ibid. 9  Revised Treaty of Chaguaramas, art 6, Objectives of the Integration: ‘(d) expansion of trade and economic relations with third States’. CARICOM. Official Documents. Available at: www.caricom.org/jsp/community/revised_treaty-text.pdf. 10  Rosenthal (n 2) 18.

Overview of Integration in Latin America and the Caribbean 17 goal of establishing a free trade zone in the region. Back then, integration was perceived as a vehicle for economic and social development. The Treaty was, however, renegotiated years later, leading to the establishment of the Latin American Integration Association (ALADI). At the end of the 1960s, the Andean Group (today the Andean Community (CAN)) was established. During the 1970s, integration agreements were characterised by the adoption of cooperation projects in more specific sectors, following a much more pragmatic approach and aiming at achieving greater effectiveness. The 1980s are often called the ‘lost decade’ of integration since as a result of the general economic stagnation, many of these integration agreements failed. Finally, in the 1990s, the new strategy of openess led to the emergence of other processes within the regional and subregional environment, still effective today, which has led some authors to say that we are witnessing a phase of ‘revitalisation’ of Latin American integration.11 The period between 1980 and 1995 was characterised by the emergence of new integration efforts; investment poured into Latin America, the democratisation process in several countries was reinforced after the end of military dictatorships and the restoration of the rule of law laid down the basis for political and economic stability. As a result, during these years, the region experienced promising progress in terms of regional integration. During the 1990s, a new wave of integration emerged in Latin America and the Caribbean, and states entered bilateral, trilateral and subregional commitments, adapting the existing agreements in order to be compatible with a policy of openness and deepening, with links in areas that went beyond strictly trade issues.12 Towards the end of the 1990s and at the beginning of the 2000s, the concepts of social dimension and social agenda became relevant in Latin American integration. Scholars from the Latin American Economic System (SELA) criticised the economic integration agreements because of the lack of commitment to addressing the social side-effects of the integration ­processes.13 On the one hand, the citizens’ demands for participation, mainly led by non-governmental organisations (NGOs), increased ­(‘bottom-up process’). On the other hand, subregional integration processes attempted to solve the problems of the absence of social clauses and the weak legitimacy of the regional governance responding to these growing requests (‘top-down process’). 11 CM Díaz Barrado, ‘Iberoamérica ante los procesos de Integración: Una aproximación general’ in XVIII (1999), Jornadas de la Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI), (Madrid, Boletín Oficial del Estado, 2000) 27. 12 SELA, Guía de la Integración Latinoamericana (Caracas, SELA, 1999). 13  See R Franco and A Di Filippo (ed), Las dimensiones sociales de la integración regional en América Latina (Santiago, CEPAL, 1999), available at: http://repositorio.cepal.org/bitstream/ handle/11362/2190/S9860431_es.pdf?sequence=1.

18  Free Trade and Protection of Human Rights in the Americas Different actions were taken in order to make subregional integration processes more ‘human rights-friendly’. Consequently, various human rights declarations and charters were adopted on the protection of fundamental human rights, even if they were often recognised in different terms from those set up in the Universal Declaration of Human Rights and the United Nations Covenants on Civil and Political Rights and Economic and Social Rights. In sum, within the FTAs, these provisions differ substantially from traditional human rights agreements. A crucial element in the evolution towards the protection of human rights in subregional integration is the social dimension. Indeed, the first norms and mechanisms adopted by the integration institutions were related to the social aspects of economic integration, in particular, job-related issues and education. Even if there is not a complete definition of ‘social dimension’, one can include within the social dimension all the aspects linked to labour relations, health and environmental protection.14 The social dimension of regional integration, in light of the Recommendations of the Report of the World Commission on the Social Dimension of Globalisation, put the focus ‘on socio-economic and labour-related issues (regional social dialogues, common frameworks on labour standards, coordination of social and labour market policies, coordination of FDI policies, labour migration, skills recognition etc.); health, utilities regulation, housing, disaster prevention and management, conflict prevention, and human rights were also identified as potential areas for regional social policies’.15 The social dimension emphasises the protection of economic, social and cultural rights. In Latin America, the social dimension has a direct relation with the reduction of inequality. Latin America faces a considerable social gap; income inequality in the region is amongst the highest in the world. There is a vicious circle in play within which inequality is worsened by other phenomena such as low growth, poor education, macroeconomic volatility and political instability.16 The inclusion of aspects related to social development in the Latin American integration process represents a big step forward. There are still many challenges for the future.

14 ibid.

15  B Deacon, N Yeates and L Van Langenhove, ‘Social Dimensions of Regional Integration: A High Level Symposium Organised by UNESCO, Mercosur, GASPP and UNU-CRIS. Conclusions’ (2006) UNU-CRIS Occasional Papers (O-2006/13). See also P De Lombaerde et al, ‘Deepening the Social Dimensions of Regional Integration: An Overview of Recent Trends and Future Challenges in Light of the Recommendations of the Report of the World Commission on the Social Dimension of Globalisation’, Working Paper 3/2008, available at: www.cris.unu. edu/fileadmin/workingpapers/W-2008-3.pdf. 16  Recent research suggests that inequality in Latin America is falling. N Birdsall, N Lustig and D McLeod, ‘Declining Inequality in Latin America: Some Economics, Some Politics’, Working Paper 251 (2011), available at: www.cgdev.org/files/1425092_file_Birdsall_Lustig_ McLeod_FINAL.pdf.

Overview of Integration in Latin America and the Caribbean 19 In sum, at this last stage of Latin American and Caribbean integration, as described in the preceding paragraphs, certain principles or core elements of the processes of Latin American and Caribbean integration have emerged. The new aspects are generating a conceptual and policy framework in which issues concerning human rights are gaining momentum through the recent adoption of legal instruments. While these instruments do not yet enjoy binding status in all cases, they provide the elements to shape eventual ­‘systems’ of recognition and protection of human rights in Latin American and Caribbean integration. When addressing issues relating to human rights, those leading features that make up the subregional integration processes in Latin America and the Caribbean that have particular impact in this area should be noted. These features are present in each of the agreements, although, as stated above, each process itself is inserted in a different and unique situational context with its own specific characteristics. Based on these considerations, various central features that may impact on the establishment of a system of recognition and protection of human rights can be noted. In this regard, the following can be noted: first, the evolving nature of the Latin American and Caribbean integration;17 the multidimensionality of integration; and the claim of integration as a political project.18 Thus, the overall picture of integration in Latin America and the Caribbean currently has a complicated configuration of simultaneous ­ and juxtaposed projects: subregional integration agreements (Mercosur, CAN, the Central American Integration System, NAFTA and CARICOM), regional agreements (ALADI) and hemispheric agreements (the failed FTAA). Indeed, there are a panoply of different integration processes as a consequence of the simultaneous participation of many countries in more than one agreement.19 Amongst these integration processes, in terms of the degree of development, CAN, the SICA, CARICOM and Mercosur stand out—those that constitute what has been called ‘the core of the integration’. The primary goal of these integration processes is to create a large common market. In this manner, these processes are consistent with both the creation of LAFTA and the ALADI Subregional integration processes took this goal to be

17  The lack of access to public services such as education, health and housing, the inability of the productive apparatus to create enough employment and the existence of poverty constitute the main weaknesses of Latin American societies that limit the possibilities of economic development; SELA (n 12). 18  Thus, strengthening democracy and the external projection of the region have been constant objectives to be achieved in recent years; ibid. 19  Instituto de Relaciones Europeo-Latinoamericanas (IRELA), Integración y Cooperación en América Latina: Enfoques nuevos, esfuerzos múltiples (IRELA, Madrid, 1992) 1, 2.

20  Free Trade and Protection of Human Rights in the Americas accomplished at a more reduced level and in a context of open regionalism. Therefore, these subregional integration processes tend to achieve the opening of new markets in the region, going beyond economic liberalisation and increasing cooperation in non-strictly commercial areas.20 Therefore, the main Latin American integration agreements had to deal, earlier than expected, with the social impact of economic integration. In order to ensure the free movement of migrants within the territory of the member states, they addressed the topic of economic, social and cultural rights and, educational, labour rights areas of health, and social security. As economic integration deepened, they created conditions to advance the convergence of standards and social policies. This aspiration was determined to pursue progress in the agreements, not only in economic matters, but also essentially conceiving integration as a project with legitimacy and political projection, thus strengthening the process in order to meet the political demands and to improve the situation of the populations of the countries involved, as a condition for peace and social harmony.21 This necessarily led to the consecration of instruments that recognise and protect human rights and, at the same time, seek to expand the integration to other dimensions in order to reduce the vulnerability of populations and ensure the future viability of the integration process. In sum, integration agreements have advanced to combine economic integration with social development in a framework of democracy and respect for human rights. The relaunch of various integration initiatives began to take shape in the late 1980s, due to internal and external factors, among which one must underline the growing democratisation of Latin America and the shift in the economic strategy of states of the region towards open regionalism in  the search for a new international integration in line with the trend towards the formation of regional economic ‘blocs’.22 Within subregional arrangements, in turn, one can mention the principle of progressive integration. Recognised in several of the founding treaties and other instruments, this principle has a special influence in the field of human rights, since it implies the intention to move forward into other fields of regulation. The transcendental evolving nature of integration therefore lies in the possibility that, in future, more perfect forms of integration are

20 

SELA (n 12), 10, 11. ibid. ‘Open regionalism’ defines the new form of integration of Latin American countries driven by trade liberalisation, accompanied by the signing of preferential agreements with strategic partners trying to create new trade flows without affecting the previous trade agreements. This is in contrast to the ‘closed’ integration models that predominated in Latin America until the 1980s. See G Rosenthal, ‘El regionalismo abierto de la CEPAL’ (1994) 14 Boletim de Inte­ graçao Latino-Americana 26; and A Van Klaveren, ‘América Latina: hacia un regionalismo abierto’ (1997) 30(117) Estudios Internacionales 62. 22 A Yorez and N Castro Barrios, ‘Globalización y necesidad de una mayor integración latinoamericana: Importancia del Mercosur’ (1998) 16 Cuadernos latinoamericanos 13, 23. 21 

Free Trade Agreements and Integration in the Americas 21 generated not only with the development of new mechanisms and adoption of standards, but also to create greater harmonisation and unity of law.23 As highlighted in the early 1990s, integration advanced in economic terms, but social issues also became part of new efforts of deepening and restructuring the integration processes. The integration went through a subsequent phase in which the main objective was to achieve integration with equity.24 Therefore, at that particular stage, legal instruments safeguarding human rights were signed. In short, from a historical perspective, the regionalism dynamics revealed a series of changes within the subregional integration processes, leading to the setting of new standards, the incorporation of new actors and the creation of new bodies. The complexity of the new areas of regulation, among which the protection of human rights stands out, required a major overhaul of the institutional architecture in order to address the challenges that emerged as a result of the development of integration. III.  FREE TRADE AGREEMENTS AND INTEGRATION IN THE AMERICAS: THE CURRENT SCENARIO

As a result of the strict adhesion to the ‘open regionalism’ theory,25 most Latin American and Caribbean states participate simultaneously in various integration processes. In this sense, the 1990s brought about the consolidation of open regionalism in terms of economic integration agreements. Hence, basically three trends could be observed. First was the establishment of a hemispheric free trade area that would cover the whole continent and that would be, from an economic and political perspective, the most significant expression of Pan-Americanism. This trend is reflected in the attempt to create a hemispheric free trade area: the FTAA.26 Although this agreement failed, the negotiations included not only economic aspects but also other issues of social content. At least, the final declarations and plans of action that emanated from the various summits raised questions concerning human rights by including references to the protection of human rights and asserting that certain fundamental rights should be respected.

23 

T Pulgar, ‘La proyección social de la integración’ (1997) 49 Capítulos del SELA 133. Palma, ‘Actualizar las variables de la integración latinoamericana’ in Franco and Di Filippo (n 13) 152. 25  M Bevir, Encyclopaedia of Governance (London, Sage, 2007). 26  MB Olmos Giupponi and CM Díaz Barrado, ‘Características y dimensiones de la integración hemisférica en el continente americano: el Área de Libre Comercio de las Américas (ALCA)’ in M Vargas Gómez-Urrutia and A Salinas de Frías (eds), Soberanía del Estado y derecho internacional: homenaje al profesor Juan Antonio Carrillo Salcedo, vol 1 (Seville, Universidad de Sevilla, 2005) 465–94. 24  E

22  Free Trade and Protection of Human Rights in the Americas Second, the states of the Americas were already participating in other regional integration processes. The ALADI and the Association of Caribbean States (ACS) would be specific manifestations of this phenomenon in terms of Latin American and Caribbean states. It also could include the integration of North American states which has resulted in NAFTA. In these cases, objectives and areas of action focus on economic aspects, the social dimension has little relevance and the aspects concerning human rights issues even less so. Third, in the integration schemes created at a subregional level, alongside the economic aspects, other areas and dimensions of a different nature and content have become increasingly important. Clearly, the evolution of these agreements has raised issues concerning human rights. These integration processes are represented by the integration taking place in the area of the Southern Cone (exemplified by Mercosur); the integration taking place in the Andean area with the Andean Community (CAN); the integration of Central American System Integration (SICA); and the integration of states belonging to the Caribbean area (CARICOM). After the failure of the FTAA, there was a diversification of strategies. The US pursued the signing of various free trade agreements, including the CAFTA-DR (Central America-Dominican Republic Free Trade Agreement) and several other bilateral agreements.27 In this new era of integration, which has been called a post-neoliberal era, new blocs have also emerged in South America as a direct response.28 New integration initiatives were established in South America. The Bolivarian Alliance for the Peoples of Our America (or ALBA as it is known in Spanish) was created in 2004. Notwithstanding the fact that one of the main arguments for its creation was the achievement of social development articulated through cooperation programmes, ALBA is conceived as a political forum. Following in the footsteps of the South American Free Trade Area (ALCSA) proposed by Brazil in 1993,29 during the 2004 South American Summit, representatives of 12 South American states signed the Cuzco Declaration, announcing the establishment of the ‘South American Community

27  DA Gantz, ‘Settlement of Disputes under the Central America-Dominican ­Republic-United States Free Trade Agreement’ (2007) 30 Boston College International and Comparative Law Review 331. See OR Vargas, Después del CAFTA Que? (Managua, PAVSA, 2007); ME Trejos Paris and ME Fernández Arias, Tratado de Libre Comercio Estados Unidos-CentroaméricaRepublica Dominicana (San José, EUNED, 2006). 28  JA Sanahuja, ‘Post-liberal Regionalism in South America: The Case of UNASUR’ (2012) Working Paper EUI RSCAS-2012/05-Global Governance Programme (European University Institute, Florence, 2012), available at: http://hdl.handle.net/1814/20394. 29  Dr Itamar Franco, the Brazilian President, presented the proposal for a free trade area comprising the 12 South American states. See IADB, ‘ALCSA: Una nueva iniciativa de integración latinoamericana’ (1994) 198–99 Integración Latinoamericana 1; JM Vacchino, ‘La Cumbre Suramericana y el desarrollo de una utopía’ (2001) 61 Capítulos del SELA 36.

Free Trade Agreements and Integration in the Americas 23 of Nations’ (renamed after UNASUR).30 In 2006, Venezuela quit CAN due to profound disagreements with other member states regarding the implementation of the external trade policy and, at the same time, requested to become a full member state of Mercosur.31 After having withdrawn from CAN, Venezuela intensified its actions in ALBA and UNASUR. As another initiative, the Community of Latin American and C ­ aribbean States (CELAC) was proclaimed in 2010 and formally established in ­December 2011.32 This initiative comprises 33 independent states and is based upon the principles of respect for national sovereignty and selfdetermination, as well as the right of all states to self-determination and to choose their own political, economic, social and cultural system.33 CELAC’s main goal is to act as ‘an inter-governmental mechanism for dialogue and political agreement’.34 Specifically, it develops its functions in an intraregional dimension, articulating cooperation amongst its member states and, in an external dimension, playing a significant role in inter-regional relations with the EU. In the intraregional sphere, CELAC articulates consensus around issues such as food security, the elimination of hunger and the reduction of poverty. Sustainable development is another pillar upon which cooperation is articulated, as the 2015 Declaration of Belen seems to suggest.35 In 2013, CELAC National Coordinators declared Latin America and the Caribbean as a Region of Peace. In the Zone of Peace declaration, CELAC member states committed to respect the principles and norms of international law, and to resolve disputes through peaceful means. The agreement would eliminate the threat and use of force in the region. It also reflects the commitment of member states to strictly comply with their obligation to refrain from interfering in the internal affairs of other nations. In terms of political cooperation and external relations, CELAC represents the interests of the region, participating in bi-regional dialogue with 30  The UNASUR Constitutive Treaty was signed on 23 May 2008 at the Third Summit of Heads of State, held in Brasília, Brazil. 31  BBC, ‘Venezuela Quits Andean Trade Bloc’, 20 April 2006, http://news.bbc.co.uk/2/hi/ business/4925056.stm. 32  CELAC was launched at the 23rd Rio Group Summit, Playa del Carmen, Quintana Roo, Mexico, on 23 February 2010; the group was formally established in July 2011 at a summit in Venezuela. See F Rojas Aravena (ed), América Latina y el Caribe: multilateralismo vs sober­ anía: la construcción de Comunidad de Estados Latinoamericanos y Caribeños (Buenos Aires, Flacso-Teseo, 2011). 33 CELAC. Official documents, www.celacinternational.org. 34  ibid. There have been four CELAC Summits so far: I: December 2011, Caracas, ­Venezuela; II: January 2013, Santiago, Chile; III: December 2014, Havana, Cuba; IV: 28–29 January 2015, Belen, Costa Rica. 35  Santiago Declaration (‘Alliance for Sustainable Development: Promoting Investments of Social and Environmental Quality’), Community of Latin American and Caribbean States and the European Union (CELAC-EU), Santiago, 26 and 27 January 2013; CELAC-EU Action Plan 2013–15: New Chapters, Latin American and Caribbean Community States (CELAC) and European Union (EU) Santiago, Chile, 27–28 January 2013. Available at: www.sela.org/celac.

24  Free Trade and Protection of Human Rights in the Americas the EU. CELAC also represents the interests of the region in its external relations with China, establishing a China-CELAC Cooperation Forum to institutionalise and consolidate the cooperation with China.36 Finally, it is worth referring to the Pacific Alliance, a new bloc established in 2011 and defined as ‘an initiative of regional integration comprised by Chile, Colombia, Mexico and Peru … countries with similar visions of development and free trade’.37 Although the Pacific Alliance involves free trade, it currently does not constitute an integration process or a free trade agreement as such. It embodies inter-governmental cooperation that ‘works through the coordination between ministries and agencies of the four member countries and not with a permanent secretary’.38 In the long run, the Pacific Alliance could develop into a more sophisticated inter-governmental process as one of its main (and ambitious) objectives within the Alliance is to ‘build in a participatory and consensual way an area of deep integration to move progressively towards the free movement of goods, services, resources and people’.39 But it also seeks to coordinate foreign policies of the constituent states in its external relations as it attempts to ‘become a platform of political articulation, economic and commercial integration and projection to the world, with emphasis on the Asia-Pacific region’.40 A slight reference to human rights issues broadly speaking can be found, in the statement that the Pacific Alliance will ‘drive further growth, development and competitiveness of the economies of its members, focused on achieving greater well-being, overcoming socioeconomic inequality and promote the social inclusion of its inhabitants’.41 Up to the present, UNASUR represents the most comprehensive and wide collective agreement among these new initiatives. The group was formed by incorporating the members of two pre-existing trade unions: Mercosur and the Andean Community.42 UNASUR’s institutional set-up is purely

36  In addition to this agreement to provide a forum for cooperation with China, CELAC has strengthened ties with India, the Russian Federation, the Republic of Korea and the ­Cooperation Council for the Arab States of the Gulf and Turkey. 37  The Pacific Alliance was officially launched on 28 April, 2011. See Pacific Alliance, ‘What is the Pacific Alliance?’, http://alianzapacifico.net/en/que-es-la-alianza/#strategic-value. 38  Pacific Alliance. ‘Structure and System’, http://alianzapacifico.net/en/que-esla-alianza/#history. See SELA, La Alianza del Pacífico en la Integración Latinoamericana y Caribeña—SP/Di N° 1–13 (Caracas, SELA-Secretaría Permanente, 2013), www.sela.org/ media/265534/t023600005208-0-sp-di_n-_1-13_alianza_pacifico_en_la_integracion_la_y_ caribena.pdf. 39  Pacific Alliance (n 37). 40 ibid. 41 ibid. 42 The current members of UNASUR are: Argentina, Bolivia, Brazil, Chile, Colombia, ­Ecuador, Guyana, Peru, Suriname, Uruguay and Venezuela. UNASUR countries suspended Paraguay in June 2012 after the country’s democratically elected president was impeached in what some considered a ‘constitutional coup’.

Making Free Trade Agreements More ‘Human Rights-Friendly’ 25 inter-governmental; its general leads the group’s sections in carrying out their duties, acts as the secretary at UNASUR meetings, prepares and presents an annual report, and coordinates actions with other regional blocs in order to fulfil UNASUR’s objectives.43 UNASUR has also a president pro tempore who serves a one-year term, presides over UNASUR meetings and represents the organisation at international events.44 UNASUR has developed its agenda to include various aspects related to political cooperation that are closely related to the protection of human rights, such as citizenship, regional migrations and right to health. The aspects related to the protection of human rights in UNASUR are addressed in section VII in Chapter 6. IV.  MAKING FREE TRADE AGREEMENTS MORE ‘HUMAN RIGHTS-FRIENDLY’

At the present stage of integration in Latin America, a coherent and comprehensive system for the recognition of human rights is not yet in place. There are still many challenges in the implementation of these provisions adopted in the framework of the social dimension. Nevertheless, different embryonic ‘human rights systems’ can be identified in SICA, CAN and Mercosur integration processes. In other words, the subregional integration processes have been developing more or less binding legal instruments which address issues related to human rights. The different human rights regulations observed in SICA, CAN and ­Mercosur share some common features, which are as follows: (a) The influence of the EU as a desirable model for regional integration: the subregional integration processes tried to follow (at least in the agreements) in the footsteps of the EU in terms of the legal system and institutional set-up. The EU experience on the protection of fundamental rights exercises an important influence as well. For instance, some subregional integration agreements have adopted Charters of Fundamental Rights (eg, the 2002 Andean Charter of Human Rights), which are similar in content to the European Charter of Fundamental Rights. (b) Human rights issues and economic goals: these subregional agreements initially focused on pure economic aspects and then, gradually, developed norms and mechanisms to protect human rights. Only recently have they incorporated an explicit reference to regional policy issues relating to the recognition and protection of human rights. 43  The first Secretary General, former President Nestor Kirchner, took office in May 2010 and served until his death in October 2010. 44  The right to designate the president pro tempore passes from one member state to the next on a rotating basis according to the alphabetical order of the countries’ names.

26  Free Trade and Protection of Human Rights in the Americas (c) The role of the integration bodies in the protection of human rights: another relevant character relates to the proactive role developed by the different organs, in particular, the Presidential Summits. In the light of the various international declarations issued at the Summits, the integration processes have added the protection of fundamental rights on to the agenda.45 (d) The nature of the regional human rights provisions: the instruments adopted have, in most cases, a recommendatory nature. Both the ­Mercosur 1998 Social and Labour Declaration and the CAN 2002 Charter of Human Rights embodied only soft law standards. The exception would be the SICA 1995 Treaty on Social Integration, which is an international agreement that is binding on the member states. Even so, the provisions contained in the latter are mainly programmatic and require further implementation measures to be taken by the states at the domestic level. (e) The creation of subregional bodies for the protection of fundamental rights: the proposal for the creation of specific human rights monitoring bodies at the subregional level, such as the Social and Labour Commission in Mercosur, is also remarkable. Nevertheless, it should be pointed out that in many cases, these bodies have not been implemented or have only fulfilled a symbolic function. (f) Regional governance, judicial dialogue and fundamental rights: more recently, there has been an increasing interaction between the judicial body (or a similar dispute settlement body) of the integration agreements and the domestic courts. Human rights issues are included within this dialogue.46 Beyond these common features, it is important to underline that each ­subregional integration process has followed a different path regarding the protection of human rights, focusing on specific aspects. For instance, the 2002 Andean Charter of Human Rights includes the protection of internally displaced people and refugees. As discussed above, the dynamic of the link between human rights and trade in the FTAs varies according to each different agreement. In general, in all FTAs there is a predominance of economic issues and a ­marginal ­protection of fundamental rights. In the subregional FTAs (at least on a ­rhetorical level), fundamental rights have been included in the regional

45  See, for instance, in the Andean integration the 2004 Quito Declaration (‘Declaración de San Francisco de Quito sobre Establecimiento y Desarrollo de la Zona de Paz Andina’), Andean Community, Official Documents www.comunidadandina.org/documentos/actas/ ZonadePaz.htm. 46  See JA Giammattei Avilés, ‘Los Derechos Fundamentales, la Corte Centroamericana y la protección del Medio Ambiente’ (2001) Anuario de Derecho Constitucional 207, available at: www.kas.de/wf/doc/5595-1442-4-30.pdf.

Trade and Development in the Americas 27 agenda as a further step for their protection. However, in our view, the ‘thorny’ ­question of the implementation of the human rights standards remains the main obstacle to granting an effective protection of fundamental rights. The different models observed in the subregional integration agreements in Latin America share some common features. All of them initially focused on pure economic aspects and then, gradually, developed norms and mechanisms to protect human rights. Only from the 1990s onwards, an explicit reference to regional policy issues relating to the recognition and protection of human rights is incorporated. One aspect that should not be overlooked concerns the relationships with the inter-American human rights system and the two main institutions in charge of the protection of human rights: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.47 The Inter-American Commission on Human Rights is the main institution created by the OAS Charter for human rights protection and promotion, and it is composed of seven independent experts.48 The Court’s competence is not automatic, it is necessarily a special recognition by the states. Most Latin American countries have ratified the American Convention on Human Rights and have recognised the jurisdiction of the Inter-American Court of Human Rights.49 The relationship between human rights systems established in subregional integration processes and the inter-American human rights system is analysed in depth below in section V. V.  TRADE AND DEVELOPMENT IN THE AMERICAS: BALANCING TRADE AND THE PROTECTION OF HUMAN RIGHTS

The predominantly economic nature that characterised the early stages of the integration processes in the Americas determined the lack of provisions in non-trade areas, as was underlined in the Introduction. However, the progress of the subregional integration processes in the 1990s led to the expansion of objectives to include other dimensions beyond economic integration. To some extent, the democratic factor has underpinned the multidimensional nature of the process, including ‘from the economic and financial to the scientific and technological aspects, from education 47  The OAS addresses five general areas of focus, among them, the promotion of human rights and, in particular, women’s rights, children’s rights and cultural rights. 48 The Commission deals with claims of human rights violations submitted by individuals and representatives from organizations. The Inter-American Court of Human Rights was established in 1978 with the entry into force of the American Convention. It consists of seven judges nominated and elected for six years by the parties to the American Convention. 49  As of 2012, 19 Latin American states had signed this optional jurisdiction. See: www. corteidh.or.cr/denuncias_consultas.cfm.

28  Free Trade and Protection of Human Rights in the Americas to culture’.50 As noted by A Tirado Mejia, during the new era of Latin American and Caribbean integration, the main goal of subregional integration processes is not a purely commercial one, but also aims for the convergence of the economic, political and fundamental social policies.51 The emergence of new integration processes and the renewal of preexisting agreements expanded the scope of integration, with the consequent diversification of the inter-relationships between the participating states at the political, economic, technological, cultural and social levels. Certainly, the inclusion of new topics implied abandoning the strict trade criteria and embracing regional integration as a multidimensional process, which expresses and develops a complex and multifaceted concept of regional integration.52 The new democracies of Latin American and the Caribbean brought about the need to develop other dimensions of the integration, such as the social dimension and the security dimension. In this respect, democracy also brought with it the need for greater participation of the various sectors of civil society in the integration process, an issue that will be further discussed in the next section. Therefore, integration involves various dimensions beyond the economic and trade dimensions.53 Among other areas that have been included in the processes, subregional integration agreements have been dealing with aspects related to labour and industrial relations, health and education. The main concern to ensure economic, social and cultural rights led to the adoption of instruments that recognise and ensure the protection of rights in these areas. Thus, declarations, treaties and other agreements were adopted, sometimes with purely declaratory effect. At the very least, all these legal instruments show that the issues concerning human rights are not absent from the concerns of the states participating in the Latin American and Caribbean integration processes. It has been argued, therefore, that the almost exclusively ‘trade model’ that the integration process had initially followed in the region is threatened by its exhaustion, in particular after the changes experienced after 2005. Hence, the consolidation of integration requires the achievement of goals of

50  See generally JM Vacchino, ‘La dimensión regional y los proyectos subregionales en el actual contexto latinoamericano’ (1995) I(1) Aportes para la Integración Latinoamerican a 65, 66. See, in particular, C Fernández Liesa, MB Olmos Giupponi and B Barreiro Carril, La cultura en la cooperación e integración iberoamericana (Madrid, Plaza y Valdés, 2009) 9–30. 51 A Tirado Mejía, Integración y democracia en América Latina y el Caribe (Buenos Aires, BID-INTAL, 1997) 1–2, available at: www.iadb.org/wmsfiles/products/publications/­ documents/35309700.pdf. 52  Vacchino (n 50) 72. 53  A Franco and F Robles, ‘Integración: un marco teórico’ (1995) 30 Colombia Internac­ ional 22. See also, in the same issue of the journal, the response by P De Lombaerde, ‘Algunos comentarios acerca del artículo de Franco y Robles’ (1995) 30 Colombia Internacional 27.

Trade and Development in the Americas 29 another order, like those of a political, social and cultural nature, which foster new relationships and exchanges between the societies of the countries involved.54 Consistent with this objective, the revival of social and cultural objectives of regional integration, traditionally inserted as a declaration of intention in the agreements, has already been included with different levels of development in the subregional integration processes.55 Particularly, there have been a greater number of provisions dealing with workers’ rights and labour and industrial relations. Although integration processes remain primarily economic, the subregional integration agreements have incorporated other concerns into their respective agendas. This growing interest is a response to the new realities within each integration process. As rightly pointed out by Noto, in order to remove existing barriers to integration and to deepen the convergence, the new integration wave breaks through the vicious circle generated by a trade-oriented integration, proposing goals and actions in other areas.56 What is required is a dynamic integration which responds to the complex nature of the process and respects the need to build a ‘Community of Nations’ based on the principle of ­solidarity.57 A prominent feature of this new awareness is the strengthening of the social dimension, which will be discussed in detail in this chapter. Among the new dimensions, both the political dimension and the social dimension paved the way for the development of a ‘human dimension’ and also what might be called a ‘cultural dimension’.58 The relevance of the ‘cultural dimension’ can be perceived within the concept of development, integrating cultural elements into the attainment of socio-economic development. But it is also the main and fundamental dimension of integration, since integration is, essentially, a cultural phenomenon, as acknowledged in numerous declarations adopted in the regional integration.59 It should be emphasised that this feature can be better appreciated in subregional integration processes constituted among states with geographical proximity to each 54  T Pulgar, ‘La integración como alternativa de desarrollo social’ (2001) 61 Capítulos del SELA 55. 55  O Boye, ‘Integración: ahora o nunca’ (2001) 61 Capítulos del SELA 1. 56  Noto (n 4). 57 ibid. 58  It should be noted that the political dimension of integration is of particular relevance when democracies begin to be threatened by various factors that weaken the political leadership and create risks for democratic systems. Therefore, integration processes must meet the demands put forward by civil society and must address citizens’ demands. Economic integration agreements need to design mechanisms to achieve greater social inclusion, in particular, through the establishment of parliaments and mechanisms to guarantee the participation of civil society in order to overcome the lack of social development that inhibits the effective participation of society in the integration process. 59  A Radl, La dimensión cultural, base para la integración de América Latina y el C ­ aribe: desde la solidaridad hacia la integración (Buenos Aires, INTAL/BID, 2000), available at: www10.iadb.org/intal/intalcdi/PE/2007/00624.pdf.

30  Free Trade and Protection of Human Rights in the Americas other and that share historical and cultural links. This ‘common ­cultural background’ is reflected in common values and ​​ shared understandings, which are also observed in the legal instruments enacted, either by reference to them in the founding treaty or in other agreements and declarations.60 As noted above, the historical and cultural links have operated as cohesion factors, allowing a broader conception of integration not only focused on economic aspects, but also with ramifications for a cultural and educational dimension. The Permanent Mechanism of Political Consultation and Coordination (Rio Group) acted as a predecessor to cultural integration, followed by the creation of the Popular Library of Latin America and the Caribbean, a Latin American Fund for the Development of Culture and the Latin American Fund Arts, and the establishment of two annual awards to distinguish Latin American and Caribbean personalities who excel in the fields of the arts, literature, science and technology.61 Subregional integration processes have also included, in a number of ways, cultural integration. Thus, Mercosur has, since its early stages, encompassed a cultural and educational dimension with the signing of the ‘Memorandum of Understanding’ on 13 December 1991, in which the emphasis is on the value of education in the integration process, recognising that it ‘has a critical role to consolidate the integration and project’ and emphasising the education and cultural links between the countries of Mercosur because these reflect the common cultural background of all Latin American countries and particularly the Mercosur member states. The Southern integration process has several protocols relating to this area, such as the Protocol on the mutual recognition of certificates of technical and vocational education (Decision 7/1995); educational integration on the recognition of university degrees for continuing graduate studies in the universities of Mercosur member states (Decision 8/1996); Admission of Titles and University Degrees for the Exercise of Academic Activities in the Member States of Mercosur (Decision 3/1997).62 In addition, the Andean process has developed different initiatives in the cultural dimension. Decision 588 (2004) of the Andean Council of 60  The Cartagena Agreement illustrates the existence of historical and cultural ties among the Andean States: in the Preamble to the Agreement, it reads that ‘integration is a historical, political, economic, social and cultural life of their countries’. Andean Community, Official Documents, http://issuu.com/elcondor/docs/acuerdocartagena. 61  Radl (n 59) 21. See also G Recondo, ‘La integración cultural latinoamericana: entre el mito y la utopía’ (1989) Integración Latinoamericana 36. 62 See Mercosur Educativo, www.mercosur.int/t_ligaenmarco.jsp?title=off&contentid=854 &version=1&channel=secretaria. See also L Neves de Azevedo, ‘The Bologna Process and Higher Education in Mercosur: Regionalization or Europeanization?’(2014) 33(3) ­International Journal of Lifelong Education 411; UNESCO, A educação infantil nos países do ­Mercosul: análise comparativa da legislação (Brasília, MEC, 2013), available at: http://unesdoc.unesco. org/images/0022/002253/225334POR.pdf. See also A Martínez Puñal and MT Ponte Iglesias, La educación en el proceso de integración del Mercosur (Santiago de Compostela, Tórculo, 2001).

Trade and Development in the Americas 31 Foreign Ministers on the Protection and Recovery of Cultural Heritage of the Archaeological, Historical, Ethnological, Paleontological and Art of the Andean Community, provides in Article 5 that member states: [U]ndertake to establish in their territory adequate protection of cultural heritage, staffed to effectively ensure the following functions: (a) Development of laws and regulations that protect the cultural heritage and particularly the suppression of illicit traffic of cultural property; (b) To establish and maintain the list of major public and private cultural ­heritage whose export would constitute an appreciable impoverishment of the cultural heritage of the member states; (c) To establish and create educational programmes to stimulate and develop respect for the cultural heritage of all member states; (d) Establish and maintain a register of antiques with control and verification systems necessary to prevent the impoverishment of the cultural heritage of the member states; (e) Strengthening the control systems in terms of import and export of cultural property, to prevent illegal entry and exit of the heritage of the member states; and (f) Disseminate effectively among the Member Countries of the Andean Community information regarding cases of disappearance or theft of cultural property.63

Specifically, SICA provides a clear example of this broader conception of integration. Indeed, the Declaration of Nicaragua on Central American Union of 2 September 1997 states that ‘Central America is a political, economic, social and cultural community’ that ‘constitutes an indivisible geographical and ecological unit, whose peoples and nations represent an extraordinary cultural and ethnic diversity, with a language and common history’.64 Finally, geographical proximity is an important factor whose impact is reflected in the integration between neighbouring states and which takes place by the conclusion of agreements either on cross-border cooperation that have sometimes been the basis of a bilateral integration first and then

63 Decision 588 repealed and replaced the previous Decision 460. Official Documents, Decisión 588, ‘Sustitución de la Decisión 460 sobre la protección y recuperación de bienes del patrimonio cultural de los Países Miembros de la Comunidad Andina’, adopted at the M ­ eeting of the Andean Council of Ministers of Foreign Affairs on 10 July 2004, Andean Community. www.comunidadandina.org/Seccion.aspx?id=67&tipo=TE&title=cultura (original text in Spanish, author’s translation). The text is also available at the UNESCO website: www.unesco. org/culture/natlaws/media/pdf/ecuador/ec_decision_588_spaorof.pdf. 64 SICA, Official Documents. The text of the Declaration is available at: http://parlatino.org/ pdf/temas-especiales/clan/declaracion-junta-nicaragua.pdf (original text in Spanish, author’s translation). See SG-SICA/ Consejo Superior Universitario Centroamericano (CSUCA), El Libro de Centroamérica: Un instrumento cívico de los pueblos (Guatemala, SG-SICA-CSUCA, 1996) 65. Available at: www.sice.oas.org/sica/Studies/librocacompleto.pdf.

32  Free Trade and Protection of Human Rights in the Americas extended to other states.65 The so-called ‘border areas’ are important in integration; especially in relation to social and labour fields, they show a higher level of movements of migrant workers ‘from depressed border areas of a country to areas of greatest development and dynamism other country’.66 In the In the Article 2 of Decision 459 of the Andean Council of Ministers of Foreign Affairs, policy integration and border development includes respect for the cultural identity of border populations in order to strengthen the understanding and cooperation between them. In particular, it pays special attention to national action plans in border areas in order to exchange experiences and define a common policy on the matter.67 There is another dimension that could be called the ‘human dimension’ of subregional integration agreements, which involves the creation of a regulatory and institutional framework for the protection of human rights and fundamental freedoms. As an integral part of this human dimension, the adoption of provisions enshrining human rights and mechanisms to articulate their protection—in other words, at least the germ of a future system of protection of fundamental rights—should be noted. It is worth noting that, since the mid-1990s, subregional integration agreements have adopted legal instruments of different types in relation to the protection of human rights. First, in the initial stage, there were references to human rights in the presidential declarations, following, of course, a quite programmatic wording. At a later stage, there have been other various international agreements that foster and regulate human rights, called ‘charters’ or ‘declarations’ in some cases. There have also been attempts to consolidate human rights standards.68 Examples of this trend are the Social and Labour Declaration and the Charter of Buenos Aires within Mercosur, the Charter of Civil Society adopted under the framework of CARICOM, the Andean Charter of Human Rights and the SICA Treaty of Social Integration. The inclusion of human rights also operates in other areas of activity of integration organisations, for instance, in the articulation of a potential common foreign policy, as in the case of the Andean Community, where the protection and promotion of human rights are included within the so-called Common

65  By way of illustration, see the various agreements signed between Argentina and Brazil, including those adopted even in the s. XIX to the most immediate antecedent of Mercosur, the Program Integration and Economic Cooperation (PICAB), signed by Presidents Alfonsín and Sarney in 1986. 66  Franco and Di Filippo (n 13). 67 Andean Council of Ministers of Foreign Affairs, Decisión 459, ‘Política Comunitaria para la Integración y el Desarrollo Fronterizo’ (original text in Spanish, author’s translation). See also Decisión 501, ‘Zonas de Integración Fronteriza en la Comunidad Andina’. Andean Community, Official Documents. Available at: www.sice.oas.org/trade/junac/decisiones/ dec459s.asp. 68  Noto (n 4).

Trade and Development in the Americas 33 Foreign Policy.69 Thus, the new multidimensional aspect of regional integration offers a favourable environment for the establishment of a framework for human rights and protection mechanism, as it affects the adoption of standards that will be analysed throughout this book. A.  Human Rights as ‘Non-trade’ Issues For a long time, integration was reduced to its economic significance, although in the new integration wave, other dimensions of integration have been developed, capturing the importance and necessity of a political design for the collective project. What underlies this is the recognition of integration as a political process with an economic, social and cultural content, underpinning a political integration that is fundamental to consolidate the gains and economic, social and cultural goals.70 Indeed, there is a political dimension that conditions and frames the integration process.71 Here, the concept of integration as a political process is crucial. The political dimension is inserted and based on a democratic framework and the concept of the rule of law, leading to a strengthening of the protection of human rights. In this regard, as G Rosenthal emphasises, political support for the idea of integration in Latin America has been favoured by the process of greater democratic openness in the region.72 This deeper integration concept is evidenced by the continuity of subregional integration, beyond the adverse environment and the internal difficulties faced by the countries involved in the early 1980s. What then prevailed was the awareness that regional integration is primarily a long-term process that cannot be thwarted by economic problems.73 Moreover, after the crisis, member states reiterated their commitment to programmes of expansion and the deepening of regional integration. The political dimension of the trade agreements involves certain stages and aims for member states in order to constitute a genuine political union,

69 Decisión 458, ‘Lineamientos de la Política Exterior Común (PEC)’. This Decision e­ stablished the ‘Guidelines for the Common Foreign Policy (CFP)’, comprising the principles, objectives, criteria, mechanisms, modalities and action areas. Andean Community, Official Documents. Available at: www.sice.oas.org/trade/junac/decisiones/dec458s.asp. 70  Palma (n 24) 153. 71  IM Laredo, ‘Trasfondo político de la integración’ (1995) I(1) Aportes para la Integración Latinoamericana 100. 72  G Rosenthal, ‘Repensando la integración’ (1989) 15 Pensamiento Iberoamericano 13. 73 SELA, Informe sobre el Proceso de Integración Regional, 2009–2010, SP/CL/ XXXVI. O/Di Nº 10 (Caracas, SELA-Secretaría Permanente, 2010) 24,151, available at: www.felixpena.com.ar/contenido/negociaciones/anexos/2010-11-informe-proceso_de_integracion_regional_2009-2010.pdf. See also CEPAL/ECLAC, Panorama de la inserción inter­ nacional de América latina y el Caribe 2014 (Santiago, United Nations, 2014). Available at: http://repositorio.cepal.org/bitstream/handle/11362/37195/S1420693_es.pdf?sequence=1.

34  Free Trade and Protection of Human Rights in the Americas among which the following stand out: the ability to form a political will in order to carry out integration; the power to make adequate integration policies; and the ability to implement them effectively, so that integration can effectively progress.74 What is also relevant here is the incorporation into the political dimension of sub-state entities, such as regions, provinces and municipalities. This political cooperation has also helped to strengthen the process of democratisation through (as has been emphasised) the mechanisms that operate within that context having developed courts and other institutions of regional integration agreements.75 In this regard, the participation of member states in other regional forums that have mechanisms for consultation and coordination, such as the Organization of American States (OAS), has also promoted the concept of a ‘political dimension’ which takes into account the elements necessary for setting regulations beyond economic matters. Among other regional actors that have exercised influence in this area, there is the Rio Group, which was a main driver for political dialogue in Latin America in the 1980s and 1990s. In its capacity as a ‘Permanent Mechanism of Political Consultation and Coordination’, the Group has contributed to the political momentum for regional integration mainly in the 1980s through declarations such as the ‘Commitment of Acapulco for Peace, Development and Democracy’ of 29 November 1987.76 After 1990, the action of the Group was oriented towards the consolidation of the process of regional economic integration, with a special focus on other aspects such as governance and social development.77 It is undeniable that with its character of a ‘political forum’ with clear influence in Latin America and the Caribbean, the Rio Group has, since its inception, exercised significant

74  Y Ror, ‘La conducción del Estado hacia la integración’ (1993) Integración Latinoameri­ cana 3–9. 75 W Hummer, ‘El “Diálogo Político” y el Compromiso Democrático en las zonas de ­integración económica en América Latina’ in Z Drnas and E Rey Caro (eds), Libro Homenaje al Profesor Ernesto Rey Caro (Córdoba, Lerner, 2002) 1272. 76  Noto (n 4). See also Hummer (n 75) 1274. It is worth mentioning that the so-called ‘Rio Group’ emerged on 18 December 1986 from the union of the ‘Contadora Group’ (established in 1983) and the ‘Lima Support Group’ (created in 1985). As Hummer rightly points out, the group has no international legal personality; however, the work it has carried out and the influence it has exercised in the Latin American area mainly during the return to democracy is undeniable. As Noto stresses, the composition of the Rio Group has changed over time: the original eight countries (Argentina, Brazil, Colombia, Mexico, Panama, Peru, Uruguay and Venezuela) added first Ecuador in October 1990 and later on Bolivia and Paraguay. At the Fourth Meeting in Caracas (1990), the presidents decided to incorporate, in rotation, a Central American President and Chairman of the Caribbean Community, representing, respectively, Central American and Caribbean countries. At present, the Group also comprises Costa Rica, Cuba, the Dominican Republic, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica, Nicaragua and Suriname. 77  A Frohmann, ‘Sentando las bases políticas para la integración económica: el Grupo de Río y la concertación regional’ in Franco and Di Filippo (n 13) 139.

Trade and Development in the Americas 35 power in the treatment of political and social issues that affect the region, promoting the political dimension of regional integration. In addition, the regional political context favoured this reconsideration of the political dimension of the regional integration, promoting the idea that democracy as the regime without which integration is impossible.78 In the same vein, another initiative has been the South American Summit (predecessor of UNASUR), held between 12 member states of the subcontinent that, as has been rightly noted, plays a significant role on behalf of the entire Latin American and Caribbean region.79 In the summits held at the beginning of the 2000s, a major political commitment to strengthening democracy transpired. Specifically, the Brasilia Communiqué issued at the Summit held in September 2000 stated that ‘South America begins the new century strengthened by the progressive consolidation of its democratic institutions and the commitment to the protection of human rights’ and that support for integration is reaffirmed as a foreign policy goal, which is incorporated into the national identity of the countries of the region itself.80 What emerge from these meetings are lines of action in the political field and certain principles to which states seek to conform. In this regard, it is worth noting the principle of respect for representative democracy and its institutions as an essential condition to the strengthening of regional integration processes, safeguarding human rights through the adoption of necessary measures to combat violations of human rights; promoting social justice through the elimination of exclusion by ensuring the effective enjoyment of the rights to health, education, housing and employment; and the participation of social, economic and political actors in the integration process.81 In sum, one of the main objectives of the integration process as a whole is the consolidation of democracy and the achievement of political cohesion between member states.82 This can be observed in more detail in each of the integration processes. First of all, the revised treaty of CARICOM states in Article 6, as one of the objectives of this integration process, in addition to the classic economic integration advocated by member states through the establishment of a regime common market, purposes of essentially political nature, such

78 

Tirado Mejía (n 51) 14. Noto (n 4). 80 Brasilia Communiqué, 1 September 2000 (original text in Spanish, author’s translation). Andean Community, Official Documents. Available at: www.comunidadandina.org/­ documentos/dec_int/di1-9-00.htm. See also E Gudynas, ‘Las cumbres y la búsqueda de un nuevo marco de integración regional’ (2006) 168 Revista del Sur 3. 81  In any event, the possibility of becoming a true centre that promotes positive integration depends heavily on the continuity of the integration process. 82 F Peña, ‘New Approaches to Economic Integration in the Southern Cone’ (1995) ­Washington Quarterly 115 37. 79 

36  Free Trade and Protection of Human Rights in the Americas as the coordination of the foreign policies of member states and functional cooperation.83 As regards the Andean Community, as has been rightly underlined, ‘Andean integration is conceived not as a purely commercial phenomenon but as a project that should take on other connotations that are not only economic but also social, cultural and, above all, political’.84 Indeed, the Trujillo Protocol added more political connotations to the process, as the economic integration became guided by a strategic design approved at the Meeting of Galapagos, which adapted the original approaches to new national and global policies.85 Moreover, a clear example of this is the case of Mercosur, which could be defined as the most advanced model of the new forms of integration of the 1990s. It has not only meant the gradual elimination of tariff barriers and the establishment of a common external tariff, but also a new approach to relations with neighbouring countries, in which the political dimension of cooperation is fundamental.86 Likewise, Mercosur and, in particular, its Declaration on Democratic Commitment, have extended the discussion between the member states so that it goes beyond purely economic approaches.87 The truth is that the treaty has clearly established its political goal that inspires integration, stating that through its creation, the member states ‘reaffirmed their political will to leave established the foundation for a closer union between their people’.88 As a result, within the Mercosur institutional structure, there is the so-called ‘Mechanism of Political Consultation and Coordination’, which was introduced in 1996 by a presidential declaration. More specifically, Mercosur’s political dimension is manifested in the ‘Presidential Declaration on Political Consultation and Coordination of Mercosur member states’ adopted on 17 June 1997, in which it emphasises that political cooperation is extended to all fields that are not part of the economic and trade integration agenda.89 Arguably, then, the demands for integration as a political project bring important implications for the conformation of ‘human rights systems’

83  Article 6 of the Revised Treaty of Chaguaramas foresees as objectives the enhanced coordination of member states’ foreign and economic policies and also: ‘(i) enhanced functional cooperation, including more efficient operation of common services and activities for the benefit of its peoples; (ii) accelerated promotion of greater understanding among its peoples and the advancement of their social, cultural and technological development; (iii) intensified cooperation in areas such as health, education, transportation, telecommunications’. CARICOM, Official Documents. 84  Tirado Mejía (n 51) 31, author’s translation. 85  ibid, 32. 86  Frohmann (n 77) 147. 87  Palma (n 24) 151. 88  Mercosur, Treaty of Asuncion, Preamble. 89 Mercosur, Official Documents.

Trade and Development in the Americas 37 in the subregional schemes, among which the following aspects could be identified: the security dimension; the improvement of the institutional ­ structure; the drawing-up of a policy agenda in each process; and the need to involve civil society in the decision-making process.90 From an analysis of these elements, we can draw out certain core features of regional economic integration as it is happening at the moment. First, the idea of a political conception of integration among Latin ­American and Caribbean states has led to the consolidation of an area of security not only in the traditional military conception of the term, but also in a human and democratic connotation.91 In the political dimension, this new conception of security generates a framework for the comprehensive protection of democracy, with the consequent political, legal and institutional aspects.92 In other words, it has reaffirmed the will of the states to create an area of​ ​security and stability based on the creation and development of the integration processes.93 This new conception of security is linked to the objective of seeking peace which is contained in the framework of the integration process, as a consolidation of the current circumstances of peace. Even though there may be internal conflicts, the dimension of security has nonetheless expanded to include a broader content, which has clear implications for the various integration initiatives. From another perspective, the political conception of the integration process is leading to this process being considered as a means of pacification, ie, ‘integration as a way of pacifying’, which takes place in the declarations of the territories formed by the member states as ‘zones of peace’. In this case, it must be emphasised how peace has been the primary objective to relaunch the Central American integration, an area, as is well known, that was subject to conflicts in the 1980s, so that in this case, peace is at the heart of Central American integration.94 The emphasis on the political dimension has also reinforced the idea of peacekeeping as an essential element for the continuation of the integration process. As has been stated, peace has been maintained, although there are internal conflicts that threaten to overtake national borders and also hinder 90  SELA, ‘La participación empresarial en la integración de América Latina’ (2002) 66 Capí­ tulos del SELA 126. 91  E Leal Sánchez, ‘Problemas limítrofes e integración Centroamericana’ (2000) 24 Cultura de Paz 39. 92  See MB Olmos Giupponi, ‘Seguridad Democratica y Derechos Humanos’, paper presented at the Seminar in Latin American Integration, UNED and University of Costa Rica (2010), available at: www.derechocomunitario.ucr.ac.cr/index.php?option=com_content&view= article&id=123%3Aseguridad-democratica-derechos-humanos-olmos-giupponi&catid=28% 3A1&Itemid=29. 93  Díaz Barrado (n 11) 41. 94  CM Castillo, Integración económica de Centroamérica en la siguiente etapa: problemas y oportunidades (Buenos Aires, BID-INTAL, 1986).

38  Free Trade and Protection of Human Rights in the Americas the capacity of national authorities to grant first priority to the integration processes.95 In contrast to this de facto scenario, there has been a clear intention on the part of the different states to assert that the entire Latin American and Caribbean region has become a ‘zone of peace’.96 Second, the implications of the political conception are also seen in the institutional dimension of the process. The institutions most related to the political dimension are surely the parliaments, such as the Andean Parliament and the Central American Parliament.97 As such, these bodies are political bodies whose creation involved an equal representation from participating states elected through direct vote by the citizens thereof. These parliaments have been formed with the aim of controlling the evolution of the integration process and promoting democracy, human rights and participation of citizens in the integration process. They have, to this end, been endowed with proactive functions to set standards and with powers to make recommendations to other organs of the process in political, economic, social and cultural areas, and also contribute to the harmonisation of the laws of the respective member states.98 Of particular relevance to the consolidation of the political dimension are the subregional parliamentary institutions, because they embody the democratic principle within the processes. In the political dimension, these institutions play an important role in different areas such as, in particular, 95 SELA, La integración latinoamericana y caribeña ante los nuevos desafíos de la actual situación internacional SP/CL/XXVIII.O/Di nº 1-02 (Caracas, SELA, 2002). 96  In the same vein, it is worth referring to the Declaration on the South American Zone of Peace adopted by the Second Meeting of Presidents of South America and the constant appeals of each of the agreements on peace and democracy within them. Guayaquil, 27 July 2002, Andean Community, Official Documents. Available at: www.comunidadandina.org/­ documentos/dec_int/CG_anexo2.htm. 97  It should be borne in mind that the Andean Parliament was created by the Treaty signed in La Paz on 25 October 1979 and has its permanent headquarters located in the city of Bogota. In turn, the Central American Parliament was established through the Esquipulas I and II Agreements and its status was established by the Treaty of PARLACEN and other political bodies in October 1987, which entered into force on 28 October 1991, when its first plenary assembly was officially celebrated in Guatemala City, where it has established its headquarters. In Mercosur, the Joint Parliamentary Commission is made ​​up of representatives of the member states’ national legislatures, and the allocated functions are related to the incorporation of Mercosur law into the respective member states’ legislation. The Joint Parliamentary Commission was already covered in the Treaty of Asuncion in the process of institutionalisation addressed through the Protocol of Ouro Preto in 1994 as a body of Mercosur was ratified. The Mercosur Joint Parliamentary Commission was also endowed with an advisory role on the progress of the integration process and with the power to set up subcommittees on various topics of integration. The Mercosur Parliament was established on 6 December 2006 in order to replace the Mercosur Joint Parliamentary Commission. The first session was held on 7 May 2007 in Montevideo, where it has established its headquarters. See www.parlamentodelmercosur. org/innovaportal/v/149/parlasur/historia/html. 98  See R Barros Charlín, ‘La Integración en América Latina: Nuevas Circunstancias, Nueva Evolución’ in CEFIR, Capacidades legales-institucionales para la integración (Montevideo, CEFIR, 1993) 48. Available at: http://cefir.org.uy/wp-content/uploads/downloads/2012/05/ DT_04.pdf.

Trade and Development in the Americas 39 the legislative arena, where there is the potential to exercise political control of the process and institutions as well as cooperation in foreign policy. However, it must be emphasised that playing this dynamic role in the integration process requires the parliaments to achieve and develop a consistent and strong political integration in order to overcome the obstacles that arise against integration: the harmonisation of national legislation; the identification of general and sectoral public policies; knowledge and dissemination of the regional integration process in national societies.99 Against this backdrop, it is worth referring to inter-parliamentary relations generated between the different regional integration agreements that contribute to strengthening the process of democratisation and the political sustainability of the various processes. In this vein, the close ties between the Central American Parliament, the Andean Parliament, the Mercosur Parliament (formerly the Joint Parliamentary Committee) and the Parliamentary Assembly of the Caribbean should be highlighted.100 Third, another important element in the analysis of the political conception of integration is the development of a policy agenda for each subagreement. Integration conceived as a political project also seeks to create a new subregional identity, which transcends the national sphere, strengthening institutions, which involves necessary democratic values including ​​ the respect of human rights and fundamental freedoms. The existence of a political agenda, in the sense of having a definition of the issues of greatest interest in the integration agreements, among which is the protection of human rights, facilitates both normative and institutional progress in this area. The main characteristic of this agenda is that it is transnational and cross-linked, overcoming the old formulas that separate economic development from the political and social aspects, and the national from the international.101 A central element of the political agenda is the adoption of common policies, including social policies. The strengthening of the political concept of integration is core in order to adopt common policies, based on the existence of common problems and common interests, as well as common ­objectives.102 This creates a flexible integration process with different speeds, which allows for a more equitable integration of member states. As has been underlined, economic and social integration in Latin America and the C ­ aribbean will not be achieved spontaneously, but must be the result

99  Noto (n 4). See also JM Vacchino, ‘¿Son democráticos los procesos de integración en América Latina?’ (2002) 66 Capítulos del SELA 151. 100  W Hummer, ‘Competencias y responsabilidades de los parlamentarios comunitarios y sus relaciones interinstitucionales’ in JM Vacchino (ed), La dimensión parlamentaria de los procesos de integración regional, vol II (Buenos Aires, Depalma, 1990) 69. 101  Lombano (n 7). 102  Laredo (n 71).

40  Free Trade and Protection of Human Rights in the Americas of political will, solidarity among of member states and the democratic ­participation of their populations.103 Finally, the participation of civil society has been included as a crucial ­element of this process, in the form of the participation of civil society sectors in the decision-making, wherein lies also its democratic legitimacy. While there has been progress in relation to the participation of civil society there is a growing oncern to ensure more channels of participation.104 There is still some way to go, especially to guarantee better coordination and cooperation between the consultative forums and decision-making bodies of the integration schemes.105 In the field of human rights, as occurred with other economic and social forums, a voice has been given to various non-governmental organisations working on the protection of human rights as a significant tool in shaping a future system for the promotion and protection of human rights.106 In this regard, SICA exhibits a clear example, since representatives of the social, cultural and economic sectors, which decide the regulations of the Board, are integrated into the Consultative Council.107 The same is true of the Andean Community, where the inclusion of members of indigenous communities in the decision-making process is ­ already provided through the Working Group on the Rights of Indigenous Peoples.108 In particular, the Agreement establishing the Andean Parliament refers in several parts to the link between democracy and the ­participation of citizens of the member states. As regards Mercosur, representation is more limited to the economic sectors involved in the Economic and Social Consultative Forum.109 ­ In ­relation to CARICOM, where the issue has not been included in the ­founding treaties, the formal incorporation of civil society remains one of the main challenges.110 103 

Noto (n 4). Olmos Giupponi and B Barreiro Carril, Participación de la sociedad civil en ­Iberoamérica: Análisis de casos (Madrid, Dykinson, 2011) 43–74. 105 ibid. 106 In the case of Central American integration, in which there are various networks of non-governmental organisations operating on a regional level. 107  The members thereof belong to the academic sector, cooperatives, indigenous peoples, rural communities (peasants) and afro-descendants. 108  In this context, the Council adopted Decision 524 to promote the active participation of indigenous peoples within the Andean Integration System in matters relating to subregional integration in economic, social, cultural and political areas. 109  A Padrón, ‘Foro consultivo económico-social del Mercosur’ in CLAEH/CEFIR/ALOP, Participación de la sociedad civil en los procesos de integración (Montevideo, CEFIR, 1998) 245–54. See also M von Bülow, Building Transnational Networks: Civil Society and the ­Politics of Trade in the Americas (New York, Cambridge University Press, 2010) 49. 110 A civil society conference was convened on 2 and 3 July 2002 in Georgetown, Guyana with the Heads of Government of the Community. See ‘Forward Together Consultation. Strengthening the Involvement of Civil Society in the Caribbean Community’, adopted at the Regional Conference held in July 2002 in Guyana. Available at: http://scm.oas.org/ pdfs/2002/cp09365.pdf. 104 MB

Trade and Development in the Americas 41 This analysis allows us to observe that the participation of civil society has been addressed recently in subregional areas, highlighting the need to channel the participation of different sectors of society. In this vein, it should be noted that the social dimension of integration processes is of particular relevance in the context of issues concerning human rights. The arguments outlined above provide a good account of the importance of strengthening political integration as a way of incorporating the question of respect and defence of human rights, especially in terms of the implementation of common policies. Although there are indications, as shown, at this stage of the integration, the relevant issue in the future would be to achieve further progress along the same path. This, of course, can overcome the restrictions posed by the purely economic and reductionist conception of integration. In recent years, in terms of the organisations and agencies at the regional level, one can observe a leading role played by the Heads of State, which has given great impetus and political and social prominence to the subregional integration process.111 This trend brings with it two significant but different consequences, ranging in different directions. The increased participation of heads of state means, first, greater political commitment and, of course, an advancement of the subregional integration process, but on the other hand, there has not been a greater institutional impact, as it has strengthened the inter-governmental process. In order to progress in deepening the level of integration, there must be a delegation of sovereignty, although this must be carried out in a slow and gradual way. In turn, the political dimension of integration, emphasising the political union of states, contributes significantly to the protection of human rights. In sum, the deepening of political commitment to regional and subregional integration constitutes an imperative at the present stage in the evolution of the process.112 B. Inter-systemic Relations in the Field of Human Rights within the Framework of Subregional Free Trade Agreements The recognition and protection of fundamental rights within the EU has undergone extensive and profound changes since it was acknowledged that the protection of human rights should necessarily be part of European law, once there is evidence that violations of these rights could be traced back to

111 

Noto (n 4). Rocha Valencia, ‘La dimensión política de los procesos de integración regional y ­subregional’ (2002) XV (20) Revista de Ciencias Sociales 1. Available at: www.cedep.ifch. ufrgs.br/Textos_Elet/pdf/arquivo_2.pdf. 112 A

42  Free Trade and Protection of Human Rights in the Americas the application of norms of community law. This evolution has led to the establishment of a separate, distinctive and unique EU system of protection of fundamental rights.113 In essence, the initial economic dimension of the European integration process, originally materialised in the creation of the European Communities, resulted in the silence of the founding treaties on the issue of human rights. However, the political deepening of the process and, above all, the gradual expansion of the areas in which the EU exercises its competence, led from the 1960s onwards to the development of the protection of human rights within the EU.114 This system relies on the protection of fundamental rights by the Court of Justice of the European Union. This is a process that has undergone a major jurisprudential development as well as an important regulatory evolution, the most significant expression of which was the adoption in 2000 of the Charter of Fundamental Rights of the European Union.115 The Lisbon Treaty incorporated the Charter into the founding treaties, providing for the accession of the EU to the Rome Convention. As Cunha Rodriguez underlines, the Charter of Fundamental Rights of the European Union ‘crowns that development and represents the end of functionalism at the exclusive service of economic freedoms … and the assertion of new generations of rights’.116 The EU system coexists with the other European system for the protection of human rights, which is established in the framework of the Council of Europe by the European Convention on the Protection of Human Rights and Fundamental Freedoms, adopted in Rome on 4 November 1950.117 The issue that arises is that of the systematic inter-relationships between the two regional courts that have led to both cooperation and friction.118 In other words, the simultaneous existence of two systems for the protection of 113  See S Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 11(4) Human Rights Law Review 645. 114  For an in-depth analysis of the issue, see J Callewaert, The Accession of the European Union to the European Convention on Human Rights (Strasbourg, Council of Europe, 2014). 115  For a general overview, see F Ferraro and J Carmona, ‘Fundamental Rights in the European Union. The Role of the Charter after the Lisbon Treaty’ (Brussels, European Union, 2015). Available at: www.europarl.europa.eu/RegData/etudes/IDAN/2015/554168/EPRS_ IDA(2015)554168_EN.pdf. Among other scholarly publications, see J Dutheil de la Rochere, ‘La Convention sur la charte des droits fondamentaux et le processus de construction européenne’ (2000) 437 Revue du marché commun et de l’Union européenne 223; R Alonso García, ‘La Carta de los derechos fundamentales de la Unión Europea’ (2000) 209 Gaceta Juridica de la Union Europea 3; and A Vitorino, ‘La Charte de droits fondamentaux de l’Union Européenne’ (2000) 3 Revue du Droit de l’Union Europeene 499. 116 JN Cunha Rodriguez, ‘The Incorporation of Fundamental Rights in the Community Legal Order’ in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law (Oxford, Hart Publishing, 2010) 89–97. 117  A Chueca Sancho, ‘Por una Europa de los Derechos Humanos: la adhesión de la Unión Europea a la Convención de Roma’ in N Fernández Sola (ed), Union Europea y Derechos ­Fundamentales en Perspectiva Constitucional (Madrid, Dykinson, 2004) 37–58. 118 ibid.

Trade and Development in the Americas 43 fundamental rights in Europe generates some complexity as to which system is to be activated in each case, the content and effects of the rights recognised in each of them, and the possible collisions that may arise in this regard. The development and progressive consolidation of any system of recognition and protection of human rights in each of the agreements that are discussed here would raise the question of inter-systemic relationships similar to those that developed in Europe, because the ‘systems’ of protection of human rights in the subregional integration coexist with the inter-American system of human rights established by the American Convention on Human Rights (also known as the Pact of San Jose).119 In the future, it would be possible to think in terms of similar relationships to those established between the different systems in Europe in the event that more sophisticated systems are set out. However, this will depend heavily on the way in which subregional integration agreements will evolve in the Americas. In its essential characteristics, each of the subregional integration processes has developed ‘systems’ of human rights. So far, there have been some attempts to analyse the relationships between the OAS Inter-American human rights system and regional integration systems. Frank Garcia (referring to NAFTA, Mercosur and the unsuccessful FTAA) has proposed two models for the relationship between integration systems and human rights protection: the leverage model and the incorporation model. According to Garcia, the ‘leverage model’ consists in ‘making effective participation in extrinsic human rights systems a legal or political condition of integration system membership’.120 In turn, the ‘incorporation model’ is more similar to the patterns seen in Europe and is reflected in ‘the juridical interpenetration of the two systems at many levels’.121

119 The American Convention was signed on 22 November 1969 and entered into force on 18 July 1978. There is abundant literature on the inter-American human rights system. See, amongst others: JM Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, 2nd edn (Cambridge, Cambridge University Press, 2013). An essential book to understand the functioning of the Inter-American Commission is H Faúndez Ledesma, The Inter-American System for the Protection of Human Rights: Institutional and Procedural Aspects (San Jose, IIDH, 2008). See also the websites of the Inter-American Commission on Human Rights (www.cidh.org) and the Inter-American Court on Human Rights (www.corteidh.or.cr); and L Burgorgue-Larsen and A Ubeda de Torres, The Inter-American Court of Human Rights. Case Law and Commentary (Oxford, Oxford University Press, 2011). There is a vast literature specialising in the inter-American human rights system: T Buergenthal, RE Norris and D Shelton, Protecting Human Rights in the Americas, 3rd edn (Strasbourg, Kehl, NP Engel Verlag, 1995); A Cançado Trindade, ‘The Evolution of the OAS System of Human Rights Protection: An Appraisal’ (1982) German Yearbook of International Law 498; A Cançado Trindade, ‘The Inter-American Human Rights Protection System’ (1996) Recueil des Cours de l‘Academie de Droit International 221. 120  See F García, ‘Integrating Trade and Human Rights in the Americas’ (2003) Research Paper No 26, Boston College Law School, 17 November, 1–2. 121  ibid 2. The degree of such interpenetration can range from the simple recognition that trade agreements already include ‘economic’ human rights to the specific adoption of instruments protecting human rights.

44  Free Trade and Protection of Human Rights in the Americas In our analysis, we underline in particular the elements or aspects of the different agreements observed in the relevant regulations adopted in the integration agreements and their interaction with the inter-­American system, which are laying down the groundwork for more complete inter-­systematic relationships between the two systems of human rights protection. The key question lies in determining the features that characterise and define the integration schemes in the field of human rights as well as the content and effects of each of the subregional integration processes in this area. In this way, as we analyse each of them, it can be seen that there are embryonic systems in this field. Indeed, there are certain basic elements that constitute the foundation of the recognition and protection of human rights in the subregional integration processes in the Americas and that leads to interactions with the Inter-American system. In order to address this issue, different essential features should be noted. First, the integration process in Latin America and the Caribbean, in all its dimensions, does not exactly resemble the integration process that occurred in Europe, especially with regard to the development of a Community law and the establishment of mechanisms and institutions. The nature of the treaties signed indicates that there are few elements mentioned as indicators of the creation of supranational organisations and Community law.122 In Latin America, the Andean and the Central American integration processes bring together elements suitable for the development of a supranational process of integration, whereas in MECOSUR and now UNASUR, substantial legal aspects relating to the community have not been considered.123 In particular, regarding the Andean Community, the existence of an ‘Andean ­Community law’ has been overshadowed many times by the effectiveness issues. This lack of a coherent and developed community law affects the implementation of appropriate mechanisms for achieving the objectives within a framework of respect for the rights of individuals. What should be clear, in any case, is that the current legal systems do not possess all the features of a true community law. The subregional ­integration agreements are, strictly speaking, inter-governmental, not supranational processes. All these agreements have elements of a strong and intense intergovernmental cooperation, and therefore binding community rules do not emanate from them. Moreover, individuals have no (or very restricted) access to specific mechanisms to expedite the claims in cases of human rights violations.

122  See, generally, C Pizzolo, Derecho e integración regional (Buenos Aires, Ediar, 2010). See also, in particular: LI Savid Bas, ‘Derecho comunitario, consideraciones sobre los procesos de integración en América Latina’ (1993) Anuario Argentino de Derecho Internacional 262. 123  Savid Bas (n 122) 269.

Trade and Development in the Americas 45 However, controversies may arise if the application of community standards results in the violation of fundamental rights. Moreover, the establishment of a human rights system in the integration agreements analysed is not expected to be general and complete; rather, it would be through the development of legal instruments to fill this gap and the establishment of institutions, where appropriate, in charge of the protection of human rights. This development could be operated through the establishment of a specific judicial system. As occurred in the EU, the courts of these processes have in certain cases undertaken the protection of human rights. The situation of Mercosur is paradigmatic because there is no court to settle disputes arising within the integration process and instead there is only a very limited possibility of participation by individuals in the dispute settlement, establishing an arbitration procedure, which has recently been enhanced by the entry into force of the Olivos Protocol.124 As will be analysed in other sections, issues relating to human rights violations have arisen before the courts have been established in both the Andean Community and CARICOM or SICA. In short, from a normative and institutional perspective, the creation of complete ‘systems of protection of human rights’ cannot be asserted. It may be operated in the future, as it relies on the evolution of the integration process. In order to assert the progressive development and consolidation of the protection of human rights in Latin American and Caribbean integration processes, it is necessary to examine the development of instruments adopted in different fields. In addition, most of the legal instruments that have been adopted in the field of human rights in each of the integration processes are not legally binding. They are either programmes or instruments that are purely recommendatory. However, the deep meaning of these instruments in the process leading to the development and establishment of ‘systems’ of human rights must not be underestimated. However, in most cases, based on their legal nature and their content, it cannot be concluded that they establish specific obligations for member states or that they create the mechanisms or protection systems. Therefore, the relationships between the consideration of human rights in these integration schemes and the OAS system have not been sufficiently developed. At most, one can proceed to the analysis of certain comparisons between rights recognised in both frameworks. Indeed, as regards ­CARICOM, the Charter of Civil Society has little to do with the content and scope of the human rights instruments adopted in the inter-American system. In addition, the issue of human rights within Mercosur and SICA is linked to social rights and is considered within the framework of the social

124  A Dreyzin de Klor, ‘El Reglamento del Protocolo de Olivos. Algunas anotaciones’ (2005) II(3) Revista Latinoamericana de Derecho 69.

46  Free Trade and Protection of Human Rights in the Americas aspects of integration. Only the Andean Community has developed a comprehensive and complete instrument on human rights, but this goes beyond the scope of the Pact of San José. What should be noted is that the Charter for the Promotion and Protection of Human Rights in the Andean Community contains in its preamble, a specific mention of the Pact of San Jose, but at the same time, it makes a general reference to many other universal and regional human rights instruments.125 In short, the evolution that has been taking place in the field of human rights in the integration schemes that are analysed here has followed different paths from those established in the inter-American system in this area. At the moment, there are specific provisions on the exercise of jurisdiction by judiciary bodies in the subregional integration agreements, as will be examined in the next section. Only when such schemes evolve in terms of rules and case law in this area will it be possible to establish the appropriate inter-systemic relationships. VI.  PRINCIPLES GOVERNING THE RECOGNITION AND PROTECTION OF HUMAN RIGHTS IN THE INTEGRATION AGREEMENTS

In the so-called ‘deep integration’, which refers to subregional integration agreements in Latin America and the Caribbean, different principles have been developed. From a theoretical perspective, despite the specific features of each subregional agreement, one can indicate common features of all of them, thus identifying certain principles that inspire and guide the integration process. 125  On the relations between Andean law and the inter-American human rights system, see the reference in the fifth paragraph of the preamble indicating that the Andean States are ‘committed to respect and implement the Charter of the United Nations, the Charter of the Organization of American States, the American Convention on Human Rights—Pact of San José, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Additional Protocol to the American Convention on Human Rights on Economic, Social and Cultural Rights Protocol of San Salvador Protocol— American Democratic Charter and other international human rights instruments to which the Andean nations are State Parties’. Commitments are reiterated and are formulated in a generic way. Thus, art 22 states that ‘the commitment of the member states of the Andean Community to implement the provisions of the International Covenant on Civil and Political Rights and the American Convention on Human Rights concerning the guarantees of human rights, is renewed during periods lawfully declared ‘states of emergency due to exceptional circumstances’. In turn, art 26 stresses the importance of the provisions of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) for the realisation of human rights in the Andean region and reiterate their commitment to implement the provisions of the Protocol in conjunction with other international instruments in this field and the provisions of their national legislation. Finally, art 83 highlights the importance of the recommendations of the Inter-American Commission on Human Rights, while the ‘commitment to abide by the judgments and decisions of the Inter-American Court of Human Rights’ is restated.

Principles Governing the Recognition and Protection 47 There are principles that can be identified by analysing the legal instruments adopted and also the trends in the progress of the agreements in general, in the context of the legal evolution observed in the international community. The function of these principles consists, in particular, in ­guiding the recognition of rights and the creation of mechanisms for the protection of human rights, and, in turn, the institutional structure of the processes would be based upon these principles. At the same time, these principles could also serve to fill regulatory gaps arising from the initial silence of the integration agreements on human rights issues.126 From this perspective, three different core principles can be identified. Two of them have general and politico-legal significance and are conceived as fundamental for the design and development of integration processes. The other principle has a more technical legal nature that provides the necessary elements for the articulation of the regulatory integration system. These principles are: the democratic principle as an essential point of reference for the protection of human rights;127 the principle of social development as a qualitative component of integration and crucial for the respect and guarantee of human rights;128 and, finally, the principle of autonomy and supremacy of the law of integration in the subregional integration processes that enable and ensure both the recognition and guaranteeing of human rights.129 The first principle has been sufficiently addressed not only in terms of ­subregional integration, as discussed in this book, but also at the regional

126 

Vacchino (n 99). acceptance of democracy as a principle and condition of existence of the process is also essential for the progress of regional integration, as is having an appropriate legal and institutional framework. See Noto (n 4). 128  There are various dimensions of the right to development; in this book, we focus on its manifestations in the field of social rights and the recognition of social content. It is worth noting that international law scholars have expressed different opinions on this. There are those who believe that the right to development is simply a summary or juxtaposition of internationally recognised human rights. Other scholars consider that the right to development is a synthesis of various human rights, but it is a synthesis that is dynamic and is expanding those rights, a synthesis that offers new dimensions and new perspectives. Finally, yet other scholars argue that the right to development is an independent and autonomous right with its peculiar and unique content. See F Gómez Isa, El Derecho al desarrollo como derecho humano en el ámbito jurídico internacional (Bilbao, Universidad de Deusto, 1999) 168. 129  This principle of ‘community law’ also has a clear impact on the recognition and protection of human rights in the Americas. For instance, in the Andean Community, the existence of supranational Andean legal order relies on the existence of supranational bodies such as the General Secretary and the Tribunal Justice of the Cartagena Agreement. On Andean Community law, see CA Espíndola Scarpetta and DL Herrera Rodríguez, ‘El Sistema Jurídico Andino: ¿Utopía o realidad jurídica?’ (2008) 8(1) Criterio Jurídico 35; and KJ Alter and LR Helfer, ‘Legal Integration in the Andes: Law-Making by the Andean Tribunal of Justice’ (2011) 17(5) European Law Journal 701. 127  The

48  Free Trade and Protection of Human Rights in the Americas level and by the international community.130 It is based on the assertion that the democratic principle is an essential element for the development of regional integration. The close connection between democracy and the recognition and protection of human rights has certainly enabled the ­introduction of this subject in international instruments and, in particular, the instruments that have emanated from each of the integration processes, to the point that certain processes are based, above all, on the affirmation of democracy as an essential element of the implementation and development of the integration, as was intended, for example, in the case of the creation of the FTAA. Moreover, the second principle is linked to the need to articulate a new concept of integrated development that includes the promotion and protection of human rights in the Latin American and Caribbean integration processes.131 In this case, this principle determines that the integration processes expand their objectives beyond the purely economic to address other areas of regulation related to the protection of human rights to all citizens of the member states and, in particular, issues relating to the social dimension of integration. In addition to these principles, there is the principle of autonomy and primacy of the law of integration recognised, but still latent, in the Latin American and Caribbean integration processes.132 Surely, the legal systems and standards articulated by the founding treaties and secondary legislation are still incomplete. But arguably there is a trend towards the achievement of a more advanced stage of integration from a legal viewpoint that must consolidate a system of protection of human rights.133 From a legal perspective, the three principles referred to above provide the key elements that define and articulate the provisions on human rights and also facilitate the evolution of possible systems of protection of human rights.134

130 There is, at least, a tendency to regard democracy as a principle of the new international order. On democracy and international law, see, among others: R Burchill, Democracy and International Law (Aldershot, Ashgate, 2006); J Crawford, ‘Democracy and International Law’ (1993) 64 British Yearbook of International Law 113; FJ Roldán Barbero, Democracia y Derecho internacional (Madrid, Civitas, 1994); S Wheatley, The Democratic Legitimacy of International Law (Oxford, Hart Publishing, 2010). 131  Noto (n 4). 132  A Mangas Martin and D Liñán Nogueras, Instituciones y Derecho de la Union Europea, 6th edn (Madrid, Tecnos, 2010) 387. 133  The development of institutions and the level of integration are linked, since a successful regional integration process must be accompanied by institutional development that guarantees transparency and predictability. See Noto (n 4). 134  The adoption of instruments concerning the protection of fundamental rights constitutes a relevant step. The most significant advances in this field have occurred in relation to the protection of social rights to the extent that the work on human rights has been shaped by the progress attained in the social dimension of these integration processes.

Principles Governing the Recognition and Protection 49 A.  The Democratic Principle in the Integration Processes In the relationship between democracy and integration processes, democracy has been included as a principle and a condition of existence of the integration process.135 At present in Latin America and the Caribbean, it would be very difficult to conceive of the development of integration outside the affirmation of democracy as a guiding principle which is, basically, projected onto all of the sectors in which it appears.136 Although in the past, as a matter of fact, economic integration took place in the absence of the establishment of democratic regimes in Latin A ­ merican and Caribbean states, there has been a significant shift in this regard.137 Surely, the current trend in all integration agreements in the Americas is to ensure the link between democracy and integration, which translates into the adoption of democratic clauses that assert the principle of democracy as a structural pillar of the integration process.138 In other words, the lack of a democratic regime would result in suspension or even expulsion from the bloc. Since the beginning, Mercosur member states have adopted a clear position in this regard when in the joint statement issued at the seventeenth ­Mercosur Summit, held in Montevideo on 8 December 1999, they asserted that ‘the political significance’ of the Protocol of Ushuaia on Democratic Commitment in Mercosur, Bolivia and Chile, signed in Ushuaia, Argentina on 24 July 1998, which expresses the full validity of democratic institutions as an essential condition for the development of the integration p ­ rocess as a guarantee of peace, stability and development in the region.139 In the Andean Community, the member states did likewise on the occasion of the adoption of the Protocol of Trujillo in 1996, stating that ‘democracy is the political system that best guarantees the rule of law, citizen participation, respect for human rights and safeguarding cultural diversity’ and that ‘Andean Presidents agree to continue strengthening democratic institutions, to achieve stability, peace and development of their peoples’.140 More specifically, there are several references to the development and deepening of the Andean integration process, as reflected in the Cartagena Declaration of 1999, when the

135 

Olmos Giupponi (n 1); Noto (n 4). J Rodríguez Elizondo, ‘Democracia y seguridad en América Latina’ in JM Alemany (ed), América Latina y nuevos conceptos de seguridad (Zaragoza, Centro Pignatelli, 1992) 23. 137  Aldecoa Luzárraga and Cornago Prieto (n 5). 138 The revamping of the regional integration process in the 1990s was boosted by the establishment of democratic governments and change in the economic paradigm. See SELA, La sociedad civil ante la integración regional y hemisférica (Caracas, SELA-Secretaría Permanente, 2000). Available at: www.sela.org/media/268136/t023600000666-0-la_sociedad_civil_ante_ la_integraci%C3%B3n_de_am%C3%A9rica_latina_y_el_caribe001.htm. 139 Mercosur, Official Documents. 140  Andean Community, Official Documents. 136  See

50  Free Trade and Protection of Human Rights in the Americas Andean presidents declared that they were ‘convinced that integration is an open, independent and dynamic process’ and also undertook ‘to strengthen political monitoring of Andean legislation, so that its full implementation will fully legal certainty for the operation of integration and strengthen the social agenda in order to make the fruits of Community efforts universal’. The text went on to assert the ‘conviction of the need to ensure democratic participation in the integration process’ and therefore instructed ‘the Andean Council of Foreign Ministers to submit a proposal on the participation civil society, complementary to business and labour participation’.141 In brief, in all the Latin American and Caribbean integration processes, member states have proceeded to affirm democracy as a principle and a ‘core pillar’ essential for the development and deepening of integration and, moreover, they have established a close relationship between democracy and the protection of human rights.

B. The Link between Democracy and Human Rights in the International Order: Special Consideration of the Americas At the international level, there is widespread recognition of democracy as a political value that is generally accepted, assumed and promoted by the international community.142 In Boutros-Gahli’s words, we witness ‘la p ­ osivite’ d’un veritable droit international de la democracie’.143 However, there is ­controversy as to the nature of the principle as a fundamental or structural principle of the international community. Regardless of the different meanings that can be attributed to it, democratisation has had a considerable impact on contemporary international law.144 In its contemporary conceptualisation, democracy is linked to the respect of human rights because certain

141 ibid.

142 CR Fernández Liesa, ‘Democracia y Desarrollo en el Ordenamiento Internacional’ in F Mariño Menéndez and CR Fernández Liesa (eds), Cooperación internacional y desarrollo (Madrid, Boletín Oficial del Estado, 1997) 191. 143  B Boutros- Ghali, ‘L’ONU et l’impératif de démocratisation’ in H Gros Espiell Amico­ rum Liber, vol II (Brussels, Bruylant, 1997) 117–22. 144  JA Pastor Ridruejo, ‘Le droit international à la veille du vingt et unieme siecle: norms, faits et valeurs. Cours général de droit international public’ (1998) Recueil des Cours de l‘Academie de Droit International 303. However, Pastor Ridruejo takes a cautious approach regarding the effects of the principle of democracy in the international order. This might be inferred when he states that ‘valeur des résistances démocratissation reacquainted important limits et chez certains des Etats. Bref, the democratissation ne trouve q’une possibilite’ of incomplète satisfaisante réalisation et peu dans le droit international cotemporain’ (at 305). See also JA Pastor Ridurejo, ‘Droit International des Droits del’homme et droit international humanitaire: leurs rapports a la lumiere de la Jurisprudence de la Cour internationale de Justice’ in MG Kohen, La Promotion de la Justice, des Droits de L‘homme et du Règlement des Conflicts par le Droit International, Liber Amicorum Lucius Caflisch (Leiden, Martinus Nijhoff, 2007) 401.

Principles Governing the Recognition and Protection 51 political regimes cannot be described as democratic if they preside over gross and systematic violations of human rights.145 In particular, ­democratic v­ alues are projected in the gradual strengthening of the international ­systems of the promotion and protection of human rights, and the interpretation of human rights provisions.146 At present, as one of its components, democracy comprises the recognition and respect for civil and political rights, and also, on an equal footing, for economic, social and cultural rights.147 Consequently, there are two aspects that are of interest for the purposes of this research: first, democracy constitutes a central element of the Latin American and Caribbean integration processes;148 and, second, there is a narrow and deep link between democracy and human rights within the Latin American and Caribbean integration processes.149 In order to provide an accurate analysis of the progress made in the integration agreements, it should be underlined that states have taken effective action that emphasises the constituent rights of democracy in different areas of law. In particular, as far as this research is concerned, the inter-American system of recognition and protection of human rights has expressed the clear link established between rights and democratic society as a criterion of interpretation of the rights recognised in the American Convention on Human Rights. The Inter-American Court of Human Rights has stated that ‘the concept of rights and freedoms and therefore that of their guarantees cannot be separated from the system of values and principles that inspired it. In a democratic society, the rights and freedoms inherent to the human person, the guarantees and the rule of law form a triad of each component of which is defined, complete and makes sense in terms of the other’.150 Indeed, in the Inter-American system, the OAS has established mechanisms for the defence of democracy in the continent. Thus, the OAS has adopted a doctrine reaffirming democracy and respect for human rights as

145  In the protection of human rights, the links between democracy, peace, development and human rights acquire greater significance, which can also be seen in the evolution of the legal systems created in each integration process. 146  C Escobar Hernández, ‘Unión Europea, Democracia y Derechos humanos’ in C Escobar Hernández (ed), La Unión Europea ante el siglo XXI: Los retos de Niza (Madrid, AEPDIRI, 2003) 25–50. 147  D Beetham, Democracy and Human Rights (London, Policy Press, 1999) 94. 148  Noto (n 4). 149  On the relationship between democracy and integration, see Tirado Mejía (n 51), who discusses, in depth, the impact factor of democracy in Latin America and the Caribbean. See also I Berdugo de la Torre (ed), El estado de derecho latinoamericano. Integración económica y seguridad jurídica en Iberoamérica (Salamanca, Ediciones Universidad de Salamanca, 2003); and M Marini, América Latina: integración y democracia (Caracas, Nueva Sociedad, 1993). 150  Liesa (n 142) 192.

52  Free Trade and Protection of Human Rights in the Americas building blocks of the OAS.151 During the twenty-first session of the General Assembly of the OAS held in Santiago de Chile in 1991, Resolution 1080 (also called the ‘Santiago Commitment’) on Representative Democracy was adopted.152 In the Resolution, the defence of democracy was considered as ‘an indispensable condition for the stability, peace, and development of the region’ and that ‘one of the basic purposes of the OAS is to promote and consolidate representative democracy, with due respect for the principle of non-intervention’.153 Resolution 1080 provides mechanisms for action in the case of a ‘sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization’s member states’.154 In this event, the OAS should provide a rapid response by the General Assembly and the Meeting of Ministers of Foreign Affairs, which will be responsible for deciding what action to take in accordance with the Charter of the OAS and public international law.155 In 1992, in Washington DC, the terms of Resolution 1080 were amended by the Protocol of Washington,156 which stated that a member of the OAS whose democratically constituted government has been overthrown by force may be ‘suspended from the exercise of the right to participate in the sessions of the General Assembly, the Meeting of Consultation, the Councils of the Organization and the Specialized Conferences as well as in the commissions, working groups and any other bodies established’.157 In the Declaration of Managua adopted in 1993, the scope of preventive actions to preserve democracy was broadened, providing support to Unity for Democracy (UPD), created by the OAS General Assembly in 1990 and responsible for information, research, education and institutional support in electoral processes.158

151  FJ Roldán Barbero, ‘La Carta democrática interamericana aprobada el 11 de ­noviembre de 2001 por la Asamblea General de la OEA’ (2002) 54(1) Revista Española de Derecho ­Internacional 459. 152 OAS Official Documents (emphasis added). Resolution adopted at the fifth plenary ­session, held on June 5, 1991 available at www.oas.org/juridico/english/agres1080.htm. 153 ibid. 154 ibid. 155 AB Bologna, ‘La Democracia y la Organización de Estados Americanos’ (1995) 5 Revista Relaciones Internacionales 1 available at: http://sedici.unlp.edu.ar/bitstream/handle/10915/10163/LA+DEMOCRACIA+Y+LA+ORGANIZACION+DE+ESTADOS+AMERI CANOS.pdf;jsessionid=BD9075BD7E77FEDC9E2F2544FD03019B?sequence=1. 156 Protocol of Amendments to the Charter of the Organization of American States (A-56) ‘Protocol of Washington’, available at: www.oas.org/dil/treaties_A-56_Protocol_of_­ Washington.htm 157  Protocol of Washington, art 9. 158  Declaration of Managua for the Promotion of Democracy and Development (AG/DEC 4 (XXIII-O/93)). On democracy and its relationship to human rights in the framework of the OAS, the following can be highlighted: ‘Support for the Promotion of Democracy’

Principles Governing the Recognition and Protection 53 In sum, the democratic principle enjoys structural character in the international legal order; it has been widely recognised in regional legal instruments in the Americas,159 either through the amendment of the OAS Charter or through the declarations and instruments adopted within subregional agreements.160 More importantly, these developments have a clear impact on the relations between democracy and the protection of human rights. In this sense, it is interesting to note how the Inter-American Democratic Charter, adopted on 11 September 2001, includes ‘Democracy and human rights’ as one of the main pillars, precisely as set out in the Preamble of the Charter, when it states that ‘the promotion and protection of human rights is a basic prerequisite for the existence of a democratic society’. It also recognises ‘the importance of the continuous development and strengthening of the inter-American human rights for the consolidation of democracy’, including the enforcement of economic, social and cultural rights.161 The adoption of this Charter is a significant step towards the consolidation of democracy through the definition of commitments to strengthen democratic institutions, participation and respect for human rights.162 An overview of the Charter highlights the link between democracy and integration, in different parts of the text, noting that ‘solidarity among and cooperation between American states require[s] the political organisation of those states based on the effective exercise of representative democracy, and that economic growth and social development are based on justice and equity, and democracy are interdependent and mutually reinforcing’.163 The Charter also notes that ‘the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights contain the values and principles of liberty, equality, and social justice that are intrinsic to democracy’.164 In various articles of the Charter, there are references to human rights. Thus, Article 3 states that ‘essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms’.165 In addition, Article 7 states specifically that ‘Democracy is indispensable for the effective exercise of fundamental freedoms and human rights in their universality, indivisibility and interdependence, embodied in the respective

(AG/RES 1063 (XX-0/90), ‘Declaration of Montrouis: A New Vision of the OAS’ (AG/DEC 8 (XXV-0/95). See also ‘Unit for the Promotion of Democracy’, available at: www.oas.org/EN/ PINFO/HR/DOCS/ar94-95/arsec1e.htm. 159 

See Roldán Barbero (n 151) 460, 461. Díaz Barrado (n 11) 43. 161 The Inter-American Democratic Charter, adopted in Lima on 11 September 2001, is available at: www.oas.org/charter/docs/resolution1_en_p4.htm. 162  Roldán Barbero (n 151) 464. 163  Inter-American Democratic Charter, Preamble. 164 ibid. 165  Inter-American Democratic Charter, art 3. 160 

54  Free Trade and Protection of Human Rights in the Americas constitutions of states and in inter-American and international human rights instruments’166 and highlights in particular the ‘full and effective’ exercise of workers’ rights. In sum, democracy has gradually been shaped as a principle of the ­international legal order. Regional agreements, particularly in the Americas, have strengthened this trend and consider that democracy is an essential ­element for the development of cooperation and integration among ­member states. The close nexus between democracy and human rights has been reinforced.167 C.  The Democratic Principle and Regional Integration Agreements As far as integration processes are concerned, the establishment of democratic governments led to a rapprochement between different states and the elimination of historical conflicts. In the same vein, democratisation has been an important and substantial element in the reinforcement of the new democracies in the Americas in order to strengthen their role in the international community. Moreover, democracy is considered as an essential element of the ‘new’ regional integration that is taking place in Latin America and the Caribbean.168 Indeed, the existence of a democratic regime as a prerequisite for the participation of a state in an integration scheme was explicitly recognised in the case of Mercosur and has also been present in the efforts to revitalise the Andean and Central American integration agreements.169 Within the scope of each of these subregional agreements, integration is seen as ‘a project with legitimacy and political projection’, leading to the adoption of instruments to protect human rights and seeking to expand the integration into other dimensions beyond the economic sphere, and also acting as a means to reduce the vulnerability of these agreements and ensure their future viability, combining economic integration with social development within a framework of democracy and respect for human rights.170

166 

ibid art 7. Roldán Barbero (n 130). 168  S González Cravino, ‘Globalización, integración y cohesión social. El caso Mercosur’ in Franco and Di Filippo (n 13) 53. 169  Tirado Mejía (n 51) 14. 170  It is worth briefly noting that democracy was also in the FTAA. Since the first Summit of the Americas, the protection of democracy was included as a tool for regional integration. In each of the presidential summits held since then, the preservation and strengthening of democracy and the promotion and protection of human rights were considered to be of paramount importance in developing the respective action plan. The First Summit already emphasised the importance of contributing to the strengthening of democracy in the regional forum of the OAS, highlighting the close link between democracy and human rights. In the Plan of Action of the Second Summit of the Americas, greater attention is given to human rights and ­fundamental 167 

Principles Governing the Recognition and Protection 55 The return to democracy of Latin American states that were previously under autocratic regimes led to the revamping of pre-existing integration agreements and the emergence of new agreements. The 1980s surely marked the end of several authoritarian regimes, with protests, transitions to democracy and the political and administrative modernisation of legal systems. Democracy was one of the guiding principles of integration.171 Furthermore, democratic legitimacy enabled the assumption of binding commitments and establishing closer cooperation, transferring this ‘new legitimacy’ to the mechanisms and institutions of cooperation and integration. The new political conditions produced a ‘basic consensus’ among the governments of the region on certain values and ​​ norms. This convergence, in turn, led to the intensification of contacts at various levels between states, creating a core element for more political stability and predictability, which generated commitments between states in the longer term.172 In short, one might say that the agreement between the governments involved in the various integration schemes provided greater clarity as to the goals and mechanisms of cooperation and favoured more flexible, informal and direct forms of cooperation. Overall, democracy has been the generalised form of government in Latin America and the Caribbean since the mid-1980s. It constitutes a framework for integration that assumes that the internal situation of each country is subject to variations in the orientation of its policies. Moreover, the integration processes in the region have incorporated the concept of democracy among their core values.173 In terms of the external relations of the different integration agreements, democratisation created new and better conditions for links with other regions of the world.174 The 1980s, considered to be the lost decade economically, profoundly changed the political scenario in the region in a reciprocal causality by advancing the processes of integration and horizontal cooperation, helping to preserve the democratic character of the political regimes; these, in turn, helped to reduce the likelihood of friction occurring between neighbouring countries, facilitating the resolution of disputes and therefore paving the way for deeper integration.175

freedoms, and states are encouraged to comply with international obligations and show respect for international standards and strengthening human rights systems. See M Tortora, ‘Política social y ALCA’ (1998) 53 Capítulos del SELA 97; and ALADI Secretaría General, Proceso de negociación para la conformación del ALCA (Montevideo, ALADI, 1997). 171 See Tirado Mejía (n 51), who analyses in depth the impact of democracy in Latin ­America and the Caribbean. 172  See SELA, Líneas de acción y bases de un programa regional, Cusco, Peru, 23 and 24 May 2003. 173 SELA, Tendencias de la Integración Regional y Opciones de Articulación y Convergencia, SP/XXIII CL.O/Di no 8 (Caracas, SELA, 1997). 174 IRELA, Integración y Cooperación en América Latina (1992) above n 19, 10. 175  Franco and Di Filippo (n 13) 13.

56  Free Trade and Protection of Human Rights in the Americas Thus, the affirmation of democracy has become one of the central aspects of integration in the Americas and, particularly, of subregional integration. It has ensured the continuity of processes and the deepening of the democratic basis. In addition, among the dimensions of this principle, mention should be made of the link with issues concerning human rights, on which the principle of democracy has an essential influence. Special consideration should be given to the principle of democracy within the integration process and, in particular, to the inclusion of the so-called ‘democratic clauses’ in treaties, agreements and declarations of a legal and political character adopted by the member states of the integration schemes. This demonstrates a more advanced stage of institutionalisation, because it involves the inclusion of the concepts of democracy and respect of human rights as critical elements of the integration process. The lack of compliance with these clauses may endanger their continuity or, at least, non-compliance with the democratic regime would entail a number of negative consequences for the member state in the agreement, ranging from the application of sanctions to the expulsion of the state from the agreement.176 In this regard, as has been argued, most Latin American states have also agreed on the need for the inclusion of ‘democratic clauses’ in the new instruments adopted in trade agreements with third countries. The maintenance of democracy is a condition of cooperation; thus, a hypothetical interruption of the constitutional order in a member state would immediately jeopardise democracy and would give rise to specific measures.177 The end of autocracy in several countries has highlighted the primacy of the principle of respect for the rule of law, as a corollary of the guarantee of respect for fundamental rights and freedoms. Hence, member states have decided to include democratic clauses that determine the exclusion of those states in which the continuity of the democratic regime is threatened.178

176 

Hummer (n 75). A Van Klaveren, ‘El apoyo a la democracia en América Latina. ¿Hacia un nuevo régimen internacional?’ (1993) 21 Síntesis 30. 178  Similarly, the Treaty on European Union states that an essential criterion for accession is the respect for human rights, so providing a mechanism to suspend the rights deriving from membership of the Union in the event of serious and persistent violation of rights (arts 6 and 7). ‘Article 6. 1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of 177 

Principles Governing the Recognition and Protection 57 This commitment to democracy in the subregional integration processes takes place in different ways and has been expressed in the legal instruments that have emanated from each of these processes. In a brief overview of the main instruments that have been adopted, the following can be noted: [I]n the Andean Community, as envisaged in the revised founding treaty, there is a direct reference to democracy as a guiding principle of the Andean integration process. Thus, the Cartagena Agreement clearly states that: ‘The Governments of Bolivia, Colombia, Ecuador, Peru and Venezuela … founded on the principles of equality, justice, peace, solidarity and democracy … agree … to conclude the following Agreement subregional integration.’179

Clearly, then, both the affirmation of democracy within this integration process and its close link to the respect and promotion of human rights and democracy constitute an essential and indispensable principle of the integration process.180 As regards other relevant Andean regulations, the Declaration of the Andean Presidential Council on Democracy and Integration, signed in Bogota on 7 August 1998 should be mentioned. This Declaration contains the Andean Community Commitment to Democracy, which states that ‘the Andean Community is a community of democratic nations’ and that it ‘has among its main objectives the development and consolidation of democracy and the rule of law and respect for human rights and fundamental freedoms’.181

the Union’s law. Article 7.1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply. 2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations. 3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State. 4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed. Treaty on European Union, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:12012M/TXT. 179 

Andean Community, Official Documents. Wagner Tizón, Hacia una política exterior común de la Comunidad Andina (Lima, Comunidad Andina Secretaría General, 1999). 181 ibid. 180  A

58  Free Trade and Protection of Human Rights in the Americas Similarly, the Andean presidents instructed the Andean Council of Foreign Ministers ‘to prepare … a draft Additional Protocol to the Cartagena Agreement establishing measures to be adopted by countries to the eventual interruption of the democratic order in a member country’.182 This led to the signing of the Commitment of the Andean Community for Democracy by four member states in Oporto, Portugal on 17 October 1997, being signed by the remaining state in the twelfth Meeting of the Andean Presidential Council in Lima on 9 and 10 June 2000. The Protocol provides in its first article that ‘the full validity of democratic institutions and the rule of law are essential conditions for political cooperation and the process of economic, social and cultural integration in the framework of the Cartagena Agreement and other instruments of the Andean Integration System’, recognising the close link between democracy and integration in the Andean process. In addition, the legal instruments describe the procedures to be followed in case of a breach of the democratic order in any of the member states. In the event of an interruption of the democratic order, the Andean Council of Foreign Ministers should be called with a view to taking ‘appropriate measures to facilitate the immediate re-establishment’. Such measures range from the suspension of the participation of the state in any of the CAN bodies, through the suspension of participation in international cooperation projects and access to facilities or loans by Andean financial institutions, to the suspension of rights under the Cartagena Agreement.183 This catalogue of sanctions is not exhaustive, as the Council may take other measures and actions in accordance with international law that it considers relevant. The adoption of sanctions will be made ​​through a decision taken without the

182 ibid.

183 Decisión 458 ‘Lineamientos de la Política Exterior Común’, adopted by the Andean Council of Foreign Ministers, 25 May 1999. The Andean Presidential Council has set within the principles underpinning the Foreign Policy of the Andean Community the existence of democratic order based on citizen participation and social justice. It also notes that one of the objectives of foreign policy is ‘the development and consolidation of democracy and the rule of law and the promotion and respect of human rights and fundamental freedoms’. Finally, that decision indicates, as one of the areas of action of Foreign Policy of the Andean Community, the following: ‘c) Democracy and human rights. Affirming the existence of the democratic order as a prerequisite for the consolidation of subregional integration in order to contribute to strengthening democracy and respect for human rights through dialogue and cooperation to develop internationally the Andean Community.’ In sum, as explained above, the principles, objectives and action areas of the Common Foreign Policy, approved by Decision 458 of the Andean Council of Foreign Ministers, establish the defence and promotion of human rights and the consolidation of democracy as a prerequisite for the advancement of the integration process. See S Alegrett, ‘El papel de las organizaciones regionales y multilaterales en la defensa y la promoción de la democracia’, presentation at the OAS Seminar, Washington DC, 20 ­February 2001, available at: www.comunidadandina.org/Prensa.aspx?id=1284&accion=d etalle&cat=DI&title=el-papel-de-las-organizaciones-regionales-y-multilaterales-en-la-defensay-la-promocion-de-la-democracia.

Principles Governing the Recognition and Protection 59 participation of the affected state and the measure will enter into force after its approval. In line with the Andean foreign policy, CAN also seeks to insert a democratic clause in agreements signed with third parties in accordance with the criteria established in the protocol.184 I. The close relationship between democracy and human rights within the Andean Community can be seen, significantly, in multiple instruments that have been adopted by this international organisation. First, the Manifesto of Cartagena de Indias, signed at the Presidential Summit on 25 and 26 May 1989 to mark the twentieth anniversary of the Cartagena Agreement, highlights the structural nature of the democratic principle regarding the subregional integration and its function as necessary in order to guarantee the protection of human rights. It states that ‘the democratic system is the best instrument to preserve peace, achieve development and social justice, ensuring full respect for human rights and promoting cooperation and integration’.185 In the same way, we must emphasise the value of the Andean Commitment to Peace, Security and Cooperation signed at the Galapagos Meeting on 17 and 18 December 1989, which focuses attention on the democratic system as the most suitable to ensure the ideals of peace, respect for human rights and cooperation among peoples as a way of contributing to regional security.186 Second, the cornerstone of the new Andean institutional integration, the Trujillo Protocol, signed on 10 March 1996, dedicates a specific section to addressing the relationship between democracy and human rights, affirming that ‘democracy is the political system that best guarantees the rule of law, citizen participation, respect for human rights and safeguarding cultural diversity’.187 Thus it makes clear that democracy, as a fundamental principle of Andean integration, is necessary to ensure the respect and promotion of human rights. Third, in terms of the mutual relations between Mercosur and the Andean Community, it is worth mentioning the Joint Declaration of the Andean Presidential Council on relations between the Andean Community and Mercosur with the President of Paraguay adopted on 27 May 1999, which emphasises the values shared by both integration processes with the aim of promoting the strengthening of democracy in their respective states, as well as the promotion and defence of human rights. In other words, democracy and human rights are also referred to in the external action of the Andean integration and both elements are conceived as structural aspects of the Andean integration process. Finally, mentioned must be made of the Act of Carabobo of 24 June 2001, which highlights as its purpose the further strengthening of democracy in 184 

Hummer (n 75). Andean Community, Official Documents. 186 ibid. 187 ibid. 185 

60  Free Trade and Protection of Human Rights in the Americas the Andean states to promote the wider participation of citizens in building a more just and democratic society in order to ensure the observance of political, civil, economic, social and cultural rights.188 This constitutes a sort of prelude to the adoption of instruments on human rights within the integration process.189 The overall conclusion that can be drawn from the analysis of these instruments is that the member states of the Andean Community have taken democracy ‘as an indispensable condition for the stability, peace and development in the subregion’.190 In the same vein, the Andean Community and its member states have included, at least formally or rhetorically, among their main objectives the development and consolidation of democracy and the rule of law.191 The affirmation of democracy is accompanied, where appropriate, by a more specific mention of the recognition, promotion and protection of human rights. II. In Mercosur, it should be noted that in 1996, five years after its creation, member states adopted the ‘democratic clause’ at the Presidential Summit held in San Luis, Argentina. On that occasion, the Mercosur presidents therefore affirmed a ‘commitment to democracy’, which is expressed in similar terms to the Charter of Conduct Riobamba, ie, ‘the full validity of democratic institutions is as an essential condition for cooperation’, adding that ‘any alteration of the democratic order constitutes an unacceptable obstacle to the continuity of the integration process’.192 In the event of an interruption of the democratic order, a sanction is anticipated that, at best, would entail the suspension of the agreements concluded 188 ibid.

189  CM Díaz Barrado and MB Olmos Giupponi, ‘El reconocimiento y la protección de los derechos humanos en el seno de la Comunidad andina’ in FM Mariño Menéndez (ed), El Dere­ cho Internacional en los albores del siglo XXI, Homenaje al profesor J. M. Castro-Rial Canosa (Madrid, Trotta, 2002) 195. 190  Hummer (n 75) 1267. 191  D Bondía García, ‘El compromiso de los Estados miembros en la Comunidad Andina con el mantenimiento del orden democrático. ¿Compromiso real o retórica?’ in Iberoamérica ante los procesos de integración, XVII Jornadas de la AEPDIRI (Madrid, Boletín Oficial del Estado, 2000) 111. 192 Declaración Presidencial sobre Compromiso Democrático en el Mercosur, firmada el 25 de junio de 1996, Potrero de los Funes, Argentina. In the relevant part, it reads as ­follows: ‘1. Full respect for democratic institutions is essential for cooperation in the Treaty of A ­ suncion, its Protocols and other subsidiary acts condition. 2. Any alteration of the democratic order constitutes an unacceptable risk to the continuity of the integration process. 3. The Parties shall immediately consult each other in the way they consider appropriate, in the event of disruption or threat of disruption of the democratic order in a member state. The Parties shall also, in a coordinated manner, hold consultations with that member state. 4. Should consultations under the preceding paragraph be unsuccessful, the parties shall consider implementing appropriate measures. The measures may range from suspension of the right to participate in the Mercosur forums to the suspension of the rights and obligations arising from Mercosur law and ­agreements between the parties and the state in question. 5. Parties should include a clause affirming the commitment to democratic principles in agreements between Mercosur and other states or group of states’ (author’s translation).

Principles Governing the Recognition and Protection 61 under the Mercosur framework. Article 5 also explicitly establishes that ‘the parties should include a clause affirming the commitment to democratic principles in the Mercosur agreements with other countries or groups of countries’.193 At the same time, Chile and Bolivia, as associate states, have also expressed their adherence to this commitment through a Protocol.194 As seen above, democracy has been acknowledged within this process of integration as one of the essential principles, to the extent that, in practice, Mercosur survival is conditional on the maintenance of democratic systems by the states participating in the subregional integration process. Moreover, integration is considered an essential element for the affirmation of democracy principle, as underlined in the Joint Statement of the Presidents of the Member States of Mercosur, which took place on 18 June 2003 and stated that ‘the Presidents reaffirmed their commitment to the deepening of ­Mercosur, in order to ensure sustainable development of their countries and the competitive insertion in the global economy, highlighting the contribution of this process to strengthen their democracies’.195 Furthermore, the link between democracy and human rights is reinforced very significantly in the Summit of the Presidents of the Member States of Mercosur, as can be seen in the legal instruments that have been adopted at this level. All of these focus on the fact that democracy is an essential ­element of Mercosur integration, and has effects in the field of recognition of fundamental rights. As regards Mercosur, it is important to highlight the outspoken role played by the Common Market Council with regard to the protection of democracy in the subregion, which is often addressed in the relevant joint communiques issued after their meetings. Thus, for instance, at the ­Eighteenth Meeting of the Common Market Council held on 30 June 2000 in Buenos Aires, a joint statement was issued in which the presidents expressed their commitment to the principles and objectives of the Protocol of Ushuaia on the Democratic Commitment and the republican form of government ‘as fundamental conditions for the development of the integration process within a framework of security and stability’.196 The instrument also alluded to the political dialogue between Mercosur, Bolivia and Chile as necessary to deepen regional identity and ensure the delivery of benefits to citizens of the member states. At the Presidential Summit in 2002, member states emphasised that ‘the continuity of the democratic order is an essential element of regional integration process that strengthens the role of the bloc at the regional and international levels’.197

193 ibid. 194 

Tirado Mejía (n 51) 47. Official Documents (original text in Spanish, author’s translation). 196  Hummer (n 75) 1264. 197 Mercosur, Official Documents (original text in Spanish, author’s translation). 195 Mercosur,

62  Free Trade and Protection of Human Rights in the Americas Furthermore, the communiqué of the Nineteenth Meeting contains a statement of representative democracy as being a condition essential for the development of the integration process in the region, noting the need for democratic institutions to be permanently improved and reinforced. In the joint statement issued on the occasion of Mercosur’s tenth anniversary on 22 June 2001, the presidents underlined its role as ‘essential to promote representative democracy’.198 As for the development of instruments for safeguarding democracy as an essential element of the process of integration within Mercosur, during the Fourteenth Mercosur Council Meeting on 24 July 1998, the ­presidents adopted the ‘Protocol of Ushuaia on Democratic Commitment in ­Mercosur, the Republic of Bolivia and the Republic of Chile’. The value of this instrument, as W Hummer points out, is that it provided the legal basis of democratic commitment (which until then had been only a ‘presidential statement’), an integral part of the primary law of Mercosur.199 The Protocol of Ushuaia condenses the main considerations of the previous statements, specifying implementation mechanisms in the event of an institutional situation that would jeopardise the current democratic regime in one of the Mercosur member states. In that event, member states and associated states should call for consultations. If consultations prove to be unsuccessful, member and associated states (excluding the affected state) will decide by consensus to implement measures in accordance with the seriousness of the situation, which will be communicated to the relevant member state. These measures can include the suspension of the right to participate in the various organs of the integration process or the interruption of the enjoyment of the rights arising from Mercosur membership. Although ­ ­Article 5 also mentions that the obligations are suspended, it seems inconsistent with the purpose of the rule that a state would benefit from e­ liminating the burden of compliance with Mercosur law. The instrument applies to ‘integration agreements to be concluded in the future between Mercosur and Bolivia, between Mercosur and Chile, and among the six States Parties to this Protocol’ (Article 9).200 A case of what can be considered as an ‘indirect application’ of the ­Protocol of Ushuaia was the adoption during the Sixteenth Meeting of the Mercosur Council entitled ‘Declaration of support for Paraguayan democracy and the process of normalisation and institution building’, ­ which included only a few references to the Protocol. Through it, the four member states and two associated states condemned and repudiated

198 ibid. 199 

Hummer (n 75) 1241–79. Official Documents (original text in Spanish, author’s translation).

200 Mercosur,

Principles Governing the Recognition and Protection 63 the events that occurred between 23 and 28 March 1999, where the Vice ­President of Paraguay was killed, declaring their support for democracy and the rule of law.201 In addition to the adoption of democratic clauses, human rights instruments adopted in regional integration processes include an explicit mention of the close link between democracy and human rights. Thus, it is worth noting the Charter on Social Commitment of Mercosur, which in its preamble states that ‘the firm adhesion to the principles of representative democracy and the rule of law and full respect for civil and political rights constitute the indispensable basis for regional integration’.202 The Charter also reaffirms the principles contained in the Protocol of Ushuaia and the Political Declaration of Mercosur, Bolivia and Chile as a Zone of Peace.203 There has also been a recent application of the democratic clause in June 2012 when Paraguay was suspended from Mercosur following President Lugo’s impeachment, without any economic sanctions being imposed.204 After suspending Paraguay, Venezuela’s accession to Mercosur was finally completed.205 Paraguay remained at the margins of the integration process until 2013 when Mercosur lifted the suspension.206 In turn, UNASUR verbally proclaimed a ‘democratic clause’ on 26 November 2010 after a coup attempt against Ecuadorean President ­Correa in September of that year, although it did not make a written commitment until 2014.207 UNASUR, relying on this previous practice, also condemned the impeachment. Indeed, Lugo’s removal in 2012, which led to Ecuador’s suspension from the bloc, underlined the need for a legal instrument.208 Thus, UNASUR has its own legal instrument including a democratic clause, which entered into force in 2014.209 The goal is to allow member states to jointly respond to, and even prevent, coup attempts in the region. As a general appraisal of the Mercosur democratic clause, it can be said that formally it has ‘a genuine democratic commitment that obliges m ­ ember 201 

Hummer (n 75) 1257. Official Documents (original text in Spanish, author’s translation). 203 ibid. 204 See ‘Paraguay Suspended from Mercosur’, www.theguardian.com/world/2012/jun/30/ paraguay-suspended-mercosur. 205  Paraguay had held up the ratification of Venezuela’s accession since 2006. 206 E Farnsworth, ‘With Mercosur Ties Still Frayed, Paraguay Explores Pacific Alliance Options’, 16 October 2013, www.worldpoliticsreview.com/articles/13299/with-mercosur-tiesstill-frayed-paraguay-explores-pacific-alliance-options. However, the new President of Paraguay expressed reticence towards Venezuela’s full membership and asked for legal concerns to be resolved. 207  Mercopress, ‘Unasur “Democratic Clause” Comes into Force after Ratification by Uruguay and Colombia’, 21 March 2014, http://en.mercopress.com/2014/03/21/ unasur-democratic-clause-comes-into-force-after-ratification-by-uruguay-and-colombia. 208  Paraguay was re-admitted after presidential elections were held in 2013. 209  The instrument entered into force in 2014, after the ninth member state ratified it. 202 Mercosur,

64  Free Trade and Protection of Human Rights in the Americas states to maintain their democratic governments’210 and, moreover, it has not ceased to make the necessary link between democracy and human rights. As regards dispute settlement and the preservation of democracy, following in the Rio Group’s footsteps, UNASUR has supported diplomatic resolution. The group mediated in the Andean border crisis, a tense situation between Colombia and its neighbours Ecuador and Venezuela in 2008 that came about after Colombian forces launched an attack on a FARC (Revolutionary Armed Forces of Colombia) camp in Ecuadoran territory. Following the resolution of the crisis, the region itself reinforced its role in the resolution of disputes.211 In addition, UNASUR played a role in resolving a diplomatic rift between Colombia and Venezuela in 2010. In 2010, UNASUR member states signed an addendum to the constitutive treaty to strengthen provisions on preserving and protecting democratic institutions within member states. This Protocol on the Democratic Commitment of UNASUR known as ‘the democratic clause’ of UNASUR.212 It states that ‘in the case of a rupture or threat of a rupture in the democratic order’ within any UNASUR member state, UNASUR’s senior committees have the right to ‘suspend the right of participating in the … organs of UNASUR’. On a number of occasions, UNASUR has acted to condemn what its members viewed as undemocratic moves in Latin American countries, such as the 2009 coup in Honduras and the controversial impeachment of Paraguayan President Lugo in 2012. III. In Central America, the political cooperation and integration dialogue has contributed to promoting and consolidating democratic regimes in the subregion, resulting, in turn, in a new wave of the integration a­ greements.213 From the beginning, the fundamental objectives of SICA included the aim to ‘establish a region of peace, freedom, democracy and development’ as set forth in the Protocol of Tegucigalpa amending the Charter of the Organization of Central American States. Another of its objectives was to ‘consolidate democracy and strengthen its institutions based on the existence of

210 

Franco and Di Filippo (n 13) 30. It was seen as a ‘success’ for the bloc since the conflict was solved ‘without outside help and without violence’. See S Romero, ‘Settling of Crisis Makes Winners of Andes Nations, While Rebels Lose Ground’, New York Times (9 March 2008), available at: www.nytimes. com/2008/03/09/world/americas/09colombia.html?_r=0. 212  Olmos Giupponi (n 1); Protocol on the Democratic Commitment of UNASUR, available at: www.unasursg.org/images/descargas/DOCUMENTOS%20CONSTITUTIVOS%20 DE%20UNASUR/Protocolo-Adicional-al-Tratado-Constitutivo-de-UNASUR-sobre-­ Compromiso-con-la-Democracia-opt.pdf. 213  UN Resolution 52/176. The Situation in Central America: Procedures for the Establishment of a Firm and Lasting Peace and Progress in Fashioning a Region of Peace, Freedom, Democracy and Development, 18 December 1997. Available at: www.un.org/ga/documents/ gares52/res52176.htm. 211 

Principles Governing the Recognition and Protection 65 governments elected by universal, free and secret, and unrestricted respect for human rights’.214 The Central American commitment to the establishment and strengthening of democratic processes dates back earlier to the peace process that the region embarked upon after facing serious conflicts besetting the area.215 Indeed, in the Esquipulas Declaration signed in 1986 at the end of this difficult period, peace was conceived as the ‘fruit of a true pluralist and participatory democratic process that involves promoting social justice, respect for human rights and Central American self-determination’.216 The commitment to democratisation is also stated in the Esquipulas II Accords named as ‘Procedure for Establishing Firm and Lasting Peace in Central America’ ​​ adopted in 1987.217 It is also worth mentioning the so-called ‘Declaration of Puntarenas: ­Central America as a Region of Peace, Freedom and Democracy and Development’ issued during the Ninth Meeting of Central American Presidents in 1990, which includes a commitment to the protection, defence and promotion of human rights and an obligation to improve the administrative and judicial mechanisms to ensure the full enjoyment of fundamental human rights.218 Whereupon, democracy is in the foundations of the new Central American integration, as a key principle intertwined with the protection of human rights. 214 

SG-SICA/Consejo Superior Universitario Centroamericano (CSUCA) (n 64) 10. The pacification of the region was the outcome of a long negotiation process that led to the adoption of several declarations: Declaración de Esquipulas I, establishing the ‘­Esquipulas Process’, whereby the Central American heads of state agreed upon economic cooperation and a framework for peaceful conflict resolution, 25 May 1986 (Esquipulas I), available at: www.geneva-academy.ch/RULAC/pdf_state/Esquipulas-I.pdf (original in Spanish, author’s translation); Procedure for the Establishment of a Firm and Lasting Peace in Central America ­(Esquipulas II), seeking to provide the principles by which the conflicts in Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua will be resolved, A/42/521, S/19085, 31 August 1987, available at: www.geneva-academy.ch/RULAC/pdf_state/Esquipulas-II.pdf; Joint Declaration of the Central American Presidents (Alajuela Declaration) reaffirming the commitment of the Presidents of the five Central American Presidents to Esquipulas Agreements I and II of 1986 and 1987, A/42/911, S/19447, 22 January 1988; Joint Declaration of the Central American Presidents (Costa del Sol Declaration), A/44/140, S/20491, 14 February 1989; Tela Declaration, reaffirming previous commitments and endorsing the Joint Plan for demobilization of Nicaraguan combatants, A/44/451, S/20778, 7 August 1989; Joint Plan for the Voluntary Demobilisation, Repatriation or Relocation of the Members of the Nicaraguan Resistance and their Families, as well as Assistance in the Demobilisation of all Those Involved in Armed Actions in the Countries of the Region, A/44/451, S/20778 (Annex I), 7 August 1989; Declaration of San Isidoro de Coronado condemning armed action by irregular forces, supporting the peaceful resolution of Central American conflicts and calling for the immediate demobilisation of armed groups, A/44/872, S/21019, 12 December 1989. 216  Esquipulas I (n 215). 217  Esquipulas II. See also the Report of the International Commission for Central American Recovery and Development, Poverty, Conflict and Hope: A turning point for Central America (Durham, NC, Duke University Press, 1989) Appendix III. 218 SICA, Official Documents, Declaration of Puntarenas, 17 December 1990, available at: www.uca.edu.sv/revistarealidad/archivo/4e7753a163b39declaracion.pdf. 215 

66  Free Trade and Protection of Human Rights in the Americas Presidential statements made in the process of Central American integration are also oriented towards reaffirming democracy as an essential element of the integration process. The Declaration of Antigua, for instance, established that ‘the solution to the problems of development is the primary responsibility of the Central American peoples and governments; imbued with its commitment to consolidate peace and democracy and to forge a better individual and collective economic and social destiny for Central America’.219 In the new integration process that emerged after the conflicts in Central America, the relationship between democracy and human rights is evidenced by the adoption of specific instruments that demonstrate this relationship and how integration must be conceived, necessarily, from the perspective of the defence of democracy. The Alliance for the Sustainable Development of Central America (ALIDES) has outlined a concept of integral development that entails the assumption of democracy as essential for achieving development. Moreover, the Social Integration Treaty of 30 March 1995 categorically expressed the principle of promoting peace and democracy as basic prnciples, which involves recognising democracy as a requirement for the respect for human rights within the general framework of the regional integration process.220 The Guácimo Declaration reaffirms the democratic commitment of the Central American process. Through it, member states reiterated their commitment to strengthening democratic processes in order to advance peace efforts and thereby strengthening the rule of law, enabling ‘a political scenario that creates the conditions for a better standard of living of the Central American population’.221 In particular, special mention should be made of the Framework Treaty on Democratic Security in Central America adopted on 15 December 1995, which adopts a broad understanding of democracy, seeking to ensure the security of the Central American states and their inhabitants by creating conditions that will allow them to achieve personal, family and social development, participating in and benefiting from regional and national sustainable development strategies. The achievement of sustainable development in Central America ‘can only be achieved with the creation of a regional legal community, to protect, protect and advance human rights and ensure legal

219 SICA,

Official Documents (original in Spanish, author’s translation). Alliance for Sustainable Development (also known as ALIDES, which stands for Alianza Para El Desarrollo Sostenible de Centro América in Spanish) was adopted on 12 ­October 1994, during the region’s presidents’ meeting (and with the participation of a representative of Belize’s Prime Minister). See Central American Alliance for Sustainable Development, October 1994 (Central American Commission on Environment and Development and Inter-American Institute for Cooperation on Agriculture, 1996, San Jose, Costa Rica). 221 SICA, Official Documents, Central American Alliance for Sustainable Development, 11. Available at: www2.ohchr.org/english/law/compilation_democracy/alliance.htm. 220  The

Principles Governing the Recognition and Protection 67 certainty and to ensure the peaceful and integration relations States in the region’.222 In sum, SICA’s commitment to democracy is based on the rule of law and guaranteeing fundamental freedoms, economic freedom and social justice, as well as strengthening a community of democratic values among its member states, bound by geographical and historical ties and cooperation. The ‘Central American Democratic Security Model’ is thus defined on the basis of the full respect for human rights in Central America, whose principles include, in particular: a) the rule of law; b) the strengthening and constant improvement of democratic institutions; c) the subordination of the armed forces, security and police to civilian authority; and d) the maintenance of a flexible dialogue on security issues.223 In relation to the protection of security in the region, the treaty provides for the creation of a preventive mechanism to sound an early warning in case of threats to security in Central America.224 This mechanism, which would become operational before an actual or imminent destruction of the democratic order, is the Central American Security Commission.225 The treaty also provides that member states must submit reports on arms control to the Security Commission. During the events leading up to the ousting of the constitutionally elected President of Honduras in 2009, SICA reacted and decided to suspend ­Honduras state from its participation in the trading bloc.226 There was a controversial discussion regarding the mechanisms that the de facto authorities had employed in the wake of the interruption of democratic order.227 After the coup d’etat, Honduras remained excluded from the integration process until the elections in January 2010. IV. CARICOM has adopted specific provisions on democracy, although the democratic principle was not enshrined from the beginning through a legal instrument adopted within it. Since the serious institutional crisis

222 SICA, Official Documents, Framework Treaty on Democratic Security in Central ­ merica, Concluded at San Pedro Sula on 15 December 1995. Available at: www.internationA aldemocracywatch.org/attachments/242_Framework%20Treaty%20on%20democratic%20 security%20in%20Central%20America.pdf. 223  ibid art 10. 224  ibid arts 1 and 2. 225 See SICA, Informe de Situación de la Estrategia de Seguridad de Centroamérica (Managua, SICA, 2012). Available at: www.cocatram.org.ni/conference/files/6_Erich%20 ­ Vilchez_Presentacion%20Estrategia%20de%20Seguridad.pdf. 226  On 28 June 2009, Manuel Zelaya, the democratically elected President of Honduras, was forcefully removed from office by the Honduran military. There is widespread debate ­surrounding the different events that resulted in the overthrown of Zelaya. 227  IACHR, ‘Honduras: Human Rights and the Coup D’état’, 30 December 2009, available at: http://cidh.org/countryrep/Honduras09eng/Chap.3.htm.

68  Free Trade and Protection of Human Rights in the Americas in Haiti that occurred in the early 1990s, CARICOM has addressed the ­democratic principle in various statements.228 There has also been an effort in recent years to incorporate mechanisms to ensure democracy in CARICOM member states. Democracy has thus been a key focus for CARICOM member states, which have elaborated standards on this principle in particular. An example of this is is the Joint Declaration adopted by the Heads of State and Government of SICA and CARICOM, in which the member states’ commitment to the principles of respect for human rights and democracy is clearly reinforced. As a corollary to these provisions, it can be said that there is a general consensus at the subregional level to consider democracy as closely related to human rights in a double reciprocal relationship, since, on the one hand, no other area is conceived more favourably than democracy, as regards respect for and protection of human rights and, on the other hand, human rights underpin democratic stability and, in the event of a serious violation of these occurring, can jeopardise the continuity of the integration process.229 D. Respect for and Guaranteeing of Human Rights as a Qualitative Component of Development Latin American and Caribbean integration was conceived, from its inception, as a vehicle for economic development and therefore was only approached from a predominantly economic viewpoint. The objective of achieving economic development appears in all the subregional integration processes. In fact, the basic goal of all these integration processes was to achieve closer ties of collaboration and cooperation in the economic field between the member states and to attain the formation of a common market, albeit in a gradual and progressive manner.230

228  The declaration of Kingston was pronounced on 2 August 1990 by the Heads of State and Government in the areas of democracy, human development, sustainable development, the internal market, disaster prevention and regional security. See also the Declaration to strengthening democracy in Haiti adopted on 5 February 2001. 229  The Joint Declaration was signed by the Heads of State of the member states of both subregional agreements, during the Summit of Heads of State of CARICOM-SICA, Belize, Dominican Republic on 5 February 2002. 230  All treaties establishing subregional integration agreements mentioned in the first articles that member states intend, directly or indirectly, to achieve economic development as an ultimate goal. Thus, the Treaty Establishing the Caribbean Community demonstrates the member states’ commitment to ‘accelerated, co-ordinated and sustained economic development and convergence’. The Protocol of Tegucigalpa, the founding treaty of the Central American Integration System, stressed that member states aim to ‘achieve a regional system of welfare and economic justice and social for the Central American peoples’ (author’s translation). The ­Cartagena Agreement states that the Member States aim to build ‘a system of cooperation and integration that will lead to economic, balanced, harmonious and common development’ (author’s translation). Finally, in Mercosur, the Treaty of Asuncion provides that ‘the

Principles Governing the Recognition and Protection 69 In some cases, the economic integration process has been in particular emphasised, as the main aim in Mercosur at the time of its inception. Hence, Article 1 of the Treaty of Asunción states that States Parties ‘hereby decide to establish a common market’. This common market involves: ‘the free movement of goods, services and factors of production between countries through, among other means, the elimination of customs duties and nontariff restrictions on the movement of goods, and any other equivalent restrictions; the establishment of a common external tariff and the adoption of a commercial policy common in relation to third States or groups of States and the coordination of positions in regional and international economic and trade forums; the coordination of macroeconomic and sectoral policies between the States Parties of agriculture, industry, fiscal and monetary matters, foreign exchange and capital, services, customs, transport and communications and any other areas that may be agreed upon, to ensure proper competition between the States Parties; the commitment of States Parties to harmonise their legislation in relevant areas in order to strengthen the integration process.’ This economic component, which has different manifestations and levels of intensity, is present in all integration agreements signed in Latin America and the Caribbean.231 However, development policies in Latin American countries have taken a major shift in recent years, particularly since the mid-1980s, at the same time as the world’s economic situation was being significantly modified by globalisation. As a result, the various integration agreements were faced with the need to gradually shift towards the social dimension. Development has been framed more clearly within the social dimension. In fact, without abandoning the economic objectives, integration in Latin America and the Caribbean has progressively focused on social aspects, as will be analysed in the following chapters. At this stage, development as an imperative acquires a content more closely linked to the respect for human rights. It translates into achieving integration with equity and positive effects in the societies of the states involved in the various integration processes. In particular, the Andean Community, the Central American Integration, CARICOM and Mercosur seem to be consolidating integration as a model of alternative development in Latin America and the Caribbean.232 In line with this trend, an important dimension of the globalisation process—but certainly not the most prominent when discussing the subject—is the gradual spread of ideas and values ​​about civil and

e­ xtension of the current size of their domestic markets, through integration, is a fundamental condition for accelerating their processes of economic development and social justice’ (author’s translation). 231  232 

Pulgar (n 23). Pulgar (n 54).

70  Free Trade and Protection of Human Rights in the Americas political rights on the one hand, and economic, social and cultural rights on the other, which are giving support to the concept of global citizenship.233 The Latin American and Caribbean integration process is therefore part of the current trend in the international order that is reflected in the work of the United Nations in the field of human rights and development.234 Although the right to economic development and protection of human rights—in particular, economic, social and cultural rights—do not entail an identical question, there is a close relationship between these rights and between them and democracy. In the international order, the principle of inter-dependence between democracy and development has been emphasised through statements that have emanated from international conferences and groups and regional organisations. Perhaps the most important provision is contained in paragraph 8 of the Declaration and Programme of Action of the World Conference on Human Rights held in Vienna in 1993, which states that democracy, development and respect for human rights and fundamental freedoms are inter-dependent and mutually reinforced.235 The recognition of the human right to development in international law also exercises its influence in economic integration agreements.236 Thus, the observance of human rights is integrated as a component of development; the human is at the centre of development and should be the participant and beneficiary of the right to development.237 Recent years have witnessed a profound change in the development paradigm followed by the states in the Americas, since the goal of forming economic blocs is no longer only a commercial goal but also allows enables the convergence of fundamental economic, political and social rights.238 Therefore, subregional integration processes should contribute to satisfying the welfare needs of the populations involved.239 Somehow, the economic objective has driven the recognition of certain rights, particularly those identified as belonging to the second generation, along with the implementation of social policies, to enforce compliance with the regulations adopted.

233 

Franco and Di Filippo (n 13). Uribe Vargas, ‘La formulación del derecho al desarrollo’ in H. Gross Espiell, Amico­ rum Liber (Brussels, Bruylant, 1997) 1605–12. 235  Fernández Liesa (n 142) 191. 236  As for the content of the right, it can be defined as the right of peoples and individuals to ensure their own welfare and to participate actively, freely, in the constant improvement of such welfare, and to participate in the fair distribution of benefits deriving from said continuous improvement. F Mariño Menéndez, ‘El marco jurídico internacional del desarrollo’ in F Mariño Menéndez and CR Fernández Liesa (eds), Cooperación internacional y desarrollo (Madrid, Boletín Oficial del Estado, 1997). 237  UO Umozurike, ‘Human Rights and Development’ (1998) 50(158) International Social Science Journal, 535. 238  Tirado Mejía (n 51) 1. 239  Vacchino (n 50) 66. 234  D

Principles Governing the Recognition and Protection 71 E.  Social Development in Latin American and Caribbean Integration The revamp of the integration processes in the early 1990s, thereby deepening and restructuring them, led to the inclusion of social issues and the protection of rights associated mainly with labour, cultural and educational aspects. Subregional integration agreements in the Americas face various challenges; the most important of these challenges is to reduce poverty and social inequality, which, in turn, determine priority areas that must be addressed by the integration organs. These areas, often called the ‘social front’, consist of education, employment and social protection (social security).240 Progress in these three areas is essential for guaranteeing equality, in addition to being crucial to achieving the objectives on the national and international human rights agenda.241 The need arises that the integration processes expand their scope and incorporate the issue of human rights. Thus, in order to achieve more equitable societies, the essential objective of development is placed at the foreground of the realisation of economic, social and cultural rights, which respond to the values ​​of equality, solidarity and non-discrimination, and also stress the universality, indivisibility and interdependence of these rights with civil and political rights.242 The recognition and defence of human rights becomes a component of development and, from a legal and institutional viewpoint, the scope of the integration agreement is to contribute economic decisions and policies that make it possible to overcome gaps and reduce inequalities.243 Furthermore, the necessary inclusion of economic, social and cultural rights in the integration agreements entails not only civil and political rights, but also economic, social and cultural rights, as both categories of human rights are interrelated, as stated in paragraph 3 of the First Part of the Vienna Declaration of June 1993, previously referred to.244 In regional integration, evidence of this new concept of development can be found in the instruments that have been recently adopted. Thus, the InterAmerican Democratic Charter, in Title III, entitled ‘Democracy, ­Integral

240  See S Cecchini, F Filgueira, R Martínez and C Rossel (eds), Instrumentos de protección social: caminos latinoamericanos hacia la universalización (Santiago, United Nations, 2015). See also R Saldain, ‘Unidad en la diversidad: la seguridad social en el marco de la integración regional’ in CEFIR, Dimensión social de la integración regional (Montevideo, CEFIR, 1995) 203–14. Available at: http://cefir.org.uy/wp-content/uploads/downloads/2012/05/DT_11.pdf. 241 CEPAL, Equidad, desarrollo y ciudadanía (Santiago, United Nations, 2000) 113. 242 ibid. 243 ibid. 244 Vienna Declaration and Programme of Action, adopted by the World C ­ onference on Human Rights in Vienna on 25 June 1993. Available at: www.ohchr.org/EN/ ProfessionalInterest/Pages/Vienna.aspx.

72  Free Trade and Protection of Human Rights in the Americas Development, and Combating Poverty’, outlines the lines of what has been called a ‘Social Charter’ expressly establishing the obligation to reduce poverty and social inequality, emphasising that democracy and ­economic and social development are interdependent.245 In the same direction, through the ‘Guayaquil Consensus on Integration, Security and Infrastructure for Development’, proclaims, among other important aspects, ‘the indissoluble connection between the democratic system and the respect of human rights to guarantee the full realization civil, political, economic, social and cultural rights, including the universal and inalienable right to development’.246 F. The Relationship between Development and Human Rights in Trade Agreements As regards the agreements that are under analysis in this book, it should be noted that, in general, there is a close relationship between development and human rights. From this perspective, one can briefly refer to some provisions that highlight the importance of development concerning the protection of human rights. As regards the Andean Community, in the Manifesto of Cartagena de Indias, member states underlined that ‘Andean integration is imperative to strengthen peace, security, the improvement of living conditions and the integral development of our peoples’.247 The Andean Charter for the promotion and protection of human rights contains repeated references to the right to development. Already in its preamble, and on several occasions elsewhere, the Andean Charter mentions the right to development as a human right. Thus, this specific instrument on human rights underlines that member states are committed to the defence of the purposes and principles enshrined in the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man and the Declaration on the Right to Development of the United Nations. More precisely, member states are ‘determined to consolidate and promote Andean unity based on recognition of the diversity of their territories, peoples, ethnic groups and cultures, and with the firm belief that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing’.248 Moreover, the link between 245  In the socio-economic realm, liberal democracy is presented as the best technical formula and the best substrate for a successful growth. See Roldán Barbero (n 151) 464. 246  Statement agreed by the Second Meeting of Presidents of South America, Ecuador, 26 and 27 July 2002, para. 2., c. On the same occasion, a Declaration on Sustainable Development was signed ahead of the implementation of the summit on the subject held in Johannesburg. 247  Andean Community, Official Documents. 248  Andean Charter. Andean Community, Official Documents.

Principles Governing the Recognition and Protection 73 human rights and development is clearly underlined as member states are ‘determined to contribute to building a supportive and respectful world of human diversity from the promotion and protection of human rights, and promote political, economic and social development of their countries, which has as its focal point and ultimate end human well-being’.249 It should be recalled that the right to development is a fundamental human right that must be treated on an equal basis with other human rights. Hence, Article 3 stipulates that ‘the principle that all human rights and fundamental freedoms are universal, indivisible, interdependent and interrelated and that, therefore, should be given equal and decisive attention to the implementation, promotion and protection of both civil, political, economic, social and cultural rights and the right to development’.250 And, more particularly, Article 13 stated categorically that ‘the Andean peoples have a right to democracy and their governments have an obligation to promote and defend it, to achieve the full realisation of all civil and political rights, economic, social and cultural rights and the right to development’. In addition, Part IV of the Charter is specifically devoted to the right to development, indicating objectives and obligations of member states in relation thereto to ‘sustainable human development’.251 With regard to SICA, ALIDES expresses the interdependence between the various dimensions of development. In particular, development is conceived as a comprehensive framework that serves as a reference point for all dimensions involved, especially in the field of fundamental rights. The adoption of the Social Integration Treaty responds to this trend, with the recognition and protection of various rights articulated with continuous references to development. Moreover, it could be argued that this treaty is inspired by the concept of development as a central element. Therefore, in the Preamble, there is stated ‘the need to establish a legal and institutional framework in the social area based on the premise that the human being is the centre and primordial subject of development, with the aim of guaranteeing the substantive improvement of states quality of life of the Central American peoples’.252 But the Social Integration Treaty goes even further in part when Article 1 makes clear that: ‘Member states to reach, in a voluntary, gradual, complementary and progressive manner the Central American social integration, in order to promote greater opportunities and a better quality of life and work to the Central American population, ensuring their full participation in the benefits of sustainable development’.253 In addition, Article 6 establishes the

249 ibid. 250 ibid. 251 

Díaz Barrado and Olmos Giupponi (n 189). Official Documents; ALIDES, n 221, at 15. 253 ibid. 252 SICA,

74  Free Trade and Protection of Human Rights in the Americas following principles: ‘respect for life in all its manifestations and the recognition of social development as a universal right’. Furthermore, it underlines the human person as ‘the centre and subject of development’, which requires a comprehensive and coordinated approach among the various aspects of the development so that sustainable social development is enhanced; with ‘active support and the inclusion of community participation in the management of social development’, as stated in Article 7, which must be primarily to encourage investment in human beings for their development.254 Finally, with regard to Mercosur, the ‘Charter of Buenos Aires on Social Commitment’ also expresses the importance of development in the field of human rights. In its preamble, Mercosur member states assert their conviction ‘that economic development and full regional integration can only be achieved within a framework of social justice and equity’ and therefore the member states demonstrate their ‘intention to contribute together to achieve greater welfare and social equality through a balanced and equitable economic development’.255 In order to implement these provisions, the Forum for Consultation and Political Coordination of Mercosur, Bolivia and Chile should ​​follow the guidelines and lines of action contained in the Charter, ‘promoting the institutionalization of a meeting of the authorities responsible for social development’.256 Overall, Mercosur instruments on human rights place emphasis on social rights and, especially, labour rights. The Social and Labour Declaration of Mercosur provides that Mercosur member states, under the terms of the Treaty of Asuncion (1991), are committed to expanding their domestic markets through integration as a key objective to achieving ‘economic development with social justice’.257 The Declaration goes on to assert that ‘member states declare their willingness to promote the modernization of their economies to expand the supply of goods and services available and, consequently, improve the living conditions of its inhabitants’, considering further that ‘various international forums, including the Copenhagen Summit (1995), have emphasized the need to institute mechanisms for monitoring and evaluation of the social component of globalization of the economy, to ensure harmony between economic progress and social welfare’.258 Moreover, Article 8 of the draft Charter of Fundamental Rights of ­Mercosur states that ‘the right to life is inherent in the human person … everyone has the right to satisfy basic needs of life. States parties guarantee 254 ibid.

255 Mercosur. 256 ibid. 257 ibid.

Official Documents (original text in Spanish, author’s translation).

258  J Bruni, Los órganos socio-laborales del Mercosur (Lima, ILO, 1999). See, in particular, the Annex with references to the implementation of Mercosur Socio-Labour Declaration. Available at: http://white.oit.org.pe/spanish/260ameri/oitreg/activid/proyectos/actrav/­proyectos/pdf/ dec_soclabor.pdf.

Principles Governing the Recognition and Protection 75 the right of persons to benefit from economic development’.259 Although the Charter was not officially adopted by Mercosur institutions, it laid the groundwork for both the Social and Labour Declaration and the Buenos Aires Charter (see above) as it focuses on social rigths. The broad concept of development also includes the agreements reached between certain subregional blocs. Thus, mention is expressly made of the Agreement of Economic Complementation between the Andean Community and the Southern Common Market, which highlights the importance of regional integration as an instrument to promote economic and social development, and more specifically that ‘regional economic integration is one of the instruments available to Latin American countries to advance their economic and social development, to ensure a better quality of life for their peoples’.260 But beyond that, it should be noted that there are bodies such as the Council for Human and Social Development, established within CARICOM, and the Committee on Social Development implemented in the Mercosur, which also includes the participation of associated states. These institutions are devoted to dealing with issues relating to social development. In short, the integration and development strategy for Latin American and Caribbean states has prioritised the objective of achieving a social agenda based on the protection of human rights. Most of the references contained in the instruments adopted in integration agreements on social development refer, in essence, to the recognition of social rights. A close link between development and integration has been established as ‘regional integration is a key instrument for the strategies for economic and social development of the countries of the region and external economic and trade policies shall help to strengthen their participation in the globalization process’.261 G.  Features of Subregional Legal Systems and a ‘System’ of Human Rights In examining the characteristics that define each of the Latin American and Caribbean subregional agreements, it can be said that integration processes 259  Trade Union Coordination of the Southern Cone, Draft Mercosur Charter of Fundamental Rights (original text in Spanish, author’s translation). Available at: www.portaldeabogados. com.ar/portal/index.php/legislacion-mercosur/347-carta-derechos-fundamentales-mercosur. html. See W Hummer, ‘La elaboración de una “Carta de los Derechos fundamentales del Mercosur” desde una perspectiva europea’, paper presented at the VI Encuentro de Cortes Supremas de los Estados Partes del Mercosur, Panel IV: Creación de la ‘Carta de los ­Derechos fundamentales del Mercosur’, Brasilia, 21 November 2008. Available at: www. stf.jus.br/arquivo/cms/sextoEncontroConteudoTextual/anexo/Texto_dos_Exposiotres/La_ elaboracion_de_una__Carta_de_los_Derechos_fundamentales_del_Mercosur_desde_una_ perspectiva_europea_Hummer.pdf. 260  Andean Community, Official Documents (original text in Spanish, author’s translation). 261  SELA (n 95).

76  Free Trade and Protection of Human Rights in the Americas have chiefly developed in the economic field, although, as discussed in detail in the following chapters, there are also provisions of a social, political or other nature beyond this. In any case, the legal formula chosen is basically the conclusion of treaties or agreements to set up a body with international legal personality, constituting in most cases intergovernmental organisations in the strict sense.262 The relevant achievement is that each of the subregional integration processes analysed in this book has given rise to a specific regulatory system comprised of both founding treaties and agreements that have introduced modifications thereof, and the rules and standards adopted under those founding instruments on the various areas of the agreements.263 However, it is true that these legal systems have a certain autonomy that is expressed in different ways in each of the integration schemes analysed. Therefore, from the perspective of the creation of an eventual ‘system of recognition and protection of human rights’, it is worth having a look at the features of each of these legal systems in order to determine, specifically, the effectiveness of the rules that would constitute them, in particular, a autonomy of the specific legal system. This would allow us to see to what extent the evolution is occurring towards the establishment of ‘autonomous legal systems’ whose standards should enjoy primacy and direct effect, and therefore, where appropriate, whether the standards would eventually have an impact on fundamental rights.264

262  The adoption of the Protocol of Ouro Preto on 10 December 1994 provided Mercosur with legal personality, as well as recognising its capacity to conclude international treaties. Thus, art 34 reaffirms that ‘Mercosur shall possess legal personality of international law’ and in art 35 states that ‘in the exercise of its functions, Mercosur may take whatever action may be necessary to achieve its objectives, in particular sign contracts, buy and sell personal and real property, appear in court, hold funds and make transfers’. Furthermore, art 36 stipulates that ‘Mercosur shall make headquarters agreements’. See S Jardel and A Barraza, Mercosur: aspectos jurídicos y económicos (Buenos Aires, Editorial Ciudad Argentina, 1998). For an overview of the different integration schemes in Latin America and the Caribbean, see R Páez Montalbán and M Vázquez Olivera (eds), Integración latinoamericana. Organismos y acuer­ dos (1948–2008) (Mexico, CIALC-UNAM, 2008) and JM Vacchino, ‘Dimensión institucional en la integración latinoamericana’ (1992) 185 Integración Latinoamericana 3. The conclusion, from a legal perspective, although having formed a splinter organization of the participating States in the process, is that, in most cases, we are dealing with intergovernmental organisa­ tions, where there is no delegation of authority to a superior being, and sovereignty remains intangible, which is manifested explicitly, through the composition of their organs. 263  See, in particular, H Gros Espiell, ‘Naturaleza jurídica del Tratado de Asunción y de sus protocolos’ (1996–97) Anuario Argentino de Derecho Internacional 127. With regard to the Andean Community, see I Basombrio, Integración Andina: Instituciones y Derecho Comuni­ tario (Santiago, CEPAL, 2004); IRELA Tres décadas de integración andina: logros y nuevos retos (IRELA, Madrid, 1999); H Maldonado Lira, Treinta años de integración andina: Balance y perspectivas (Lima, Secretaría General de la Comunidad Andina, 1999); JA Quindimil López, Instituciones y Derecho de la Comunidad Andina (Valencia, Tirant Lo Blanch, 2006); and B Vela, ‘La encrucijada del proceso andino de integración’ (2007) 12 OASIS 425. 264  P Craig and G De Búrca, EU Law: Text, Cases and Materials, 6th edn (Oxford, Oxford University Press, 2015) 402.

Principles Governing the Recognition and Protection 77 This necessarily leads us to consider the features of the international organisations established and the legal systems that emanate from them. First, none of them can be considered as a supranational organisation as there is no waiving of sovereign rights by the member states to the organisation. Even in the cases in which the founding treaties provide for the development of a supranational scheme, these organisations are, in practice, only inter-governmental with some elements of supranationality, such as a community court.265 It is clear, however, that in order to achieve progress in the consolidation of the schemes, there should be progressive stages of improvement of legal institutions. The legal systems arising from these agreements do not at present constitute community law in the strict sense, ie, an autonomous legal system clearly distinct from the domestic systems of the member states, which has primacy of law, and where its rules have, at the same time, direct effect. H. The Legal Standing of the Regulations Issued by the Integration Agreements In order to thoroughly analyse the question of so-called ­‘supranationality’, it can be said that in these agreements, supranationality faces the rigid paradigm of the absolute sovereignty of states, particularly those states that adopt a dualist approach with respect to international law, which is opposed to the consolidation of a process of integration that inevitably entails giving up sovereignty in favour of an international organisation.266 In particular, the adoption of supranational rules and the creation of a community law itself are linked to the legitimacy of the integration process; in other words, to the effective participation of the various sectors of civil society in the law-making process, which in some cases is presented as a closed monopoly in the hands of governmental authorities that are creating rules of great importance for society as a whole.267 In any case, the adoption of community law is made possible by ­expanding the legal personality of the organisations and providing them with greater powers to deal with the legal problems arising from the deepening of the process, taking measures to achieve that end. These measures include the creation or strengthening of a court of justice to resolve conflicts that may arise in the dynamics of integration, such as disputes between the parties over the legality of the decisions of the organs of the mechanisms of ­integration and 265 JF Duque Domínguez, Mercosur y la Unión Europea: Dos modelos de Integración Económica (Valladolid, Lex Nova, 1998) 36. 266  Noto (n 4). 267 ibid.

78  Free Trade and Protection of Human Rights in the Americas the uniform interpretation of community law, as well as other jurisdictional or advisory powers regarding each of these legal systems.268 From a strictly legal perspective, therefore, the predominantly intergovernmental character of the subregional integration processes in Latin America and the Caribbean should be noted, although they contain some elements of supranationality.269 In order to develop a true community law, it is necessary to incorporate the ‘principle of supranationality’ in order to overcome the current situation, where the rules governing the integration process and the mechanisms need to be incorporated into national legal systems.270 Basically, the supranational organisation is characterised by several features. First is the existence of its own powers of organisation, where decisions are taken by organs composed of representatives of the participating member states. Second is the existence of institutions that are not only formed by representatives of the member states. Third is the exercise of powers without the intermediate step of national governments. Fourth, norms are applied in national legal systems without further ratification having direct effect on the rights of individuals. This results in a highly developed legal system, where effectiveness and compliance with its rules is handled by a court of justice.271 Although there are some supranational elements in the subregional integration agreements under analysis in Latin America and the Caribbean, the predominant type of international organisation is inter-governmental in nature, which is reflected both in the composition of organs and their representative character, as well as in the decision making and the features ­pertaining to the rules adopted. Some scholars have suggested calling the law emanating from Mercosur an ‘emerging law of integration’,272 a claim that may be valid for the rest of subregional agreements.273 In other 268 See MB Olmos Giupponi, ‘El Tribunal de Mercosur’ in C Fernández Liesa (ed), Tribunales Internacionales en el Espacio Iberoamericano (Madrid, Thompson Reuters, 2009) 148–51. See also B Garré Copello, ‘La creación de un tribunal de justicia en el Mercado Común del Sur (Mercosur) Regímenes de derecho comparado’ in M Vázquez et al (eds), Estudios multidisciplinarios sobre el Mercosur (Montevideo, Facultad de Derecho. Universidad de la República, 1995). 269  See B de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’ in P Craig and G de Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011) 323–62. 270  Duque Domínguez (n 265) 33. 271  E Monsanto, ‘Realismo y abstracción en la normativa del Mercosur’ in O Stahringer (ed), El Mercosur en el siglo XXI (Buenos Aires, Ciudad Argentina, 1998) 185, 189. 272 A Mangas Martín, ‘Unión Europea y Mercosur: Perspectiva jurídico-institucional y política’ (1997) VII Anuario Argentino de Derecho Internacional 97. See also Díaz Barrado (n 11) 58. 273  It is true that, based on the respective founding treaties, the Andean Community’s legal system appears more similar to the legal system of the EU. However, it is worth noting that effectiveness is not always present in the Andean integration process. See Tribunal de Justicia del Acuerdo de Cartagena, Memoria del Seminario Internacional: Integración económica y

Principles Governing the Recognition and Protection 79 words, ­provided that the constraints previously referred to are removed, the ­dynamics of integration may lead over time to legal systems that are supranational in character. I.  Autonomy, Direct Effect and Primacy of the Law of Integration In the subregional integration agreement concluded in the Americas, one can already observe a trend towards the autonomy and primacy of the rules adopted in the integration process vis-a-vis the national legal systems, which could serve as a basis for the progressive adoption of community law. The challenges that the subregional groups that are facing consists essentially in abandoning consensus as the preferred method for decision-making, while assuming greater supranationality through the allocation of new powers to the bodies or the creation of new bodies. Therefore, the endless debate points to the development of supranational organisations, ie, whether subregional institutions should follow the institutional model created by the EU or should create their own ‘model’ in order to develop integration in a fashion that satisfies the idiosyncrasies and history of the region.274 In order to provide a clear picture, it is necessary to refer to the principles on which community law is based, along the lines of EU law, and to the particular circumstances of these principles as reflected in the subregional legal systems in Latin America and the Caribbean, and their connection with the recognition and protection of human rights. It is worth referring very briefly to the features that define these legal systems in order to determine the degree and extent of their evolution. These features are, obviously, autonomy, primacy and direct effect of community rules. The autonomy of the law created by the organs of the integration means that community law is not subject to the principles, law-making rules or the legal effects laid down in the constitution and other domestic legislation of the member states.275 Autonomy is one of the principles governing the legal system of subregional integration processes. It consists in the affirmation of law as its own legal system, separate from national systems, which regulates the relations established within the organisation, whether among member states or between them and the institutions, or, in specific cases, including natural and legal persons and member states and institutions.276 The principle derecho comunitario: modelos europeos y americanos (Quito, Tribunal de Justicia del Acuerdo de Cartagena, 1997). 274 

Noto (n 4). De Witte (n 269). 276 AD Perotti, ‘Estructura institucional y derecho en el Mercosur’ (2002) 1 Revista del Mercosur y de la integración 63. 275 

80  Free Trade and Protection of Human Rights in the Americas was developed by the European Court of Justice in the landmark ruling of Costa v ENEL, in which the Court described community law as the law originating from an autonomous source.277 In the integration agreements under analysis, the creation of secondary legislation has been developed under the founding treaties in line with the objectives of each process; the institutions act under the agreements that provide the institutional and policy framework that will make it possible to gradually advance the legal system.278 Thus, in the case of Mercosur, as indicated by Perotti, ‘the affirmation of Mercosur law as a legal order is confirmed … by the Treaty of Asuncion and the modifying and complementary instruments’.279 Similarly, in the rest of the agreements, the autonomy of the respective legal systems has been recognised. In CARICOM, the primary law consists of the Revised Treaty of Chaguar­ amas establishing the Caribbean Community, the Additional Protocols such as the Agreement on the Establishment of the Parliamentary Assembly of the Caribbean and the Agreement Establishing the Caribbean Court of ­Justice.280 Likewise, the Tegucigalpa Protocol is the primary law of SICA. The categories of rules generated in secondary legislation are provided for in Article 55 of that protocol, which establishes a hierarchy of rules distinguishing resolutions, regulations, agreements and recommendations. The regulations are general and apply directly, while individual agreements are binding norms for their recipients. Within the scope of the Andean Community, the Cartagena Agreement and the Treaty Creating the Court with additional protocols constitute the Andean primary law. Secondary law consists of the Decisions of the Andean Council of Foreign Ministers, the decisions of the Andean Council of Foreign Ministers (after the amendments to the Protocol of Trujillo), the resolutions that the General Secretariat may take on various areas of competence and, finally, industrial complementation agreements agreed by States Parties.281 As regards the principle of direct effect, it should be differentiated from direct applicability of the provisions. In this sense, the concept refers to a standard integration law that is susceptible to being effectively invoked by a 277  Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. See R Alonso García, Las sentencias básicas del Tribunal de Justicia de las Comunidades Europeas (Madrid, Civitas, 2001) 94. 278  Barros Charlín (n 98). 279  See Perotti (n 276) 79. See also AD Perotti, ‘El Derecho de la Integración en el Mercosur’ in Secretaría General de la Comunidad Andina and PCAB, Integración y Supranacionalidad. Soberanía y derecho comunitario en los países andinos (Lima, Secretaría General de la Comunidad Andina and PCAB, 2001) 80–86; O Da Silva Neto, ‘A aplicaçao do Direito derivado do Mercosul pelo juiz nacional’ (2001) 1 Revista de Derecho del Mercosur 133. 280  HJ Geiser, P Alleyne and C Gajraj, Legal Problem of Caribbean Integration: A Study of the Legal Aspects of CARICOM (Leyden, Sijthoff, 1976). 281  V Rico Frontaura, ‘El Derecho de la Integración en la Comunidad Andina’ in Secretaría General de la Comunidad Andina and PCAB (n 279) 73–78.

Principles Governing the Recognition and Protection 81 member state’s nationals before those courts, because it creates obligations on individuals, but is also intended to create rights,282 whereas direct applicability means that rules do not require another procedure for application. Direct effect is relevant for the purposes of the current analysis, particularly whether provisions have direct effect and create individual rights which national courts must protect.283 From this perspective, direct effect would authorise individuals to invoke community norms before national courts to protect their rights. However, in order to assert if a norm possesses direct effect, it is necessary that the provision is ‘clear and precise’. In addition, it must set an unconditional mandate, leaving no margin of discretion to the public authorities or the community institutions.284 The difficulty encountered in the integration processes in Latin America and the Caribbean when it comes to the norms emanating from the integration agreements is, specifically, their lack of precision. Thus, in Mercosur, it would be feasible that the principle of direct effect is fulfilled, ie, norms may generate rights and obligations for member states, the bloc’s institutions and individuals.285 This statement is based on the Mercosur arbitral tribunal’s considerations put forward in the third award regarding prohibition of unilateral trade restrictions. The arbitral tribunal referred to the Mercosur law representing a minimum standard that meets the requirements of legal certainty and that is not limited to the interests of Mercosur Member States, but includes the entire community that has a legitimate expectation based on the current existence of a free trade agreement.286 According to A Perotti, the arbitral tribunals expressly indicate that individuals can invoke rights based on the specific rules of the bloc, in this case those governing free trade.287 This position also finds support in Argentina’s case law, in relation to a dispute brought regarding trade agreement concluded in the framework of the ALADI in re ‘Cafes La Virginia’, the Argentinian Supreme Court recognised the right of an individual (a legal person) to present a claim even though the ones who had signed the agreement were the states, since the creation of a ‘common market’ necessarily implies the recognition of rights for individuals.288

282  Alonso García (n 277) 89. Case 26/62, NV Algemene Transport- en Expeditie Onderne­ ming van Gend & Loos v Netherlands Inland Revenue Administration ERC, [1963] ECR 1. 283  ibid 97. 284  De Witte (n 269). 285  Perotti (n 279) 84. 286  DH Rosano, ‘El Tercer Laudo Arbitral del Mercosur’ (2001) 1 Revista de Derecho del Mercosur 161; AD Perotti, ‘Tercer Laudo del Mercosur. Una buena excusa para hablar de ­salvaguardias y del Derecho Regional’ (2000) 5 Revista de Derecho del Mercosur 201. 287  Perotti (n 279) 84. 288  ibid 85. Cafés La Virginia S.A. s/ apelación (Appeal), 13/10/1994, Argentine Supreme Court, 317:1282.

82  Free Trade and Protection of Human Rights in the Americas Regarding direct applicability, the need for transposition or incorporation of standards into domestic legal systems poses a major obstacle that must be overcome in order to establish a community law system. Thus, many of the CARICOM member states must transpose the law emanating from integration into domestic law, ie, member states must enact domestic legislation to that effect in order for the norms to be applied by their domestic courts.289 This brings about difficulties in the recognition of rights and their enforcement, as in the case of norms establishing the free movement of certain workers which lack immediate direct effect.290 In Mercosur, this issue arises in respect of rules issued by the institutions.291 Chapter IV of the Protocol of Ouro Preto, entitled ‘Internal Application of Standards issued by the organs of Mercosur’, embodies the so-called principle of simultaneous effect, that is, that in order for a norm to come into force, it must complete two stages. At the first stage, once the relevant ­Mercosur institution has adopted a provision, member states must incorporate this norm into their domestic law through the procedure that the Protocol has set out. At the following stage, the member state should communicate that it has transposed the norm to the Administrative Secretariat, which completes official communications, forwarding the information to the other member states. Thirty days after that notification, the rule comes into force and is applicable in the domestic law of all member states.292 With regard to the primacy of the laws emanating from integration processes, this principle is specifically linked to the relationships that may arise between internal legal systems of the member states and the norms created in the integration processed, affirming, in the event of conflict, that community law should prevail.293 This principle was originally conceptualised by the European Court of Justice in deciding the case of Internationale Han­ delsgesellshaft. The Court held that the validity of a measure of EC law cannot be affected by allegations that it contravenes national fundamental rights or national constitutional principles and that the protection of fundamental rights, while inspired by the common constitutional traditions of the member states, must be ensured within the framework and structure of the objectives of the EC.294 289 

D Berry, Caribbean Integration Law (Oxford, Oxford University Press, 2014). See the Caribbean Community (Free Movement of Skilled Persons) Act, Laws of Jamaica, Act 18 of 1997 (15 July 1997). 291  D Ramos, ‘Efecto directo para los particulares de las directivas del derecho comunitario europeo: un ejemplo aplicable al Mercosur?’ in L Pimentel (ed), Mercosul no cenário internac­ ional, Libro de Ponencias del VII Encontró Internacional de Direito da América do Sul, vol I (Curitiba, Juruá Editora, 1998) 93, 94. 292  Perotti (n 279) 83. 293  A Rizzo Romano, ‘Los nuevos problemas jurídicos e institucionales de la integración en América Latina’ (1994) LVIII(211) Revista Jurídica La Ley 1. 294 Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr-und Vor-ratsstelle fur Getreide und Futtermittel [1970] ECR 1125. 290 

Principles Governing the Recognition and Protection 83 This principle of EU Community law is of particular importance when analysing the recognition and protection of human rights in the integration processes. Thus, the Court gradually built what could be called a ‘European constitutional doctrine’ based on the principles of direct effect and supremacy, complemented by the adoption of concepts such as fundamental rights, implied powers, responsibility, effectiveness and separation of powers.295 As Cunha Rodriguez states ‘once the direct effect and supremacy of Community law had been established, it was necessary to proclaim fundamental rights as an attribute of the individual’.296 In the same vein, Alston and Weiler precisely mention that developing a human rights policy requires establishing ‘that such a policy lies within the constitutional competence of the Community and that it would not violate important principles such as that of subsidiarity’.297 In sum, the protection of human rights within an economic integration process requires: the attribution of competence to the integration bodies; a legal basis (a Community human rights policy must not extend beyond the field of Community law); the respect of the principle of subsidiarity and the coordination of the Community policy with the broader (international and regional) human rights setting. In the event of silence on the legal hierarchy of the primary law of integration in respect of secondary legislation enacted by the bodies of the process, in relation to the internal rules of the member states, the legal loophole is resolved by giving it the same legal value as international treaties, making use of the provisions of the constitution, case law or common rules of legal interpretation of each state.298 If a dispute arises regarding the relationship between the law of integration and domestic law, the presence of a special body designed to settle the dispute is essential. In this sense, there has been a court of justice in the Andean integration project since its inception.299 The Central American integration process also presents an interesting case, since the creation of the first

295  The development of the protection of fundamental rights is the legacy of cases such as Handelsgesellschaft and Nold. See Case 4/73 Nold v Commission [1974] ECR 491. 296  Cunha Rodriguez (n 116). 297  P Alston and JHH Weiler, ‘Is There a European Approach to Human Rights?’ in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press, 2000) 22–27. 298 Barros Charlín (n 98). See M Tangarife, ‘La Supranacionalidad en el Constitucionalismo Latinoamericano. El caso de los estados andinos’ in Secretaría General de la Comunidad Andina and PCAB (n 279). See also M Tangarife, ‘Sistema Jurisdiccional en el Proceso Andino’ in Secretaría General de la Comunidad Andina and PCAB (n 279) 121–135 and M Tangarife, ‘Sistema Jurisdiccional en el Proceso Andino’ in Secretaría General de la Comunidad Andina and PCAB (n 279) 157–208. See generally M Salcedo Castro (ed), Constitución e integración (Bogotá, Universidad del Rosario, 2006). 299  It is worth recalling that the Andean process institutionalised the Andean Court of Justice, through the Protocol of Quito, just 10 years after the signing of the Cartagena Agreement.

84  Free Trade and Protection of Human Rights in the Americas ­ entral American Court of Justice (1908–18).300 More recently, ­CARICOM C has set up a judicial body. Nevertheless, in Mercosur, the ­interpretation of the content and scope of the agreed legal commitments corresponds to the highest political bodies established the different integration schemes. In all cases, the role of the judiciary is to be the guardian of the primacy of community and in fulfilling this task, judicial bodies could also receive the protection of human rights. In effect, the courts could become the most prominent in the joint protection of human rights through the various procedures provided both for the judicial resolution of the question and the exercise of the action for annulment. A particularly relevant principle for the implementation and enforcement of the law of integration is the principle of effective judicial protection. This principle ensures respect and interpretation of community law principles through the existence of judicial review to community level. Other principles of Community law have been brought up by the EU scholarship and legislative acts of the Community institutions, as general principles of Community legislation, some of them also impact on the protection of fundamental rights. These include, for instance, the principle of effective transposition of directives, the principle of proportionality, the principle of good faith, the principles relating to the protection of human rights and fundamental freedoms, the principle of fairness in relations between financial institutions and consumers, the principle of liability for violation of Community law and the principle of equality and non-discrimination.301 The principles developed by the CJEU have been adopted by other courts in the integration processes in the Americas as guidelines to develop the law of integration emanating from such processes.302 As regards the position of CARICOM, in 2001 the establishing Agreement granted the Caribbean Court of Justice (CCJ) original and exclusive jurisdiction to interpret and apply the Revised Treaty of Chaguaramas. The CCJ has similar aims and objectives to the CJEU, upon which it was ­generally modelled. 300  See SICA, La Corte de Cartago. En defensa de su institucionalidad (Managua, Central American Court of Justice, 1997) 61–68. See also R Chamorro Mora, ‘La Corte Centroamericana de Justicia’ in C Molina del Pozo (ed), Integración Euro-latinoamericana (Buenos Aires, Ciudad Argentina, 1996) 411, 414; A López Villamil, La Corte Centroamericana de Justicia en la Política Internacional (Madrid, Universidad de Léon, 1960); W Hummer and K Henning, Hundert Jahre völkerrechtliche (Schieds-) Gerichtsbarkeit in Zentralamerika (Vienna, LIT ­Verlag, 2006) 31–60; R Riquelme Cortado, ‘Central American Court of Justice (1907–18)’ in Max Planck Encyclopedia of Public International Law (Oxford, Oxford University Press, 2013); and CE Salazar Grande and EN Ulate Chacón, Manual de Derecho Comuni­ tario ­Centroamericano, 2nd edn (San Salvador, Talleres de Impresiones, 2013). 301  C Barnard and O Odud (eds), The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009). 302 MB Olmos Giupponi and EN Ulate Chacón, La influencia del derecho comunitario europeo en la jurisprudencia de la Corte Centroamericana de Justicia. Diálogo judicial y ­gobernanza global (Madrid, Dykinson, 2011).

Principles Governing the Recognition and Protection 85 In the Central American integration process, after the renovation operated by the Tegucigalpa Protocol (1991) and the Protocol of Guatemala (1993), the idea of a supranational judicial body supported the creation of a legal system of this nature was emphasised and, as a result, the Central American Court of Justice was instituted. In particular, in Central American integration, the Court has frequently cited mandatory rules issued by SICA in order to assert these principles.303 In the Andean Community since 1979, the Andean integration process has included a court of justice as the dispute settlement body. This inclusion was confirmed during the restructuring of Andean integration operated by the Trujillo Protocol (1996). In the Andean Community, with changes introduced by the Cochabamba Protocol, it tends to reinforce the work of that court when it comes to ensuring, at the highest level, the implementation of Andean Community’s law and compliance, and settling disputes about its application that may arise between the member states.304 There are, to this end, three major processes: the action for annulment, the action of noncompliance and the procedure for a preliminary interpretation. The highlight is that the action for non-compliance is accessible to individuals who are entitled to appeal directly to the Court in the event of non-­compliance of any member state with Andean law.305 The legal basis for this is set out in the Cartagena Agreement, which states that the Andean integration process is based on ‘the principles of equality, justice, peace, solidarity and democracy’ and also on the common legal heritage that exists in the Andean Community and is featured in the declarations of rights contained in constitutions such as those of the members of the EU and, finally, in the international human rights treaties ratified by Andean states.306 Finally, in the case of Mercosur the integration process was not endowed with a court, as had been done before in the other subregional integration agreements; instead, it was replaced by a non-permanent arbitration mechanism. This was one of the main features of the institutional design of this integration agreement, which was marked by pragmatism. To some extent, the adjudication function is played by the ad hoc arbitral tribunals, as ­provided for in the Brasilia Protocol and the Olivos Protocol, which apply to the settlement of disputes in the event of a breach of Mercosur law.307

303  C Bollín, Centroamérica: Situación y perspectivas del proceso de integración a finales de los 90’s (Guatemala, INCEP, 1999) 47. 304  G Chahin Lizcano, ‘El nuevo tribunal de justicia de la Comunidad Andina de Naciones’ (2000) 5 Revista de Derecho del Mercosur 240. 305  ibid 243. 306 ibid. 307  Perotti (n 279) 80. See also MC Puccini Camina, ‘Os laudos arbitrais do Mercosul e a jurisprudencia das Comunidades Eurpéias’ (2000) 5 Revista de Derecho del Mercosur, 69; and A Salinas, La protección de los Derechos Fundamentales en la Unión Europea (Granada, Comares, 2000) 86.

86  Free Trade and Protection of Human Rights in the Americas Disputes relating to the application of the law of the different integration processes and the protection of human rights could appear in the Latin American-Caribbean subregional processes sooner than expected. For instance, a conflict may arise between a national provision restricting the right to free movement as granted both in the founding treaties and secondary norms. Therefore, conflicts that may arise in this regard need to be solved on the basis of the primacy of the norms of integration law, which is often a controversial issue. In the Andean Community, Article 4 of the Treaty establishing the Andean Court indicates the obligation of compliance with the Andean legal system in two forms. First, member states ‘shall take all measures that ensure compliance with Andean legislation’, ie, the obligations and commitments allocated to them by mandates of primary and secondary legislation. Second, member states should ‘refrain from adopting any measure’, whether legislative, executive, judicial or administrative, enacted by a central or a decentralised government ‘which may hinder the implementation of the Andean legal system’.308 This provision is fundamental for the Andean integration process, since compliance is a prerequisite to ensuring the objectives of the Agreement, whose primary purpose is to continuously improve the living standards of the inhabitants of the region.309 Thus, the rule of law in the Andean integration process gives special importance to the social dimension in the process linked to the Treaty’s objectives. Regarding Mercosur, commentators have asserted that the supremacy of national laws should be respected, provided that they are not in conflict with the treaties and the so-called ‘acquis communitaire’, including laws and regulations and community law in general.310 In Mercosur, ensuring supremacy involves specific provisions in domestic legal systems in order to assert the rules of the treaties and achieve legislative harmonisation. ­Therefore, in accordance with Argentine constitutional law (Articles 31, 75 paras. 22 and 24 of the Constitution) and Paraguay (Articles 137, 141, 143, 144 and 145 of the Constitution) Mercosur law would take precedence over national law; however, the same solution does not apply in the cases of Brazil and Uruguay, where treaties have equal status with national laws.311 Mercosur arbitration awards seem geared towards recognising the independence and a ‘certain primacy’ of Mercosur. Indeed, when the first arbitration award was issued in 1999 regarding non-tariff restrictions imposed by Brazil on Argentina, the Court stressed that the obligation to remove obstacles for the implementation of Mercosur norms constitutes a ‘precise 308 

Rico Frontaura (n 281) 74. ibid 75. 310 F de Magalhaes Furlan, ‘Independencia jurídica del bloque’ (1998) Gazeta Mercantil Latinoamericana 5. See also generally MA Ekmekdjian, Introducción al Derecho Comunitario Latinoamericano (Buenos Aires, Abeledo-Perrot, 1994). 311  Perotti (n 279) 83. 309 

The Social Dimension and the Protection of Human Rights 87 and specific obligation’.312 The question of the precedence of integration law in relation to matters concerning human rights needs to be understood in the context of Caribbean and Latin American integration, as most of the instruments on human rights adopted in these processes so far have been of a soft law form. The future development of systems for the protection of human rights in these economic integration agreements requires an effective national judicial protection of the rights guaranteed by the law of integration and must not encounter any obstacles in national law. VII.  THE SOCIAL DIMENSION AND THE PROTECTION OF HUMAN RIGHTS IN THE INTEGRATION PROCESS IN LATIN AMERICA AND THE CARIBBEAN

The subregional integration processes examined in this book have been predominantly economic in nature.313 However in their evolution from their beginnings to the present, the integration agreements have faced dynamic processes of political, social, economic and legal change. Therefore, the various subregional integration processes, created in the 1990s or relaunched during the new wave, included as one of their objectives the achievement of social development beyond the strictly economic dimension. As has been highlighted, at the beginning, from the perspective of recognition of rights, economic integration was the predominant objective; the processes featured some ‘social nuances’, but always retained a clear economic bias. However, further progress occurred with the inclusion of ‘social clauses’ in economic agreements, which brought social issues to the consideration of the economic integration bodies. In this context, a social clause ‘refers to core labour standards, or minimum standards of social protection, which would be introduced … to guarantee the possibility (not the specific content) of social progress’.314 After the subsequent developments that have taken place in the Latin American and Caribbean integration processes, certain aspects of the social dimension have become emancipated and have acquired autonomy from regulatory and institutional perspective, so they are now regarded as specific sectors of the integration and no longer exclusively linked to economic integration.315 312  M Halperin, ‘Una fotografía del Mercosur: el laudo arbitral del Primer Tribunal Ad-Hoc’ (1999) La Ley Actualidad 2. 313  B Podestá, La integración regional y las posibilidades de una agenda social (Caracas, SELA, 2000). 314 M Dessing, The Social Clause and Sustainable Development (Geneva, International ­Centre for Trade and Sustainable Development, 2001) 10. 315 SELA, Informe final de la reunión de expertos sobre aspectos sociales de la integración de América Latina y el Caribe (Caracas, SELA, 2000).

88  Free Trade and Protection of Human Rights in the Americas Social issues are incorporated within the scope of the integration a­greements through the various instruments emanating from the Latin American and Caribbean integration processes.316 However, further progress has been made with the inclusion of ‘social clauses’ in economic agreements. In this sense, the social clauses are incorporated into international trade agreements to ensure that the gradual liberalisation of markets is accompanied by improvements in working conditions.317 Thus, it is evident that, for example, Mercosur cannot be limited solely to the aim of ‘accelerating the member states’ processes of economic development with social justice’; it implies that its purpose is not only to increase markets and business opportunities, but also to improve the working conditions of workers and the general conditions of life of the population of the region.318 As noted, integration processes have been gradually including a social dimension, which would cover issues relating not only to the movement of persons, migration and the adequacy of labour standards, but also fields such as health, education and culture, among others.319 In the following sections the social dimension and its inter-relations with human rights provisions and the establishment of mechanisms of protection are discussed, noting, first, how the recognition of rights has been operated in the social dimension. Second, they examine the impact of the development of social policies in setting any systems for the protection of human rights. Thirdly, the concept of citizenship as a means to consolidate fundamental rights is analysed. Finally, appropriate attention is devoted to the participation of civil society, since this participation means the legitimisation and democratisation of the integration agreements.320 A. The Progressive Inclusion of ‘Social Issues’ in Economic Integration Agreements A thorough examination of the recognition of human rights in the social dimension requires a previous and accurate analysis of the inclusion of the social question as such within the objectives of the economic integration agreements, since it is certainly within this framework that the evolution

316 

Pulgar (n 54). de Buen, ‘El nuevo fantasma de la cláusula social’ (1994) XVIII(208) Análisis Laboral 7. 318 C Echegaray De Maussion, ‘Libre circulación de trabajadores y profesionales’ in C Molina Del Pozo (ed), Integración Euro-latinoamericana (Buenos Aires, Ciudad Argentina, 1996) 369. See also L Bizzozero, La construcción de la dimensión social en los nuevos region­ alismos. El caso del Mercosur (Caracas, SELA, 2000). 319  Díaz Barrado (n 11). 320  R León Oliveros, ‘Lo social en el espacio andino de integración’ in CEFIR (n 240) 54–63. 317 N

The Social Dimension and the Protection of Human Rights 89 concerning the recognition of human rights is taking place.321 The inclusion of the social dimension322 in economic integration agreements has taken place in the new scenario of the Latin American and Caribbean integration with direct or indirect reference contained in the founding treaties and other secondary law instruments.323 This set of rules will have significance in terms of the development of the integration processes that occurred with the explicit inclusion of social objectives in the revised founding treaties, as seen with the treaty establishing the Central American Integration System, one of the aims of which is precisely to ‘achieve regional economic and social welfare system and justice for the Central American peoples’.324 In this evolutionary process that leads to the inclusion of social issues as one of the primary areas of integration, four stages can be observed. There is certainly a first phase where regional integration processes maintained their action in the strictly economic field, even though there were indirect repercussions in the social field, derived mainly from the initial objectives set, such as the achievement of social progress for the societies of the member states and the free movement of workers.325 Clearly, both the Andean Community and Mercosur touched upon social issues referring, albeit briefly, to the achievement of economic development combined with social justice. In fact, the recognition, at least in theory, of a social dimension dates back to the original treaty of the Andean Community, which includes among its aims to ‘ensure a steady improvement in the standard of living of the inhabitants of the subregion’.326 Also, soon after Mercosur, the creation of a subgroup on labour issues and a Social Charter was recommended,327 which involved the consideration of social issues at the heart of this integration process.328 In a general assessment, therefore, the basic and primary goal of all subregional integration agreements is to achieve economic integration, but they also take into account the close connection between the economic and the social.329 In other words, although economic objectives prevail, other ­purposes such as social issues are not absent. 321 

Franco and Di Filippo (n 13). In this section, the ‘social dimension’ is taken to refer primarily to issues related to labour relations, but it also includes other aspects such as those relating to health and education. See W Albeda, ‘Los temas sociales en la Agenda Mundial’ in CEFIR (n 240) 39–47. 323  Pulgar (n 54). 324  J Briceño Ruiz, ‘Nueva etapa de la integración centroamericana’ (1988) 48 Comercio exterior 880. 325  Franco and Di Filippo (n 13) 36. 326  Andean Community, Official Documents. 327 Mercosur, Official Documents. 328  M Harris, La integración del caribe (CARICOM). Aspectos sociales (Caracas, SELA, 2000). 329  S Treviño Ghioldi, ‘Libre circulación y migración de trabajadores’ in Molina Del Pozo (n 318) 358. 322 

90  Free Trade and Protection of Human Rights in the Americas During the second stage, isolated issues relating to the social dimension were adopted, but without receiving specific treatment. At least, there is no comprehensive framework to deal with social issues; there are ‘commitments and mechanisms aimed at ensuring the representation and influence of civil society on the progress of the agreements’.330 It also includes isolated agreements on matters such as health, education and culture. Despite these developments, there was no systematic and widespread treatment of the social dimension in the integration agreements. By way of illustration, the social conventions concluded in the early 1970s within the framework of Andean integration provided for the establishment of community-based standards, although in practice these can be categorised as ‘actions of consultation and cooperation’.331 During the third stage, there was the creation of ‘social spaces’ within integration processes with the adoption of specific instruments, the establishment of ‘ad hoc’ institutions and the design of social policies ‘as a step towards the acquisition of a community citizenship’.332 The integration processes have progressed towards achieving social integration. In relation specifically to Mercosur, this means the creation of ‘a new social citizenship, based on a system of rights rooted in a logic of solidarity’.333 Finally, there would be one more stage in the evolution of incorporation of social aspects in the subregional integration in the Americas, a commu­ nity stage, constituted by the adoption of ‘binding commitments at a higher level even than in national legislation, involving a limitation of sovereignty and resulting in supranational regulations issued by community bodies and in the allocation of economic resources controlled by the agreements’.334 There are mechanisms and instruments with supranational character. However, Latin American and Caribbean subregional processes have not yet reached this stage.335 Thus, in the Latin American and Caribbean integration processes, there has been a progressive incorporation of social aspects and the concatenation of the social dimension and the recognition of social rights.336 There are

330 

Franco and Di Filippo (n 13) 37. ibid 42. 332  ibid 37; Olmos Giupponi (n 1) 159. 333 J Grugel, ‘Citizenship and Governance in Mercosur: Arguments for a Social Agenda’ (2005) 26(7) Third World Quarterly 1061. 334  See M Draibe, ‘Coesão social e integração regional: a agenda social do MERCOSUL e os grandes desafios das políticas sociais integradas’ (2007) 3 Cad. Saúde Pública 174; M Draibe, ‘Mercosur: la temática social de la integración desde la perspectiva institucional’ in CEFIR, El Foro Consultivo Económico-Social del Mercosur y las Dimensiones Sociales de la Integración (Montevideo, CEFIR, 1996) 51–8. 335  Franco and Di Filippo (n 13) 37. 336  J Vega Castro, El tema socio-laboral en el proceso andino (Lima, Secretaría General de la Comunidad Andina, 2000). Available at: www.comunidadandina.org/Upload/2011227144 655sociolaboral.doc. 331 

The Social Dimension and the Protection of Human Rights 91 various factors behind this development: first, a factor of economic order, as the achievement of a common market implies the full exercise of free movement of factors, especially of labour, but also another factor of a social nature, which is the need to achieve equality based on solidarity.337 A clear example is the adoption of the Social and Labour Declaration of Mercosur in 1998.338 Moreover, there are different reasons for the development of social issues in economic integration agreements, in particular, the modification of processes and relations of production and work, the impact on the movement of goods and services (particularly of labour), the consolidation of the knowledge society and the influence of transnational corporations.339 But there are also external influences, as this phenomenon is enhanced by the context of an increasing globalisation that poses economic, political, social and cultural challenges that go beyond the powers of the classical model of the nation-state. In sum, the development of a social charter, a social agenda and a social policy community in the context of regional integration processes has become an issue directly linked to the continuity of such schemes.340 Along these lines, mention must be made of the impact of the agreements signed under the framework of the International Labour Organization (ILO). The activity of the ILO has contributed to the evolution of this social dimension, mainly because many of the member states of these economic integration agreements are parties to the main ILO instruments and are bound by the commitments and obligations established therein. Almost all Latin American states have ratified the fundamental international conventions on non-discrimination in employment and, in addition, most Latin American states have signed those related to forced labour and freedom of association, but have not done the same with regard to child labour, an area in which there is a considerable disparity on minimum age to enter the labour market, and in the establishment of special protection regimes.341 The role of the ILO in Latin America is seen as closely linked to the protection of human rights in the continent.342 Thus, the Mercosur member

337 C Zuleta de Merchán, ‘Integración latinoamericana a la medida del hombre’ (1995) XXIX(72) Revista de la Universidad del Zulia 111, 114. 338  The Social and Labour Declaration was adopted in Brasilia on 10 December 1998. Available at: www.sice.oas.org/labor/Mercosur_Sociolab.pdf. 339 MC Ferreira, La formación profesional en el Mercosur (Montevideo, CINTERFOR, 2003) 15. 340  JM Vacchino, ‘Retos en el nuevo siglo: inserción internacional e integración regional en un escenario de globalización’ (2000) 60 Revista Capítulos 1. 341 CEPAL, Panorama Social de America Latina 2014 (Santiago, United Nations, 2014). Available at: http://repositorio.cepal.org/bitstream/handle/11362/37627/ S1420728_en.pdf?sequence=4. 342  ME Martínez Salgueiro, ‘Derechos Económicos, Sociales y Culturales en las relaciones laborales-OIT. Análisis de la situación en América Latina’ in Estudios Básicos de Derechos

92  Free Trade and Protection of Human Rights in the Americas states had ratified ILO conventions.343 A case in which the positive influence of the ILO is also demonstrated is the Andean Community, in which there is a Sub-Working Group responsible for promoting compliance with the ILO conventions on fundamental rights of workers relating to the right to free association, the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation.344 Notwithstanding these achievements, it should be underlined that ILO international standards are not sufficient to address all social issues within integration agreements and are only a partial solution to the existing regulatory gap that should be remedied through the adoption of proper and specific instruments and the establishment of specific standards in the integration processes.345 Therefore, in terms of the social dimension, there is a trend towards the recognition and establishment of mechanisms to protect the rights of workers in the economic integration agreements, according to international standards of recognition and protection involving fundamental labour rights, namely freedom of association and protection of the right of workers to organise and bargain collectively, the prohibition of child labour and forced labour, and non-discrimination on grounds of sex, race, religion or other grounds. But another issue at the core of the subregional integration process is the treatment of the issue of the social dimension, which has become complex as it is not only limited to compliance with international standards in this area, but also provides for the development of its own Humanos, vol VI (San José, Costa Rica, Instituto Interamericano de Derechos Humanos, 1996); and H Gros Espiell, La OIT y los derechos humanos en América Latina (Buenos Aires, EUDEBA, 1986). See also FC Ebert and M Oelz, Bridging the Gap between Labour Rights and Human Rights: The Role of ILO Law in Regional Human Rights Courts (Geneva, ILO, 2012). 343 See MB Olmos Giupponi, ‘Free Trade and Labour and Environmental Standards in ­Mercosur’ (2014) 81 Colombia Internacional 67. 344 Thus, in the Final Declaration of the Meeting of Ministers of Labour of the Andean Community, adopted in Cartagena de Indias on 22 May 1999, member states affirmed that ‘in the field of labour relations, subregional integration should consider the effective implementation of the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted at the 86th Session of the International Labour Conference, as the most appropriate approach to meet the dual function of promoting the deepening, strengthening and consolidation of democracy in our nations, and advancing the process of harmonizing the principles on which our labour laws are founded’, Andean Community. Official Documents (original text in Spanish, author’s translation). 345 With respect to the coverage of the agreements and recommendations of the ILO, the fundamental conventions are as follows: Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87); Right to Organise and Collective Bargaining Convention, 1949 (No 98); Forced Labour Convention, 1930 (No 29); Abolition of Forced Labour ­ Convention, 1957 (No 105); Minimum Age Convention, 1973 (No 138); Worst Forms of Child Labour Convention, 1999 (No 182); Equal Remuneration Convention, 1951 (No 100); Discrimination (Employment and Occupation) Convention, 1958 (No 111), available at: www.ilo.org/global/standards/introduction-to-international-labour-standards/ conventions-and-recommendations/lang--en/index.htm.

The Social Dimension and the Protection of Human Rights 93 norms, the adoption of particular social policies and the creation of specific institutions to ensure the participation of civil society. Intra-regional cooperation in terms of social issues has evolved through regional and subregional summits contributing to the creation of a ‘social space’ in each of the subregional integration agreements, which consist of guarantees for individual and social rights of citizens of member states, with effective interactions between the member states.346 In short, gradually, there has been the incorporation of social aspects in each of the subregional integration agreements; as such, the social dimension has gained some autonomy. This progress has been supported by the adoption of standards at the universal level and at regional levels. B.  The Social Dimension and the Protection of Human Rights As previously stated, most of the integration agreements placed emphasis almost exclusively on economic integration, leaving aside the treatment of other issues relating to the social dimension.347 Likewise, questions concerning human rights were often ignored. Thus, for some time, human rights have not been subject to regulation within the integration processes. Only in recent years has there been a direct appeal to human rights or fundamental rights, whether they are considered alone or including the recognition and respect for human rights as an element of the rule of law. However, progress in terms of incorporating human rights into the integration process is given mainly by the development of the ‘social dimension’ as a related area, and operates also in the field of human rights. In this vein, it seems useful to quote the term ‘social dimension’ as the ultimate goal that commentators use to refer to equality in society. It represents a step forward in terms of economic integration and in consideration of a different dimension to this, which would ultimately lead us to consider the protection of human rights. Social democracy would identify the social structure, the wider communities, and associations and individuals which make up civil society, on which the strengthening of democracy rests.348 However, attempts to shape a social democracy in the subregional integration processes result in the consideration of the ‘social integration’ and it is often very difficult to define this.349 The term reflects the complexity mainly generated by the need to develop social regulations within the

346 

Franco and Di Filippo (n 13) 33. Podestá (n 313). 348  Tirado Mejía (n 51) 13. See also O Stahringer, ‘El cono sur americano entre el ­Globalismo y la Regionalización: Nuevos actores y desafíos’ in O Stahringer (ed), El Mercosur en el siglo XXI (Buenos Aires, Ciudad Argentina, 1998) 85. 349  Albeda (n 322). 347 

94  Free Trade and Protection of Human Rights in the Americas ­ rocess of economic integration, as a laudable aspiration. This translates p into the adoption of agreements and instruments in the social dimension, a concept that has strands of different nature and scope. The social dimension includes economic as well as political and cultural aspects. The economic aspect refers mainly to open regionalism and the insertion into the process of the global integration of markets and their impact on the workplace. The political dimension would be linked to the role of the nation-state in a globalised world, with an emphasis on democratic regimes as a condition of membership in the integration agreements and the issue of the sovereignty of member states and the creation of a regional citizenship of its inhabitants as the integration process deepens. Finally, there is also a cultural aspect that would be associated with belonging to certain systems of values ​​and with active participation in a structured set of uses and customs.350 The relevant feature from a legal point of view is that the social dimension involves the adoption of agreements, commitments and mechanisms, depending on the success of each integration agreement. Therefore, according to González Cravino, different levels of cooperation can be observed: (a) consultation and cooperation between member states of a regional integration agreement (without establishing commitments and binding mechanisms), with the goal of adopting convergent actions or coordinated social policies; (b) commitments and mechanisms aimed at ensuring the representation and influence of civil society in the decision-making; (c) commitments to establish mechanisms (also understood as social spaces), such as the Economic and Social Committee and the European Parliament, oriented towards the acquisition of community citizenship; and (d) mandatory top-level commitments including national legislation, involving a limitation of sovereignty resulting in a supranational regulation issued by community bodies and in the allocation of economic resources. These are aimed at increasing social cohesion in economic integration. In the EU, these commitments are incorporated into the Treaty on the Functioning of the European Union (TFEU), subsequent instruments, legally binding commitments, and Structural Funds and Social Funds (supranational mechanisms and resources) to help disadvantaged regions or segments in the integration process.351 Clearly, Latin American and Caribbean subregional agreements do not contain supranational binding norms that may apply to the formulation and implementation of common social policies. They have not reached stages comparable to the EU that would justify the use of supranational mechanisms, whether independently generated or managed by the community institutions that have a strong binding effect.352 However, the development 350 

Franco and Di Filippo (n 13) 13. González Cravino (n 168). 352  Franco and Di Filippo (n 13) 46. 351 

The Social Dimension and the Protection of Human Rights 95 achieved by the rules within the framework of these integration processes is quite significant and, therefore, integration agreements contain statements, activities and mechanisms for consultation and cooperation, representative bodies of the civil society and community rights and guarantees, even though, they need to strengthen the institutional framework of the agreements in order to generate supranational mandatory standards.353 Despite all the limitations arising from the current situation, subregional agreements have adopted norms in the social dimension, which enshrine different categories of rights and not only social rights. In subregional agreements, social policy has been gradually transnationalised with the globalisation process and tends to progressively become an integral part of international economic negotiations.354 Moreover, in order to strengthen the economic integration agreements, it is necessary to diversify the purely commercial content thereof.355 However, as is clear from the study of legal instruments that are addressed in detail in each chapter of this book, it should be noted that the progress which occurred ran in parallel to the development that took place in terms of the social dimension. In this sense, there are certain central elements of the social dimension that can be underlined in relation to the recognition and protection of human rights. First, it appears in some of the founding instruments of subregional integration that social issues are inextricably linked to the economic goal of integration from the beginning. This is the case, for example, in Mercosur, which included in the 1991 Treaty of Asuncion the objective of strengthening economic development along with social justice.356 The next step is verified through the existence of certain instruments in which rights are recognised explicitly, even if these are not instruments which specifically regulate issues concerning human rights. This is the case with some rights such as the right to health or the right to education. In fact, these instruments that appear limited, in most cases, to granting certain rights, without containing a protective mechanism or joint safeguard measures thereof.357 The subsequent evolution is finally towards the incorporation of instruments to grant rights, which contain also the establishment of specific mechanisms for their protection. Evidently, from the perspective of legal technique, there is a more systematic inclusion of new rights, mainly environmental rights, and the creation or the basis for the creation of mechanisms of 353 ibid. 354 

Pulgar (n 54) 55.

355 ibid. 356 

Bizzozero (n 318). also A Martínez Puñal and MT Ponte Iglesias, ‘La educación La integración educativa y universitaria en el Mercosur’ in Z Drnas and E Rey Caro (eds), Libro Homenaje al Profesor Ernesto Rey Caro (Córdoba, Lerner, 2002) 1411–55. 357  See

96  Free Trade and Protection of Human Rights in the Americas ­ rotection. These legal instruments differ in terms of denomination and conp tent depending on the features of each economic integration agreement.358 It is also worth mentioning the trend observed towards the convergence between the different regional integration processes in the treatment of certain aspects of the social dimension, such as education and health, especially in the Andean Community and Mercosur, as an integrated approach to addressing the transnational aspects.359 The previous analysis shows, overall, a clear trend to reverse the initial direction in which integration agreements sidestepped the social dimension and concentrated their efforts on the achievement of commercial objectives. As economic and trade inter-dependence deepens among member states, the need to address social issues has become more evident.360 In short, the ultimate goal to meet is to turn economic integration into a development tool that increasingly contributes to tackling levels of unemployment, poverty and social exclusion in the member states.361 At present, all of the subregional integration processes taking place in the Americas have adopted specific provisions on recognition and, where appropriate, protection of social rights. Gradually, social issues are attracting more attention within these processes. C. The Articulation of the Components of the Social Agenda and their Implications in the Field of Human Rights As discussed before, the social dimension is at the intersection between state, market and society. The development of a social dimension implies dealing with the challenges posed by the deployment of an integration agreement in order to advance the process of regional (or subregional) integration that includes social development.362 It is clear, then, that the emergence of the social dimension has been in response to imbalances that occur from a social viewpoint as a result of the economic integration process. 358  Mercosur adopted the Social and Labour Declaration in 1998. In the Andean ­Community, the Andean Charter was adopted in the 2002. Similarly, within CARICOM, ­member states adopted the Charter of Civil Society in the Caribbean, and in the framework of SICA, even if there is no bill of rights, the ALIDES and the Framework Treaty contain human rights ­provisions. In addition to these more specific instruments, there are other norms on the social dimension of integration that also impact on human rights. 359 I Vittini, ‘La dimensión social del proceso de integración del Grupo Andino’ in O ­Stahringer (ed), Mercosur en el nuevo orden mundial (Buenos Aires, Ciudad Argentina, 1996) 175–89. 360  Pulgar (n 54) 56. 361  In this evolution, labour rights remain the most relevant. At present, one can ­conclude that there is a germ of a ‘protection system’. This process is certainly weakened by the p ­ redominant inter-governmental nature of these integration processes, which limits the ­effectiveness of the measures taken in the field of human rights. 362  Podestá (n 313).

The Social Dimension and the Protection of Human Rights 97 The consideration given to the social dimension varies in each subregional integration agreement; as such, the link between the member states and the recognition and protection of certain human rights depend greatly on each particular agreement. Overall, it can be said that the social dimension is composed mainly of two factors: common social policies or their equivalent and the participation of civil society, which is closely related to the political and democratic performance of each economic integration process.363 The first factor concerns the design and implementation of social policies and relates to the recognition and protection of human ­ rights (namely ­workers’ rights) and the making of social policies that aim to allow the free movement of persons and, in particular, workers.364 The second ­factor, the participation of civil society, affects the democratic component of the ­integration process, leading to greater legitimacy of the integration ­agreements in terms of regulating various aspects, including those ­pertaining to human rights.365 In both cases, therefore, the main manifestations of the social dimension lead to the recognition and protection of human rights or, at least, directly or indirectly, imply that these issues are addressed. The following sections deal first with the impact of social policies and then with the involvement of civil society in the various economic integration agreements. D. The Adoption of ‘Common Social Policies’ and their Impact on the Field of Human Rights A remarkable feature of the contemporary Latin American and Caribbean integration processes is the adoption of norms relating to the social dimension, although in some cases one could not speak properly of the articulation of common social policies in the subregional integration processes, since they have, at best, implemented coordinated policies.366 The main reason behind is that, in general, economic integration agreements did not include the design of common policies, only providing for policy coordination. The progress achieved in the adoption of social policies is mainly due to the recognition of the right to free movement of workers within the single market, with the aim of improving the living conditions of the population 363 

ibid 47. CEPAL (n 341). 365  See L Bizzozero, ‘Derechos humanos y dimensión social en los regionalismos del siglo XXI. Construcción y perspectivas desde el espacio del Mercosur’ in Observatorio de Políticas Publicas de Derechos Humanos en el Mercosur (ed), Políticas Publicas de Derechos Humanos en el Mer­ cosur. Un compromiso regional (Montevideo, Mercosur, 2004); SELA, Una institucionalidad para la convergencia de la integración: Bases para un Programa Regional (Caracas, SELA, 2003). 366 On the difference between common and coordinated policies, see HS Wallace, AR Young and MA Pollack (eds), Policy-Making in the European Union, 6th edn (Oxford, Oxford ­University Press, 2015). 364 

98  Free Trade and Protection of Human Rights in the Americas of the states involved in the economic integration process. It is also true that the process of democratisation367 and the new concept of social integration have brought important consequences for subregional integration, while generating the need for legitimate institutional frameworks that guarantee the protection of social rights.368 Thus, it was essential to take into account social issues when formulating development policies, especially regional integration policies.369 Indeed, one of the main challenges that Latin American and ­Caribbean subregional integration processes face is to reduce so-called ‘social ­ ­vulnerability’ through social protection measures based on solidarity and aimed at ensuring equity and effective respect for the rights of the ­people involved in the process.370 Against this framework, social policies are devised in a process of building democracy that claims for a more fair and equitable integration; social policy is one of the main tools to enable the equal participation of stakeholders.371 Indeed, in Latin America and the Caribbean, the existence of social policies in subregional agreements is linked to the need to achieve equality within the integrated space. As G Rosenthal notes, ‘in a broader context, if the social gaps are considered integral to the development of each country, and not a phenomenon that can be mitigated or overcome through ­partial approaches, progress would be achieved in the development of Latin American and the Caribbean development … through improving their ­ ­international competitiveness, as a driver for economies and greater equity, for the benefit of the entire population of the region’.372 Given the importance acquired by the social aspects, different integration processes have taken initiatives ranging from the development of ‘social rights bills’ to the design of ‘social agendas’ and what could be qualified in a broad sense as regional social policies. Some economic integration agreements have analysed the feasibility of adopting a social charter in the sense of a bill in which certain rights are ­proclaimed and certain objectives or goals are recognised in relation to labour and social issues which may be merely declarative or even impose obligations and legally binding standards.373 367 

See Vacchino (n 340). Calderón, ‘Gobernabilidad, competitividad e integración social’ (1995) 557 Revista de la CEPAL 43. 369  Pulgar (n 23). 370 A Sojo, ‘Vulnerabilidad social, aseguramiento y diversificación de riesgos en América Latina y el Caribe’ (2003) 80 Revista de la CEPAL 121. 371  González Cravino (n 168) 53. 372  G Rosenthal, ‘Procesos de integración regional y las políticas sociales’ in Franco and Di Filippo (n 13) 132. 373 O Ermida Uriarte, ‘Características, contenido y eficacia de una eventual Carta Social del Mercosur’ in ILO, Jornada Técnica sobre la Carta de Derechos Fundamentales en Materia Laboral del Mercosur (Montevideo, ILO-RELASUR, 1994) 13–27. 368  F

The Social Dimension and the Protection of Human Rights 99 While there is no precise definition of what is meant by a ‘social agenda’, it can be considered in a broad sense as ‘a document (or series of documents), essentially flexible and adaptable, subject to periodic updates and revisions, which aims to address social issues raised within the framework of an integration process’.374 The existence of a social agenda can even lead to the need for sectoral social agendas, or can be referred to certain levels of government, certain organisations of civil society and other actors.375 The social aspects of the integration process are frequently related to the measures taken to regulate the movement of workers, covering areas such as labour law, social security and the recognition of qualifications, and even relate to measures which aim to resolve issues that arise as a result of economic integration (as in the case of retraining, educational reform programmes or the promotion of labour mobility). All these measures impact on the recognition of certain fundamental rights. However, what should be the content of the social agenda and social policy has often been discussed. There is some consensus around well-defined aspects and gradual progress in the incorporation of issues, including the following: (a) cooperation between agencies and countries to tackle problems relating to the movement of persons, the recognition of studies and qualifications, labour rights, migration, protection standards and social security (health, pensions etc); and (b) measures and programmes to reduce the negative social effects of integration, such as economic cooperation and the development of industrial projects, and training of human resources for such tasks as the modernisation of production, support for border areas and supporting key production sectors, among others.376 From another approach, the ‘social agenda’ would include: (i) aspects closely linked to economic processes, such as those having to do with the movement of workers labour legislation, social security, recognition of qualifications, training aspects etc; (ii) social programmes such as those relating to health, sanitation and hygiene, with the support of the international cooperation of the WHO (World Health Organization) and PAHO (Pan American Health Organization), among others; (iii) the so-called societal processes originating within each member state participating in the integration process, such as student and scientific exchanges, tourism and cultural exchanges; and (iv) the areas related to the development of a regional citizenship based on the recognition of the freedom of movement, such as a Caribbean Andean, Central American or Mercosur citizenship.377 It is worth noting that the definition of the content of social agenda affects other

374 

Podestá (n 313), author’s translation.

376 

This is the categorisation suggested by Pulgar (n 54) 4.

375 ibid. 377 ibid.

100  Free Trade and Protection of Human Rights in the Americas areas or sectors of activity that are closely related to the recognition and protection of human rights.378 The adoption of social policies and other mechanisms to guarantee further convergence also impact on the protection of human rights. It must be borne in mind that common social policies imply a social pact between the member states participating in the integration process and their respective civil societies, as a means to achieve the governance process and maintain social balance. In the EU, social policies therefore contribute to the advancement of the integration process in terms of social development (expressed in the treaties, protocols and regulations) with the real integration of economic and trade flows and relations between individuals and between institutions, identities and cultures.379 The development of social policies is closely related to the protection of human rights, since they address the growing problem of exclusion and are directed towards the most vulnerable sectors in recognition of their real possibilities for providing access to basic rights.380 Social policies provide a framework for the effective protection of the rights of disadvantaged groups in the integration process, helping to ensure equality and fostering a favourable environment for democratic participation.381 However, the implementation of social policies in economic integration processes in Latin America and the Caribbean faces significant obstacles. From an institutional standpoint, they are still very reliant on the economic integration; therefore, they are not autonomous, but just merely an appendix or addendum to economic and commercial policies. They have never been considered autonomously as an integral part of the integration model from the beginning. In addition, regarding the implementation of social policies on the ground, they require a substantial economic contribution by member states or international funding agencies in order to remedy the negative effects on the populations who are adversely affected. To overcome these constraints, it has been suggested in different forums that social policies need to be institutionalised in integration processes, as appropriate instruments to consolidate the achievement of social development.382

378 O Ermida Uriarte, ‘La ciudadanía laboral en el Mercosur’ in B Podestá et al (eds), ­ iudadanía y mundialización: la sociedad civil ante la integración (Madrid, CEFIR-CIDEALC INVESP, 2000) 175–210. 379  Podestá (n 313). 380  González Cravino (n 168) 53. 381  A crucial principle in the design of social policies in the EU is the subsidiarity principle, which determines a mechanism of differentiation of responsibilities for decision-making and the implementation of policies and specific measures allocating responsibilities at the closest level to where the political and administrative problem is meant to be addressed. 382 Although in the beginning, integration agreements sidestepped the social dimension and focused their efforts on commercial objectives, as the economic and commercial inter-­ dependence among member states deepened, the need to address social issues became more evident. Progressively, issues such as unemployment, poverty and social exclusion were placed

The Social Dimension and the Protection of Human Rights 101 It comes as no surprise that, despite the progress achieved, subregional integration processes in Latin America and the Caribbean have not developed proper common social policies. However, this does not preclude the possibility that in the future, subregional schemes will address the design of social policies or at least will provide elements for their further elaboration.383 This set of instruments oriented in the direction of developing a common social policy mechanism can be grouped into two distinct areas: first, agreements and conventions devoted to issues dealing with the social dimension, particularly those relating to the free movement of workers and the ­principle of equal treatment, that would include, inter alia, labour law, social security, recognition of qualifications and curriculum harmonisation; second, those regarding professional training, as a matter relating to the free movement of workers. It is true that economic integration processes in Latin America and the ­Caribbean lack a central concept such as ‘economic and social cohesion’384 as exists in the EU and as has been used to articulate the network of social policies adopted within this integration process.385 In this context, social cohesion is defined as ‘the ultimate goal of a process of social integration, within a framework of regionalization, that aims to reduce disparities between the levels of development of the various regions and the backwardness of the least favoured, with the idea that large disparities are intolerable’.386 Social cohesion brings about the development of a dimension of solidarity, which implies mechanisms of social protection and social dialogue. There are some elements for the articulation of social policies already developed in subregional integration agreements in Latin America and the Caribbean. There is, in particular, a social policy aimed at ensuring the free movement of workers which entails the elimination of discrimination and ensuring the principle of equal treatment. In addition, it focuses on measures to address the problems that arise from economic integration: professional training, educational reform programmes and the promotion of labour mobility. In addition, there are other sectors in which subregional integration processes have already worked on the possible development of on the regional agenda. Thus, integration agreements have advanced slowly but progressively towards the inclusion of the social dimension and to ensuring the active participation of ­stakeholders in the process, including civil society, both in policy formulation and the execution of programmes and projects. 383 

Pulgar (n 54). For analysis of this concept in the EU, see A Le Roy, ‘La cohesión économique et sociale: un nouveau modèle de politique communautaire’ (1999) 429 Revue du Marché Común et de L’Union Europeenne 383. 385  C Barba Solano and N Cohen, Perspectivas críticas sobre la cohesión social: Desigual­ dad y tentativas fallidas de integración social en América Latina (Buenos Aires, Consejo Latinoamericano de Ciencias Sociales (CLACSO), 2011). See also Pulgar (n 54). 386  González Cravino (n 168) 54. 384 

102  Free Trade and Protection of Human Rights in the Americas certain common social policies. Examples of this include a set of actions to establish future policies and cover issues related to both education and health. The design of actions, programmes and instruments imply the recognition of rights and therefore the link between social policies and human rights. Thus, in CARICOM, although it did not initially include social integration as such within its functional cooperation, the institutions have been outlining policies on education, gender equality, social justice and health promotion.387 There is also a specific agreement of Caribbean cooperation, the Caribbean Cooperation in Health Initiative, which was introduced in 1984 in order to identify and implement appropriate projects and programmes in collaboration with regional institutions, trying to optimise national and external resources and reduce costs associated with the duplication of services. There is also an information network among professionals enabling the exchange of knowledge and experience, which also aims to implement regional integration policies in the field of health. In relation to social policies, CARICOM established in 1993 the Social Charter of CARICOM, which contains a series of rights recognised as being necessary for the people of the subregion, among which stand out the rights of women, children and workers.388 In SICA, the Social Integration Treaty of 1995 was conceived under the premise that governments should decide which social development policies would be promoted and the social organisations which would be responsible for implementing them.389 This agreement lays the foundation for future common policies, since its purpose is ‘to promote greater opportunities and a better quality of life and work to the Central American population’ under the ‘principle of mutual cooperation and solidarity’.390 Moreover, since the 1970s, the Andean Community has adopted the basis for a common policy focused on education, health and employment.391 Undoubtedly, since its inception, the process of Andean integration featured 387 JM Vacchino, Posibilidades y limitaciones para la integración, la cooperación y el i­ntercambio en el área del Gran Caribe (Caracas, SELA, 2000); GAO Alleyne and KA Sealey, ‘Cooperación caribeña en materia de salud’ (1990) 164 Integración Latinoamericana 8. 388 F Jácome, ‘Redes y participación ciudadana en la integración en el Gran Caribe’ in A ­Serbín (ed), Entre la confrontación y el diálogo: diplomacia ciudadana, sociedad civil e ­integración regional (Buenos Aires, Siglo XXI, 2003) 71. 389 See RA Sánchez Sánchez, The Politics of Central American Integration (New York, Routledge, 2009). See also A de la Ossa, La unión centroamericana: condiciones y perspectivas (Managua, Cries, 1999). 390 SICA, Official Documents (original text in Spanish?, author’s translation). In addition to the said treaty are the Convention on the Exercise of University Professions and Recognition of University Studies (1962), the Central American Agreement on the Basic Unification of ­Education (1962) and the Charter of the Organization of Central American States (OCAS) (1962) in its relevant parts. See Podestá (n 313). 391  Vittini (n 359).

The Social Dimension and the Protection of Human Rights 103 a social dimension, embodied in the objective of achieving ‘an enduring improvement in the standard of living of the people of the subregion’.392 In particular, Decision 553 on the ‘Guidelines for Formulating the Integrated Social Development Plan’ underlines the need for the adoption of public policies and government decisions aimed at achieving equal opportunities for men and women in a process pulling together the efforts of different actors, public and private, so that policy proposals are based on consultation and social participation.393 In turn, Mercosur presents an established cooperation in the education sector, whose components are basic institutional instruments: the Special Meeting of Ministers of Education (which adopts policies and strategies); the Regional Coordinator (responsible for implementation); and the Regional Technical Commission (providing theoretical and conceptual inputs for implementation),394 which leads to the reaffirmation of the existence of a cultural and education dimension within Mercosur.395 Now we turn our attention to the articulation of social policies. In ­CARICOM, professional training is included as part of functional cooperation in response to the need to establish a coherent framework to provide effective and efficient education and training as discussed above.396 In the area of education, the meetings of the Standing Committee of Ministers Responsible for Education have been working on the development of the capacities and capabilities of the population.397 It was also decided that the Secretariat of the Caribbean Community would hold consultations with the responsible persons in the subregion to develop an action plan to deal with aspects of vocational training. The CARICOM Regional Strategy aims to establish cooperation and standardisation in technical and vocational training in secondary and tertiary levels of education, creating national training agencies with representatives of the Ministry of Education. Training institutions include the manufacturing, public and private sectors, trade unions and community bodies.398 As regards SICA, there are scattered provisions in the founding treaties on professional training. The guiding instrument in this area is the Central American Social Integration Treaty, which indicates that social i­ntegration

392 

Andean Community, Official Documents.

393 ibid.

394  O Stharinger, ‘Mercosur y Educación en el Programa de Acción hasta el Año 2000’ in M Pérez González (ed), Desafíos del Mercosur (Buenos Aires, Ediciones Ciudad Argentina, 1997) 233–49. 395  Martínez Puñal and Ponte Iglesias (n 62). 396  L Steward, ‘Estrategia regional de formación y capacitación técnica y profesional’ (1990) 163 Revista Integración Latinoamericana 39. 397  CARICOM Survey on Technical and Vocational Education and Training (CARICOM, Georgetown, 1988). 398  Steward (n 396) 40.

104  Free Trade and Protection of Human Rights in the Americas can only be achieved on the basis of overcoming structural poverty,399 ­stating that member states should seek the development of the full potential of human resources in the region, ensuring that men and women of working age have access to economic activity and a decent and fair remuneration.400 Likewise, within the converging strategies to achieve improved productivity in the process of integration, the Guatemala Protocol401 provides for the promotion of the training of human resources, in close alignment with the strategy of openness and productive transformation that is fostered in the region.402 With regard to the Andean Community, the Andean Commission of Vocational Training coordinates the activities of schools in the subregion.403 In addition, actions have been taken to modify the Simón Rodríguez Agreement and various meetings of ministers and experts have been held, with the aim of integrating policies: this has come about because of the growing international interest in job training and vocational training as an instrument of active employment policies, in member states and regional blocs.404 What is clear is that in the Andean integration process, there are basic elements for the adoption of policies related to labour law and social security rules, unemployment and under-employment, social security, vocational training, and also the active participation of workers and employers in the subregional integration process.405 There is a specific legal framework that supports the development of these policies, constituted by Decisions No 113 (Andean Social Security Instrument) and No 116 (Andean Instrument on Labour Migration), both adopted in 1977, and by Decision No 148 on the regulation of Andean social security instrument adopted in 1979.406 Specifically, the Andean Social Security Instrument covers social security issues such as illnesses and maternity leave, accidents at work and occupational diseases, invalidity, retirement and other contingencies. In turn, the Andean Instrument on Labour ­Migration covers general provisions on labour migration between member states, whereas, in Chapter III there is a clear reference ​​to p ­ rofessional training 399 SICA, Official Documents, art 2. See W Campos, ‘Participación social en la integración social centroamericana’ in CEFIR, Participación de la sociedad civil en los procesos de inte­ gración (Montevideo, CEFIR, 1998) 255–68. 400 SICA, Official Documents, art 6. 401 SICA, Official Documents, art 33. 402  A Godínez Vargas, ‘El papel de la formación profesional en el Sistema de Integración Centroamericana (SICA)’ in O Ermida Uriarte and H Barretto Ghione (eds), Formación profe­ sional en la Integración Regional (Montevideo, Cinterfor, 2000) 63–87. Available at: www.oei. es/etp/formacion_profesional_integracion_regional_cinterfor.pdf. 403  A Ciudad Reynaud, ‘Avances de la integración laboral andina’ (1993) XVII(194) Análi­ sis Laboral 9. 404  F García Granara, ‘La formación profesional en la Comunidad Andina’ in Ermida Uriarte and Barretto Ghione (n 402) 89–113. 405 ibid. 406 ibid.

The Social Dimension and the Protection of Human Rights 105 as well as to procedures for the recruitment of migrant workers. Similarly, the Andean Instrument on Labour Migration also addresses the issue of skilled migrant workers in training and vocational training and professional qualifications.407 In particular, mention should be made of the Simón Rodríguez Convention, as even though it faces difficulties in terms of its implementation, it regulates labour and social policy and professional training. The revised version of the Simón Rodríguez Convention includes actions to design proposals, in consultation with the education sector for strengthening vocational training systems.408 Andean Presidential meetings have introduced consideration of professional training in the social agenda.409 Mercosur has included professional training in the integration agenda. In the same direction, the joint parliamentary committee issued Recommendation No 8/98 advising the Common Market Council on the adoption of a ‘status of migrant workers’ as an Additional Protocol. However, despite this laudable aim, it was never approved by Mercosur, so the regulation of these aspects remains within the national legal system of each member state.410 Moreover, it is noteworthy that the Social and Labour Declaration, in Article 16, contains a right to job training, included in the catalogue of rights. Specifically, it states that ‘every worker has the right to career guidance, training and skills development’, establishing the obligation of member states to ‘take measures to promote linkages between programmes and counselling and vocational training on the one hand, and public employment services and protection of the unemployed, on the other, with the aim of improving the conditions of employment of workers’.411 Similarly, Article 15 deals with the ‘protection of unemployed citizens’, which obliges States Parties to ‘facilitate access to relocation and retraining programs to facilitate their return to the job market’.412 Article 2 regulates all that pertains to the ‘education, training, rehabilitation and retraining’ of ‘people with special needs’.413 In this context, the Labour Commission, created in 1999, monitors the compliance of member states with these provisions.414 In addition, a c­ommission on vocational training was constituted, which 407 ibid. 408 

García Granara (n 404) 101. instance, at the Cartagena meeting held in May 1999 referred to previously, labour ministers recommended the coordination of policies to promote employment, training and job training, health and safety at work, social security and labour migration: Andean Community, Official Documents. 410 H Barretto Ghione, ‘Trabajo y formación profesional en el Mercosur: tendencias recientes, confluencias posibles’ in Ermida Uriarte and Barretto Ghione (n 402) 159–80. 411  Bruni (n 258). 412 ibid. 413  Ferreira (n 339) 92. 414 ibid. 409  For

106  Free Trade and Protection of Human Rights in the Americas issues ­recommendations to the Common Market Group that all sectoral ­agreements signed under the framework of Mercosur are to include a ­chapter on qualification requirements, and which provides vocational training programmes, with the aim of taking action in member states and preventing unemployment.415 In the subregional integration processes in Latin America and the Caribbean, there are several initiatives to implement ‘Labour Observa­ tories’, which are conceived as areas of systematisation, analysis and ­dissemination of information concerning labour issues such as employment and vocational training.416 Within CARICOM, the Caribbean Labour Market Information ­Systemhas been established within the framework of the policy of vocational and technical training. The most important function is to provide a quality-oriented policy for taking decisions on technical and vocational education and training information.417 But an ‘Observatory of Caribbean Regional Integration’ was also created under the auspices of the Civil ­Society Forum of the Greater Caribbean to review and analyse the progress of subregional integration. In SICA, the creation of a Central American Social Observatory was considered as a means to contribute to a more qualified, efficient, effective and transparent strategic direction, policy coordination, goal setting and evaluation of results of the regional bodies’ activities in the social sector. Its work aims to operate a system for collecting, processing, analysing and disseminating indicators and benchmarks in the field of social development in Central America.418 Within Mercosur, the proposed creation of an observatory of the labour market was approved by the GMC (Grupo Mercado Común). The overall objective of the Observatory is to facilitate decision-making concerning the labour market, promoting the production, collection, analysis and dissemination of information on the labour market in Mercosur, including among others those relating to employment, labour migration, vocational training and social security, regulatory standards of labour markets, and public ­policies and programmes that address these issues.419 In conclusion, at least in a basic way, the subregional integration agreements have addressed the development of social policies, although in an embryonic stage and they do not constitute common social policies.420 The 415 

Barretto Ghione (n 410) 166. ibid 168. 417  Steward (n 396) 42. 418 SICA-Secretariat of Central American Social Integration (SISCA), Central American Social Observatory, El Observatorio Centroamericano de Desarrollo Social, Primer Diálogo Mesoamericano sobre Políticas Sociales (Panama, SISCA, 2009). 419  Barretto Ghione (n 410) 159–80. 420  Pulgar (n 54). 416 

The Social Dimension and the Protection of Human Rights 107 measures adopted fall into the category of inter-governmental cooperation. These limitations thus find explanation in the lack of binding rules and the remaining dependence of social issues on economic goals. The impact they have on subregional integration commitments cannot be ignored: particularly regarding the design of instruments dealing with the social dimension in the field of human rights dimension to the field of human rights within subregional integration commitments. E. The Participation of Civil Society and the Articulation of Social Dialogue The new development strategy adopted in the Latin American and Caribbean integration processes requires an enhanced role of civil society.421 Unlike the integration processes of the 1960s, those in the 1990s have shown greater participation of civil society.422 Therefore, among the features of the ‘new wave of integration’, the emergence of new actors other than states stands out in the negotiations.423 This feature can be observed in the different subregional integration processes. In the Andean Community, there is a clear push for more favourable conditions to enable the effective participation of the various social actors (employers, employees and academics).424 This topic is present in CAN, Mercosur, SICA and CARICOM. Although some mechanisms were created for that purpose in the 1960s, the concept of civil society was not in use at that time.425 The participation of civil society in these processes is crucial for their sustainability because civil society is the first to be affected by or to benefit from the implementation of norms adopted by the bloc.426 The participation of civil society has a close link with the democratic legitimacy of the integration process. Therefore, it has been an issue that has received special attention in recent times and it has been included both in discussions in political forums and at presidential or ministerial meetings. In the Andean Community, the Cartagena Manifesto should be highlighted, which states that as a political project, integration must involve the full participation of all sectors and inhabitants of the subregion.427 The transnationalisation of civic participation provides the ‘third sector’ (see below) with innovative features, creating networks of citizens seeking 421 

Tirado Mejía (n 51). ibid 2. 423  J Estay (ed), La nueva integración económica de America Latina y el Caribe. Balance y perspectivas en el cambio de siglo (La Habana, AUNA-BUAP-UMSNH, 2000). 424  León Oliveros (n 320). 425  Podestá (n 313). 426  Tirado Mejía (n 51) 20. 427  Andean Community, Official Documents. 422 

108  Free Trade and Protection of Human Rights in the Americas solutions to common problems beyond national borders.428 Civil society is composed of three ‘circles of influence’, which would include the highest levels of decision-making at national and subregional levels through the participation of actors in the decision-making process, to social organisations in general, the so-called ‘third sector’, which includes, among others, NGOs (environmental groups, ecologists, citizen action groups, protection of minorities, consumers and others).429 In the Americas, however, the role of NGOs in the integration process is still very weak. There are some isolated examples of the effective participation of civil society in these organisations in the context of certain NAFTA negotiations, Mercosur and the Central American Common Market. In Central America, for example, there is the Civil Initiative for Central ­American Integration (ICIC), an initial model of participation that brings together indigenous groups, small and medium-sized enterprises, farmers, women’s networks, trade unions and NGOs at the national and regional levels.430 In addition, we must differentiate the opportunities to intervene according to the degree of integration in the processes of decision making, especially taking into consideration the division of powers between the national and subregional (inter-governmental continuity in arenas other than the supranational), dispute settlement and policy making.431 As for participation in the activity of dispute settlement bodies, civil society groups also aim to create a clear set of rights to protect their legitimate interests. Consequently, the participation of individuals in dispute resolution mechanisms is an important feature, with varying degrees of intensity, as included in the rules of each of the integration schemes, but requires further improvement to expand the rights of individuals and encourage the wider dissemination of these legal mechanisms.432 The participation of citizens in the integration process should be governed by the principles of democracy, respect for human rights and the pursuit of social justice.433 It should be noted in particular that the Latin American and Caribbean integration process presents a ‘democratic deficit’ related to the limited participation or marginalisation of actors in the integration ­process, and that is directly related to the ‘social deficit’ afflicting Latin American and Caribbean integration.434 This is so because, since the 428 

Stahringer (n 348) 78. Grandi and L Bizzozero, ‘Hacia una sociedad civil del Mercosur. Viejos y Nuevos actores en el tejido subregional (1997) 40 Colombia Internacional 35. 430  Tirado Mejía (n 51) 21. 431  Grandi and Bizzozero (n 429). 432 F Francioni, ‘The Rights of Access to Justice under Customary International Law’ in F Francioni (ed), Access to Justice as a Human Right (Oxford, Oxford University Press, 2007) 1–55. 433  J Grandi, ‘Déficit democrático y social en los procesos de integración’ (1997) 30(119–20) Estudios Internacionales 423. 434  Grandi and Bizzozero (n 429). 429 J

The Social Dimension and the Protection of Human Rights 109 beginning, that governmental actos have been the only actors involved in this process. In fact, the intervention of other sectors has only increased as integration progressed.435 In the complex network established in each subregional integration process, there are various actors that participate at different levels: state, provincial or departmental, depending on the system of government adopted by the member states. There has been a shift in the model towards what is called ‘bottom-up integration’. The new integration wave has emphasised the involvement of civil society in the integration process as essential to the social integration of all sectors of society, minimising exclusion and inequality, encouraging the creation of channels of participation through all levels: the local, provincial-state, national and regional. First, it should be noted that the inclusion of civil society in the subregional process is preferably carried out through instruments that aim to allow the social sectors involved their own voice in the acts and decisions of the organisation, to facilitate the exchange of experience, and to promote dialogue and cooperation between stakeholders. Each of the subregional agreements has tried to establish instances and instruments to form a network of civil society actors in the integration processes.436 The degree of participation depends on each economic integration agreement. The forms of relationship, participation and representation are constantly changing, as there are new forms of participation, negotiation and discussion between employers, trade unions, consumers and other sectors of the civil society.437 As a corollary of this development of the social dimension, various ­mechanisms have been articulated to address the issue of the participation of civil society. There are three levels: institutionalised participation, non-institutionalised intervention and social dialogue. While there are few institutionalised mechanisms that serve as channels for civil society participation, mention should be made of the creation of bodies with specific responsibility in the matter, although these mechanisms are sometimes only limited to social and economic sectors and have an advisory jurisdiction in matters relating to the social dimension.438 The institutionalised ways of participation are made effective through bodies with legislative powers and various consultative bodies.439 The incorporation of such bodies has been diverse in each of the processes. The Andean Community, for example, has, since its inception, included representative bodies within its institutional architecture.440 In other cases, such 435 ibid. 436 

Pulgar (n 54) 6.

437 ibid. 438 ibid 439  440 

Pulgar (n 54) 6. Franco and Di Filippo (n 13) 40.

110  Free Trade and Protection of Human Rights in the Americas as that of Mercosur, mechanisms linked to social issues have been created in the institutional structure, overcoming the initial silence on the matter. The different channels to ensure citizen representation are highlighted in Decision No 9/95 of the Common Market Council, which states that ‘the deepening the integration process requires increased participation of the whole society’ through the formerly Joint Parliamentary Commission (now the Mercosur Parliament), the Economic and Social Committee and the Consultative Forum.441 The Treaty Establishing the Andean Parliament states that its role is to support the Andean integration process, the rule of law, social justice and democracy, and to promote the participation of people as actors in the process.442 Regarding the bodies which have an advisory nature, it is worth mentioning the Andean Business Advisory Council (CCEA) and the Andean Labour Council (CCLA), the Mercosur Economic and Social and Consultative Forum and the Advisory Committee Social Integration of SICA (CCIS).443 Within the institutional structure of the schemes, there has also been the emergence of working groups, groups of government experts or agencies under the main bodies that specialise in issues related to the social dimension, for example, the case of Subgroup No 10 on ‘Labour Affairs, Employment and Social Security’ operating in the orbit of the Common Market Group. In addition, there is an important non-institutionalised form of participation, informal and independent of formal institutional channels, which has emerged more or less spontaneously, with several initiatives in the social field dealing with issues relating to the social agenda.444 This participation is taking place in parallel to other forms of social integration outside the framework of national states and it is articulated in different areas: business, artists, human rights organisations, women’s associations, charities etc. As such, because of its proximity and definition, it is contributing to the achievement of a more just and equitable regional integration.445 The participation of Latin American and Caribbean citizens in decisionmaking and, more specifically, economic integration processes (in particular, in the setting of standards regarding human rights) is very limited. 441 Mercosur,

Official Documents. Andean Community, Official Documents. 443  Decision 442 of the Commission of the Andean Community of 26 July 1998, art 1, in accordance with art 44 of the Cartagena Agreement; Andean Community, Official Documents. Mercosur’s Economic and Social Consultative Forum was established, as is known, by the Ouro Preto Protocol and Regulation 68/96. Padrón (n 109). 444  In the section on the organs, the Protocol of Ouro Preto reads as follows: ‘Article 28. The Economic-Social Consultative Forum is the organ representing the economic and social sectors and shall consist of equal numbers of representatives from each State Party. Article 29. The Economic-Social Consultative Forum shall have a consultative function and shall express its views in the form of Recommendations to the Common Market Group.’ See Podestá (n 313). 445  González Cravino (n 168) 66. 442 

The Social Dimension and the Protection of Human Rights 111 In ­CARICOM, as indicated by Serbín, there are alternatives arising from citizenship, which aim at increasing the participatory role of civil society in the regional decision-making process with the intervention of the Greater ­Caribbean Civil Society Forum.446 Within this process of integration, there is a Joint Consultative Group, which consists of representatives of the labour sector, the business sector and civil society organisations coordinated by the Caribbean Policy Development Centre.447 As regards SICA, the Antigua Declaration (1990),448 as the cornerstone of the new Central American integration, encourages groups to participate in the process in their respective fields of competence.449 In the Declaration of San Salvador (1991),450 the SICA Presidents put forward a proposal for the creation of a regional forum for dialogue and participation, involving industry, governments, the business sector, labour, academia and other stakeholders.451 Moreover, in the Agenda of Managua (1992)452 during the Second Plenary Session of the ‘Committee for the Development of Central America’, further expansion of national delegations to five members representing sectors of government, private, business, academic and labour sectors was agreed. Finally, in the Agenda de Guácimo (1994),453 the Central American Presidents requested the active participation of different sectors of society within a framework of solidarity and horizontal cooperation.454 In the Andean Community, in addition to the institutional mechanisms, under the Simón Rodríguez Convention the General Secretariat of the Andean Community has to facilitate the participation of Andean civil society. In addition, the Advisory Council of Labour Ministers of the Andean Community has the role of ensuring ‘the continuity of the work and the necessary links with the business and labour sectors, as well as other actors of civil society’.455 As part of this role, it organises regular meetings of ­government, employer and trade union representatives of the pub446  A Serbín (ed), Entre la confrontación y el diálogo: diplomacia ciudadana, sociedad civil e integración regional (Buenos Aires, Editorial Siglo XXI, 2003) 31 ff. See also F Jácome, ‘El Foro de la Sociedad Civil del Gran Caribe: Evaluación preliminar’ in Podestá et al (n 378) 179–187. 447  Jácome (n 388) 71. 448  The Antigua Declaration was adopted at the Seventh Summit of Central American Presidents held in Guatemala in 1990. 449  In this vein, it is worth citing the ‘Economic Action Plan for Central America’ (PAECA), adopted at the same Summit of Antigua (1990), which includes specific provisions on ‘active participation of the social sectors’ instructing ministers responsible for integration and regional development to design flexible and dynamic mechanism ‘that encourage broad consultation and participation between governments and the various social sectors related to development’ (para.9). SICA. Official Documents. 450  The Declaration was adopted at the Tenth Summit in El Salvador, on 17 June, 1991. 451 SICA, Official Documents. Declaration of San Salvador paragraph 17. 452  The Declaration was adopted during the Twelfth Summit in Nicaragua on 5 June 1992. 453  The Declaration was adopted at the Fifteenth Summit in Costa Rica on 20 August 1994. 454 SICA, Official Documents. 455  García Granara (n 404) 101.

112  Free Trade and Protection of Human Rights in the Americas lic and private sectors of member states, with the participation of relevant ­international organisations. In Mercosur, the Economic and Social Advisory Forum was created after the adoption of the Treaty of Asuncion, despite the lack of regulation ­established by the Protocol of Ouro Preto. In an appraisal of the participation of civil society, the purely advisory nature of this body should be noted, which has reduced the power of social actors. In this regard, the work done by the unions stands out.456 Moreover, another useful tool to ensure effective interaction between stakeholders and subregional institutions is the development of ‘social ­dialogue’ as a prominent component of social development. For the purposes of the recognition of human rights, social dialogue provides a forum where important issues related to the recognition and protection of certain rights are discussed, such as the right to education, and also provides ­legitimacy to the integration process.457 In order to encourage dialogue between the member states and civil society actors, various initiatives aimed at promoting and strengthening social dialogue have emerged. For instance, the Carabobo Act, which was signed at the meeting of the Andean Presidential Council, stressed ‘the importance of social dialogue as an inherent element of any democracy’.458 Social dialogue is also subject to regulation in the Social and Labour Declaration of Mercosur.459 However, regarding the participation of civil society in the integration agreements, the main criticism remains the fact that those represented are primarily the business and labour sectors, whereas other sectors of society, such as professional associations, religious communities, NGOs, associations of craftsmen or consumers, cooperatives, universities and grassroots organisations, are usually relegated and do not have a defined presence at the CCLA or CCEA of the Andean Community, or in Mercosur’s Economic and Social Consultative Forum. In an attempt to overcome this deficiency, the inclusion of opportunities for inclusion of groups other than the business and labour sectors covering issues such as sustainable development and the environment, the ­protection 456  The Protocol of Brasilia provides in art 25: ‘The procedure provided in this Chapter shall apply to claims made by ​​ individuals (natural or legal persons) on the occasion of the sanction or application, by any of the States Parties, legal or administrative measures restrictive effect, discriminatory or unfair competition in violation of the Treaty of Asuncion, of the agreements concluded in the framework thereof, the decisions of the Common Market Council or the resolutions of the Common Market Group.’ Mercosur, Official Documents. 457  G Corres, ‘Las relaciones internacionales del trabajo. La razón de la declaración sociolaboral del Mercosur: Su fundamento en el constructivismo’ (2001) 4 Revista del Mercosur 254. 458  Andean Presidential Council, Documents from Andean Presidential Council Meetings (1989–2002). 459  Ferreira (n 339) 90.

The Social Dimension and the Protection of Human Rights 113 of consumer rights, culture and Andean integration and identity.460 In order to further this process, efforts to create the conditions for a real dialogue between member states and civil society in the subregion should be expanded and strengthened so that sectors other than traditional ones can have the possibility of actively participating in the dynamics of the integration process.461 Certainly there is a change regarding the increase in the number of actors involved in the integration processes, both in terms of the sectors involved (employers, workers, professional associations, NGOs, cultural actors and consumer protection agencies, among others) and of occasions where such involvement can take place? (subnational and regional local authorities).462 As for the issues included in civil society’s agenda, these are diverse, comprising those relating to health, education, culture, the movement of people, migration, social security and labour rights (this list is merely indicative). The issues addressed depend on the particular interests of the stakeholders involved and both the proposal emanating from the institutions of the process and the contributions made by ​​ the participants. However, it is clear that the involvement of social actors is shaping the issues on the social agenda and their importance should be increased through networks of exchange and shared proposals.463 In sum, the agenda includes human rights issues in general and also the protection of specific rights. This can be seen in the case of CARICOM, where the consultation ‘Forward Together’ focused, from the beginning, on the relationship between participation of civil society and human rights.464 Similarly, the involvement of civil society should be envisaged as a necessary part of the process of adopting human rights instruments of human rights instruments. In the case of the Andean Community, the trade unions and the Andean Parliament played an active role in the adoption of the Charter.465 In addition, this legal instrument underlines the importance of ‘the participation of the social partners in the design and preparation of Community policies and particularly social policies’.466 Moreover, the Charter goes on to underline the need to take action ‘involving relevant ­government agencies and civil society, to prevent and eliminate, and to i­nvestigate, ­prosecute and 460 

Bizzozero (n 318). León Oliveros (n 320). 462  Pulgar (n 54). 463 ibid. 464 Document prepared by the General Secretariat of CARICOM, entitled ‘Forward Together’. Available at: www.caricom.org/jsp/community/regional_issues/civil_society.jsp?menu= community. A similar trend can be seen in the case of the Andean Community, which has incorporated dialogue with indigenous communities. 465  KH Kratochwil, ‘Movilidad transfronteriza de personas, migración laboral y proceso de integración regional en América Latina’ in CEFIR (n 240) 108–15. 466  J Montalvo, ‘Papel de las instituciones, agremiaciones y agrupaciones socio-­profesionales en el diálogo social. Costos y Beneficios del Modelo Europeo’ in CEFIR (n 240) 116–25. 461 

114  Free Trade and Protection of Human Rights in the Americas punish the stands crimes against humanity, including any practice of torture and other cruel, inhuman or degrading treatment, enforced disappearances and extrajudicial executions’.467 There are declarations that are adopted jointly by networks of third s­ ector organisations participating in the social dimension in different economic agreements. Take, for instance, the Charter on the Social and Cultural Commitment signed by representatives of organisations from Mercosur, Chile and the Andean Community to reaffirm their commitment to the consolidation and defence of human rights and fundamental freedoms.468 In the Charter, among other considerations, the member states recognised ‘The responsibility of the state as the main responsible for guaranteeing social and cultural rights of the majority and minorities, assuming the obligation to develop and implement policies for cultural and social integration and coordinate public actions and business and civil society initiatives’ and ‘promote … companies adopting the basic principles of regional integration, equity, cultural diversity and multiculturalism in the context of the protection of human rights, rights of minorities and the protection of the environment’. Member states must also ‘adopt gender in public policies of their governments, in the conviction that full equality between women and men is an integral part of human rights and fundamental freedoms’.469 In addition, there has been a rapprochement between the sectors of civil society involved in each integration process. In the labour rights sector, one example is the active participation of trade associations such as the Coordinator of Trade Unions of the Southern Cone (CCSCS), an organisation created in 1986 including representatives of organisations of workers of Argentina, Bolivia, Brazil, Chile and Paraguay, seeking to establish links and concrete alliances with other unionised workers. In this area, there have also been joint meetings between unions of different economic integration blocs.470 No less important is the link between local governments of member states of an integration agreement to achieve greater participation within the community, one example being economic integration agreement like in the case of Mercociudades, a network of different cities from Mercosur member states.471 This decentralised the decision-making and enforcement of agreements associated with the consolidation of democracy and reform, creating social spaces (guaranteeing certain individual and social rights of migrants 467 Mercosur,

Official Documents. The proposal from Argentina signed in La Paz, Bolivia on 17 July 2001. 469  Andean Community, Official Documents. 470  ‘First Meeting Mercosur-Andean Community Association’ held in Montevideo in June 1998, and the ‘Trade Union Meeting Joint Andean Community-Mercosur’ held in Brasilia in August 2000. 471  The network was established in 1995 by local authorities of various Mercosur cities. It has evolved to become a forum to discuss issues pertaining to local development. Available at: www.mercociudades.org. 468 

The Social Dimension and the Protection of Human Rights 115 or citizens of neighbouring areas) and subregional cooperation and more circumscribed benefits, both territorially and socially.472 The importance of these processes of decentralisation within the subregional integration is twofold: first, there are already some basic elements of what can be considered a ‘regional citizenship’; and, second, decentralisation, when combined with integration, can generate an institutional framework that goes beyond that given by the treaties and agreements signed by the central government.473 Taking stock of the instruments regarding the participation of civil society, it can be concluded that the instruments and institutions established for that purpose remain advisory; they can only fulfil a representative function, usually at the propositional level.474 However, the debate on the social dimension and inclusion, development and enlargement constitutes an important step towards the recognition and protection of human rights in the subregional schemes. The new goal set is that the integration process itself should create mechanisms and legal instruments, alongside social programmes that adopt its own regulatory system in order to lay down the foundation for stronger integration. All this is abundant evidence of ‘the need to open doors … in agreements and policies in the field of human rights and to create regulatory frameworks in major intergovernmental agreements to harness flexible modalities for development of the social dimensions of integration’.475 In order to achieve this purpose, it may be appropriate to introduce elements of community law (or at least binding standards), which would ensure the binding effect of the relevant provisions. As noted above, civil society groups are participating in various fields, including respect for human rights and democracy and the protection of rights of vulnerable groups, such as the rights of children, women and indigenous peoples.476 472  Franco and Di Filippo (n 13) 46. On the emergence of a citizenship within subregional processes in the case of Mercosur in particular, see: O Ermida Uriarte, ‘La ciudadanía laboral en el Mercosur’ in Podestá et al (n 378) 175–210. 473  Pulgar (n 54) 4. 474  Franco and Di Filippo (n 13) 31, 47. 475 B Cornejo Castro, ‘La integración regional y la “transfronterización” de las políticas sociales: Experiencias Subregionales Latinoamericanas y futuros desafíos’ in CEFIR (n 240) 29–36, original text in Spanish, author’s translation. 476  In Mercosur, there is a draft charter of human rights presented by the unions and the Social and Labour Declaration. In the Andean Community, the Andean Charter for the Promotion and Protection of Human Rights, adopted in 2002, acknowledges in its preamble the ‘valuable contributions arising from the consultation process to prepare this Charter … with representatives of the civil society in the five Andean countries’. Furthermore, art 7 enshrines the objective of ‘promoting the participation of civil society in the preparation and implementation of national action plans and programs of member countries for the observance of human rights’. An interesting case is that of CARICOM, which through the Commission of the West Indies has included the voice of civil society sectors. This committee has also prepared the draft for the Charter of Civil Society of the Caribbean, in which the involvement of civil society in monitoring compliance with human rights is envisaged.

116  Free Trade and Protection of Human Rights in the Americas In the field of human rights, there has been active participation of civil society in the development of tools for tackling social and labour issues or infringements of human rights.477 Moreover, the participation of civil society is incipient, consisting of a growing number of diverse organisations created at the subregional level: unions, business sector, sectoral organisations, consumers, universities, NGOs, political parties and other social organisations. This reality highlights the need to open up the decision-making and law-making process and expand it to include other groups.478 F. The Development and Consolidation of the Concept of ‘Regional Citizenship’ It has been argued that the social dimension is heading towards the establishment of labour citizenship—a citizenship based on the movement of workers. This ‘process of emergence of community citizenship’ is marked by several aspects, such as the existence of effective remedies for the protection of human rights, the recognition of certain political rights (in particular, the participation in the elections of a representative body) and also the adoption of a uniform identification for the citizens of the member states.479 As is well known, in the EU, the integration process has evolved in many so as to create the status of citizenship of the European Union. The Treaty on the European Union states as one of its objectives to ‘strengthen the protection of the rights and interests of its citizens by establishing a citizenship of the Union’.480 The concept of citizenship is related intimately to the recognition of fundamental rights, even if it means actually the recognition of specific rights of the member states’ citizens. Citizenship in the European sense is defined by the rights enjoyed by citizens on the basis of their legal ties to a member state, so it has been argued that citizenship of the EU implies specific rights, these rights being of a different nature from those guaranteed in the national constitutions, as these EU rights are conferred on a supranational level.481 At the EU level, briefly, rights are granted in 477 

Estay (n 423) 30. Pulgar (n 54). 479 See U Bernitz and H Lokrantz Bernitz, ‘Human Rights and European Identity’ in P Alston (ed), The The EU and Human Rights (Oxford, Oxford University Press, 2000) 505–28. 480  EUDO, ‘Legal Concept of EU Citizenship’ 2015, available at: http://eudo-citizenship.eu/ eu-citizenship; JM Rodríguez Barrigón, La ciudadanía de la Unión Europea (Madrid, Centro de Estudios Políticos y Constitucionales, 2002). 481  F Pocar, Diritto dell’Unione Europea e delle Comunitá europee 9 edn (Milan, Giuffrè, 2004) 97–103. See also B Nascimbene, ‘Brevi rilievi in tema di diritti fondamentali, cittadinanza e sussidiarietà nel trattado dell’Unione europea’ (1994) Diritto Comunitario 233; S Cassese, ‘La cittadinanza europea e le prospettive di sviluppo della Europa’ (1996) 5 Rivista Italiana de Diritto Pubblico Comparato, 869; N Reich, ‘Union Citizenship—Metaphor or Source of Rights?’ (2001) 7(1) European Law Journal 4; F Acaro and G Baldini, ‘Profili evolutivi della cittadinanza europea: “Verso un diritto privato comunitario?”’ (2002) 2–3 Rivista Italiana 478 

The Social Dimension and the Protection of Human Rights 117 three key areas: those relating to freedom of movement;482 political rights of individuals vis-a-vis the EU institutions;483 and, finally, the protection of the rights of citizens.484 All this demonstrates the close relationship between citizenship and fundamental rights.485 As regards the subregional processes of integration taking place in Latin America and the Caribbean, there is now a new socio-political landscape for the citizens of the member states more specifically the creation of a regional space in the political dimension,486 which recognises certain rights of the citizens of the member states.487 In the analysis put forward by ​​ Ermida Uriarte, taking Mercosur as a paradigmatic subregional process, he distinguished three dimensions in the concept of citizenship: in the first sense, the notion of citizenship corresponds to the traditional legal concept as the ‘membership of a State, entailing political rights and obligations’;488 in the second sense, the notion of labour or trade union citizenship, which would be the ‘employees’ participation as such’.489 But in addition to these two categories, another notion of citizenship would involve the establishment of ‘a regional system of industrial relations’, that is, ‘community or regional citizenship’ such as the citizenship that exists in the EU.490 Drawing on di Diritto Pubblico Comparato 445; N Barber, ‘Citizenship, nationalism and the European Union’ (2002) 27(3) European Law Review 241; and C Jacqueson, ‘Union Citizenship and the Court of Justice: Something New under the Sun? Towards Social Citizenship’ (2002) 27 ­European Law Review 260. See also A Chueca Sancho, ‘El derecho de petición de los ciudadanos de la Unión Europea al Parlamento Europeo’ (1994) 18 Revista de la Facultad de Derecho de la Universidad Complutense 217; and A Mangas Martí, Carta de los Derechos Fundamen­ tales de la Unión Europea: comentario artículo por artículo (Bilbao, Fundación BBVA, 2008). 482  U Bernitz and H Lokrantz Bernitz, ‘Human Rights and European Identity’ in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press, 2000) 505. 483  From the perspective of political rights, citizenship of the EU includes the right to vote and stand in local elections in the Member State in which the person, who is not a citizen of this State, resides, under the same conditions as nationals in the case of elections to the European Parliament. Another political right emanating from subsequently recognised European citizenship is to hold consultations on the European institutions and to receive from them a response not only to the European Parliament and the Ombudsman, but also to other institutions. See Pocar (n 481) 97. 484  The Charter of Fundamental Rights of the European Union, adopted in 2000 and incorporated into the founding treaties after the Lisbon Treaty, has reaffirmed EU citizenship rights. EU Citizenship rights are enshrined in Articles 9 to 12 TEU and 18 to 25 TFEU. 485 A Mangas Martín, ‘Carta de los derechos fundamentales y ciudadanía de la Unión ­Europea’ in Z Drnas and E Rey Caro (eds), Libro Homenaje al Profesor Ernesto Rey Caro (Córdoba, Argentina, Lerner, 2002) 988. 486 MB Olmos Giupponi, ‘Aspectos políticos de la cooperación iberoamericana vinculados al fortalecimiento de las estrategias de promoción y defensa de los derechos humanos’ in C Díaz Barrado and MG Romero Morett (eds), Elementos de análisis para la integración de un espacio iberoamericano (Madrid, URJC, 2007). 487 L Bizzozero, ‘La participación de los actores sociales en el Mercosur: ¿Hacia una ­ciudadanía regional en el bloque?’ in A Serbín (ed), Entre la confrontación y el diálogo: diplo­ macia ciudadana, sociedad civil e integración regional (Buenos Aires, Siglo XXI, 2003) 91. 488  Ermida Uriarte (n 472). 489 ibid. 490 ibid.

118  Free Trade and Protection of Human Rights in the Americas ­ riarte’s research, the analysis of instruments emanating from integration U in Latin America and the Caribbean and the actual practice of integration in this area, one can refer in particular to the creation of a regional citizenship on the basis of the freedom of movement and the principle of equal treatment, protection of regional migrants. The emergence of a new citizenship In the subregional integration processes, there is some evidence regarding the emergence of a new citizenship, with certain actions regarding the free movement of people, a common passport or, in some cases, a specific regional document, and some initiatives to define and promote regional mobility.491 The recognition of a regional citizenship is also one of the major aspirations of a social policy which aims to contribute to the articulation of an expanded social space.492 In other words, the regional citizenship would be complementary to the various existing nationalities—for example, in the case of the Southern Cone, being a national of one of the member states and, in addition, a citizen of Mercosur or UNASUR.493 In this vein, the free movement of workers has been and remains one of the main objectives set out in the subregional integration agreements, to which all have adhered unanimously. As a result of its implementation have arisen social problems that have been significant at different times and in different ways. Within CARICOM, different legal instruments have been adopted regarding the free movement of qualified workers.494 In SICA, a regional migration information system was created, taking into account changes in international migration and the socio-political and economic contexts in order to formulate migration policies and actions in Central America.495 In Mercosur, there have been different proposals to regulate the movement of citizens within the integrated space.496 The drafts highlight various typologies of migrants: (a) individuals; (b) company workers; and (c) frontier workers.497 A significant contribution addressing this issue was the approval of the Protocol of Montevideo on Trade in Services in December 1997. However, this ran into difficulties in terms of ratification and therefore its validity within the 491  A Di Filippo, ‘Globalización, Integración Regional y Migraciones’ 2000, available at: http://red.pucp.edu.pe/ridei/wp-content/uploads/biblioteca/130210.pdf. 492  Pulgar (n 54). 493  Podestá (n 313). 494  Di Filippo (n 491). 495  Godínez Vargas (n 402). See also J Arriola Palomares and JV Aguilar Guillén, El mov­ imiento sindical ante la integración centroamericana: de la frágil participación a la propuesta de Tratado de Integración Social (San José, Costa Rica, ORIT-Friedrich Ebert Stiftung) 11. 496  The document had already been discussed by experts from the four countries prior to the meeting in 1997 to bring proposals to the SGT 11 in the search for harmonisation in the field of movement of workers in Mercosur. 497  Barretto Ghione (n 410) 168.

The Social Dimension and the Protection of Human Rights 119 Mercosur legal system therefore its validity within Mercosur legal system is uncertain. Finally, the Social and Labour Declaration contains ­provisions on this in Article 4, which recognise the equal rights and working conditions of migrants as are accorded to nationals of the country in which he or she is resident.498 With regard to the movement of workers, the movement of technical and professional workers must be distinguished from the movement of undocumented migrants.499 Some commentators are confident that the participation of stakeholders may help to transform inequitable situations, through the use of thetripartite mechanism that is established in the Social and Labour Declaration.500 Labour citizenship A notion that has gained importance in the protection of social rights is labour citizenship, without neglecting the concept of ‘regional citizenship’. Most treaties adopted in the subregional processes of Latin American and Caribbean integration directly contemplated freedom of movement of ­workers. In particular, immigration policy is closely linked to social development and human rights, because through them actions are put in place that affect labour markets, the education system, social services, science and technology, public security etc in the member states and in third countries.501 In the case of the Andean Community, there is recognition of the right of every citizen to vote in the elections of the member states of the Andean Community and participate in the elections of the Andean Parliament, to be implemented by universal, free, direct and secret suffrage.502 Thus, also in the Project of the Andean Charter, there is a recognised right for citizens of the States of the CAN to submit complaints to the Ombudsman of their state of residence.503 The signing of the subregional integration agreements led to greater movement between citizens of member states, which raised the need for uniform standards for workers belonging to third states. These issues were incorporated into the agenda of the integration process, receiving increased attention in terms of both the formulation of schemes and convergent policies (coordinated, harmonised or even common policies), which result in

498  The education sector has made progress ​​ in terms of the equivalence of levels and qualifications, although in a purely academic sense and without this being translated into allotments to work, where there are still traditional regulations. 499  Barretto Ghione (n 410) 180. 500 ibid. 501 E Bascuñán and E Durston, ‘Globalización, tratados comerciales y autodesarrollo ­indígena en América Latina’ in Franco and Di Filippo (n 13) 188. 502  Article 18 of the Andean Charter for the Promotion and Protection of Human Rights. 503  Andean Community, Official Documents.

120  Free Trade and Protection of Human Rights in the Americas the need to provide guarantees for individual, social and economic rights of migrants from other member countries.504 It seems that the integration agreements have reached a new stage in terms of building a regional citizenship on the basis of mobility rights; at least, this is the interim conclusion to be drawn from recent attempts to r­ egulate free movement in the different integration processes. Although these different attempts do not follow the model of citizenship in the European sense exactly, there are certain elements of citizenship linked to a certain ­category of persons, that is, ‘regional citizenship’ is understood in terms of the mobility of a citizen-migrant worker, either within Mercosur, UNASUR, the Andean Community, SICA or CARICOM. The different regulations that have been adopted could be qualified prima facie as belonging to international labour law. However, when analysed in detail, they go beyond pure labour law issues and enter the field of international human rights law. In this regard, there are three distinct aspects involving labour standards, but also other provisions related to the protection of human rights in the most fundamental sense of the term, for ­example, protection against forced labour and slavery.505 In the field of movement of people and migration, there has been more significant and outstanding progress in terms of the recognition and protection of social rights. At the level of regional integration, this includes important policy areas for the protection of human rights, such as the harmonisation of immigration laws among States parties and labour legislation regarding workers from other member states and third countries; the reform and harmonisation of rules governing access by citizens of another member state to basic social services; the granting of political rights to citizens of other member states; the harmonisation of valid identification documents in all member states; and recognition among member states of degrees, diplomas and other certificates of study and training.506 The concept of ‘labour citizenship’ is based, however, on cross-border cooperation agreements, generally of bilateral character, which address migration.507 In this vein, in Mercosur, members and associated states reached an ­agreement to regulate the issue of residence in the case of individuals who move from one member state to another, ensuring the enjoyment of equal and civil rights, and social, cultural and economic freedoms on an equal footing with citizens of the state, with a focus on the right to work.508 Rules already existed governing mobility between citizens of the member states, such as Resolution 44/94 on the required documents of each member 504 

Franco and Di Filippo (n 13) 29.

505 ibid. 506 

Kratochwil (n 465) Carballo de la Riva, Movilidad Intrarregional en América Latina: Sistemas Gen­ erizados (Madrid, Trama Editorial/CEEIB, 2013) 1318–36. 508  Franco and Di Filippo (n 13). 507  Marta

The Social Dimension and the Protection of Human Rights 121 state regarding circulation of people in Mercosur.509 Furthermore, Furthermore, in the so-called ‘Mercosur Agenda to the Year 2000’, the priority areas are linked to labour relations, employment and social security and migration. In particular, it provides that the evolution of the integration process demands the revision of agreements on labour and social rights. Closer cooperation is also stimulated in relation to the implementation and control of labour standards, taking into account, where relevant, international commitments assumed by the member states.510 In the Andean Community, the first legal instruments adopted in relation to the social dimension attempted to ensure the free movement of workers. The Andean Social Security Instrument was articulated on the idea that each member state should grant citizens of other member states equal treatment in all circumstances.511 Furthermore, Decision 116 on Labour ­Migration was conceived to facilitate the transfer of nationals to the territory of another member state in order to render professional services.512 In the new era of Andean integration, two aspects deserve mention: the first is the revision of the Simon Rodriguez Convention, which put the emphasis on aspects pertaining to the free movement of persons, non-­discrimination and respect of labour rights and social security, harmonisation of legislation and employment policies. The second aspect is the proposal of decisions on the recognition of National Identification Documents and the creation of the Andean Passport, which are certainly steps of vital importance to the consolidation of the Andean area of free movement of people and the ­creation of a community of Andean citizens.513 More particularly, the abolition of visas for Andean nationals for stays of up to 90 days was discussed in order to overcome barriers and move towards the smooth transit of nationals of member states. In addition, the Andean Presidents agreed to promote the establishment of an Andean i­nformation system of migration control, facilitating the transit and residence of Andean nationals in the subregion.514 Commentators have asserted that there is a clear trend towards the establishment of a regional subject, despite the limitations resulting from each subregional integration process. At the very least, the creation of ­integrated social spaces has led to the need to ensure the rights and guarantees of migrant workers in these areas.515 This trend is driven by the factual 509  SGT No 2 D and No 75/96, concerning the documents of each member state to enable the movement of people in Mercosur. Mercosur, Official Documents. 510 ibid. 511 ibid. 512  Ciudad Reynaud (n 403) 9. 513 This proposal was put forward during the Meeting of Valencia in June 2001 by the Presidents of the Andean Community, Documents of the Meeting of the Andean Presidential Council from 1989 to 2002. Andean Community, Official Documents. 514  Franco and Di Filippo (n 13) 34. 515 ibid.

122  Free Trade and Protection of Human Rights in the Americas s­ ituation of migrant workers, which calls for a proper legal treatment from the perspective of human rights, some of which have already been subject to regulation under the ILO norms.516 Migrant workers in subregional integration process in Latin America and the Caribbean Migration flows within subregional processes have also been boosted by ­economic factors; in Latin America, intraregional migration is due to ­significant differentials in terms of levels of per capita income between ­countries.517 From a legal perspective, this creates the need in the host state that a certain level of protection is guaranteed to migrants. While there is an established international definition of ‘migrant worker’ provided by the Convention on the issue adopted at the UN level, this definition assumes a special significance when referring to regional integration processes because, alongside the international status, there exist or, at least should exist, guarantees for the protection of the rights of migrants and their families, derived from the premise of the free movement of workers within the integrated area, as an added element to the basic level of protection afforded.518 The situation of migrants in the Latin America and the Caribbean has been studied by other regional bodies, which make an important contribution to the study and advancement of this field.519 Thus, the Inter-­American Commission on Human Rights issues reports on the status of migrant workers and their families, analysing the situation of ‘persons internally displaced’, the ‘stateless’ or ‘refugees’.520 Similarly, during 1998–1999, the General Secretariat of the Regional Office of the Commission for Latin America and the Caribbean (ECLAC) prepared a study on the social and economic implications of migration in the Caribbean states.521

516 As noted by S Trevino Ghioldi, the ILO has a dedicated legislation to regulate the s­ ituation of migrants through Conventions 97 (1949) and 143 (1975) and Recommendations 86 and 151, Treviño Ghioldi, Libre circulación (1995) above n 465. 517  A Solimano, ‘Globalización y migración internacional: la experiencia latinoamericana’ (2003) 50 Revista de la CEPAL 55. 518  Among the international human rights law instruments, mention should be made of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which was adopted by United Nations Resolution 45/158 of the General Assembly and entered into force in July 2003. 519  J Martínez Pizarro, MV Cano Christiny and M Soffia Contrucci, Tendencias y patrones de la migración latinoamericana y caribeña hacia 2010 y desafíos para una agenda regional (Santiago, CEPAL/CELADE, 2014). 520  OAS, ‘Rapporteurship on the Rights of Migrants’, available at: www.oas.org/en/iachr/ migrants/default.asp. 521  To the same end, there was a meeting on intra-regional migration, whose findings were presented at the Symposium on Migration Caribbean. Available at: http://www.un.org/esa/ population/meetings/IttMigLAC/P09_ECLAC%28Port%20of%20Spain%29.pdf.

The Social Dimension and the Protection of Human Rights 123 Among migrants, low-skilled workers who according to commentators pose problems regarding the recognition of pension rights, access to health systems and education and housing etc should be differentiated. All these aspects are related to the enjoyment in the host state of the rights acquired in the state of origin. Another category would be the liberal professions, in which regard the key issue is the validity of the qualification certificates and the right of access to professional associations on an equal footing with national colleagues regarding professional rights and obligations.522 Other cases of people moving within the integrated area, such as students from different educational levels, raise issues, mostly relating to the recognition and revalidation of studies completed in the member states, the certificates and diplomas of degrees obtained in the country of origin, and the recognition of degrees attained in the host state when migrants return to their countries of origin.523 In sum, the common element in all subregional integration agreements and, at the same time, the starting point for the later regulations on the matter is the freedom of movement envisaged as one of the purposes of the economic integration agreements. This is reflected, for example, in Article 1 of the Treaty of Asunción, which provides as one of the components of the common market ‘the free movement of goods, services and factors of production between countries’. In fact, as has been defined in the European process by the CJEU, the ‘freedom of movement of workers is one of the foundations of the community’.524

522 

Franco and Di Filippo (n 13) 34. ibid, 35. 524  Treviño Ghioldi, (n 465) 358. 523 

2 The North American Free Trade Agreement (NAFTA) and the Protection of Human Rights I. INTRODUCTION

W

ITH A DIFFERENT logic from the traditional economic integration agreements, the North American Free Trade Agreement (NAFTA) came into effect in 1994, creating one of the world’s largest free trade zones between Canada, the United States, and Mexico.1 From the outset, NAFTA was conceived as an intergovernmental agreement without any aspirations of constituting a political union or a common market.2 Pragmatism was the rule of thumb: a basic institutional set-up with inter-governmental bodies in charge of the coordination, and a dispute resolution mechanism articulated on the basis of the investment arbitration model. Strictly speaking NAFTA has different features from the other subregional integration agreements Latin American and Caribbean states are embarked on. There are several features that distinguish NAFTA from the other regional integration agreements. First, the main distinction concerns the different goals set out. The commitments assumed by member states under NAFTA are in line with the creation of a free trade area between countries of diverse economic development. Second, there is no cession of sovereignty

1  The North American Free Trade Agreement (NAFTA) was signed in December 1992, and entered into force on January 1, 1994. There is a burgeoning literature on NAFTA: see, for instance: JJ Coe, Jr, ‘Taking Stock of NAFTA Chapter 11 in Its Tenth Year: An Interim Sketch of Selected Themes, Issues, and Methods’ (2003) 36 Vanderbilt Journal of Transnational Law 1381, 1408–12; CH Brower, JJ Coe, WS Dodge, NAFTA Chapter Eleven Reports: Primary materials (Kluwer 2006); M Pérez González, ‘Las organizaciones internacionales en América (II)’, in M Díez de Velasco, Las Organizaciones Internacionales 12 edn (Madrid, Tecnos, 2002) 757–722. 2  FJ Garcia, ‘NAFTA and the Creation of the FTAA: A Critique of Piecemeal Accession’ (1995) 35 Virginia Journal of International Law, 539–586.

NAFTA as an ‘Asymmetric Trade Agreement’ 125 (intended or effective). Third, even if broader regional integration is envisaged, there are no other specific commitments such as the protection of human rights or a social agenda. Fourth, in terms of dispute settlement the choice of alternative dispute resolution also indicates the clear predominance of inter-governmentalism. II.  NAFTA AS AN ‘ASYMMETRIC TRADE AGREEMENT’

On the whole, NAFTA can be qualified as an asymmetric agreement since it comprises two developed member states and a ‘developing nation’ whereas Latin America and the Caribbean integration processes comprise member states with more or less similar levels of development.3 Despite all the difficulties and setbacks experienced, more than twenty years after its creation NAFTA has survived as an asymmetrical integration process unlike the Free Trade Area of the Americas (FTAA). In an appraisal of NAFTA’s achievements at 20, this trade agreement represents a remarkable accomplishment taking into consideration the differences between the two major member states and Mexico. Contrary to what some analysts contended at the time, NAFTA has successfully dealt with all the different challenges. One may find the answer to that in the intergovernmental nature of its institutions. Indeed, inter-governmentalism represents a dominant feature of this regional integration process. This is reflected in its intergovernmental institutional set-up and dispute settlement procedure. As for the dispute settlement proceedings, NAFTA encompasses various alternative dispute resolution mechanisms.4 Surely, the most salient is Chapter 11. NAFTA was preceded and followed by other similar free trade agreements, which encompasses also dispute resolution procedures.5

3 RA Pastor, ‘El modelo de America del Norte en un mundo de tres regiones’, in J Roy, A Chanona and R Domínguez (eds), La Union Europea y el TLCAN (Mexico, UNAM, 2004) 35–51. 4  NW Ranieri, ‘NAFTA: An overview, in Regionalism in international investment law’, in LE Trakman and NW Ranieri (eds) Regionalism in International Investment Law (Oxford, Oxford University Press, 2013) 88–119. 5  Dominican Republic-Central America-United States Free Trade Agreement, Aug 5, 2004, Pub L No 109–53, 119 Stat 462 (2005), available at: http://www.ustr.gov/Trade_Agreements/ Regional/ CAFTA/CAFTA-DR_Final_Texts/Section_Index.html (last visited Mar 17, 2008); see also M Muse-Fisher, ‘CAFTA-DR and the Iterative Process of Bilateral Investment Treaty Making: Towards a United States Takings Frameworks for Analyzing International Expropriation Claims’ (2006) 19 PAC. McGeorge Global Bus & Dev LJ 495 (discussing the expropriation chapters of CAFTA through the lens of Chapter 11 of NAFTA); M Lehmann, ‘Options for Dispute Resolution under the Investment Chapters of NAFTA and CAFTA’ (2005) 16 Am Rev Int’l Arb 387.

126  (NAFTA) and The Protection of Human Rights A.  NAFTA’s Main Goals and Intergovernmental Bodies Bearing all these different characteristics in mind, NAFTA’s central objective is to create a free trade zone in order to increase wealth and competitiveness for the member states and citizens.6 The objectives set out in Article 102 describe clearly a list of goals to be achieved in the economic domain in order to: ‘a) eliminate barriers to trade in, and facilitate the cross-border movement of, goods and services between the territories of the Parties; b) promote conditions of fair competition in the free trade area; c) increase substantially investment opportunities in the territories of the Parties; d) provide adequate and effective protection and enforcement of intellectual property rights in each Party’s territory; e) create effective procedures for the implementation and application of this Agreement, for its joint administration and for the resolution of disputes; and f) establish a framework for further trilateral, regional and multilateral cooperation to expand and enhance the benefits of this Agreement’.7 The legal framework for the achievement of these objectives comprises the Agreement itself and ‘applicable rules of international law’.8 There is a small number of NAFTA institutions which are in charge of the implementation and oversight of the Agreement’s provisions. In the first place, the Free Trade Commission (FTC) comprises ministerial representatives from the NAFTA member states. It monitors the implementation and further elaboration of the Agreement and contributes to resolving disputes arising from its interpretation. In addition, the FTC supervises the work of the NAFTA committees, working groups, and other subsidiary bodies. In terms of dispute resolution, this tripartite FTC has contributed to the interpretation of crucial terms such as ‘fair and equitable’ treatment in international investment law.9 Senior trade department officials designated by each country (known as NAFTA Coordinators) are responsible for the daily management of NAFTA implementation. In order to support the functioning of the Agreement, several NAFTA Working Groups and Committees were established. These working groups and committees (of which there are over 30) facilitate trade and investment and ensure the effective implementation and administration of NAFTA. The Committees cover different areas of work such as trade in goods, rules of origin, customs, agricultural trade and subsidies, standards,

6  NAFTA Chapter One: Objectives. Article 101: Establishment of the Free Trade Area; Article 102: Objectives. Available at: http://www.sice.oas.org/trade/nafta/chap-01.asp. 7 NAFTA. Article 102: Objectives. Available at: http://www.sice.oas.org/trade/nafta/ chap-01.asp. 8 ibid. 9 G Kaufmann-Kohler, ‘Interpretive Powers of the Free Trade Commission and the Rule of Law’, in Fifteen Years of NAFTA Chapter 11 Arbitration (JurisNet, LLC 2011) 175–194.

NAFTA as an ‘Asymmetric Trade Agreement’ 127 government procurement, investment and services, cross-border movement of business people, and alternative dispute resolution. Undoubtedly, NAFTA Secretariat plays a central role. It is made up of a ‘national section’ from each member state. The Secretariat’s role consists in supervising the implementation of the dispute settlement provisions of the Agreement and administering dispute resolution processes under Chapter 14, Chapter 19 and Chapter 20. It also develops some responsibilities related to the Chapter 11 dispute settlement provisions concerning investment. As in other agreements, the Secretariat is responsible for keeping a court-like registry relating to panel, committee, and tribunal proceedings, and maintaining a trinational website containing up-to-date information on past and current disputes. Two special Commissions oversee the implementation of both the respective side agreements. The Commission for Labour Cooperation was created specifically to promote cooperation in labour matters among NAFTA members and the effective enforcement of domestic labour law. It is made up of a Council of Ministers (comprising the labour ministers from each country) and a Secretariat which provides administrative, technical, and operational support to the Council and implements an annual work program. In order to coordinate the different tasks and responsibilities, departments responsible for labour in each of the three countries act as domestic implementation points.10 In turn, the Commission for Environmental Cooperation was created to foster cooperation among NAFTA partners in implementing the environmental side accord to NAFTA and to address environmental issues of regional concern, with a focus on the environmental challenges and opportunities arising from the free trade area. It consists of a Council (made up of the environment ministers from each member state), a Joint Public Advisory Committee (consisting in a 15-member, independent volunteer body that provides advice to Council on any matter that falls within the scope of the environmental accord), and a Secretariat (which develops administrative, technical, and operational support).11 The dispute settlement mechanism instituted under NAFTA in Chapter 11 deserves special mention.12 Chapter 11 contains different standards of treatment of foreign investors that must be respected by NAFTA member states. These are mainly: requirement of national treatment (Article 1102); prohibition of expropriation (Article 1110) and prohibition of performance requirements (Article 1106). The breach of any of these standards of

10 

Information available at: www.naalc.org. Up-to-date information on the Council and the various topics that have been reviewed by the Council are available at: www.cec.org/council. 12 See dispute settlement provisions, available at: https://www.nafta-sec-alena.org/Home/ Dispute-Settlement/Overview-of-the-Dispute-Settlement-Provisions. 11 

128  (NAFTA) and The Protection of Human Rights treatment triggers the procedure for the Settlement of Disputes between a Party and an Investor of Another Party. Chapter 11 sets forth a mechanism for the settlement of investment disputes guaranteeing equal treatment among investors of the member states in accordance with the principle of reciprocity and due process before an impartial tribunal. Different possibilities are at hand for NAFTA investors who allege that a host state has breached its investment obligations under Chapter 11. Investors can choose to have recourse to one of the following arbitral mechanisms: the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID); ICSID’s Additional Facility Rules; and the rules of the United Nations Commission for International Trade Law (UNCITRAL Rules). Final awards issued by arbitration tribunals under Chapter 11 arbitral provisions are enforceable in domestic courts. As an alternative, the investor may opt for the remedies available in the host state’s domestic jurisdiction. In sum, Chapter 11 is an investment chapter that ‘bore some resemblance to traditional investment protection mechanisms, but that also broke new ground’.13 III.  HUMAN RIGHTS: ENVIRONMENTAL PROTECTION AND LABOUR RIGHTS

There is no specific objective included in the founding treaty that refers to the protection of human rights. One may ask, then, to what extent NAFTA countries are dealing with human rights protection? Although human rights considerations were not at the centre of the negotiations, NAFTA partners concluded also two side agreements: the North American Agreement on Environmental Cooperation and the North American Agreement on Labour Cooperation. These side Agreements ­ address human rights-related topics. NAFTA’s Preamble contains a mention to the environment where it states that the Parties resolve to ensure a predictable commercial framework planning and investment and they undertake it in a manner consistent with environmental protection and conservation.14 Notwithstanding this, the choice of separate agreements denotes a different approach to human rights taken and has two main implications.15 Firstly, they by no means embody typical human rights provisions or provide a remedy to deficiencies of NAFTA in this field. Certain human rights

13 

Ranieri, supra n 4, 99. NAFTA Preamble, available at: http://www.sice.oas.org/trade/nafta/preamble.asp. 15  S Charnovitz, ‘The NAFTA Environmental Side Agreement: Implications For Environmental Cooperation, Trade Policy, And American Treaty-Making’ (1994) 8 Temp Int’l & Comp LJ 257. 14 

Human Rights: Environmental Protection and Labour Rights 129 abuses or environmental damages as perceived by many environmentalists and public interest groups, would not be remediable. Secondly, pursuing environmental objectives in a ‘side agreement’ was similar to the Bush Administration’s approach that environmental issues would be treated in a parallel accord. During the negotiations of the NAFTA Agreement many democrats in Congress had opposed this approach to handling environmental problems. They wanted environmental concerns to be integrated into trade negotiations. In particular, during the negotiations of NAFTA they expressed concern regarding environmental protection and labour relations. In the attempt to address some of these issues, President Clinton took the view that ‘he would not sign legislation implementing the trade agreement until new ‘supplemental agreements’ had been negotiated with Mexico and Canada regarding these issues’.16 It is true that the NAFTA environmental and labour side agreements embody some protective provisions, but they are far from being comprehensive agreements as was envisaged by some politicians and non-governmental organisations. A.  Introducing Human Rights Issues in NAFTA It is particularly in the ad-hoc judicial review process chosen by the member states where human rights concerns were made evident. Furthermore, the protection of human rights in NAFTA lies at the intersection between international investment law and human rights law.17 Referring to the protection of human rights in NAFTA, Jose Alvarez has used an ironic tone defining the NAFTA investment chapter (Chapter 11) as ‘a human rights treaty for a special-interest group’ in other words, foreign investors.18 Thus, the question of the NAFTA commitments and human rights obligations lies at the heart of the controversial relationship between international investment law and international human rights law. Many criticisms have been directed against international arbitration, due to its lack of transparency, legitimacy and accountability vis-à-vis human rights obligations, and the highly questionable role of arbitrators with regard to the protection of public interest and human rights. However, transparency issues lead to some concerns that uncertainty can create a regulatory chill in host states. 16 Ibid.

17  Literature on the relations between international investment law and international human rights is abundant. See, for instance: LE Peterson & KR Gray, ‘International Human Rights in Bilateral Investment Treaties and investment Treaty Arbitration’ (The International Institute for Sustainable Development, Research Paper, 2003), available at: http://www.iisd.org/pdf/2003/ investment_int_human_rights_bits.pdf 10.08.2015. 18 J Alvarez, ‘Critical Theory and the North American Free Trade Agreement’s Chapter Eleven’ (1997) 28 U Miami Inter-Am L Rev 303, 308.

130  (NAFTA) and The Protection of Human Rights Some scholars consider that harm to human rights from these characteristics of investment arbitration are exaggerated.19 The creation of a free trade area (as the main intended goal of NAFTA) raised, obviously, relevant labour issues concerning transnational migration.20 In the realm of trade, some commentators argued that there was a struggle between trade and environment.21 As member states’ environmental concerns grew, they adopted different measures that claimed to be of an expropriatory nature. It is worth looking at how NAFTA arbitral tribunals have dealt with human rights issues and relied on human rights jurisprudence in their awards and orders.22 Unlike other integration processes examined in this book, NAFTA tribunals have made reference to human rights as a whole without breaking human rights down into different categories (i.e. civil and political rights, social and economic rights, environmental rights and other rights). B.  Main Achievements In a critical overview of different human rights-related aspects in NAFTA, the side agreements represented a compromise but did not bring a straightforward solution in terms of the protection of human rights. As discussed below the application in practice of Chapter 11 gave rise to various controversial cases. Chapter 11 of NAFTA has been highly criticised by opponents of globalization, as well as by more measured think-tanks, academics, and the NAFTA member states themselves. The main criticism has been that the predominant protection of investors may hinder the protection of human rights. Despite these criticisms, most of the cases are resolved in a wellreasoned manner by the designated arbitrators. NAFTA’s investment protection and promotion regime is but another example of an evolving consensus regarding international investment regulation. As for the allegation of lack of transparency, NAFTA provisions allowed for some degree of participation by private parties. NAFTA tribunals could allow third-parties to a dispute to put forward human rights arguments

19  JD Fry, ‘International Human Rights Law in Investment Arbitration: Evidence of International Law’s Unity’ (2007) 18 Duke Journal of Comparative & International Law 77–150. 20 T Kay, ‘Labour Transnationalism and Global Governance: The Impact of NAFTA on Transnational Labour Relationships in North America’ (2005) 111–3 American Journal of Sociology, 715–756. 21  S Charnovitz, above n 15. 22  A Afilalo, ‘Ambiguity and Legitimacy: Judicial (Re-) Construction of NAFTA Chapter 11’ (2005) 25 Nw J Int’l L & Bus, 279.

Human Rights: Environmental Protection and Labour Rights 131 for a Tribunal’s consideration. In some NAFTA arbitrations, tribunals have indicated that they may allow written submissions by groups willing to introduce arguments based upon sustainable development or environmental concerns.23 Even if these submissions do not deal with human rights arguments per se they are indicative of the relevance human rights have in NAFTA. Indeed, NAFTA tribunals have dealt with the protection of investors’ rights and expropriation in different cases under Article 1110 of NAFTA, such as: Metalclad; Pope & Talbot; S.D. Myers; and Methanex Corp. v. United States. The legal analysis under Article 1110 of NAFTA put forward by various arbitral tribunals has attempted to balance investment protection and environmental concerns. C. The Case Law of NAFTA Tribunals: International Investment Law and International Human Rights Law A special attention deserves to be given to the case law of NAFTA tribunals.24 The evolution of international investment law over the past several decades has experienced a growing internationalization evidenced by the increasing number of Bilateral Investment Treaties (BITs) and the use of investorstate arbitration of investment disputes. Thus, it did not come as a surprise that NAFTA’s investment protection scheme includes provision for the arbitration of investor-State disputes. The treaty embodies basis standards of protection such as fair and equitable treatment. The dispute resolution model adopted in NAFTA follows the traditional investment arbitration mechanism. Therefore, instead of a permanent court of justice as observed in other economic integration process, for each dispute that may arise there is an ad hoc tribunal to settle it.25 Amongst the different commitments taken on by governments under NAFTA, the agreement includes various provisions related to investment protection and arbitration as the predominant method by which investors solve their disputes with member states. NAFTA’s Chapter 11 embodies the various provisions on dispute settlement.26 The choice of investor-state arbitration to settle the disputes has been criticised by the opponents of NAFTA,

23 

LE Peterson & KR Gray, above n 18. J L Westbrook, ‘Legal Integration of NAFTA through supranational adjudication’ (2008) 43 Texas Int LJ 349. 25  Documents pertaining to the different claims are available at the NAFTA Claims website. 26  N Ranieri, ‘Investors’ rights, legal concepts, and public policy in the NAFTA context, in Regionalism in International Investment Law’, in LE Trakman and NW Ranieri (eds) Regional­ ism in International Investment Law (Oxford, Oxford University Press, 2013) 400–451. 24 

132  (NAFTA) and The Protection of Human Rights arguing that ‘sovereignty of a government is greatly impaired by the very existence of investor-state arbitration’.27 Disputes arose where there were conflicts between trade and the protection of the human rights and the environment. As analysed before there are several controversial issues that underline the conflict between human rights law and trade law. The case law of NAFTA tribunals has chiefly dealt with environmental questions.28 Much attention has been paid to the conflict between trade and environmental protection. In Methanex, a dispute brought under Chapter 11,29 a controversy arose concerning public health and hence human rights.30 In Sun Belt Water Inc., a United States company notified the Government of Canada about its intentions of submitting a claim to arbitration in November 1998.31 The disputed matter by Sun Belt Water Inc., a U.S. Company, was damages amounting to 10 billion dollars over the province of British Columbia’s ban on freshwater exports. Finally, no valid claim has been filed and there was no Chapter 11 arbitration on this matter. In Ethyl v Canada a dispute arose over measures taken on environmental grounds. On 15 April 1997, Ethyl Corporation, a Virginia corporation with a Canadian subsidiary, submitted a claim under the UNCITRAL Rules on its own behalf to arbitration against Canada. Ethyl claimed that a Canadian ­statute banning imports of the gasoline additive MMT for use in unleaded gasoline breached Chapter 11’s requirement of national treatment (Article 1102), prohibition of expropriation (Article 1110) and prohibition of performance requirements (Article 1106).32 A Canadian court subsequently found the act to be invalid under the Canadian law, and finally Canada and Ethyl settled the claim. But also, NAFTA tribunals have relied on previous human rights decisions to build arguments in the investment-arbitration context such as in Thunderbird Gaming Corp. v. United Mexican States, a case brought before the ICSID.33 In his separate opinion, Thomas Wälde argued that

27 T Weiler, ‘NAFTA Investment Arbitration and the Growth of International Economic Law’ (2002) 36 Can Bus LJ 405. 28  V Been & JC Beauvais, ‘The Global Fifth Amendment? NAFTA’s Investment Protections and the Misguided Quest for an International “Regulatory Takings” Doctrine’ (2003) 78 NYU L Rev 30, 132–35. 29  CN Brower and LA Steven, ‘Who Then Should Judge?: Developing the International Rule of Law under NAFTA Chapter 11’ (2001) 2 Chi J Int’l L 193. 30  U Kriebaum, ‘Privatizing Human Rights—The Interface Between International Investment Protection and Human Rights’ (2006) 3 Transnat’l Dispute Mgmt 3–5, 18. 31  Further details on the case are available at: http://www.international.gc.ca/trade-agreementsaccords-commerciaux/assets/pdfs/disp-diff/sunbelt-01.pdf 32  The full text of the tribunal’s award on jurisdiction can be found in full in volume 38 of International Legal Materials, pages 708–31 (1999). 33  Int’l Thunderbird Gaming Corp v United Mexican States (US v Mex), 2006 WL 247692, para. 13 (NAFTA Ch 11 Arb Trib 2006).

Human Rights: Environmental Protection and Labour Rights 133 the proper analogy in interpreting NAFTA Chapter 11 obligations was to judicial review relating to governmental conduct, and not to international commercial arbitration or general public international law, both of which traditionally involve disputants who are seen as equals. Then, the arbitrator in question continued his arguments by referring to the jurisprudence of the European and Inter-American Human Rights Courts, where there is a power inequality between the parties.34 In his separate opinion, Wälde relied on the European Court of Human Rights cases to assert that, ­inter alia, in three European Court of Human Rights cases, the ‘legitimate expectations’ principle was recognized as governing the relationship between the state and individuals.35 As a consequence, this principle requires the state to ‘respect legitimate expectations it has created with individuals, in particular if such expectations have become the basis for investment’.36 According to his interpretation under NAFTA Article 1105, this principle of international law ‘trump[s] the application of domestic law—such as Mexican gambling law as interpreted by the-then-new Mexican government’.37 In other cases under Chapter 11, different relevant provisions of international law related to human rights were at issue. In Loewen the tribunal referred to the exhaustion of local remedies.38 In that case, the NAFTA tribunal relied on Nielsen v Denmark,39 a decision by the European Commission on Human Rights, in order to underline the requirement that a plaintiff must exhaust all adequate and effective remedies.40 In Mondev41 the NAFTA investment arbitral tribunal relied on human rights jurisprudence for its decision. In this case, the disputed issue was the non-retroactivity of law. Mondev (a Canadian corporation) had brought a NAFTA Article 1105 (Minimum Standard of Treatment) claim against the United States since the Massachusetts Supreme Judicial Court had upheld a trial court judgment despite the verdict in favour of the Boston Redevelopment Authority (BRA). In order to reach that conclusion, the court had argued that the Authority was immune from liability for interference with contractual relations based upon a Massachusetts statute giving BRA

34 

Thomas W Wälde, separate opinion. para. 27 (citing Kopecký v Slovakia, App No 44912/98, 2004-IX Eur Ct HR para. 35; Djidrovski v Macedonia, App No 46447/99, Eur Ct HR para. 68 (2005); Dangeville v France, App No 36677/97, 2002-III Eur Ct HR). 36 ibid. 37  ibid: para. 26. 38  Loewen Group, Inc v United States, ICSID Case No ARB(AF)/98/3, June 26, 2003, 7 ICSID (W Bank) 442, 42 ILM 811, 838, para. 165 (2003) 39  Nielsen v Denmark, 1958–1959 YB EUR CONV ON HR 412, 436, 438, 440, 444 (Eur Comm’n on HR). 40  Lowen, para. 165 (2003) 41  Mondev Int’l Ltd v United States, ICSID Case No ARB(AF)/99/2, Oct 11, 2002, 6 ICSID 192, (2004), 42 ILM 85, 86 (2003) (NAFTA Ch 11 Arb Trib). 35 Ibid.

134  (NAFTA) and The Protection of Human Rights immunity from suit for intentional torts.42 Mondev claimed that Massachusetts’s court had not considered whether the statute on which it relied applied retroactively, contradicting its own rules. In order to decide on the admissibility of the claim, the tribunal made broad references to three European Court of Human Rights cases. In all the three cases, criminal liability was apparently imposed where there had been no such criminal liability when the crime was committed.43 The tribunal referred to two European Court of Human Rights decisions dealing with civil matters where rules apparently were applied retroactively.44 However the tribunal dismissed the argument of retroactivity and therefore, the claims against the United States.45 In S.D. Myers, Inc. v. Canada various procedural aspects related to the similarity of the procedure before human rights courts and the arbitration procedure were examined. The separate opinion by B. Schwartz pointed at the fact that arbitral tribunals, when determining whether there has been a denial of national treatment (under NAFTA Article 1102), look at factors identical to those a human rights court would consider in order to determine whether someone’s right to freedom from discrimination had been violated.46 In the separate opinion fact, the arbitrator is prone to consider ‘national treatment’ as a human-rights type of discrimination in the following terms: ‘The export ban did not, on its face, expressly discriminate in favour of Canadian operators and against U.S. operators. Both were prohibited from engaging in exports. The intent and practical effect of the measure, however, make it clear that it was discriminatory and inconsistent with Articles 1102(1) and 1102(2) of NAFTA’.47 Among other questions pertaining to the current analysis that have been ventilated before NAFTA tribunals there is the issue of amici curiae brief and transparency in international investment law. In this vein, it is worth looking at NAFTA tribunal’s considerations in support of allowing amicus curiae briefs. For example, in United Parcel Service of America Inc. v. Canada, the Canadian Union of Postal Workers and the Council of Canadians submitted a request for participation to the Tribunal to be given standing

42 

Mondev para. 1 (2004), 42 Mondev para.138, 42 ILM at 112 (citing SW v United Kingdom, App No 20166/92, 335-B Eur Ct HR, paras. 34–36 (1995); CR v United Kingdom, App No 20190/92, Eur Ct HR 51, paras. 32–34 (1995); Streletz, Kessler & Krenz v Germany, App Nos 34044/96; 35532/97; 44801/98, 2001-II Eur Ct HR 230, para. 50). 44  Carbonara & Ventura v Italy, App No 24638/94, 2000-VI Eur Ct HR 206, paras. 64–69; Agoudimos & Cefallonian Sky Shipping Co v Greece, App No 38703/97, 2001 Eur Ct HR 406, paras. 29–30. 45 ibid. 46  SD Myers, Inc v Canada, Nov 12, 2000, 40 ILM 1408, 1447 (2001) (separate opinion of Bryan Schwartz). 47  ibid. 1476, para. 184. 43 

NAFTA Environmental and Labour Side Agreements 135 as parties to the dispute.48 To reinforce their amici curiae’s request the third parties cited, inter alia, Articles 14 and 26 of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights and International Labour Conventions for why they should be considered parties to the dispute because of the right to a fair and public hearing and equality before the law.49 The respondent did not tackle the petitioner’s right to participate under international law, and the tribunal rejected the petitioners’ argument when it determined that ‘international law and practice and related national law and practice have either ignored or given very low priority to third party intervention’.50 One may discuss the convenience of having investment tribunals interpreting and applying human rights considerations. In sum, in light of the cases discussed above, one may conclude that human rights jurisprudence has had a greater influence on NAFTA investment arbitration regarding both substantive and procedural matters. However, this interaction does not translate into a specific set of norms guaranteeing human rights and a specific mechanism to submit complaints by individuals or groups in case of violation of human rights. IV.  NAFTA ENVIRONMENTAL AND LABOUR SIDE AGREEMENTS

The initial reluctance of NAFTA member states to include human rights issues has been tempered by the adoption of two side agreements on environmental and labour issues. As stated previously what is interesting about the side agreements is that they only provide for intergovernmental cooperation in two specific sectors: environmental cooperation and labour aspects. Both side agreements are unique in that they bring up labour and environmental issues in a free trade agreement, allowing for a certain degree of private participation in the alternative resolution dispute procedure.51 Controversy arises about what is not contemplated in the agreements rather than about what is: in particular, the NAFTA Agreement on Labour Cooperation, which excludes from its scope the thorny issue of labour migration.

48  United Parcel Service of America Inc v Canada (US v Canada), Decision of the ­Tribunal on Petitions for Intervention and Participation as Amici Curiae, 2001 WL 34804267 (Nafta Ch 11 Arb Trib 2001). 49  ibid. para. 22. 50  ibid. para. 34. 51  N Gal-Or, ‘Private Party Direct Access: A Comparison of the NAFTA and the EU Disciplines’ (1998) 21 BC Int’l & Comp L Rev 1.

136  (NAFTA) and The Protection of Human Rights A.  The NAFTA Environmental Side Agreement NAFTA member states’ commitment to protect the environment is reflected in the Environmental Side Agreement.52 One can also find references to environmental treaties in the main Agreement, as in Article 104: ‘1. In the event of any inconsistency between this Agreement and the specific trade obligations set out in: a) the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Washington, March 3, 1973, as amended June 22, 1979; b) the Montreal Protocol on Substances that Deplete the Ozone Layer, concluded in Montreal, September 16, 1987, as amended June 29, 1990; c) the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, concluded in Basel, March 22, 1989, on its entry into force for Canada, Mexico and the United States, or d) the agreements set out in Annex 104.1, such obligations shall prevail to the extent of the inconsistency, provided that where a Party has a choice among equally effective and reasonably available means of complying with such obligations, the Party chooses the alternative that is the least inconsistent with the other provisions of this Agreement’.53

In order to address civil society’s concerns, NAFTA member states signed a parallel agreement: the North American Agreement on Environmental Cooperation (NAAEC). Under the NAAEC, the United States, Canada and Mexico have bound themselves to take certain steps to protect the environment.54 There is a general commitment that includes the obligation that each member state endeavours to effectively enforce its environmental laws.55 Interestingly, a member state’s failure to fulfil this generic environmental obligation is subject to a similar dispute resolution mechanism that is included in NAFTA for investment protection.56 Moreover, the NAAEC has created a mechanism that allows any citizen or non-governmental organization to make a submission concerning whether a party is failing to

52  T Lundmark, ‘The Environment and NAFTA: Understanding and Implementing the New Continental Law’ (1997) 24 BC Envtl Aff L Rev 477. 53  The article reads: ‘2. The Parties may agree in writing to modify Annex 104.1 to include any amendment to an agreement referred to in paragraph 1, and any other environmental or conservation agreement’. Available at: http://www.sice.oas.org/trade/nafta/chap-01.asp. 54 D Gantz, ‘Potential Conflicts between Investor Rights and Environmental Regulation under NAFTA’s Chapter 11’ (2001) 33 Geo Wash L Rev 651. 55  D Mac Graw, ‘NAFTA & the Environment: Substance and Progress’ (Chicago: American Bar Association, 1995). 56  MJ Kelly, ‘Bringing a Complaint Under the NAFTA Environmental Side Accord: Difficult Steps Under a Procedural Paper Tiger, But Movement in the Right Direction’ (1996) 24(71) Pepperdine Law Review 82.

NAFTA Environmental and Labour Side Agreements 137 effectively enforce its environmental law. In contrast, commercial obligations are not subject to this type of independent review.57 Under the NAAEC, the parties also agreed to work cooperatively to address regional environmental concerns, to help prevent potential trade and environmental conflicts, and to promote the effective enforcement of environmental law, among other things. In order to assist with the parties’ efforts to fulfil these commitments, the member states have created an international institution, the Commission for Environmental Cooperation (CEC).58 The NAAEC came into force at the same time as the North American Free Trade Agreement (NAFTA) and embodies the commitment that liberalization of trade and economic growth in North America would be accompanied by effective cooperation and continuous improvement in the environmental protection provided by each country. Since 1994, Canada, Mexico and the United States have collaborated in protecting North America’s environment through the NAAEC. To accomplish this goal, the NAAEC instituted an intergovernmental organization—the Commission for Environmental Cooperation (CEC)—to support cooperation among the NAFTA partners to address environmental issues of regional concern and the environmental challenges faced by member states in the free trade area. In the Commission for Environmental Cooperation, the three signatories countries work together to protect the environment. The CEC comprises a Council, a Secretariat and a Joint Public Advisory Committee. The Council is the governing body of the Commission and comprises cabinet-level or equivalent representatives of each country. The Secretariat provides technical, administrative and operational support to the Council. The Joint Public Advisory Committee (JPAC) (comprising five citizens from each country) advises the Council on any matter within the scope of the NAAEC. The CEC receives financial support from the Government of Canada through the Federal Department of Environment, the Government of the United States of Mexico, through the Secretaría de Medio Ambiente y Recursos Naturales, and the Government of the United States of America through the Environmental Protection Agency. The CEC’s main task is to ‘facilitate collaboration and public participation to foster conservation, protection and enhancement of the North American environment for the

57 R Kaustiala, ‘The Political Implications of the Enforcement Provisions of the NAFTA Environmental Side Agreement: The CEC as a model for future accords’ (1995) 25 ENVT’L L REP 31. 58  Commission for Environmental Cooperation available at: http://www.cec.org/Page.asp?P ageID=1226&SiteNodeID=310&BL_ExpandID=878.

138  (NAFTA) and The Protection of Human Rights benefit of present and future generations, in the context of increasing economic, trade, and social links among Canada, Mexico, and the United States’.59 In an assessment of NAFTA’s role in terms of environmental protection, despite having a specific agreement, the respective side agreement is not a complete environmental code. Also, dispute resolution is weaker vis-a-vis the protection offered to investors under Chapter 11.60 B.  The NAFTA Side Agreement on Labour Cooperation Labour issues and protection of workers’ rights have been at the centre of the debates in NAFTA negotiations.61 In order to address these concerns, NAFTA member states have also signed a side agreement on Labour Cooperation (NAALC). This parallel agreement on labour cooperation is designed to promote the effective enforcement of each country’s labour laws and regulations and aims to promote further cooperation between NAFTA partners on labour matters. Commentators have emphasized that the obligations contained in the NAALC’s eleven labour principles provide a broad definition of the ‘high labour standards’ that must be considered. ‘General obligations are intentionally broad and vague, requiring the parties to the agreement to work actively to define their reach if they are not to be fulfilled (…) [s]uch an effort within the framework of NAALC would also help further the discussion of linking labour rights and trade’.62 As an institutional and operative body, the agreement creates the Commission for Labour Cooperation (CLC), comprising a Ministerial Council and a Secretariat. In the implementation of the NAALC, the CLC is assisted by National Administrative Officers (NAOs) in each of the three countries.63 The CLC works as an international organization under the NAALC. It comprises the Council of Ministers, a ministerial level body in charge of policysetting and decision-making consisting of the three labour ministers or their representatives. The Council may also establish Arbitral Panels under the provisions of the Agreement. In addition, there is a trinational Secretariat that provides support to the Council and to the independent Evaluation Committees of Experts and Arbitral panels. The Commission works in

59 ibid.

60 P Stanton Kibel, ‘Awkward Evolution: Citizen Enforcement at the North American Environmental Commission’ (2002) 32 Environmental Law Reporter 10769. 61 Ch Taylor, ‘NAFTA, GATT and the Current Free Trade System Double Standard For Workers’ Rights’ (2000) 28 Denver J Int’l L & Pol’y 401, 423 62  Human Rights Watch, April 2001, Vol 13, N2 (B), 35. 63  Commission for Labour Cooperation available at: http://www.naalc.org/commission.htm.

NAFTA Environmental and Labour Side Agreements 139 close cooperation with the National Administrative Offices (NAOs), created by each government within their own labour ministry to implement the NAALC.64 The CLC’s work focuses on labour cooperation issues broadly understood, such as occupational safety and health, employment and job training, labour law, and workers’ rights and productivity. However other crucial aspects involved in the protection of social rights are not addressed. For instance, the ‘maquiladoras’ are one of the controversial aspects of NAFTA.65 The maquiladoras represent a highly contentious issue because of the serious impact on labour and the environmental harm inflicted on both sides of the U.S.-Mexico border. Several allegations against the maquiladoras were raised because the harmful consequences affect the poorest population in the border region, creating serious health issues on both sides of the border. Although Mexico has different commitments under international human rights law, the protection of labour rights affected by NAFTA commercial impacts is limited.66 From a different viewpoint, NAFTA institutions in the field of labour cooperation have fostered transnational networks. In particular, this has taken place since the NAALC has established new rules, procedures, and venues to adjudicate complaints of labour rights violations. The claims regarding labour rights violations are dealt by the respective National Administrative Offices (NAOs) created in each of the three NAFTA countries to handle the complaints (also known as ‘ad public submissions or communications’). Under the NAALC complaints may be filed against the government of any NAFTA member state through an NAO in a state other than the one in which the alleged labour violation occurred. Before submitting a petition, claimants need to contact labour unions to search for allies in other NAFTA member states in order to file complaints outside their home states. There is a high rate in both the acceptance of submissions and ministerial consultations: between 1994 and May 2001, 23 NAO submissions were filed, 18 were accepted for review, and 13 resulted in ministerial consultations.67

64 ibid.

65 International Federation for Human Rights, Mexico—the North American Free Trade Agreement (NAFTA): Effects on Human Rights—Violations of Labour Rights, April 2006, n° 448/2, available at: http://www.refworld.org/docid/46f146860.html. 66  Mexico has been party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) since 1981, which includes the right to work (Article 6), the right of everyone to the enjoyment of just and favourable conditions of work (Article 7), and undertakes to ensure the right of everyone to form trade unions and to join the trade union of his choice (Article 8). Mexico has ratified a number of International Labour Organisation (ILO) Conventions, including six of the eight conventions considered to be fundamental by the Governing Body of the ILO. 67  NAALC above n 63.

140  (NAFTA) and The Protection of Human Rights Once a submission is admissible it goes to ministerial consultations, and the adjudicatory process becomes trinational. There are ministerial consultations that involve deliberations by the U.S. and Mexican Secretary of Labour and the Canadian Minister of Labour. Arbitral panels include experts chosen by consensus by the three member states. An arbitral panel should include experts from each member state involved in a dispute. The NAO process is not independent of North American member states, it depends on the collective action of U.S., Canadian, and Mexican representatives. Member states would have little effect on unions’ choice of where to file an NAO submission. The decision is taken according primarily to the NAALC’s procedural rules, which provide that petitioners should not submit a complaint to the NAO in the member state in which the alleged labour rights violation occurred, but petitioners may file two submissions, one in each ‘foreign’ member state NAO.68 This possibility of filing multiple submissions has allowed unions to embark on transnational alliances in order to seek more protection from political or other factors that could influence the adjudicatory process.69 As Kay underlines, ‘NAFTA’s negotiation and the NAALC process marked a significant shift in the institutional landscape governing trade and labour rights in North America. While the three nation-states maintained their sovereignty, they ceded some autonomy to a trinational process of labour rights adjudication. It is to this shift that labour unions responded by creating viable transnational relationships that spanned the continent for the first time in North American history’.70 V.  NAFTA AND MIGRATION

The last and contentious question relating to the protection of human rights that should be analysed concerns international migrations in NAFTA. At the outset it should be reminded that migration issues are excluded from the scope of the agreement.71 One of the main criticisms is specifically that NAFTA falls short of providing an adequate protection for labour migrants.72 Member states hold

68 

Echlin Case (US NAO Case No 9703). Kay above n 20. 70  Kay above n 20, at 751. 71 M Miller and B Stefanova, ‘El TLCAN y el referente europeo: La movilidad laboral en la integración regional en Europa y en America del Norte’, in J Roy, A Chanona and R Domínguez (eds), La Union Europea y el TLCAN (Mexico, UNAM, 2004) 507–519. 72  Inter-American Commission of Human Rights, ‘Human Rights of Migrants and Other Persons in the Context of Human Mobility in Mexico’ (Washington, OAS, 2013) available at: http://www.oas.org/en/iachr/migrants/docs/pdf/Report-Migrants-Mexico-2013.pdf. 69 

Perspectives of NAFTA Regarding the Protection of Human Rights 141 obligations under NAFTA, but also under international human rights law. Mexico is the signatory of various international human rights instruments and is committed to respect, protect and realize human rights. The US and Canada have a special position because they are not parties to many human rights treaties. Notwithstanding this, they are bound by relevant customary international law protecting human rights. During the negotiations, the North American Free Trade Agreement (NAFTA) was hailed as a panacea for some of the problems of Mexico’s unstable economy, since it would guarantee the U.S. access to Mexico’s market; what may be envisaged as a possible solution to illegal immigration. However these hopes were highly unrealistic: whereas goods from both countries enjoy free movement across the borders, there is no free movement of workers. Whereas tariffs would be reduced, allowing for more access to Mexico’s market, migration issues remained off the negotiations table. After all, NAFTA’s main goal was to create a free trade zone, not a common market. Not surprisingly, immigration and human rights were not discussed during NAFTA negotiations.73 Nevertheless, NAFTA has had deep implications for migrant rights issues, particularly considering human rights concerns relating to labour issues, human rights advocacy, and indigenous peoples in Mexico. For Mexico and as well for the other member states these contentious issues pose the question of the primacy of international human rights law over trade law. Another difficult question regards migrant workers. The Inter-American Court of Human Rights issued an Advisory Opinion in 2003 addressing the situation of migrant workers.74 The debate over the protection of migrant workers’ rights focuses on fundamental issues relating to human and civil rights abuses of undocumented immigrants at the border and the discrimination they are facing at the workplace. VI.  PERSPECTIVES OF NAFTA REGARDING THE PROTECTION OF HUMAN RIGHTS

At the outset, NAFTA was designed as a free trade agreement with a clear intergovernmental nature without pretensions of establishing a common market or a political union. Although over the years, this free trade agreement has incorporated some non-trade elements, the focus remains

73  RL Martinez, ‘NAFTA’s Effect on Human Rights at the Border’ (1994) 27 UC Davis L Rev 979. 74  Inter-American Court of Human Rights, Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18, September 17, 2003, Inter-Am Ct HR (Ser A) No 18/03 (2003).

142  (NAFTA) and The Protection of Human Rights predominantly on the economic dimension. Different relevant aspects can be underlined in a general appraisal of the relations between human rights law and NAFTA. First, unlike other economic integration processes, NAFTA is characterised by the absence of a structured system of protection of human rights based on the adoption of instruments granting fundamental rights.75 Clearly, as previously examined, free trade has brought human rights concerns. It was somehow expected that this trend would have led to the protection of human rights or, at a minimum, that member states would have adopted a clear position with respect to the issue. Unfortunately, the issue of human rights and trade has not gained momentum on NAFTA’s agenda. The relationship between NAFTA and human rights is in many respects a missed opportunity. Even if the linkage between trade and human rights has not been made explicit through the adoption of specific instruments there are non-trade aspects, such as labour issues and environmental protection that are integrating the NAFTA agenda. The lack of a structured channel for the participation of civil society has not prevented unions from addressing relevant issues. Even so, the participation of the civil society is still predominantly reserved to the business sector. In turn, the proceedings for submitting a complaint under the NAALC have created a space for transnational action. Broadly speaking, questions relating to the protection of environmental rights will continue to be addressed in the framework of the arbitral proceedings. NAFTA included from the beginning provisions regarding the prohibition of ‘environmental dumping’. In terms of labour rights, NAFTA established limited rights of freedom of movement and establishment.76 Migration as an excluded issue from the agenda of the economic agreement will continue to be under the sovereignty of the member states. Thus, measures adopted in the field of migration are taken outside the trade agreement based on the reciprocity principle. Unlike other economic integration processes that are examined in the following chapters, in NAFTA there is nothing similar to the creation of a regional citizenship. Rather the opposite: the mobility and enjoyment of rights by nationals of the member states depends on bilateral agreements and the unilateral power of member states to regulate the entry and stay in their respective territories.

75  JF Smith, ‘NAFTA and Human Rights: A Necessary Linkage’ (1994) 27 UC Davis L Rev 793, 65–66. 76  See specially F Garcia n 120 (Chapter I).

3 The Protection of Human Rights in the Caribbean Community (CARICOM) I. INTRODUCTION

T

HE ORIGIN OF the initiatives of rapprochement between the states belonging to the Caribbean region goes back to the mid-1940s.1 However, it was not until the period of the Cold War that a wave of Caribbean integration was consolidated with the twofold purpose of ending the colonial domination from the metropolitan centres and enabling the new states to seek a regional alliance.2 The states of the Caribbean have pursued regional integration even before some of them had achieved their independence. Most of them were in a colonial situation until mid-twentieth century, and, even today, there are non-autonomous territories participating in CARICOM.3 The characteristic feature of this integration agreement is that from a socio-economic viewpoint it comprises small states,4 mostly 1  Early attempts at creating an integration agreement date back to the 1940s. In 1946, the colonial powers with territories in the area agreed to the creation of the Caribbean Commission. Also in 1958, the Federation of the West Indies emerged as an association of territories belonging to the British Caribbean Community. It was dissolved in 1962, when Trinidad and Tobago became independent. These are the earliest precedents of the current Caribbean integration. For an accurate study of the CARICOM legal system see D Berry, Caribbean Integra­ tion Law (Oxford, Oxford University Press, 2014) and D O’Brien, Constitutional Law Systems of the Commonwealth Caribbean (Oxford, Hart Publishing, 2014). See also generally F Seatzu, ‘The Caribbean Community (CARICOM)’ in M Odello and F Seatzu, Latin American and Caribbean International Institutional Law (Springer, London, 2015) 219–23 and M Pérez González, ‘Las organizaciones internacionales en América (I)’, in M Díez de Velasco (ed.), Las Organizaciones Internacionales 12 edn (Madrid, Tecnos, 2002) 721, 722. 2  V Rico, ‘El proceso de integración caribeño: CARICOM’ in I Vittini González (ed.), Los procesos de integración y cooperación regionales (Santiago de Chile, Instituto de Estudios Internacionales, 2002) 105–128. 3  A López Coll, ‘La Comunidad del Caribe (CARICOM) en la encrucijada’ (La Habana, CEIE, 2000). See also by the same author: La colaboración y la integración económica en el Caribe (Havana, Editorial de Ciencias Sociales, 1983) and ‘Proceso histórico de integración del Caribe’ (1984) 203–204 Economia y Desarrollo 34. 4  Many of them are island states. D O’Brien (2011) ‘CARICOM: Regional Integration in a Post-Colonial World’, 17(5) European Law Journal. Review of European Law in Context, 630–648; Payne, The Political History of CARICOM (Kingston: Ian Randle Publishers, 2008).

144  The Protection of Human Rights in the Caribbean Community English-speaking countries, embedded in a particular geopolitical context with historical, political and cultural ties.5 In the early 1960s, this wave of the integration was inaugurated inspired by the desire to achieve independence, which led to the establishment of an international organization, in 1968, through the conclusion of the Treaty of Antigua.6 This period is characterised, in essence, by the transition from formal political independence to the consolidation of the new states in the international community. The main goal was, specifically, to ensure the consolidation and deepening of the effective sovereignty in economic, diplomatic, cultural and security areas, among others.7 Thus, the Free Trade Association of the Caribbean (CARIFTA), embodied the will of the newly independent Caribbean states to link their economies and have a joint presence on the international scene, being the direct antecedent of the current integration process.8 CARIFTA had a marked economic orientation and an ambitious agenda: member states could not live up to the commitments.9 As a consequence, in 1973, the independent states of the Commonwealth Caribbean and Montserrat (at the time a British Crown colony) signed the Treaty of Chaguaramas (ToC) establishing the Caribbean Community (CARICOM)10 with

5  A Francis distinguishes well the concept of Caribbean that can include both the states belonging to the Commonwealth Caribbean; or the countries of Central America and the countries that belong to north of South America; also comprising all islands located in the Caribbean of Spanish, Dutch, English or French colonisation. In the sense the word is used in the context of Caribbean integration and which will be used in this text, it comprises the insular English-speaking countries and Suriname, a Dutch colony. With the incorporation of Haiti to the Community there is also a francophone member state. A Francis, ‘Treaty establishing the Caribbean Community—An analysis’ (1982) 22 Indian Journal of International Law 278 and 279. As stated in the Preamble to the Charter of Civil Society of the Caribbean, there are ‘common historical, cultural and social ties of the peoples of the Caribbean Community’ that underpin the commitment of governments and peoples of the member states of the community. Most of them are English-speaking, with the exception of the last two member states that accessed, Haiti and Suriname with francophone institutions and Dutch origin. PA Maríñez, ‘Proceso de integración e identidad cultural en el Caribe (1992) Integración latinoamericana 32, 26. 6  E Conde Pérez, E ‘La Comunidad del Caribe: realidades y propósitos de futuro’ in XVIII (1999) Jornadas de la Asociación Española de Profesores de Derecho Internacional y Rela­ ciones Internacionales (AEPDIRI) (Madrid, Boletín Oficial del Estado, 2000) 135. 7 WG Demas, ‘Consolidar la independencia: el principal desafío para el Caribe’ (1987) Integración Latinoamericana 3. 8 SELA. Guía de la Integración de América Latina (1999) above Chapter I n 12. 9  See I Boxill, Ideology and Caribbean Integration 2 edn (Kingston, Consortium Graduate School of Social Sciences-University of West Indies, 1997) 45, 46. 10 CARICOM member states are: Antigua and Barbuda; the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saint Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago. CARICOM Associate Members are as follows: Anguilla—4 July 1999, Bermuda—2 July 2003, British Virgin Islands—2 July 1991, Cayman Islands—15 May 2002 Turks and Caicos Islands—2 July 1991. CARICOM website www.caricom.org/jsp/community/institutions.jsp?menu=community 05.08.2015. Assembly of Caribbean Community Parliamentarians (ACCP) (Agreement for the ­establishment of an Assembly of Caribbean Community Parliamentarians) Caribbean Agri-

Introduction 145 similar aims and objectives as the European Economic Community, upon which it was broadly modelled.11 The slow progress attained motivated a relaunching of the integration process. Consequently the Heads of Government agreed in the early 1990s that CARICOM should progress to the next level of integration by establishing a Caribbean Single Market and Economy (CSME), including provisions for the free movement of certain categories of skilled CARICOM nationals. Hence, the Revised Treaty of Chaguaramas opened a new era for CARICOM integration.

culture Research and Development Institute (CARDI) (Agreement establishing the Caribbean ­Agricultural Research and Development Institute) Several other institutions were created in the framework of CARICOM: the list is available at: http://www.caricom.org/jsp/related_links/ regional_organisations_institutions.jsp> 05.08.2015. 11 A Baladi, ‘Realizing a Caribbean Monetary Union’ (2007) 2(1) Business, Finance & Economics in Emerging Economies 1; C Dundas, ‘Ensayos acerca del Derecho y la práctica del CARICOM’ (1980) 44(5) Integración Latinoamericana 49–73; A Duhamel and JP Calero, Le marche’ commun de la Communaute’ du bassin des Caraibes (Montreal, Observatoire des Ameriques, 2003); IADB, Ten Years of Caricom (Washington, Inter-American Development Bank, 1984); A Gonzales and L Searwar, ‘Structures of unity: approaches and mechanisms for the deepening and widening of the Caribbean community’ (1995) 20(1) Bulletin of Eastern Caribbean affairs 36–70; R Prats Le Marché commun des Caräibes (París, Pedone, 1977); H Gill, ‘CARICOM: origen, objetivos y perspectivas de integración en el Caribe’ (1993) 191 Integración Latinoamericana 37–44; VA Lewis, ‘Some perspectives on Caribbean Community integration’ (1988) Vol I(1) Caribbean Affairs; R Rainford, ‘El proceso de adopción de decisiones y la estructura institucional de la Comunidad del Caribe’ (1984) 91 Integración Latinoamericana; I Alegría et al, El proceso de integración política y económica en la región caribeña (San Juan, Universidad de Puerto Rico, 1994); Association of Caribbean Economists, The Caribbean Conjuncture, nº1 (Barbados, Association of Caribbean economists, 1994); J Byron, ‘The Association of Caribbean States: New Regional Interlocutor for the Caribbean Basin?’, paper presented at the Meeting of the Latin American Studies Association, ­Guadalajara, April 17–19 1997; A De la Ossa, Mecanismos políticos y económicos para la participación de los actores sociales en el proceso de regionalización (Caracas, SELA/INVESP, 1996); A De la Ossa (ed.), La integración social: nuevas rutas hacia la discordia (San José de Costa Rica, Friedrich Ebert Stiftung-Fundación Centroamericana por la Integración, 1996); A González, ‘Globalización, regionalización y las relaciones entre el Caribe de habla inglesa y América del Sur en el contexto hemisférico’ in A Serbin (ed.), América Latina y el Caribe anglófono: ¿Hacia una nueva relación? (Buenos Aires, 1997) 193–239; D Lewis, ‘Esquemas de integración regional y subregional en la Cuenca del Caribe’ in A Serbin (ed.), América Latina y el Caribe anglófono: ¿Hacia una nueva relación? (Buenos Aires, 1997) 95–142; U Nogueira, The Integration Movement in the Caribbean at Crossroads: Towards a New Approach of Integration- Working Paper, INTAL Series (Washington, Inter-American Development Bank, 1997); A Serbin (ed.), América Latina y el Caribe anglófono: ¿Hacia una nueva relación? (Buenos Aires, Nuevohacer Grupo Editor Latinoamericano, 1997); A Serbin, ‘Los desafíos del proceso de regionalización de la Cuenca del Caribe: integración, soberanía, democracia e identidad’ (1995) 4 Revista Venezolana de Economía y Ciencias Sociales 75–112; A Serbin, El ocaso de las islas. El Gran Caribe frente a los desafíos globales y regionales (Caracas, 1996); A Serbin, ‘Globalización, déficit democrático y sociedad civil en los procesos de Integración’ (1997) 3 Pensamiento Propio 98–117; Z Rojas, ‘Organizaciones civiles buscan espacio en la integración’ (1997) 3 Boletín PIECA 2–6; P Sutton, ‘El régimen bananero de la Unión Europea, el Caribe y América Latina’ 1997 4 Pensamiento Propio, 25–53.

146  The Protection of Human Rights in the Caribbean Community II.  EVOLUTION AND INSTRUMENTS ON HUMAN RIGHTS ADOPTED WITHIN CARICOM

As a first approximation of CARICOM integration, following up on what was stated in the preceding paragraphs, it should be noted that the treatment of human rights in the Caribbean integration process appears in the transformations that have occurred in recent years that have raised, more clearly, issues relating to human rights within this integration process. Two important elements must be noted, however, in considering this issue: first, the important influence of international organizations at regional and international level with regard to the recognition, promotion and protection of human rights in Caribbean integration; and, second, the protection provided within the core of the ‘reduced integration’ representing the Organization of Eastern Caribbean States.12 In the first case, it is remarkable the work carried out by the American regional organizations, namely, the OAS, which has been promoting the adoption of measures and regulations protecting human rights. Indeed, this organization has played an important role in protecting human rights within the Caribbean region, with a variable action in cases that have jeopardized democracy and respect for human rights. It should be recalled, to this end, that most Caribbean states became members of the Organization shortly after being established as independent states, also ratifying the American Convention on Human Rights. In particular, in three situations of risk for human rights that are paradigmatic one can assess the role played by the regional organization. First, in the case of the US military intervention in Grenada, the invasion was not condemned from the start, which would seem to find explanation in the fact that this state was a new member of the Organization when it occurred.13 Second, during the institutional chaos that occurred in Suriname in the early eighties, where serious events that led to the breakdown of institutional order and major human rights violations occurred, the attitude of the Organization was more active, hence, the Inter American Commission of Human Rights visited the country on numerous occasions. The fact that Suriname would accept the compulsory jurisdiction of the Court also made​ 12  See, for an overview, A Francis, ‘International Law and Human Rights: a Caribbean Context’, in IL Griffith and BN Sedoc-Dahlberg, Democracy and Human Rights in the Caribbean (Boulder, Westview Press, 1997). 13  Grenada became a member of the OAS in 1975, when it ratified the Charter. It deposited its instrument of ratification of the American Convention on Human Rights. On 13 March 1973 there was a coup, during the performance of the General Assembly of the OAS. A period of institutional disorder followed, characterised by massive human rights violations, leading to the intervention by the United States in October 1983, with the assistance of the OECS. The attitude adopted by the OAS was to stay out of the situation, even if later, after the numerous petitions submitted to the Inter-American Commission on Human Rights originated in the US invasion, it condemned the intervention.

Evolution and Instruments on Human Rights within CARICOM 147 ​ ossible the articulation of the judicial protection of human rights.14 Third, p in the case of Haiti, the Organization had a decidedly more active involvement by developing a commendable work through established legal mechanisms for the defence of democracy in the continent; besides establishing a joint delegation with CARICOM for monitoring democracy.15 In all these cases, the affected individuals submitted petitions before the Inter-American Commission of Human Rights, which examined the alleged violations, issuing (where appropriate) statements condemning the violations.16 On the whole, the OAS’ role in the field of human rights in the Caribbean is seen, on one hand, through the adoption of instruments (mainly recommendatory statements) in cases of violation of human rights. On the other hand, as few CARICOM states have given their consent to submit cases to the jurisdictional mechanism of protection of the Convention, the Commission has undertaken the task of promotion and protection of human rights, as expressed both in the examination and the settlement of individual petitions, as in the visits ‘in loco’. As another relevant international organisation, one should mention the Organization of Eastern Caribbean States (OECS) which has developed a ‘system’ of protection of human rights characterized by achieving harmonization of the constitutional provisions and the existence of a judicial organ (the Court of Justice of the Eastern Caribbean), and which has also

14 IL Griffith, Democracy and human rights in Guyana’, in IL Griffith and B SedocDahlberg, Democracy and Human Rights in the Caribbean (Boulder, Westview Press, 1997) 156. Suriname became a member of the OAS in 1977, two years after declaring its independence from the Dutch crown. During the term of the de facto government, there were numerous violations of human rights that have led to various ‘in loco’ visits by the Commission since 1983 (see in this regard the two reports on the situation of human rights in Suriname). Also, in an effort to improve its image before the international community, Suriname recognized the competence of the Inter-American Court of Human Rights. Two serious cases of violations were filed with the Commission, the first of which was ‘Aloeboetoe et al v. Surinam’, for the death of seven Maroons that occurred in 1986 and the second by the death of a Surinamese immigrant by the military police in 1987. In both cases the State was sentenced for violation of human rights and ordered to pay compensation. 15  The OAS, through the Inter-American Commission on Human Rights, has focused the attention on the Haitian situation since the early sixties, producing several reports on the situation of human rights on the situation of Haitians repatriated from the Dominican Republic, facing fierce opposition of the government to carry out a visit ‘in loco’. During the government of Jean-Claude Duvalier in 1977. Haiti ratified the American Convention on Human Rights, requesting that the Commission conduct a visit to verify the situation of human rights. After this and other visits, as well as the fruit of meetings of the Permanent Council, the General Assembly adopted a resolution entitled ‘Support for the democratic process in Haiti’, which highlights the need to monitor the electoral process as a condition needed to access democracy respectful of human rights. This marked the beginning of a long follow-up of the situation that exists today. The OAS has been involved with the UN and CARICOM, in this long process of strengthening democracy and continues up to now. 16  D Padilla and E Houppert, ‘The OAS and Human Rights in the Caribbean’, in I Griffith and BN Sedoc-Dahlberg, Democracy and Human Rights in the Caribbean (Boulder, Westview Press, 1997) 31.

148  The Protection of Human Rights in the Caribbean Community c­ ontributed to the homogenization of the standards of protection.17 Thus, the constitutions of those States (Antigua and Barbuda, Dominica, Grenada, St. Kitts and Nevis, St. Lucia and St. Vincent), contain a ‘bill of rights’ (declarations of rights), that embodies similar rights and freedoms on the basis of the principles of the ‘rule of law’, including the separation of powers and independence of the judiciary. From this perspective, it should be noted that, amongst the civil and political rights the constitutions include the right to life and, as a corollary, the prohibition of torture or other cruel, inhuman or degrading punishment; personal freedom; freedom of association; freedom of movement; and freedom of conscience, including religious thought and freedom of expression. But also, with different variants, constitutions recognise and protect the right to private property, and the prohibition of deprivation of property without compensation.18 The Court examines cases involving the violation of human rights by breach of an Act of Parliament or an administrative act of a provision or a constitutional principle. Thus, the Court has ruled in cases involving alleged human rights violations, mainly in cases of violation of the right to life, due to the continued application of the death penalty in certain countries, whereas several issues have been under consideration by the Court, as discussed in more detail in the following paragraphs.19 Against this background, CARICOM has taken a step forward in the protection of human rights with the adoption of specific instruments for the protection of human rights that are analysed in detail in the next sections. A. The Charter of Civil Society: Most Relevant Human Rights Legal Instrument in CARICOM Focusing attention now on those instruments arising from the Caribbean integration process that deal more specifically with questions concerning human rights, one could observe that there has been an evolution in the protection of certain fundamental rights. In particular, it is worth analysing the content and legal standing of the Charter of Civil Society of the Caribbean that is, for these purposes,

17  F Alexis, ‘Human rights in the Eastern Caribbean’, in Democracy and Human Rights in the Caribbean, 138. 18  See, for instance, the Constitution of St. Vincent and the Grenadines which has embodied several provisions on the protection of human rights. 2009 Constitution of St Vincent and the ­Grenadines/Chapter III. Protection of Fundamental Rights and Freedoms available at: http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legal document/wcms_132645.pdf>. 19  On certain issues the OECS Court follows the directives of the Privy Council.

Evolution and Instruments on Human Rights within CARICOM 149 the most complete and systematic legal instrument in the matter. Among other i­nstruments concerning the safeguard of human rights that have been adopted within this integration process, the CARICOM Social Charter deserves a special mention, which, as has been said, focuses on the rights granted to the citizens of the member states in the field of rights of women, children, families and workers without establishing mechanisms for mandatory compliance and respect for them; it is, therefore, of a declaratory nature.20 (i) Nature, Characteristics and Content of the Charter of Civil Society for the Caribbean Community A salient feature of CARICOM integration in the area of human rights is the attempt to give this organization a catalogue, at least indicative, of fundamental rights. To this end, it must be underlined that this trend was consolidated when the draft of a charter of human rights was adopted, featuring the various obligations and commitments of CARICOM member states with respect to the protection of civil, political and economic rights. Thus, the Charter of Civil Society of the Caribbean, adopted in 1997, was praised as the most significant achievement of CARICOM in the field of human rights. Although the Charter does not generate itself legally binding obligations, it contains the shared perception of CARICOM member states toward human rights.21 Since this is the legal instrument developed within the Caribbean integration process that best reflects human rights issues, three different sets of considerations are in order. One must look into: first, the characteristics that define and articulate this legal instrument from the perspective of human rights; second, the nature of the Charter in order to determine its legal ­status; and third, the content of the Charter i.e. the various human rights contained and protected therein. (ii)  Key Features of this Legal Instrument Although the idea of adopting a human rights charter had been discussed before, it gained momentum at the special meeting of the Conference of Heads of Government of the Caribbean Community in Port of Spain ­(Trinidad and Tobago), where the recommendation of the Commission of the West Indies that suggested that a CARICOM Charter of Civil Society

20 Podestá, La integración regional y las posibilidades de una agenda social (2000) Chapter I n 313. 21 SELA, Tendencias de la integración regional (1997) Introduction n 9. Also see SELA, ‘Communiqué of the Eighth Meeting of the Conference of Heads of Government of CARICOM’ (1997) 49 Capítulos del SELA 1.

150  The Protection of Human Rights in the Caribbean Community should be signed by the member states of the Community was adopted. Consequently, in the 1997 meeting, held in Antigua and Barbuda, member and associate states proclaimed the Charter of Civil Society for the Caribbean Community (hereinafter referred to as ‘the Charter’).22 Prior to analysing the rights embodied in the Charter, it is worth making the following clarifications regarding some distinctive elements of this legal instrument: First of all, the Caribbean Charter determines the scope of its provisions. Thus, the reference made in the wording to ‘states’ includes both the member states of the Caribbean Community and the associated states, except where otherwise indicated. Moreover, as regards the social rights, the term ‘social partners’ is used to designate a number of actors that interact in that field: member states’ governments, employees, associations, workers’ organisations and NGOs. Second, as happens with other human rights provisions, the Caribbean Charter includes a generic obligation on the member states to respect ‘hardcore human rights’ without distinction of age, colour, creed, disability, ethnicity, gender, language, place of birth or origin, political opinion, race, religion or social class, subject only to respect for the rights and freedoms of others and the public interest.23 This ‘hard core’ is composed of essential human rights and fundamental freedoms of individuals, namely: the right to life, liberty and security of the person; protection of the privacy of the home and other property of the individual; the prohibition of deprivation of property without due process and fair compensation within a reasonable time; freedom of conscience, expression and association under the terms of the constitution of the State; and freedom of movement, having an important dimension here, by the express mention of ‘in the Caribbean Community’. All this, of course, is subject to the exceptions and qualifications as may be authorized by national laws and which are ‘reasonably justifiable in a free and democratic society’.24 Moreover, human dignity is recognised in the Charter as the foundation of human rights. Hence, states must, through its legislative, executive, administrative and judicial powers, ensure respect and protection of the human dignity of every person. Furthermore, states should promote and encourage the effective exercise of civil and political rights and, within the limits of their resources (in a wording similar to the provisions of the American Convention on Human Rights), the economic, social and cultural rights, all derived from the inherent dignity of the human person that are essential for free and full development of the individual.

22 

Charter of Civil Society for the Caribbean Community. CARICOM. Official Documents. Charter of Civil Society, art II. Respect for Fundamental Human Rights and Freedoms. 24  Charter of Civil Society, art II.2. 23 

Evolution and Instruments on Human Rights within CARICOM 151 Finally, there is the requirement for member states to keep the general public informed of the provisions of the Charter and the regional and international agreements and declarations in the field of human rights. In relation to international human rights law, the Charter includes a hermeneutical criterion since it firmly states that ‘nothing in this Charter shall be interpreted as impairing the provisions of any regional or international agreement to which States are parties’.25 In essence, this legal instrument establishes a general legal framework for the recognition of human rights of different nature, content and scope and addresses different categories of rights. But in any case, the adoption of the Charter constitutes a very significant step in the process leading to the eventual configuration of a ‘system’ of human rights within the Caribbean integration process, focused on the recognition and protection of fundamental rights. (iii)  Legal Standing of the Charter At the outset, it should be emphasized that, in terms of its legal nature, the Charter has no binding nature at the moment. In a general assessment of this instrument, it could be argued that, despite its recommendatory and programmatic nature, the recognition of a wide range of rights in its articles is operated through the use of specific language, which helps to provide greater effectiveness. Of course, it should be noted, however, that the Charter contains a declaration of principles and rights. States undertake the obligation to ensure maximum respect for the rights contained therein. Also this argument is supported by both the fact that at the end of the document there is the obligation of the member states to comply with the Charter provisions and the fact that the Charter makes a clear reference to any other regional agreement or international treaties on human rights to which the member states are parties.26 Despite these considerations about the non-binding nature of the Charter, it has had a positive impact. Thus, the Charter represents a significant advance because it makes explicit the intention of CARICOM member states to recognize a number of rights, with a clear reference to international treaties in the field. Perhaps one might draw the conclusion, then, that in the current state of international law, it is clear that hard-core human rights are protected by norms of jus cogens. In practice, this would, in this respect, amount to a collective acquiescence manifested through the Charter

25  26 

Charter of Civil Society, article XXVII. E Conde Pérez, La Comunidad del Caribe (2000) above n 6, 147.

152  The Protection of Human Rights in the Caribbean Community in ­relation to such rights and, in this way, the contents of the Charter would be binding on the member states of CARICOM. Even if the Caribbean Charter provisions are not mandatory, the mere adoption of such a legal instrument comprising different categories of rights provides a catalogue of rights that could be further developed in future, achieving greater relevance and legal effect. The Charter symbolises the deepening and development of the integration process in the Caribbean. Its recommendatory nature does not preclude the possibility that some parts have binding nature. (iv)  Content of the Charter: Civil and Political Rights In an analysis of the rights embodied in the Caribbean Charter, essential human rights (comprising those included in the international minimum standard) are set out first. Thus, as mentioned, amongst other human rights and fundamental freedoms they include: the right to life, liberty and security of person; protection of the privacy of the home and other property of the individual; the prohibition of deprivation of property without due process and fair compensation within a reasonable time; freedom of conscience, of expression and of assembly and association within the meaning of the constitutions of States and freedom of movement within the Caribbean Community.27 Within the first category of rights so defined, it should be noted that the right to life can be subject to restrictions in Caribbean states, especially in some of them where capital punishment is still applicable to certain offences committed.28 In the domestic law of CARICOM member states,

27 

Charter of Civil Society, article II- Respect for Fundamental Human Rights and Freedoms. An example of this is the reservation made by ​​ Barbados at the time of ratifying the American Convention on Human Rights (November 5, 1981) as follows: ‘In respect of 4(4) the criminal code of Barbados provides for death by hanging as a penalty for murder and treason. The Government is at present reviewing the whole matter of the death penalty which is only rarely inflicted but wishes to enter a reservation on this point in as much as treason in certain circumstances might be regarded as a political offence and falling within the terms of section 4(4). In respect of 4(5) while the youth or old age of an offender may be matters which the Privy Council, the highest Court of Appeal, might take into account in considering whether the sentence of death should be carried out, persons of 16 years and over or over 70 years of age may be executed under Barbadian law’. Also Trinidad and Tobago made a reservation with similar content, at the time of its accession, proclaiming that ‘As regards Article 4(5) of the Convention the Government of The Republic of Trinidad and Tobago makes reservation in that under the laws of Trinidad and Tobago there is no prohibition against the carrying out a sentence of death on a person over seventy (70) years of age’. Information retrieved from: http://www.cidh.oas.org/basicos/english/Basic4.Amer.Conv.Ratif. htm#2/>. None of the CARICOM member countries have signed the Protocol to the American Convention on Human Rights concerning the abolition of the death penalty, adopted on 6 August 1990 in Asuncion, Paraguay. Signatures and ratifications available at http://www.oas. org/juridico/english/sigs/a-53.html/> 28 

Evolution and Instruments on Human Rights within CARICOM 153 ­ atters relating to the application of the death penalty have been specifim cally brought to the Caribbean Court. In these cases the question that arises is mainly the interpretation of the internal human rights clauses in the light of the provisions set out in international treaties. Moreover, it should be noted that neither the Charter nor other CARICOM provisions address the issue of the abolition of the death penalty. It is worth briefly reviewing, at this point, the situation on this matter. A particularly significant case is that of Trinidad and Tobago, a state that has raised the issue of the death penalty before the American Convention on Human Rights. Following the judgement in a case of domestic jurisdiction, the matter of Pratt and Morgan v Attorney General of Jamaica,29 the Judicial Committee of the Privy Council, the highest body vis-a-vis the domestic courts, referred to the application of the death penalty for convicted murderers, setting out the duty of states to ‘adhere to strict guidelines as to the hearing and determination of appeals’.30 The question at issue was the length of the procedure, the compliance with the internal deadlines, and also the ability to settle the matter before an international court, that could involve inflicting punishment or inhuman or degrading treatment in violation of the Constitution of Trinidad and Tobago. After fruitless meetings with representatives with the state it was concluded that the mechanism could not provide an adequate consideration of cases regarding the application of the death penalty.31 These events led to Trinidad’s withdrawal from the American Convention of Human Rights in May 1998.32 This particular interpretation made by ​​the state concerned, denying access to the regional human rights system, evidently undermines the right of defence.33

29  A summary of the case can be found is available at: http://www.deathpenaltyproject.org/ where-we-operate/caribbean/jamaica/> 30  Trinidad and Tobago denounced the American Convention of Human Rights (Pact of San José de Costa Rica) in 1998. Trinidad and Tobago became party to the Convention on 4 April 1991 and denounced it on 26 May 1998 available at: http://www.oas.org/dil/treaties_B-32_ American_Convention_on_Human_Rights_sign.htm> 31  NP Concepcion, ‘The Legal Implications of Trinidad & Tobago’s Withdrawal from the American Convention on Human Rights’ (2001) 16:3 American University International Law Review 847–890. 32  American Convention of Human Rights. Signatories and ratifications. Available at: http:// www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm> 33 Later, the Privy Council asserted that the courts were obliged to suspend the enforcement of judgments in order to allow persons convicted accede to international procedures available. According to which, on a combined reading of both decisions, it seemed to suggest that if the excess within five years is caused by the inter-American protection procedures, the general rule would not apply. See J Mendez and J Mariezcurrena, ‘Human rights in Latin America and the Caribbean: A regional perspective’ in Human Development Report 2000: Human Rights and Human Development, 17, available at: http://hdr.undp.org/en/content/ human-development-report-2000>

154  The Protection of Human Rights in the Caribbean Community It seems, however, that the experience observed in other jurisdictions and decisions of international organizations protecting human rights, including those issued in the inter-American system is leading in some cases to the application of international human rights law to moderate provisions. In a case decided by the Eastern Caribbean Court of Appeal (Eastern Caribbean Court of Appeal), Spence v The Queen,34 a majority of the justices took the view that, although the death penalty, sentencing and execution of death sentence was provided for all cases in which there was a conviction for murder, it was contrary to the section of the Constitution that protected citizens from inhuman or degrading treatment.35 In another case brought before the Human Rights Committee of the United Nations, Prat and ­Morgan v. Jamaica,36 the Committee stated that the notification of the execution only forty-five minutes before the execution constitutes cruel and in human treatment within the meaning of Article 7 of the International Covenant on Civil and Political Rights.37 Besides, the Charter contains a special mention to persons legally detained, and in relation to people who are in educational or medical institutions, who should be treated humanely and with respect for the inherent dignity of the human person. The right to personal freedom as well as the right to personal security of all individuals are recognised in the Charter with references to the domestic legal systems of the member states of CARICOM and regional and international instruments. To strengthen the protection of personal security in the case of domestic violence, CARICOM has developed a model legislation, following New Zealand’s legal system, in order to provide a harmonized legislation regarding the protection from domestic violence and to provide remedies aimed at mitigating its effects.38 34  Spence & Hughes v The Queen (St Vincent and the Grenadines and St Lucia), Eastern Caribbean Court of Appeal, 2 April 2001, available at: http://www.deathpenaltyproject.org/ where-we-operate/caribbean/st-lucia/> 35 See the document presented by Sir Dennis Byron at the meeting of the Association of ­Caribbean Police, developed from 21 to 25 May 2001, ‘Human Rights issues in the Caribbean and Its impact on policing’, St. Lucia, 2001, 9, available at: http://www.internationaljusticeproject. org/pdfs/byron-writing.pdf. The Supreme Court of the Eastern Caribbean States was established in 1967 by Order No. 223 of the Supreme Court of the associated countries of the West Indies. It performs the functions of a higher court to nine Member States, six independent: Antigua and Barbuda, Dominica, Granada, St. Kitts and Nevis, St. Lucia, St. Vincent and Grenadines and three territories under British rule: Anguilla, Virgin Islands and Montserrat. As such, the Court has unlimited jurisdiction in the Member States in accordance with their respective internal rules. Available at: www.oecs.org. 36  Earl Pratt and Ivan Morgan v Jamaica, Communication No. 210/1986 and 225/1987, U.N. Doc. Supp. No. 40 (A/44/40) at 222 (1989), available at: http://www1.umn.edu/humanrts/undocs/session44/210–1986.htm >. 37 Francis, International Law and Human Rights (1997) n 12. 38 See in this respect, the Explanatory Memorandum on Model Legislation on Domestic ­Violence, available at: www.unicef.org/…/CARICOMModel%20LegislationDomesticViolence. doc>

Evolution and Instruments on Human Rights within CARICOM 155 In the framework of civil and political rights, the Charter recognizes the right to equality before the law of ‘all people’, whereupon it adopts an ample viewpoint regarding who is entitled to such rights, using a formula that is accepted opinion without differentiating between citizens and non-citizens of the State.39 Consequently, the Charter embodies the right to equal protection of the law and, from a procedural perspective, the right to a fair hearing within a reasonable time.40 Pursuant to the Charter, states are bound to provide legal assistance in all cases where the interests of justice so require. In short, the Charter contains a wide recognition of the rights of defence, which form part of the ‘core’ of fundamental rights. Similarly, the Caribbean Charter refers to the right to an independent and impartial tribunal. This right has gained considerable attention in the Caribbean, primarily in terms of reasonable length of proceedings.41 A number of cases have been subjected to the jurisdictional supervision of the Privy Council, the highest authority in the matter, to judge on the fairness of the waiting time in the process and whether it is contradictory to constitutional provisions. In this regard, various cases illustrate quite well the content attributed to that right. In fact, most cases have been brought before the Privy Council, which serves as the court of appeal in respect of national courts. In Bell c. DPP and another, the appellant claimed that his right to a fair hearing within a reasonable time recognized in the Jamaican Constitution was violated.42 The Privy Council admitted that there had been such a violation, weighing two fundamental principles against each other: on the one hand, the fundamental right to a fair hearing within a reasonable time and, on the other hand, the public interest in achieving justice. The Privy Council asserted the primacy of the former taking into consideration the context of the local legal system and the prevailing economic, cultural and social conditions. The Charter clarifies also the scope of the principle of equality, referring to the principle of non-discrimination in two manners. First, to ban discrimination by reason of age, colour, creed, disability, ethnicity, gender, language, place of birth or origin, political opinion, race, religion or class.43 Second, from another perspective, the Chapter refers to the implementation of affirmative actions, without considering them contrary to the general interest, when the laws provide special measures ‘with the sole purpose of furthering the development and advancement of hitherto disadvantaged 39  A Celotto, L‘Europe dei diritti. Commento alla Carta dei diritti fondamentali del’Unione Europea (Bologna, Il Mulino, 2001) 164. 40  Article. V Equality before the Law. 41  Francis (n 12). 42  Bell v DPP (1985) 32 WIR 317, PC. See D Seetahal, Caribbean Criminal Practice and Procedure 3rd edn (London, Routledge-Cavendish, 2010) 23. 43  Charter of Civil Society, article V. 3. Equality before the law.

156  The Protection of Human Rights in the Caribbean Community communities or sections of the population to enable them to develop and realise their potential to the fullest’.44 In the area of political rights, the Charter provides for, on the one hand, the duties of states to secure the existence of a ‘fair and open’ democratic system through free elections at reasonable intervals by secret vote, underpinned by an electoral system in which everyone can have security, and the freedom of expression of the will of the people is guaranteed in choosing their representatives. The Charter proclaims, thus, the representative system. Member states should adopt appropriate measures to maintain effective functioning, including regular maintenance of public meetings of representatives. It is recognized, moreover, the right of everyone to create a political party or organization, join a political party or organization of their choice, attend their public meetings and participate in their activities, and express, regardless of sex, their political beliefs in a peaceful manner. The right to be nominated as a candidate in an election for public office is also included. Freedom of assembly is also contemplated, as the right to petition peacefully subject to the restrictions that are imposed by national laws and that are reasonably justifiable in a free and democratic society. Furthermore, the Charter protects freedom of expression, which includes the right to hold opinions and to receive and impart ideas and information without interference; to freely send and receive correspondence and other means of communication; and to seek, distribute or spread to others and the public, information, opinions and ideas in any form whatever. This right is extended to the media.45 With regard to the limitations that member states may establish, these are accepted as long as ‘established by law and reasonably justifiable in a democratic society’. This means that three conditions must be met: limitations should be established by law; they must fulfil a legitimate aim, such as maintaining security and public safety; and they must be reasonable, that is, the means provided must be proportionate to the objectives to be achieved. Nothing, however, is said about a possible judicial review thereof.46

44 

Charter of Civil Society, article V. Equality before the Law. particular, states must respect and promote the existence of a diversity of sources of information as a means to ensure the majority of public access to information, within the requirements established for the broadcasting license, transmission or other means of communication, public exhibitions or public entertainment. 46 In the national sphere, moreover, almost all the freedoms stated in the human rights chapter of the Caribbean Constitutions contain a statement of exceptions and requirements that accompany the exercise of the respective freedoms. For instance, the Constitutions protect the personal freedom of its citizens against arbitrary arrest and detention, but at the same time, they establish the circumstances in which arrest and detention are allowed. See D Byron, ‘Human rights issues in the Caribbean and its impact on policing’: presentation delivered at the meeting of the Association of Caribbean Police, 21 to 25May 2001, available at: http://www. internationaljusticeproject.org/pdfs/byron-writing.pdf> 45  In

Evolution and Instruments on Human Rights within CARICOM 157 Therefore, the Charter of Civil Society represents, as it relates to civil and political rights, a useful tool for the Caribbean Community in which fundamental rights in this area are contained, in a clear and specific format, granting rights to individuals and groups and imposing obligations on member states. (v) The Human Rights Mechanism Established by the Charter of Civil Society As a corollary of the obligation of states to ensure and respect the rights included in the Charter, an international control mechanism is established. This mechanism consists of a reporting system structured around the CARICOM General Secretariat and implemented by the Conference of Heads of Government. To this end, member states agree to submit periodically (every three years) reports on the measures taken and progress made​​according to the provisions of the Charter to the General Secretariat of the Caribbean Community.47 Along with these periodic reports, the Charter also envisages that the Conference of Heads of Government may require other special reports, at ‘any time’. The Charter is vague in this regard, since it does not clarify how these reports are handled.48 Nevertheless, the Charter mentions that in the preparation of reports, member states are required to consult with the so-called stakeholders (social partners) considering the important role incumbent upon them in achieving the objectives of the Charter. Ultimately, the Conference will scrutinise the report and assess the factors and difficulties that affected the implementation of the Charter. In order to ensure compliance with the provisions of the Caribbean Charter, it creates a ‘National Committee’ in each member state. The Charter foresees the creation of a body responsible for monitoring and ensuring the implementation of the Charter. The composition of this body will be tripartite. In addition to representatives of the member states, it should be composed of representatives of the ‘social partners’, as well as other persons of ‘high moral character and recognised competence in their respective fields of endeavour’.49 The main function of this body is to analyse the problems and difficulties experienced and receive reports of alleged violations attributed to the State or one or more ‘stakeholders’.50 As for the

47 

Charter of Civil Society, article XXV.1. Reports. Charter of Civil Society, article XXV. 2. Reports. 49  Charter of Civil Society, article XXV.4.c. Reports. 50  It is worth recalling the limitation arising from the rule of international law that prevents any submissions in relation to a matter that is currently before another international body whose decision is binding on the state. 48 

158  The Protection of Human Rights in the Caribbean Community standing to make such claims, both individuals as ‘entities’ can submit a claim, but the Charter does not indicate in which cases or what kind of legal persons may resort to this mechanism. Once the claim is filed, a procedure is triggered with the intervention of the General Secretariat. Once the allegation received it is transmitted to the state or ‘social actor’ involved, notifying them thereof and requesting their comments on the complaint. After this, the national court must give notice of the allegation received to the General Secretariat of CARICOM, forwarding to both the body of the allegation, any comments received, and its own point of view on the matter. At this stage of the proceedings, the role attributed to the General Secretariat is significant, since it should work as a nexus between national authorities and the Conference of Heads of Government. The General Secretariat must submit annually a report for consideration. According to this, the reports should be received from national committees or other bodies in accordance with the provisions of the Charter. After the cases is analysed by the Conference, it can issue recommendations taking into consideration the reported violations. The General Secretariat is required to inform the member states and their National Committees or similar bodies of the results of the deliberations of the Conference on the report along with the recommendations adopted. This is how the mechanism should work from a purely theoretical perspective, since so far no reports have been submitted. It is crucial to providing a protective mechanism established with ­efficacy for this to become a real breakthrough for CARICOM, considering that only a few member states have expressed their commitment to the regional protection system. At present and regardless of the lack of action, the ­establishment of such a mechanism constitutes a step in the right direction to guarantee the rights embodied in the Charter. It is up to the member states and the organs of CARICOM to take the initiative to effectively implement it. In short, the establishment of a control mechanism for the contents of the Caribbean Charter as discussed shows another advance in the field of human rights within the Caribbean integration process, regardless, of course, of the absence of an effective mechanism or the non-binding nature of the provisions of the Charter. III.  THE PROTECTION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS WITHIN CARICOM

As mentioned, the Caribbean integration process is conceived as essentially having economic character. However aspects related to human rights have not been neglected since, in particular, social rights are undoubtedly

The Protection of Economic, Social and Cultural Rights 159 ­ resent in the Caribbean integration.51 In terms of the social dimension of p the ­integration process, in order to outline the most important aspects, one should refer to the adoption of cooperation programs in the 1990s. During this period, various instruments enshrining economic and social rights, and also other rights of cultural character were adopted. In other words, the further development and deepening of the Caribbean integration led to a more detailed regulation of social aspects and, therefore, fundamental rights of social content were addressed.52 Notwithstanding that, it should be noted that the first references to social rights within the Caribbean integration were already contained in Chapter V of the Annex to the 1973 Treaty of Chaguaramas concerning the mobility of labour, specifically establishing the obligation of member states to grant preferences in order to provide services to citizens of the member states.53 Similarly, Article 10 of the ToC sets up the Standing Committee of Ministers of Labour, as an intergovernmental body to develop appropriate policies to achieve the social objectives of CARICOM.54 But it will be in successive meetings of Heads of State that one can observe the progress in the action of the Community relating objectives in the social dimension, particularly with regard to the implementation of policies on education, health and social security.55 The existence of a Caribbean social dimension is very clear. There is a new paradigm that emerges from the old integration scheme and goes beyond the strictly economic terms, developing the social aspects, facilitating the interaction between the private sectors of the member states, and promoting social capital among the peoples of the region.56 As a reflection of this phenomenon, the protocols amending the original Treaty contain important provisions in this direction that, sometimes,

51  In CARICOM, integration has a profound impact on the social field, particularly on the level of and living conditions of the population, and significantly influences the development model used in countries, so it requires the design and implementation of a social development program that addresses the regional dimension. Also, the different rates of growth of national economies generates social trends such as migration, which require coordinated and consistent responses from the countries of the region. See SELA, La Integración latinoamericana y caribeña: empresa necesaria y posible (2001) see Introduction n 8. 52 Harris, La integración del caribe (2000) above Chapter I n 328. 53  In effect, the Treaty of Chaguaramas states, in its preamble, that the governments of the Contracting States share a common determination to ‘attaining food security, achieving structural diversification and improving the standard of living of their peoples’. Available at: http:// www.caricom.org/jsp/community/revised_treaty-text.pdf> 54  In particular, Article 6 states as objectives of the CARICOM, the following: ‘(a) improved standards of living and work; (b) full employment of labour and other factors of production; (c) accelerated, co-ordinated and sustained economic development and convergence’. 55 See Documents from the Conferences of Heads of State/Government, signatories to the Convention of the Establishment of the Association of Caribbean States, Trinidad and Tobago, August, 1994. 56  U Nogueira, The Integration Movement (1997) above 11.

160  The Protection of Human Rights in the Caribbean Community embody rights, either because they regulate human rights, or they set ­standards with a clear recognition of rights.57 Among the specific rules introduced during 1990s, there is the Agreement on Social Security of CARICOM, adopted in 1996, in which the principle of equal treatment is central,58 and the Charter of Civil Society of the Caribbean, analysed in the previous section, which also offers an important catalogue of social rights. It follows from this evolution that, as a result of the change in the configuration of CARICOM integration, the organisation is adding new dimensions to the traditional civil and political rights, relying on international human rights law, and including also economic, social and cultural rights as an integral part of human rights.59 The Charter of Civil Society subscribes to the principle of indivisibility of human rights in its preamble, expressly underlying member states’ obligation ‘to ensure continuing respect for internationally recognised civil, political, economic, social and cultural rights’.60 However, the recognition of social rights within the Caribbean integration has occurred in two different instruments. First, the recognition of social rights as happens in the framework of the Charter of Civil Society.61 Second, the recognition of rights specifically flowing from the setting of the social dimension of CARICOM. Both of them determine the list of fundamental rights with social content that form part of the Caribbean integration. A. The Charter of Civil Society and the Recognition of Economic, Social and Cultural Rights In a careful analysis of the Charter of Civil Society, one can identify a catalogue of social rights that can be classified at least, in different categories. First, the rights of vulnerable groups are contained in Articles 11, 12, 13 and 14. Second, cultural rights are reflected in Articles 9, 10, 15 and 16; and economic rights are laid down in Article 18. Third, strictly speaking, social rights, are mentioned in Articles 19, 20, 21 and 22.62 The rights related to the protection of the environment deserve a special mention, in terms of

57 Protocol II, entitled ‘Establishment, services, capital movements’, includes the freedom to provide services and the free movement of capital by any CARICOM national in the Community. 58  Ciudad Reynaud, Las normas laborales (1999) Chapter IV n 103. S Mc Andrew, ‘Towards the Caribbean Single Market Economy: the labour agenda’ in W Momm (ed), The Labour Issues in the Context of Economic Integration and Free Trade (Port of Spain, ILO-Caribbean Office, 1999) 55 58. 59  Francis (n 12) 15. 60  Charter, Preamble. 61  The Charter contemplates, in detail, social rights and cooperation between CARICOM member states, indicating the possible existence and the implementation of common policies in the social field. 62  Charter of Civil Society, article X Cultural Diversity.

The Protection of Economic, Social and Cultural Rights 161 Article 23 which states that ‘[e]very person has a right to an environment which is adequate for his or her health and well-being and a corresponding duty to protect, conserve and improve the environment’.63 On the basis of this analysis, it seems appropriate to focus specifically on the rights of social content that appear in the Charter since they entail the ultimate manifestations of the social dimension that occurs in the process of Caribbean integration. To this end, the following conclusions could be drawn: i.

The protection of vulnerable groups: The Charter contains several articles intended to regulate the recognition of rights and the protection of v­ ulnerable groups.64 It mentions various groups that are vulnerable and require special protection. In this manner, it sets out the recognition of the rights that would allow these groups to fully participate in social life. In sum, the Charter enshrines rights of social content in relation to vulnerable groups.

The Charter deals, first of all, with the rights of indigenous peoples, recognizing their contribution to the development. States are obliged, in this respect, to protect their historical rights and their culture and way of life, as provided for in Article 9 of this legal instrument,65 referring in particular to the protection of indigenous peoples in the Caribbean area. These communities have received legal protection fairly recently because, as A. Francis states when reviewing the current situation of indigenous peoples in the 63 Charter of Civil Society, article XXIII Environmental Rights. See Revised Treaty of Chaguaramas, article 65: ‘Environmental Protection. 1. The policies of the Community shall be implemented in a manner that ensures the prudent and rational management of the resources of the Member States. In particular, the Community shall promote measures to ensure: (a) the preservation, protection and improvement of the quality of the environment; (b) the protection of the life and health of humans, animals and plants; and (c) the adoption of initiatives at the Community level to address regional environmental problems. 2. In formulating measures in relation to the environment, the Community shall take account of: (a) available and accessible scientific and technical data; (b) environmental conditions in the Member States; (c) the potential costs and benefits of action or inaction; (d) the economic and social development of the Community as a whole and the balanced development of the Member States; (e) the precautionary principle and those principles relating to preventive action, rectification of environmental damage at source and the principle that the polluter pays; and (f) the need to protect the Region from the harmful effects of hazardous materials transported, generated, disposed of or shipped through or within the Community’. 64  However, what may be considered novel is the introduction of family rights, recognized as a fundamental unit of society, and which aims to complete the conditions for the promotion of family life, taking into account the importance of the role of each parent and the full development and protection of the family, including the extended family, as stipulated in Article XVI. 65  In line with the protection created within CARICOM, it is worth highlighting the modifying Protocol III on Industrial Policy, which provides that Member States should ‘identify and establish’ mechanisms to ensure the preservation of the ‘Caribbean indigenous culture’ and provide legal protection for expressions of folklore, some of this knowledge and national heritage, particularly of indigenous populations existing in the Community. Article 9 of the Protocol. This Protocol replaces Articles 39, 49, 41, 42, 44, 45 and 46 of the original treaty. Conde Pérez (n 6) 137.

162  The Protection of Human Rights in the Caribbean Community subregion, ‘as a result of the genocide carried out in the colonial era, only few Caribbean states have significant communities of indigenous peoples’.66 It should be noted that CARICOM member states have not ratified the ILO Convention 169.67 Nevertheless, they maintain a common position in international forums regarding the protection of the rights of indigenous peoples, highlighting the role in achieving sustainable development and the importance of strengthening human and institutional capacities of indigenous peoples and ensuring their participation in the decision-making process.68 As regards the promotion of women’s rights, the Charter sets out the obligation to adopt policies and measures aimed at strengthening gender equality, so as to ensure equality of men and women in the political, civil, economic, social and cultural spheres. Thus, an indicative list of rights is contained, including the right to be appointed or elected to public office and to be eligible for designation in the decision-making bodies at all levels; to have equal opportunities in employment and equal pay for equal work; to not be discriminated against because of marital status, pregnancy, nursing or health issues that affect older women; and the right to legal protection including fair and effective remedies against domestic violence, sexual abuse and sexual harassment.69 In this regard, CARICOM has followed United Nations policies to promote gender equality, the Committee on the Elimination of All Forms of Discrimination against Women and the Beijing Conference, taking actions aimed at identifying and overcoming obstacles to the enjoyment of human rights. It is important to stress that the work of the Caribbean Community has had an impact on member states which have amended their d ­ omestic

66  Francis (n 12). These include the case of the ‘Caribs’ in Dominica and in Guyana the ‘Wapsiana Arawak-speaking’ and ‘Carib-speaking’ (Akawaio, Patamona, Arekuna, Makusi and Waiwai). Whereas in Suriname, the population reveals a high component of Amerindian tribes and Maroons, descendants of slaves. The Revised Treaty of Chaguaramas includes in article 64 the obligation of CARICOM institutions to ‘co-operate with the Member States and competent organisations to devise means of protecting, developing and commercialising local knowledge about the value and use of the Region’s biodiversity for the benefit of their populations, especially their indigenous peoples’. 67  Ratifications of C169—Indigenous and Tribal Peoples Convention, 1989 (No. 169). Date of entry into force: 05 Sep 1991 available at: http://www.ilo.org/dyn/normlex/en/f?p=NORML EXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312314>. 68  This is demonstrated, for example, in the participation of members of CARICOM in the Third Committee of the General Assembly. To complement this, we must remember that, in the Caribbean area, in addition, there are indigenous organizations: in particular in Dominica, Guyana and Belize, and a regional organization called the Caribbean Organization of Indigenous Peoples (Caribbean Organization of Indigenous People). 69  It is noteworthy that all States of the Caribbean Community have ratified the Inter-American Convention to prevent, punish and eradicate violence against women also called the ‘Convention of Belem do Para’, signed on 6 September 1994 and in force since 3 May 1995. OAS. Signatories and ratifications available at: http://www.oas.org/juridico/english/sigs/a-61.html>.

The Protection of Economic, Social and Cultural Rights 163 legislation to ensure women’s rights, for example in regard to women’s ­participation in elections.70 Moreover, the General Secretariat has worked to provide a model of uniform legislation for member states on strengthening the legal status of women.71 Another important vulnerable group is children, to whom particular protection is granted,72 guaranteeing the right ‘not to be compelled to perform or to render services harmful to his or her physical or mental health, upbringing, education or social development’.73 The Charter provides further protection for children against economic exploitation or other type of exploitation, physical or mental violence, injury, neglect or abuse, including sexual abuse.74 Where appropriate, the Charter provides for the possibility that children are consulted and have their viewpoint presented before the courts and other agencies or bodies responsible for child welfare, taking into consideration various factors such as the child’s age and physical and mental development.75 The protection of children is also addressed at the meetings of ministers with responsibilities for the protection of children, in the context of a broad conception of welfare of Caribbean children and their families as a major, key and integral part of a policy of human development. The Charter expands the formative stage from birth to eighteen years old, granting significant importance to the earliest period of life span through the four years, because of its impact on the successive stages. Consequently, the Ministers responsible for this area made several recommendations at these meetings for protecting children. During the course of their meeting in Belize in 1996, they signed the so-called ‘Belize Commitment to action for the rights of the child’.76 This document contains specific recommendations with regard to the proper environment; strengthening legal protection, family development and collaboration with NGOs and communities.77

70 

See, for instance, the constitutional reform introduced in Guyana. Similarly, the General Secretariat has launched a Plan of Action for gender equality focused on combating violence against women and protection of women’s health, including the impact of AIDS on women. See the documents prepared by the General Secretariat of CARICOM, available at: http://unpan1.un.org/intradoc/groups/public/documents/caricad/unpan010972. pdf>. 72  As regards the definition of a child, it defines what is meant by child, being people up to the ages of eighteen; unless, under national law, majority is attained at an earlier or later age, which is still as stated in the 1989 Convention on the Rights of the Child. 73  Charter of Civil Society, article XIII. a. Children’s Rights. 74  Charter of Civil Society, article XIII. b. Children’s Rights. 75  Charter of Civil Society, article XIII. c. Children’s Rights. 76 The document is available at: www.unicef.org/lac/spbarbados/Planning/Regional/…/ Belize_1996.doc>. 77 For a detailed analysis of the Commitment, see H Thomson-Ahye, The Rights of the Child and the Caribbean: Prospects and Challenges for the 21st Century (2004), available at: www.unicef.org/easterncaribbean/cao_events_lecture.doc>. 71 

164  The Protection of Human Rights in the Caribbean Community Disabled people also benefit from special protection in the Charter, which stresses the right not to be discriminated against because of disabilities, and the right to equal opportunities in all fields of action that allow the development of their potential.78 The protection granted under the Charter is in line with the universal international level in relation to the recognition and protection of the rights of this vulnerable group.79 In sum, the Charter follows on the footsteps of other international instruments regulating on issues relating to vulnerable groups, establishing a set of rights. However, the content of this legal instrument highlights the emphasis on measures, programs and actions that promote the effective exercise of social rights vulnerable groups are entitled to. ii. Social rights: A special consideration is devoted in the Caribbean Charter to rights of strictly social content. Its importance is already highlighted in the Preamble to the Charter to express the shared commitment of member states to achieve both economic development as well as social justice, being mainly the rights relating to employment specifically regulated by Article 19. This highlights the importance, to that end, given to the rights of social and labour content in line with the elements that define the Caribbean integration process. In this vein, the Charter enumerates the rights conferred upon workers, referring to the right to freedom of association. Every worker has the right to form or belong to and participate in the activities of trade unions or other associations for the promotion and protection of their interests. In return, the right not to participate in these activities is recognized. Similarly, the Charter provides also for the right of all workers to negotiate or sign a collective agreement.80 With regard to working conditions, the Charter states that workers are entitled to a safe workplace and to a hygienic and healthy environment. All kinds of forced labour are also prohibited, including unfair labour practices, bullying, and victimisation. The Charter also includes the right to a reasonable length of working hours, rest, periodic holidays with pay and

78 

Charter of Civil Society, article XIV. Rights of Disabled Persons. UN Convention on the Rights of Persons with Disabilities. The Convention on the Rights of Persons with Disabilities was adopted on 13 December 2006 during the sixty-first session of the General Assembly by resolution A/RES/61/106. In accordance with article 42, the Convention and its Optional Protocol opened for signature by all States and by regional integration organizations at the United Nations Headquarters in New York on 30 March 2007. The Convention on the Rights of Persons with Disabilities and Optional Protocol entered into force on 3 May 2008. Available at: http://www.un.org/disabilities/convention/conventionfull.shtml>. 80  In the protection of the right of workers to collective negotiation, the Charter states the commitment to provide appropriate mechanisms for the recognition and certification of unions which enjoy the support of a majority of the workers based on the free choice of the work concerned. As well as provide the means for a speedy resolution of disputes and the return to normal in the case of strikes, lockouts and other forms of industrial action. 79 

The Protection of Economic, Social and Cultural Rights 165 remuneration for public holidays; and to receive reasonable remuneration for their work, regardless of sex.81 These rights could be subject to reasonable restrictions such as those that are imposed by national law in the public interest.82 States undertake ‘to safeguard the right of workers to earn their living in freely chosen lawful occupations’.83 Similarly, member states undertake to recognise ‘the desirability of workers earning a level of remuneration which would afford them and their families the enjoyment of a decent standard of living’.84 The Charter also protects other aspects of the employment relationship, and requires that states undertake ‘to foster and promote a harmonious and productive working environment by sensitising workers, trade unions and employers as to their respective and mutual obligation’.85 Protection against arbitrary dismissal is included in the Charter.86 Maternity receives differentiated protection, in which case, the state must guarantee both the payment of wages and the enjoyment of social security benefits before and after childbirth; moreover it is unlawful to consider any dismissal or adoption of a measure that could adversely affect the woman’s position or promotion on grounds of pregnancy.87 Beyond labour rights, there are other rights set forth in the Charter in the field of education that deserve mention.88 In particular, regarding the right of access to education, states undertake to ensure access, but their obligations vary depending on the level of education, establishing distinctions in each case.89 The State should provide the means to enable the right of every child to an acceptable quality of primary education. States should also ensure equal access to secondary and post-secondary education but need ‘only’ seek ‘reasonable access’ to continuing adult education and further training; there is no mention of access to university or college.90

81  Charter of Civil Society, article XIX. Workers’ Rights. As for working conditions, the State incurs the obligation to establish guidelines under which employers must act to provide a safe and healthy workplace. These conditions have to be provided directly by the State, and workers should enjoy the benefits of social security. Member states should ensure that each person who has attained the age of retirement and has adequate means of subsistence is provided with social and medical assistance. 82  Charter of Civil Society, article XIX. Workers’ Rights. However, a clarification is required with respect to the provisions contained in this field, which will not prevent States taking any measures imposing limits upon people in government service, if such restrictions are reasonably justifiable in a democratic and free society. 83  Charter of Civil Society, article XIX. 3. a. Workers’ Rights. 84  Charter of Civil Society, article XIX. 3. b. Workers’ Rights. 85  Charter of Civil Society, article XIX. 3. d. Workers’ Rights. 86  Charter of Civil Society, article XIX. 3. e and f. Workers’ Rights. 87  Charter of Civil Society, article XIX. 3. g. Workers’ Rights. 88  For a general overview on education in CARICOM see A Layne, ‘Education: its role in Caribbean integration’ (1993) 18 (4) Bulletin of Eastern Caribbean Affairs 1–9. 89  Charter of Civil Society, article XV. 1. Access to Education and Training. 90  Charter of Civil Society, article XV. 2. Access to Education and Training.

166  The Protection of Human Rights in the Caribbean Community In this regard, in accordance with the principle of equality it is provided that regardless of colour, creed, disability, ethnicity, gender, language, place of birth or origin, political opinion, race, religion or social class children are entitled to ‘equal access to State and State-assisted educational institutions’.91 Therefore, member states must take action aimed at ensuring that children with disabilities have access to special education according to their needs, financed wholly or partially by the State in accordance with the specifications set forth in national laws.92 Similarly, member states must take measures to ensure that parents are able to give their children full use of the educational opportunities provided by the State.93 Also the right to health is recognised in Article XX.94 According to that provision, states must ensure their best efforts to provide adequate health case that covers all diseases and are accessible to all without discrimination.95 Among other rights states should also endeavour to provide adequate social services and benefits and ensure access to food, housing and other basic needs to the neediest of the population.96 Finally, the Charter contains a provision regarding the participation of people in the economy. In this regard, States should facilitate access to resources so as to promote economic growth, sustainable development and full employment, especially of young people, and improve opportunities for achieving for each person a safe and reasonable standard of living.97 This includes the right of every individual to freely intervene on the basis of full equality in economic activities, including the right to participate in, establish and manage their own company in the commercial, industrial, agricultural, service sector or another sector, with special assistance to young people and the disabled.98 In this respect, an innovation introduced by the Charter is the cooperation with the ‘Social Partners’, or stakeholders that are involved alongside the state, organized within the legal framework provided by the state, ensuring that consultations are articulated to achieve consensus and support in achieving the objectives in the implementation of national economic and social programs, strengthening their respective roles and responsibilities and ensuring the achievement of a genuine democratic governance.99 A curious inclusion is what the Charter calls ‘Awareness and Responsibilities of the People’, in which, without imposing concrete obligations on

91 

Charter of Civil Society, article XV. 3. Access to Education and Training. Charter of Civil Society, article XV. 4. Access to Education and Training. 93  Charter of Civil Society, article XV. 5. Access to Education and Training. 94  Charter of Civil Society, article XX. Health. 95  Charter of Civil Society, article XX. a. Health. 96  Charter of Civil Society, article XXI. Basic Necessities. 97  Charter of Civil Society, article XVIII. Participation in the Economy. 98  Charter of Civil Society, article XVIII. 2. Participation in the Economy. 99  Charter of Civil Society, article XXII. Social Partners. 92 

The Protection of Economic, Social and Cultural Rights 167 the citizens of the member states, it underlines their role in the pursuit of good governance.100 In this regard, member states should create, support and develop programs to strengthen legitimate values ​​and positive attitudes and institutional capacities to ensure the objectives.101 It states that the program must include building awareness, ‘the inculcating, nurturing and demonstration of love of one’s country’;102 participation in the electoral process; the development of a positive work ethic at all levels in society in recognition of the responsibilities of the people in areas of production, the economy and the provision of goods and services; people’s awareness of the importance of constant professional training, improvement and specialization of skills; building confidence and commitment in these activities; promoting awareness of parents to cooperate with and support the education system and programs aimed at the formation of the personality of students; special consideration and support for young, elderly and disabled people and other vulnerable groups; the resolution of interpersonal and domestic disputes by peaceful means, such as mediation, reconciliation and others; the care and protection of the environment; the preservation and protection of public property and the promotion, establishment and maintenance of grass-roots organizations.103 Similarly, the Charter introduces several provisions with regard to ‘good governance’. Member states must adopt and implement all appropriate measures to ensure good governance, defined as ‘fair, open and responsible’. Essential aspects such as the recognition and affirmation of the ‘rule of law’, the effective administration of justice and the maintenance of the independence and impartiality of the judiciary are mentioned. The Charter draws attention to the need for coordination with other social actors and citizens, granting them greater participation in the democratic process through consultation mechanisms such as an environment conducive to the development of democratic governance. The implementation of a code of conduct for those holding public office and to exercise any power that may affect the public interest is suggested.104 In sum, as discussed, from a legal viewpoint the Charter is meant to have a positive impact on the protection of rights of social content and, in particular, on those rights which have a social and labour character. This is the first comprehensive legal instrument on human rights adopted within the CARICOM integration process since it was established.

100 

Charter of Civil Society, article XXIV. Awareness and Responsibilities of the People.

101 ibid. 102 

Charter of Civil Society, article XXIV. a. Awareness and Responsibilities of the People. of Civil Society, article XXIV. b, c, d, e, f, g, h, i, j, k. Awareness and Responsibilities of the People. 104  Charter of Civil Society, article XVII. Good Governance. 103  Charter

168  The Protection of Human Rights in the Caribbean Community B. Key Features and Legal Standing of the Declaration of CARICOM on the Principles Governing Labour and Industrial Relations In the area of social rights and, in particular, regarding workplace rights, one of the central instruments adopted within the Caribbean integration is the Declaration of CARICOM on the principles governing labour and industrial relations. This Declaration was signed by the member states of the Caribbean Community in 1995 with the purpose of establishing the principles that define the overall labour policy in the region.105 This Declaration was preceded by the work of the Standing Committee of Ministers of Labour (‘SCML’). At the SCML meeting in St. Lucia, held from 28 to 30 April 1993, the development and adoption of a declaration of principles of labour and industrial relations to outline the guidelines of the social policies of the Community were advised, in line with international standards in this field. In order to fulfil this mandate a Regional Working Group of tripartite structure (made up of representatives of Member States, the Caribbean Congress of Labour, the Confederation of Employers of the Caribbean and the Organization of Eastern Caribbean States) was commissioned to discuss the content and outline the future Declaration. During the first meeting of the Working Group, held at the headquarters of the General Secretariat in Guyana, in December of that year, the Secretariat prepared the draft Declaration on the basis of discussions and research. This first draft was presented to the members of the Working Group for consideration, study and discussion at the second meeting in Trinidad and Tobago in 1994. The first draft of the document was reviewed and sent for further study to member states, the Secretariat of the Organization of Caribbean States and other participants in the Working Group and the ILO, in addition to the participants of the second meeting of the Working Group, and other labour experts. Furthermore, member states led tripartite consultations on the draft Declaration. As a result of this discussion and the joint study and adoption of the recommendations, the review and improvement of the first draft was made possible receiving the support of stakeholders. During the third meeting of the tripartite Working Group on 24 April 1995 the project was amended and on this recommendation, during the third Meeting of Ministers of Labour, in 1995, in Nassau, Bahamas, the declaration was approved. The wording of the Declaration constitutes an important instrument in the context of the social dimension of Caribbean integration and, in particular, with respect to the recognition of social and labour rights. As regards its legal nature, clearly, the Declaration has a purely recommendatory value. More precisely, its character is essentially recommendatory and 105 CARICOM Declaration of Labour and Industrial Relations Principles, available at: http://www.sice.oas.org/labor/CARICOM_DLIR.asp.

The Protection of Economic, Social and Cultural Rights 169 therefore not binding, which reflects the reality of the Caribbean integration process, which, despite the nomenclature used, it is intergovernmental in its praxis. The instrument itself has been adopted in the form of a declaration and is not intended in any way to lead to the adoption of a convention or treaty, even if it is in places similar to a framework agreement. Nevertheless, the Declaration suggests parameters to be applied by the member states in shaping their national policies in the implementation of labour and social policies. In addition, considering that governments and stakeholders had an active participation in the drafting and adoption of the Charter, this instrument constitutes a breakthrough since it seems to express the consensus of the member states and social sectors of Caribbean integration on core aspects of social rights in order to enable a possible future implementation of common (or at least harmonised) policies in this area. It could be argued that this Declaration constitutes a compendium of traditional social rights, with an adequate systematic programme, emphasizing those rights which would form the essential elements for the development of a catalogue on fundamental rights with social content. With respect to its content, the Declaration, in forty-five articles, comprises a series of principles on labour matters. It embodies certain objectives to be achieved in the field of the Caribbean social dimension; and, finally, it confers certain rights. As regards the former, first of all, the Declaration makes a reference to the Treaty of Chaguaramas, the Charter of Civil Society, the Declaration of Philadelphia and the United Nations Declaration on Human Rights as well as to international labour conventions and recommendations and to the ‘generally accepted principles of industrial and labour relations’.106 The principles enshrined in the Declaration are, in particular, the principle of equality or non-discrimination of all human beings, regardless of race, creed, sex, national extraction, colour, marital status or social origin and political orientation. The principle of non-discrimination is often mentioned regarding employment and occupation. In accordance with the provisions in the Preamble, member states are obliged to ‘adopt and pursue policies designed to promote, as appropriate to national conditions and methods of practice, equality of opportunity and treatment in respect of employment and ­occupation with a view to eliminating any discrimination based on race, colour, sex, religion, political opinion, national extraction or social origin’.107 There is also a reference made to the traditional principle of ‘equal pay for work of equal value’.108 The Declaration, however, is without prejudice to

106 

Declaration of Labour and Industrial Relations Principles, preamble. of Labour and Industrial Relations Principles, article 11. Equality of ­Opportunity and Treatment. 108  Declaration of Labour and Industrial Relations Principles, article 12. Equal ­Remuneration for Work of Equal Value. 107 Declaration

170  The Protection of Human Rights in the Caribbean Community the special measures of protection or assistance provided for disadvantaged groups contained in legal instruments adopted by the relevant intergovernmental organizations, which should not be interpreted as discriminatory. As regards the latter, the Declaration appeals to the objectives of the CARICOM, which are, in essence, ‘the promotion of full regional integration in the Caribbean that should include among its goals promotion of full employment; cross-border mobility of labour; improved living and working conditions through enhanced production and productivity; adequate social security policies and programmes deepening dialogue between employers and trade unions; collective bargaining; tripartite consultations among their Governments, workers’ and employers’ organisations; development of human resources; and expanding opportunities for employment’.109 Obviously, at this stage of the CARICOM integration process, one cannot properly refer to ‘common social policies’; however, the Declaration is intended to set out the guidelines for national policies regarding employment. Consequently, it provides for the obligation of member states to establish policies to protect the right to work of all individuals to freely choose employment and decent working conditions; and the policies and programs of vocational guidance and training closely linked with employment. These standards apply to all ‘citizens of the member states’, who shall have the right to live and work in the country of their choice within the Community subject to the legislation of the host country. Therefore, the Declaration puts down the roots of what might constitute a future ‘Caribbean citizenship’.110 With regard to the rights, the Declaration contains the right of freedom of association of employers and employees, without distinction, and to establish rules to regulate their agreements without interference from public authorities, only subject to the rules concerning the organization. The Declaration expressly mentions that employers and employers’ organizations cannot bring under their control or help finance workers’ organizations. The Declaration enshrines the right to collective bargaining ‘as a vehicle to determine the terms and conditions of employment without interference by public authorities’.111 Member states have an obligation to establish the institutional means and procedures to facilitate and promote, noting that organizations pursue collective bargaining. The parties to these negotiations should maintain a reasonable and constructive approach demonstrating their mutual obligation to negotiate in good faith.

109 

Declaration of Labour and Industrial Relations Principles, preamble. this section, there are two provisions aimed at protecting human dignity: on the one hand, the States undertake to ensure that all individuals are treated humanely and fairly by public authorities and those holding public office and all those who exercise the power to affect the quality of people’s lives; and secondly, to ensure that in the process of government there will be no victimization of any person. 111  Declaration of Labour and Industrial Relations Principles, article 6. Collective Bargaining. 110  In

The Protection of Economic, Social and Cultural Rights 171 The basis of these negotiations should be equity, fairness and justice, with a view to promoting stability in industrial relations. The ‘stakeholders’ (social partners) should promote full compliance and the use of mechanisms of voluntary negotiation. The Declaration states that union representatives must enjoy effective protection against unfair acts, including dismissal based on their status or activities as a representative of the unions or participation activities thereof. It also prohibits forced labour, establishing the limit of the permitted working age, as far as child labour is concerned, at fifteen years old, an age which can be extended by member states. Further rights include the right to enjoy paid holidays, the right to receive a wage, without deductions other than those permitted by national laws or regulations, collective agreements or arbitration in which a worker has agreed to such deductions.112 It contains a clause that in the event of bankruptcy or insolvency, the Declaration recognizes the privilege to wage claims, which must be paid in full before unsecured creditors. The Declaration provides for protection against unfair dismissal, based on the worker’s behaviour, capacity or operational requirements of the undertaking, establishment or service, but in any case, the employee has a right to due process to request that, if dismissal, he or she is given the opportunity to appeal to an impartial body.113 It provides for the involvement of the unions in cases of downsizing and termination of the employment relationship by an economic cause, technological, structural or other similar nature, and it establishes the implementation of incentives for productivity. As for the health and safety of the working environment, the Declaration provides that the member states should develop national policies in this area and reinforce rules necessary to protect them, with responsibility shared by employers who must provide the right conditions required by legislation. The right to social security is also contemplated: member states should ensure that the schemes of social security remain viable and that contributions and payments to beneficiaries are based on a regular price and control support investments. More specifically it states that member states must protect the right to social security of citizens of the Caribbean Community, the right of free movement to other member states for employment, and also the obligation to sign reciprocal agreements with other member states in order to provide agreed benefits based on contributions and the applicable legislation. Another section of the Declaration lists the authorities responsible for carrying out these respective policies, with recommendatory standards to be observed. 112  Declaration of Labour and Industrial Relations Principles, article 17. Right to Rest and Leisure. 113 Declaration of Labour and Industrial Relations Principles, article 22. Termination of Employment.

172  The Protection of Human Rights in the Caribbean Community With respect to the scope of the Declaration, it contains an i­mportant l­imitation arising from the absence of delegation of powers to the ­international organisation, as the applicability of the principles is subject to the member states’ constitutional provisions, applicable laws and competent courts. Thus, the rights recognized to workers and employers are subject to respect for the rights of others and the consequent correlative obligations thereof. Some reflections on the content and relevance of the Declaration are in order. The CARICOM Declaration represents a trend towards the recognition of a ‘labour citizenship’ and the protection of social rights of ‘Caribbean citizens’ in any of the member states as specifically mentioned in articles 15.4 and 30, dealing with the two key rights ofthe right to work and the right to enjoy social security, extending the protection of human rights and the correlative obligations of the member states to respect the human rights of any citizen of the member states in the territory of the Caribbean Community.114 C.  The CARICOM Agreement on Social Security As part of the social dimension of the Caribbean integration, member states adopted the CARICOM Agreement on Social Security on 1 March 1996 which regulates in detail contingencies and enjoyment of the right to social security by citizens of the member states.115 The substantial provisions are divided into two main sections. The first section deals with the provisions determining the law to be applied to certain insured persons.116 These provisions deal with formal aspects regarding voluntary insurance and compulsory and voluntary insurance schemes and their exclusion.117 The second section is devoted to practical aspects of the different contingencies:

114  Ermida Uriarte argued extensively in favour of a socio-labour declaration when referring to MERCOSUR. See Ermida Uriarte, La ciudadanía laboral en el MERCOSUR (2000) above Chapter I n 472. 115  CARICOM Agreement on Social Security, available at: http://www.caricom.org/jsp/secretariat/legal_instruments/agreement_socialsecurity.jsp?menu=secretariat>. The Agreement on Social Security, provides in Article 59 that it shall enter into force on the first day of the third month following the third instrument of ratification or acceptance shall be deposited with the Secretary General. Therefore, it come into effect on 1April 1997. 116  Agreement on Social Security, article 6. Exclusivity of applicable law; article 7. Persons employed in transnational enterprises; article 8. Itinerant employed persons; article 9. Persons employed in international transport; article 10 Persons Employed on Ships; article 11 Persons Employed in Diplomatic Missions, Consulates and International Organisations; article 12 SelfEmployed Persons. 117  Agreement on Social Security, articles 13, 14 and 15.

The Protection of Economic, Social and Cultural Rights 173 ­ isability, retirement, survivors and health care, prescribing the obligation d of states to promote social security.118 In the objectives of this legal instrument, as set out in the Preamble, there is a reference to one of the objectives of the CARICOM which is specifically to contribute to strengthening unity among members through functional cooperation in the area of social security and the harmonisation of legislation on social security as one of the means to achieve it. Similarly, the Agreement underlines the principle of equal treatment of residents of the contracting parties under their social security legislation, and retention of the rights acquired or being acquired. The protection of such rights operates, despite the changes of residence among their respective territories, as based on many of the conventions of the International Labour Organisation. When specifying the scope of the Agreement, it refers to the ‘residents’ of any member state, without making any distinction as to their nationality, ‘the provisions of this Agreement shall be applied to insured persons who are or should be subject to the applicable legislation of one or more Contracting Parties and their dependants or survivors, as appropriate’, as stipulated in Article 3.119 Then it deals with different groups of workers such as those employed by transnational corporations, migrant workers, and persons employed in international work or transport of workers on their own account, providing criteria to determine the applicable law in each case. What emerges from the analysis is that this legal instrument expresses the intention and commitment of the member states of the Caribbean Community to advance the protection of social rights, regulating in detail the aspects of the right to social security. The Declaration is thus in line with the safeguard of human rights under the Charter of Civil Society, while it advances a greater cohesion of the member states when it comes to itemizing the various aspects involved in the protection of such rights in the general framework of a social dimension in constant development. The recognition of a fundamental right to social security within this integration process reveals a significant contribution to the establishment of a system of protection of human rights within CARICOM. However, at this stage of the Caribbean integration process, there are several difficulties represented by the recommendatory nature of the legal instruments and

118  Agreement on Social Security, part III. Provisions Governing Invalidity, Old Age, Retirement, Survivors, and Disablement Pensions, and Death Benefit, Article 16 Determination of Benefits; Article 17 Totalisation of Contribution Periods; article 18. Payment of A Partial Benefit; article 19. Apportionment of Totalised Benefits; article 20 Determination of Liability to Contribute to the Notional Amount in Certain Circumstances; article 21 Dependants;­ article 22 Commencement Date of Payments; article 23 Liability for Certain Survivors’ Benefits; ­article 24 Conversion of Invalidity Benefits. 119 There remain the exception of the diplomatic and consular agents, and also of those with equivalent rank working for international organizations, which does not comprise private personnel of the mission service diplomatic, consular or international organization or service.

174  The Protection of Human Rights in the Caribbean Community the shortcomings of each national legal system. Despite these difficulties experienced in the implementation of these standards, the Declaration represents the legal basis for further development and strengthens the concept of unity among member states seeking the harmonisation of legislation in order to ensure the protection of rights: in particular, social rights applicable to p ­ ersons resident in the member states, regardless of the countries of origin. The new regulations have contributed criteria for extending the regulation to other categories of rights. As G. Noto stresses, some progress has been made in establishing mechanisms for mutual recognition of professional accreditation, facilitation of travel for members of CARICOM and the harmonisation and transfer of social security benefits.120 D. Other Legal Instruments of the Social Dimension and the Recognition of Rights Beyond the specific instruments on the protection of fundamental rights adopted within the Caribbean integration, it should be noted that certain manifestations of the social dimension in the integration process also represent, to some extent, a regulatory framework for the development of human rights. At least, these instruments address the adoption of common policies in some areas. In addition, there are other legal provisions on social rights that set therefore, conditions for the eventual establishment of a complete ‘system’ of recognition and protection of human rights in CARICOM. From this perspective, it is relevant to look into the field of education, health and culture and to understand the involvement of civil society within the Caribbean integration process. It seems that the new wave of the integration process has given a boost to the development of programs in the area of education and health, thanks to the inclusion of civil society within it. Since the early seventies, CARICOM has particularly advanced in the area of ‘functional cooperation’, including communications and information, education, meteorology, energy, disaster prevention, science and technology, health, environment and institutional development.121 In the areas of functional cooperation CARICOM has advanced to outline the basis for social policies. Thus, in some areas of common interest, institutions have been created to coordinate policies and in some cases implement projects in areas such as tourism, environmental protection, health, education, technology and culture.122

120 Noto,

Institucionalidad e integración (2001) above Chapter I n 4. Mc Intyre, 35 years of commitment to regional integration (Buenos Aires, IADB/ INTAL, 2000) 1. 122 Gill, CARICOM: origen, objetivos y perspectivas (1993) n 11. 121 A

The Protection of Economic, Social and Cultural Rights 175 CARICOM has highlighted as priorities the accomplishment of c­ ertain social goals, implementing cooperation programs involving international organizations, in all these areas. The changes introduced by the amending protocols aim to ‘achieve a greater unity among the members of ­CARICOM’, allowing the adoption of common policies in various areas.123 The foundation of these policies of cooperation is the advanced notion of integration that exceeds the economic sphere and seeks the ­creation of a community among all Caribbean nations.124 Specifically, one of the fundamental objectives of the CARICOM is functional cooperation as a means to achieve an ‘efficient operation of certain common services and activities for the benefit of their peoples’ in the fields laid down in the Treaty, but also and essentially ‘promoting a greater understanding among its peoples and the advancement of their social, cultural and technological development’.125 As underlined by Noto, CARICOM has a long tradition of regional cooperation in a wide range of issues of common interest.126 Under this objective to strengthen the union among the peoples of the Caribbean states, CARICOM has sought the expansion of functional cooperation in fields such as education, health and transport, creating specialized institutions in these areas.127 In what is called ‘cooperation in the social aspects’, meaningful progress can be observed in the protection of certain areas related to economic, social and cultural rights, more so than in the previous stages of the integration process.128 Thus, CARICOM member states demonstrate a long recognition that tertiary and secondary education depends on cooperation.129 In the early seventies CARICOM implemented two major programs of partnership in education, including the Council for Legal Education (Caribbean Council for Legal Education) in 1971 and the Caribbean Examinations Council in 1972 to organize and manage the curriculum at the high school level. Furthermore, the creation of educational institutions Caribbean integration process in the field of education and training provided an opportunity to establish one of the first institutions of the Caribbean: the West Indies University.130 Over the years, due to the need for expansion of coordinated cooperation in secondary and tertiary education, progress has been made in order to

123 ibid. 124 

Noto (n 120). Gill (n 11) 38. 126  Noto (n 120). 127  Pérez González, Las organizaciones internacionales (2002) n 1 722. Noto (n 120). 128  Harris (n 52). 129  The University of the West Indies was established in 1948. The institution became an independent university in 1961 but remained as an English-speaking Caribbean university, except for Guyana in 1963, which established the University of Guyana. 130 Rainford, El proceso de adopción de decisiones (1984) n 11. 125 

176  The Protection of Human Rights in the Caribbean Community adopt a policy to develop human resources, to change the approach given and to adapt to new circumstances. Following the CARICOM Conference of Heads of Government, an initiative held in Montego Bay in 1997 postulated that economic development is not possible without the development of human capital and agreed, as a priority, to work on strengthening postsecondary education, tertiary education and universal secondary education by the year 2005. Therefore, CARICOM has a well-established tradition in education and training in secondary and tertiary levels in cooperation with other states to facilitate the necessary infrastructure. The main focus is on ensuring the efficiency of the education system, through coordination between the levels of the respective systems, for a single coherent system of training and education with clear levels of knowledge and skills, certification and working levels. The determination of the equivalence of academic standards aims to create a single professional culture, linking people accessing education and training in different ways. In the area of health, various programs for cooperation in health have been implemented such as the Pan-Caribbean Partnership against HIV. This matter has made progress ​​ due to the action of the regular meetings of the Conference of Ministers responsible for health. The meeting held in St. ­Vincent and the Grenadines in 1994 and the special meeting in Barbados in April 1997 provided the basis for the Community action in this area under the objective that ‘efforts to build creative and productive citizens’ also depend on ensuring the health of the population. According to the observed health problems, health policy was outlined aimed at improving the lifestyle and the living conditions of the population, which led to the development of a Caribbean Charter for Health Promotion.131 The Charter builds on the primary health care strategy, in which multistakeholder participation is needed, comprising the implementation of a public health policy. The Conference was invited to adopt the Charter for health promotion as a framework for developing and implementing complementary health interventions and maintaining strategic interventions in the sector of education.132 The elements that have been reviewed, leading to the definition of what might constitute a policy of development of social issues in a intersectoral manner was incorporated in the subregional agenda with a particular ­emphasis placed on the regulation of economic, social and cultural aspects.133 As regards the involvement of the social sectors in CARICOM, the participation of employers, workers and other sectors of the public in ­ 131  Caribbean Charter for Health Promotion, adopted in 1993. Available at: http://www. healthycaribbean.org/publications/documents/cchp.pdf>. 132  Rainford (n 11). 133 ibid.

The Protection of Economic, Social and Cultural Rights 177 ­ iscussions of integration is not institutionalized, but certain groups of d employers and workers are involved on an ad-hoc basis in the integration process.134 At the beginning, the silence of the Treaties concerning the involvement of civil society was clearly understood by the prevailing political circumstances at the time. As JC Gil notes, mechanisms of social participation in the Caribbean are not defined in the institutional instruments of CARICOM.135 Obviously, the recognition of the necessary incorporation of the members of various sectors of member states is linked to the strengthening of the democratic system which transfers the interest in the integration process and the involvement of members of the social sectors. This is considered one of the pillars which must support a more inclusive agreement. Additionally, the growing participation of non-governmental organizations in foreign economic issues introduced political issues in the subregional agreement.136 Different consultation processes are articulated internally in many of the CARICOM member states where regular dialogues are held in response to the importance given to the social issues of integration and participatory politics and the incorporation into the regional agenda of the issue of the participation of civil society in CARICOM institutions.137 In the case of CARICOM, the greatest effort has been deployed in terms of participation of civil society, not so much in terms of a social Community.138 The notion that consultation with civil society is an important part of governance has been included in the agenda of the subregional integration process, as well as in other regional and hemispheric institutions in which Caribbean states participate. It has recognized the need for political dialogue, giving the highest priority to promoting social justice and improving the human condition based on full participation of all citizens.139 The introduction of regular interaction with civil society in the subregional process came in the first place in the Conference of Heads of Government. It goes hand in hand with the work of the Commission of the West Indies, which produced a document entitled ‘Time for Action’, at the beginning of the 1990s, which recommended that new forms of governance and sustainability of the integration process require a strong and supportive civil society.140 134  JC Gil, La sociedad civil ante la integración regional y hemisférica—SP/CL/XXVI.O/Di nº 1 (Caracas, Venezuela, SELA-Secretaría Permanente, 2000). 135 ibid. 136 ibid. 137  Harris (n 52). 138  Podestá (n 20). 139  See the document ‘Forward together Consultation. Strengthening the Involvement of Civil Society in the Caribbean Community’, adopted at the Regional Conference held in July 2002 in Guyana. Available at: http://scm.oas.org/pdfs/2002/cp09365.pdf>. 140  Document ‘Time for Action’ was published in 1993. In this regard see Forward Together (n 139).

178  The Protection of Human Rights in the Caribbean Community The primary political organ of CARICOM echoed these guidelines by incorporating in the Charter of Civil Society of the Caribbean, as one of the main objectives, the objective of creating a truly participatory political environment within the Caribbean Community to foster a genuine consultation in the process of governance.141 Within the same instrument, in several provisions ‘social actors’ are mentioned as recipients of obligations with regard to the protection of human rights; in particular, the need for their intervention in the national committees responsible for verifying compliance with the provisions of the Charter and to put forward claims for human rights violations. This new line of action was deepened at the Commonwealth Heads of Government Meeting 1999 in Trinidad and Tobago, where the initiative for greater interaction with civil society was set out. In one aspect of the strategy outlined for the future, the Heads of Government appealed to ‘meet with civil society’, to this end, they committed to providing a free and open exchange of ideas aimed at obtaining consensus on a development strategy for the region and their people.142 The Heads of Government would take into account not only the great developments of the region but also the current challenges and principles of the Charter of Civil Society in the Community and they committed to seek to achieve good governance by mobilizing action for change. The ‘Consensus of Chaguaramas’ signed at that time recognizes the important role of civil society in the integration process, providing the realization of a meeting that has the widest participation, with the theme ‘Forward Together’ to provide free exchange of ideas to reach a consensus for a strategy for the development of the region and its peoples.143 Among the priority issues regarding participation of civil society, the identification of strategies for financing the needs of the poor and marginalized groups was underlined; establishing new approaches to collaboration and consultation between civil society and government, especially in pursuit of the single market and strengthening the area of ​​scope of dialogue and cooperation with non-state actors in promoting regional development. Although there is no such body that integrates sectors of civil society in the institutional structure of CARICOM, there has been a remarkable innovation with the establishment of a system of consultation, in which the Heads of Government have a particular responsibility. This system represents an important step towards providing the subregional space of an appropriate structure that allows a systematic consultation of civil ­society.144

141 

Forward Together (n 139).

142 ibid.

143 The declaration was adopted at Chaguaramas, Trinidad and Tobago, from 26 to 27 October 1999. 144 Gil, La sociedad civil (2000) n 134.

The Protection of Economic, Social and Cultural Rights 179 This mechanism of participation is articulated through the operation of the ­‘Conference of Civil Society’, in which working groups on thematic areas are formed, whose recommendations are presented to the Conference of Heads of Government. The idea behind this proposal is that a meeting must be preceded by the completion of an internal consultative process, which should have the widest participation of civil society groups. Each of the national consultations is coordinated by a Steering Committee of the Regional Conference, and carries out its work of discussion on the basis of documents provided by the Secretariat of the Caribbean Community and other agencies, such documents as the Caribbean Charter of Civil Society. At national level, a plenary discussion is held on the vision and strategies of Caribbean development in the global system and the role of civil society in the design and implementation of these strategies. The division of internal work is organized through working groups that address various topics; among them, there is one responsible for dealing with the relationship between justice, governance and human rights.145 The results of the discussions and recommendations of each national consultation are incorporated into the documentation for discussion at the Regional Conference. The main topics that have been established are as follows: i. Development of human resources including equity issues concerning gender, youth and persons with disabilities; migration; ii. Capital Investment and requirements for competitiveness; and iii. Governance, comprising the relevance and effectiveness of the instruments of governance. Thus, through these meetings, representatives of civil society place their proposals and concerns on the regional agenda. The two major issues to be addressed by the conference are the methods for transforming the economies of the region in order to provide the basis for sustainable development and new approaches for collaboration and consultation, new forms of governance and new relationships between civil society and governments. The recommendations are to be presented to the Conference of Heads of Government, as the highest organ of CARICOM. However, some member states suggested that in the future, civil society sectors should be incorporated as participants in those meetings.146 The aim is that through this near-informal mechanism, the democratic deficit that afflicts the process in this area would be tempered, contributing to a

145  Other discussion topics proposed try to maximize the potential development (nationally and regionally) for the benefit of the Caribbean people; the integration of women and youth in the development agenda; and investment of human and financial capital needed to achieve the international competitiveness of the region. See Forward Together (n 139). 146  See, for example, ‘Grenada’s national Consultations on the CARICOM Charter of Civil Society’, available at: http://www.caricom.org/jsp/community/regional_issues/National%20 Consultation%20-%20Grenada.pdf>.

180  The Protection of Human Rights in the Caribbean Community better understanding between civil society and member states. As mentioned before another important issue in the field of harmonisation and coordination of policies has to do with foreign policy, which could be considered as part of the task for the creation of an economic union. Any advancement in the process of policy coordination contributes to the creation of a close network of relations among member countries, also establishing linkages between their civil societies and so will contribute to consolidating the integration process.147 It is expected that the Conference may establish a formal channel to maintain the participation of civil society in the process of decision making through the creation of an adequate institutional structure of the Caribbean Community.148 With regard to the issues to be included in the agenda of the meetings of the Conference, the Council of Ministers of CARICOM defines topics for each meeting and the agenda. For instance, during the drafting of the report ‘State of the Community’ in the context of the 30th Anniversary of the Treaty of Chaguaramas, the activities of the NGOs were included, because many decisions emanating from the institutional mechanism of CARICOM have been influenced, directly or indirectly, through the efforts of NGOs proposed or implemented by them.149 Likewise, NGOs sometimes constitute the framework in which political leaders, national and regional officials interact, influencing the perspective on the integration process. The group of NGOs represents a regional social mobilization, with interests in the integration process. At first, those of greater weight were those of an economic nature, but there is no doubt that the expansion of the field of action has brought about the emergence of NGOs linked to social issues.150 At present, as indicated by Jácome, it is operating a progressive construction of regional networks of civil society shaped by social and civic organizations, social movements and NGOs.151 Another mechanism for social participation is the regional parliamentary institution that has existed since 1993 within the organizational structure, which is discussed in the section devoted to the study of the performance of the CARICOM bodies in terms of protection of human rights. Currently CARICOM’s role with regard to the participation of civil society presents a network of formal and informal organisations in which institutions, intergovernmental groups, the private sector and NGOs have promoted the integration of the Caribbean in various areas.152

147 

Gil (n 134).

148 ibid. 149 

Rainford (n 11) 24. the CARIFTA, the Association of Industry and Commerce Caribbean exercised an important influence on the integration movement. 151 Jácome, Redes y participación ciudadana (2003) above Chapter I n 388, 69. 152  Noto (n 120). 150  During

Freedom of Movement and Creation of ‘Caribbean Citizenship’ 181 In an overall assessment of the participation of civil society, one can assert that despite attaining a more active participation of civil society, few developments have occurred with regard to overcoming the serious social and democratic deficits that exist in the process of intergovernmental integration and regionalization.153 What remains to be overcome is the initial institutional lack of participation, by incorporating some form of institutionalized consultation in the decision-making, policy making and in general on the progress of the process. As Gil has pointed out when it comes to the formulation and convergence of macroeconomic policies, the main actors should participate in the integration scheme on a regular basis.154 IV.  THE RECOGNITION OF THE RIGHT TO FREEDOM OF MOVEMENT AND THE CREATION OF THE ‘CARIBBEAN CITIZENSHIP’

From the beginning, the Caribbean Community incorporated as one of its main objectives the free movement of workers, which means it was considered necessary to achieve the single market, as specified in Article 45 of the revised Treaty of Chaguaramas, which states that the member states undertake to achieve the objective of free movement of their nationals within the Community.155 This reflects the fact that, in regulating the components of the social dimension, the free movement of workers has acquired relevance as a framework for the protection of human rights within Caribbean integration, mainly in recent years, although the first reference to it is made in the founding Treaty, which states that one of the purposes for which the Caribbean Community is constituted is to promote ‘accelerated, co-ordinated and sustained economic development and convergence’.156 Notwithstanding this statement, the original treaty did not contain specific provisions on free movement of workers. There has been an evolution that stems from the presidential statements and has led to the adoption of specific instruments in this field. However, as noted, there is a notion that underlies the Treaty of Chaguaramas and serves as the basis for the conceptual development of the Caribbean citizenship because its objectives, although focused on the goal of economic integration with the creation

153 

Jácome (n 151). Gil (n 134). 155  Article 45. Movement of Community Nationals. ‘Member States commit themselves to the goal of free movement of their nationals within the Community’. 156 See W Grenade, ‘Exploring the Emerging CARICOM Model: Any Resemblance to the EU?’ (2006) 6(9) Jean Monnet/Robert Schuman Paper Series and N Girvan, ‘Caribbean Community: the Elusive Quest for Economic Integration’ in F Alleyne, D Lewis-Bynoe and X Arcibald (eds) Growth and Development Strategies in the Caribbean (Barbados, Caribbean Development Bank, 2010) 199–218. 154 

182  The Protection of Human Rights in the Caribbean Community of a single market, go beyond the economic sphere to consider, since its ­inception, the creation of a community among all Caribbean nations.157 The Revised Treaty of Chaguaramas (RTC) embodied in Chapter III the right of establishment by CARICOM nationals, which is complemented by Article 7 on the prohibition of discrimination based on nationality.158 At their Annual Conference in July 2007, the Heads of Government took this to the next level by deciding to grant all CARICOM nationals not only a right of entry, but also a right to an automatic six month stay upon entry (commonly known as the 2007 Decision). It should be noted that freedom of movement is also contained in Article 2, within the rights and fundamental freedoms in the Charter of Civil Society of the Caribbean. This is expressed in the following terms: ‘freedom of movement within the Caribbean Community, subject to such exceptions and qualifications as may be authorised by national law and which are reasonably justifiable in a free and democratic society’.159 It should be borne in mind in this regard that the Conference which adopted the Charter decided to implement the free movement progressively, with the ultimate objective that free movement be possible for all citizens. Therefore, it can be said that within the Caribbean integration process, analysing the principle of the free movement of persons, albeit with still limited effects in practice, it has contributed to the articulation of the concept of ‘Caribbean citizenship’. All this is taking place through scattered provisions that enshrine this principle and affirm that concept. In this vein, from 1989 on, the supreme political body of CARICOM has put the focus on achieving the movement of the factors of production in the integrated area. It started with the removal of the requirement of work permits and passports to people in visual arts, sports and media professionals in the Caribbean area for specific regional events. Another important contribution was to establish the foundations for the free movement of skilled and professional workers, and hiring seasonal workers. The evolution has shown that, on the path towards the establishment of a common market, the importance of the social and human aspect has grown in the subregion.160 The decision to create the common market under the harmonization of policies adopted placed the free movement of people among its priorities. In this respect, there is a special reference to qualified persons, among which artists, persons belonging to the media and other professional categories are included.161 In short, CARICOM aims at the recognition of a fundamental right of free movement which, at least in the early stages of its legislative evolution has 157 

Noto (n 120). The revised Treaty of Chaguaramas was adopted in 2006. 159  Article II. Respect for Fundamental Human Rights and Freedoms. 160  Harris (n 52). 161  J Taccone and U Nogueira, CARICOM Report (Buenos Aires, IADB/INTAL, 2002) 23. 158 

Freedom of Movement and Creation of ‘Caribbean Citizenship’ 183 had a social character, affecting certain groups of people, but there would be no obstacles to that, since it was projected to other sectors of social relations and, therefore, encompassed a larger number of people; thus the door to the inclusion of citizenship is open within this integration process. Even if this is not so, it can be argued that ‘the free movement initiative’ was mandated by the 1989 Grand Anse Declaration. The original concept has been modified over the years in order to facilitate the implementation of this mandate. Basically, free movement entails the elimination of the need for work permits and from the outset free movement has been an important pillar of the Caribbean Single Economic Market (CSEM).162 Following the guidelines mentioned above by the Treaty and the Charter of Civil Society, the Conference of Heads of Government in July 1995, with effect from January 1996, decided that the nationals of CARICOM member states who were university graduates would be allowed to move freely in the region, for reasons of labour purposes, eliminating therefore the need for work permits.163 Similarly the Conference mandates that member states should, however, comply with a number of legal steps, including the enactment of domestic legislation that would make effective the positions taken at the Conference.164 Another important milestone in the area of ​​the free movement of people consists in the removal of work permits and the need to present passports. Mechanisms of equivalence and accreditation are established. It also provides for the transfer of social security benefits, therefore ensuring equal treatment for all citizens of Caribbean states.165 Moreover, the provision of services by technical personnel management and supervision has been included in Additional Protocol II which comprises the right of establishment of workers in commercial, industrial areas.166 An important provision of this Protocol is one that indicates the extension of the rights to members of the immediate family, as specified in Article 35 d ii).

162 CARICOM.

Official Documents. In fact, within the policy of free movement of people, it is also planned to provide recognition to graduates at the University of West Indies so that they have the right to work in any country of the region, and also’ CARICOM is working on the development of the regulatory and administrative framework to facilitate the movement of workers throughout the region, harmonization of laws on labour rights and conditions of employment and work to facilitate the accreditation of professionals’, Harris (n 52). 164 In this regard, the General Secretariat facilitated the task by providing States with a model legislation on free movement: they must amend the legislation model to their specific domestic needs and adopt the relevant standards. There are eleven members who have incorporated this into their domestic laws the rules to give effect to the terms of the conference. Montserrat and Suriname still need to complete the legal steps, while Bahamas is not a party to the Single Market. 165  The provisions on freedom of movement must take into account the efforts made specifically in the area corresponding to the Eastern Caribbean States, which is also oriented in order to seek the removal of restrictions, Taccone and Nogueira, CARICOM Report (2002) n 161, 3. 166  ibid, 45. 163 

184  The Protection of Human Rights in the Caribbean Community Protocol II, concerning the right of establishment, provision of services and capital movements, contains an important obligation to be respected by the member states, which is to remove existing restrictions on the provision of services and not to impose new barriers to free movement.167 However, within this process of integration, the objective of facilitating the free movement of persons persists in the policy community: in this case, to provide professional and business services. Thus, in the Caribbean area the principle of free movement of persons is recognized, even if it has encountered difficulties in its implementation. The criteria for differentiating between categories of people have not yet been clearly established, but progress has been made ​​with respect to the freedom of circulation of athletes and artists.168 There is a constant difficulty for the full implementation of the principle of freedom of movement, which is the essentially intergovernmental character of the integration process, and the requirement that member states should complete the legal process by adopting the measures necessary to complete the freedom of movement. Member states must meet the formal requirements for ratification and establish appropriate institutional arrangements to implement the provisions of the various protocols.169 A clear example of this evolution is found in the field of movement of university graduates. National of CARICOM member states who are university graduates should be allowed to move freely in the region for work purposes, thereby eliminating the need for work permits.170 In 1995 member states agreed to the free movement of them by January 1996, with all its implications. However, only nine member states completed the domestic legislative process, implementing legislation to harmonize and guarantee the transfer of social security benefits, while establishing two tables of equivalence and mutual recognition accreditation.171

167  Noto (n 120). In fact, within the free movement of workers, Protocol II on Establishment, Services and Capital, one of the resolutions amending the Treaty of Chaguaramas provides for the free movement of non-employees, both as service providers and / or business establishment, including administration, supervision and technical support, and their spouses and members of their immediate family. The free movement of this category of persons should be treated as part of the program for the removal of restrictions, in which the main problem is one of the most important restrictions related to labour under this program. 168  In the meetings of the Council for Human and Social Development, establishing uniform criteria for the free movement of these people was agreed. 169  Noto (n 120). It is clearly stated that ‘in order to give legal effect to this mandate, member states must enact or amend legislation’, CARICOM. Official Documents. 170 CARICOM. Official Documents. 171  In practice it is observed how college graduates are qualified to work without the need for a work permit, except in countries that have not put the provisions into force. However, the administrative and procedural structure to be fully operational on free movement of university graduates only exists in Antigua and Barbuda, Barbados, Jamaica and Trinidad and Tobago. The other Member States need to incorporate the necessary administrative and procedural mechanisms.

Freedom of Movement and Creation of ‘Caribbean Citizenship’ 185 Thus, the norms have not been implemented in practice. The adoption of common policies in this area presents an important legal vacuum regarding the movement of unskilled workers who are precisely those most exposed to suffering the violation of their rights. Perhaps for that very reason their protection has not yet been addressed. In addition, CARICOM should strengthen the role and control mechanisms for implementation, and progress in the areas that require the full functioning of the single market, such as the mobility of human resources.172 Member states should incorporate into the domestic legal systems the CARICOM provisions to ensure the effective exercise of the right of free movement. Member states have satisfied the requirements of incorporation in different ways in domestic law, adopting to this end, the measures necessary to implement the contents of the standards of this legislation. Therefore, the Agreement on Free Movement of Qualified Persons contains the general guidelines under which the member states decide to which professions this free movement applies. Most member states have received the principle of free mobility on condition of reciprocity, but it differs with regard to the number of occupations covered and what kind of education and graduate degree will be recognized.173 This initial scope of protection was expanded later, in July 1996, when the Conference of Heads of State granted other categories of workers free movement for work. These included artists, athletes, musicians and media professionals. As in the previous case, it was required that member states adopt measures of domestic law174 to render the expansion operational.175 One criticism regarding the process of mobility is the need for a ‘Certificate of Recognition of Skills Qualification’ which can be obtained from both the Minister responsible and the Ministry of Foreign Affairs of CARICOM of the respective member state to which is addressed. This certificate was designed to facilitate entry into another member state. However, the implementation of provisions relating to freedom of movement is not accompanied by specific implementing measures in ­ national law. This is the main obstacle, indeed, on many occasions and it

172 

Noto (n 120). example, Jamaica has extended the legislation to athletes, artists, media professionals and musicians as certified by the competent authorities of their country; St. Vincent and the Grenadines recognize the same categories, but they can be extended to others as prescribed by the relevant Minister. 174  It is also stated clearly, as in the previous case, that in order to give legal effect to this mandate, Member States must enact or amend legislation, CARICOM. Official Documents. 175 Thus, some states have enacted new provisions, while others have amended existing rules. The necessary legislation was implemented in Guyana, Jamaica, Belize, Saint Vincent and the Grenadines, Dominica, St. Lucia and Antigua and Barbuda, while Barbados is distributing these categories through an administrative procedure. Only Antigua and Barbuda, Barbados and Jamaica have so far established the administrative and procedural mechanisms at the moment. 173  For

186  The Protection of Human Rights in the Caribbean Community will be d ­ ifficult to overcome. No less important in this respect is the recognition in the CARICOM Charter of Civil Society of freedom of movement of nationals of the member states. The relevance of the treatment granted is that freedom of movement is seen as one of the fundamental rights. From the analysis put forward above, one may conclude, within the limitations of the case, which is in the area of freedom of movement within the Caribbean integration, and the consequent recognition of employment rights of individuals, that this small step can be seen as the actual recognition of rights and adoption of common rules applicable in the member states concerned. The adoption of these legal instruments and their implementation would be of great interest in setting up a true integration process and would, therefore, promote the possibility of recognizing certain rights to nationals of member states as ‘Caribbean citizens’. V.  THE INSTITUTIONS OF THE CARIBBEAN COMMUNITY AND THE PROTECTION OF HUMAN RIGHTS

The protection of fundamental rights within CARICOM through the activity of its institutions, appears scattered, with isolated actions taken at different times.176 However, the institutional structure of the Caribbean Community, as it stands at present, has significantly changed since the establishment of the Community. Significant modifications have been introduced into the structure, creating a formal institutional basis for the Community and Common Market, and the Treaty of Chaguaramas has strengthened the legitimacy of certain organs, practices and conventions.177 The progress that has occurred at the institutional level has gone hand in hand with the transformations within the organisation itself, led by the action of the main institution, namely the Conference of Heads of Government which, through its mandates and recommendations, has been giving guidelines for action to the other institutions and the member states. In particular, the adoption of Protocol VII has implied a reorganization and restructuring of agencies and institutions of the Community, providing more flexibility to the institutional structure.178 This reform, as far as human rights are concerned, is beneficial as an increasingly strong institutional system favours the development in the recognition and protection of human rights.

176  4 July 1997 saw the signing and entry into force of the Protocol amending the institutional structure of CARICOM, entitled ‘Organs, institutions and procedures of the Community’. 177  Conde Pérez (n 6) 124. 178  All CARICOM member states have signed and ratified the said Protocol. This flexibility is also seen in other aspects, such as reducing the number of sub-ministerial committees that meet regularly.

The Institutions of the Caribbean Community 187 From this perspective, the most notable progress to be highlighted is the development of regional institutions in the legislative and judicial area, with the creation of two new bodies: the Parliamentary Assembly of CARICOM and the Caribbean Court of Justice.179 In this process of institutional reform, the additional protocols have not only introduced ​​changes to the rules governing bodies and institutions, but have also incorporated the principle of decision by majority, replacing the prevailing rule of unanimity or consensus as the dominant practice in all the integration organizations in the region.180 The brand-new institutional structure has constitutionalised the new bodies alongside the traditional institutions, such as the Conference as well as the Council of Ministers, in order to speed up the integration process.181 There are also other institutions, such as the Standing Committee of Ministers, a subordinate body which involves functions and policies to achieve the objectives of the Community,182 in areas different from the strictly economic, such as health, education, labour, foreign affairs: areas in which issues relating to fundamental rights arise. Although within the architecture of the CARICOM there is a trend to increasingly involve the social sectors, the main shortcoming observed, however, is the lack of a body representing the social sectors. It is absolutely necessary to formally include a specific body to channel the demands of civil society.183 It should be taken into consideration, particularly in this overview of the CARICOM institutional system, that while the General Secretariat plays a mostly technical function in the field of human rights, it has developed a new function regarding tasks arising from the various legal instruments (such as the reporting system of the Charter of Civil Society of the Caribbean already discussed), or actions taken in various areas closely linked to the protection of human rights (such as the promotion of women’s rights), so that the ­Secretariat develops its work in collaboration with other agencies. 179 

The Court was inaugurated on 16 April 2005 in Port of Spain, Trinidad and Tobago.

180 ibid.

181  The Bureau of the Conference was created from the Special Meeting of the Heads of State and Government in 1997. The Council of Ministers are as follows: Council for Trade and Economic Development, Council for Foreign and Community, Council for Human and Social Development and the Council for Finance and Planning. 182 See CD Anyanwu, ‘Can Caribbean society effectively influence regional policy?: Overcoming national and regional challenges in CARICOM’ in L Fioramonti, Civil Society and World Regions: How Citizens Are Reshaping Regional Governance in Times of Crisis ­(Plymouth, Lexington Books, 2014) 63–76. 183  However, the participation of society, within CARICOM, is conceived of not only as a very important aspect of the social dimension of this process but also as an area of action closely related and linked to all aspects of social. As indicated by M. Harris, ‘the importance given now to the social issues and participatory integration policy in the regional agenda is the issue of participation of civil society in the institutions of Integration’, as he has come to understand that ‘the level of social integration issues is not only governments but the issue of the efforts of civil society. Importantly, non-governmental organizations work well at regional level’. Harris (n 52).

188  The Protection of Human Rights in the Caribbean Community As regards the activity of the institutions of the Community in ­connection with the protection of human rights, three institutions deserve particular attention: the main body of the CARICOM, namely the Conference of Heads Government; the Caribbean Court of Justice and the Parliamentary Assembly of the Caribbean. In the next sections the role played by these institutions will be examined. A. The CARICOM Conference of Heads of Government and Human Rights The activity of the Conference of Heads of Government of CARICOM, the main organ of the Community, is more related to the political action. While its current configuration is regulated pursuant to the provisions of the Treaty of Chaguaramas, following the footsteps of the predecessor conferences held since 1963, as ‘practice of consultations on regional issues’ they are legally distinct.184 The main contribution of the Conference is due to its nature as a discussion forum among the highest authorities of the member states, and its powers to adopt decisions, recommendations and mandates. In sum, to a large extent, continuity and advance in the integration process depends upon the CARICOM Conference of Heads of Government.185 Since the first conference, held in 1980, it has advanced in its thematic content, heading, progressively, to a greater and deeper concern for the recognition and protection of human rights. Indeed, in a comprehensive review of the issues addressed in its evolution, there has been a shift from a single-minded activity, focused only on the economic sphere, to expanding its function in an important range of issues, including the matters referred to human rights. During its first period, the Conference dealt almost exclusively with economic issues, however; certain matters that go beyond the strictly economic were also addressed. Thus, a clear example of this is the Conference of Heads of Government, held in 1989, which provided the macroeconomic programme of the Community, which constitutes an important contribution to streamlining the activity of the Conference. At that meeting it was decided to create a ‘Bureau of the Conference’ with the function of developing proposals, promote consensus and the execution of decisions.186 At

184 

Gill (n 11) 37. It is within it that vital agreements have been reached such as those making institutional reform (creation of new organs) or changing the composition of the Community (admission of new members). In its decisions, it is often based on the work of the Commission of the West Indies, ‘formed to make recommendations regarding the way forward for the Caribbean ­Community’. Gill (n 11) 42. 186  Noto (n 120). 185 

The Institutions of the Caribbean Community 189 the Jamaica Summit held in August 1990, the Conference established the effective free movement of persons within the region, removing the need for a passport, and planning for 1993 the adoption of a uniform passport (‘uniform CARICOM passport’). The West Indian Commission also noted in the progress report submitted to CARICOM Summit XXII in 1991, among the priority areas, migration and intra-regional free movement of skilled migrants.187 Subsequently, through the 1990s, the meetings of the Heads of Government displayed a clear concern regarding the social dimension in itself and as subordinated to economic integration. Hence, it is worth noting that at the 1995 Summit, it was decided to deepen the establishment of the free movement of skilled migrants (professionals). During the Twentieth Conference held on 7 July 1999, three protocols on trade, transport policy and one on disadvantaged countries, regions and sectors were signed.188 In addition, since 1992 the possibility of organising Special Meetings ​​with the purpose of addressing specific topics of particular interest was added, as the objectives and actions of CARICOM facing the XXI century, the subject matter of the seventh meeting held on 27 October 1999. This opens up the possibility of addressing issues relating to human rights. Furthermore, it should be noted that, among other functions, as seen above, the Conference participates in the procedure of periodic and special reports concerning the violation of human rights under the Charter of Civil Society Caribbean. In other words, it has been assigned a specific task within the ‘system’ of recognition and protection of human rights under this legal instrument, as an organ of enforcement of the provisions. On a different note, it should be underlined that the Conference has been attributed the power to decide on the expulsion of a member state from CARICOM, in the case of the breach by a member state of the obligations imposed under CARICOM law which thereby frustrates the objectives.189 As expected this difficult role is, however, limited to the achievement of economic objectives. However, it is worth asking whether it might be the case where there is a human rights violation by one of the member states that it be given the power to suspend or expel a member state.

187  Gill (n 11) 42. In 1992, the initiative was presented to create an instance of political cooperation, in which the states of the Caribbean Basin, belonging to different integration schemes, could develop topics of common interest. The special meeting of 1992 was agreed to ‘strengthen integration, institutional structure and implementation process of the Community’: ibid, 43. 188  In this regard, at the XXI Ordinary Conference of Heads of Government (2 to 5 July 2000), the provisional application of Protocols I, II, IV and VII was noted. In turn, at the XXI Annual Conference (2 to July 5, 2000), the implementation of the protocols I, II, IV and VII was verified. In the ordinary session of 2001 (XXII). 189  Francis (n 12) 284.

190  The Protection of Human Rights in the Caribbean Community In short, the Conference of Heads of Government was established as an organ within the Caribbean integration process, which could perform very important tasks both in connection with the recognition of fundamental rights in order to establish the basic lines of development of integration, and with regard to the establishment of a mechanism to protect human rights. B.  The Caribbean Court of Justice and the Protection of Human Rights The attempts to establish a supreme judicial body in the process of Caribbean integration date back to the early eighties, when it became clear that as a ‘matter of some urgency’ the integration process should establish a Court of Appeal of West Indies to replace the Judicial Committee of the Council of the Crown in order to reaffirm the political independence of States.190 The West Indian Commission noted, then, in one of its reports that ‘integration is based on rights and obligations; this requires the support of the rule of law and regional law applied uniformly. A CARICOM Supreme Court to interpret the Treaty of Chaguaramas, resolve disputes over it, including disputes between governments parties to the treaty, declare and strengthen the right of the Community, interpret the Charter of Civil Society—all by the way of exercise of jurisdiction originally—is absolutely essential for the integration process’.191 Under the present analysis what matters is that these recommendations were reflected in the creation of the judiciary in 2001. During the XII Extraordinary Conference of Heads of Government, held from 14 to 16 February 2001, the Agreement establishing the Court of the CCJ was signed.192 This Court has been assigned on one hand, original jurisdiction in contentious proceedings between the Contracting Parties, including one or more of them and the Caribbean Community and between a Contracting Party and an individual under certain conditions. Moreover, the Court itself is the court of last resort regarding appellate courts of the Contracting Parties. In this regard, it is worth recalling that the Legal Affairs Committee recommended, in November 2001, the correct delimitation of the competence of the Court, as a body of double attribution: as a body of original and appellate jurisdiction for different issues.193

190 

Demas (n 7) 12. See document Time for Action, prepared by the Commission of the West Indies in 1993 (emphasis added). West Indian Commission, SS Ramphal, Time for Action: Report of the West Indian Commission 2 edn (Kingston, The West Indian Commission, 1993). 192  The Agreement Establishing the Caribbean Court of Justice 2001 was adopted in Bridgetown, Barbados on 14 February 2001, and entered into force on 23 July 2003. 193  Taccone and Nogueira (n 161). 191 

The Institutions of the Caribbean Community 191 It follows that the Court was instituted to play a decisive role in the further development of Caribbean jurisprudence through the judicial process, so that iy is open not only to the CARICOM member states, but also to other Caribbean states to be invited by the Conference of Heads of Government or a party to the settlement agreement. The Caribbean judiciary exercises two types of jurisdiction, original and appellate. This analysis is focused on the study of the first one because it is relevant for the purposes of the protection of human rights. In fact, in the exercise of original jurisdiction, the Court has exclusive jurisdiction to resolve disputes between the contracting parties to the agreement and the contracting parties and the Community, consultations of national courts or tribunals of the Contracting Parties and those made ​​by domestic courts concerning the interpretation and application of the Treaty.194 As regards the law applicable, in exercise of its jurisdiction, the court can rely on the ‘applicable rules of international law’ without providing further specification. This wording refers to the formal sources of public international law, as they have been defined by treaty law, customary and international case law, which comprises international human rights law. Attached to this provision there is also the classical prohibition of ‘non liquet’, which requires resolving cases by preventing excuses related to silence or obscurity of the law. Another relevant provision is the possibility given to the Court to judge a case ‘ex aequo et bono’, upon the necessary consent of the parties. CARICOM member states follow the system of ‘common law’, and the principle of ‘stare decisis’, under Article IX. Consequently, the Caribbean Court of Justice (CCJ) is to be bound by the earlier decisions. In the opinion of some authors, one should ask whether the intention of the drafters when establishing the Court, and within the context of interpretation, is to ensure that the Court is effectively provided to be the agent of stability and predictability.195 What is, in particular, relevant for the present analysis is the question concerning the locus standi before the Court. As it follows from the Treaty, jurisdiction is also open to nationals of member states to the agreement, which is an innovation compared to the other subregional courts. During the travaux preparatoires before the adoption of the agreement establishing the Court, attention was given to the provisions of international law, which recognize the possibility for individuals to act in the international arena. The reports of the Commission of the West Indies and also the Legal

194  DA Cox, The Original jurisdiction of the Caribbean Court of Justice and Its role in the successful implementation of the CSME (CARICOM official documents, 2001) available at: http://archive.stlucia.gov.lc/agencies/attorneygeneralchambers/the_original_jurisdiction_of_ the_caribbean_court_of_justice_and_its_role_in_the_successful_implementation_of_the_csme. htm>. 195 ibid.

192  The Protection of Human Rights in the Caribbean Community Affairs Committee expressed the view that participation in the proceedings should be allowed to individuals, institutions or other private entities, in order to have the opportunity to appear before the Court under special circumstances.196 Thus, as regards the access to the original jurisdiction of the Court, citizens of CARICOM (whether individuals or legal entities), any government of a member state or the CARICOM Commission can refer to the Court any matter included in the Treaty of Chaguaramas regarding controversies relating to the obligations under the Treaty, particularly those linked to the Common Market regime, but they can also question the conformity with the decisions taken within the process of CARICOM with Community law.197 Therefore, the original jurisdiction should apply in limited cases in the context of the CARICOM Charter of Civil Society.198 These persons do not have legal standing in all cases, since it is subject to different requirements to be parties to the proceedings. The assumptions listed are as follows: first, as the Court has determined in a particular case the Treaty intended that a right conferred by or under the Treaty to a state party, containing a provision that benefit people directly. Second, when the persons involved have been affected in the enjoyment of such benefit. Third, when states parties give right to present the demand in a proceeding before the Court, having omitted or declined its jurisdiction, or expressly agreed that those persons may expose the demand rather than the member state so authorized. Finally, if the Court finds that the interest of justice requires people to be allowed to file the lawsuit. As observed, the agreement left the door open for cases that may arise relating to the recognition or protection of fundamental rights. The CCJ has also appellate jurisdiction: this represents an innovation that involves a departure from the colonial tradition, according to which, for historical reasons, the Privy Council of the House of Lords in the United Kingdom, was the Court of Appeal regarding last-resort cases brought before the national courts. An important motivation for this innovation, in which human rights are involved, is the consideration by Caribbean states that this tradition has extended the appeal process and has restricted their free 196 Recommendations issued at the second regular meeting of the Committee on Legal Affairs, held in the Bahamas, from 7 to 10 September 1998. 197  W Anderson, ‘The role of the Caribbean Court of Justice in human rights adjudication: international treaty law dimension’ (2001) 21 Journal of Transnational Law and Policy 1. See also D Byron, ‘The Caribbean Court of Justice and the evolution of Caribbean development’ (2014) paper presented by Sir Dennis Byron, President of the Caribbean Court of ­Justice and the 15th Annual SALISES Conference, available at: https://sta.uwi.edu/uwitoday/pdfs/ CCJ%20President%20Speech%20%20The%20CCJ%20and%20the%20Evolution%20 of%20Caribbean%20Development.pdf>. 198 See J Kocken and G van Roozendaal, ‘Constructing the Caribbean Court of Justice: How Ideas Inform Institutional Choices’ (2012) 93 European Review of Latin American and Caribbean Studies 95–112.

The Institutions of the Caribbean Community 193 will in the application of capital punishment, as set out in their national legislation.199 A serious concern is, however, the exercise of jurisdiction by the Court at the intersection of jurisdictions, at least for some of the CARICOM member states that are also subject to the jurisdiction of the Privy Council. In the case of these states, to accept a mandatory Court involves replacing the right of appeal to the Privy Council and putting in place the CCJ in criminal matters, as civil cases continue to be referred to the Judicial Committee of the Privy Council, which is based in London.200 An important derivation of this dilemma is prosecuting the cases of those who have been sentenced to death. As explained elsewhere in this chapter, the death penalty continues to be applied in some English-speaking Caribbean states, and it must be noted that the proceedings in these cases extend considerably over time. The Judicial Committee of the Privy Council on 11 March 2002 unanimously came to the conclusion that in relation to the Constitution of Belize, the mandatory death penalty was unconstitutional, based on the constitutional prohibition against inhuman or degrading treatment or punishment. This principle was applied not only to prisoners in Belize, but automatically extended to prisoners in Saint Kitts and Nevis, Antigua and Barbuda, Saint Lucia, San Vicente, Granada and Dominica, states embodying similar clauses in their constitutions.201 Nevertheless, five states continue to have prisoners under sentence of death as is the case in Jamaica, B ­ ahamas, ­Barbados, ­Guyana and Trinidad and Tobago. In a previous case from Jamaica, also discussed above, the Judicial Committee limited the period that it is reasonable for a convicted person to remain under sentence of death before execution to five years. The main argument was that beyond that time, imprisonment becomes an inhuman or degrading treatment or punishment, contrary to the Jamaican Constitution. Bearing this state of affairs in mind, the debate is open as to the legality of the death penalty. Since the matter is not settled, the CCJ is called to play a significant role in this paradigm for the protection of human rights in cases in contradiction with the provisions of the Caribbean Charter of Civil Society, which, moreover, gives greater protection to the rights arising out of human dignity. Voices for and against have already been heard, including the Jamaican judicial attorney who has drawn attention to the fact that Britain is closely integrated into the European Union, and consequently the development of

199 

SELA (n 51). Belle Antoine, Commonwealth Caribbean Law and Legal Systems 2nd edn (New York, Routledge, 2008) 100–113. 201 AN Maharajh, ‘The Caribbean Court of Justice: A Horizontally and Vertically ­Comparative Study of the Caribbean’s First Independent and Interdependent Court (2014) 47 Cornell International Law Journal 735. 200 RM

194  The Protection of Human Rights in the Caribbean Community common law in England, particularly the field of human rights is subject to its powerful influence.202 The potential role of the Court, is portentous, mostly if we consider that, in practice, it could eventually become a real organ of protection of fundamental rights, and also, in practice, the only subregional human rights body, given the number of states that have not accepted the compulsory jurisdiction of the Inter-American Court of Human Rights. In future, an appeals court would ultimately replace the Judicial Committee of the Privy Council, based in London, which has remained the appellate court of last resort for many former British colonies.203 The gap between the established norms, and the reality will depend to a greater extent on the practical application of the provisions. In the case of Myrie v Barbados (2013) before the CCJ, the claimant, a Jamaican national who was refused entry by immigration officials upon her arrival in Barbados, had been subjected to discrimination upon her nationality and to an unlawful body cavity search in demeaning and unsanitary conditions.204 Though the central plank of the claimant’s case rested on the violation of her right of entry pursuant to the 2007 Decision, the claimant also alleged a violation of her fundamental rights and freedoms contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. The legal counsellors acting on behalf of Barbados argued that this part of the claimant’s case in so far as it rested on international human rights law was outwit the CCJ’s jurisdiction and the CCJ agreed. The Caribbean Court of Justice awarded Shanique Myrie Bds$2,240 in pecuniary damages and Bds$75,000 in non-pecuniary damages to be paid by the State of Barbados. According to the press release, the Court ‘found that Ms Myrie had been wrongfully denied entry into Barbados, subjected to a humiliating cavity search and unlawfully detained overnight in a cell and expelled from Barbados.’ In making its ruling, the Court held that Caribbean Community (CARICOM) nationals’ are entitled to enter CARICOM Member States, without harassment or the imposition of impediment, and stay for up to six months.’205 Barbados held that the 2007 Conference Decision was ineffective because the wording refers to ‘agreed’ and not ‘decided’. The Community clarified in its submission that it is not unusual that the Community record its decisions 202 ibid 203 

Noto (n 120). Shanique Myrie v The State of Barbados, CCJ Application No. OA 002 of 2012, available at: http://www.caribbeancourtofjustice.org/wp-content/uploads/2013/10/2013-CCJ3-OJ.pdf. 205  K A Doty, ‘Caribbean Court of Justice Delivers Judgment in Shanique Myrie v. The State of Barbados’ (October 4, 2013), ASIL. Available at: http://www.asil.org/blogs/caribbean-courtjustice-delivers-judgment-shanique-myrie-v-state-barbados-october-4–2013#sthash.zvhaqtDs. dpuf>. 204 

The Institutions of the Caribbean Community 195 using the word ‘agreed’ as reflected in several documents submitted to the Court. For instance, in the report of the Second Joint Meeting of the Council for Trade and Economic development (COTED) and the Council for Human and Social Development (COHSOD) it is mentioned that the ‘agreement’ reached at the Twenty-Eighth Meeting of the Conference was consistently referred to as a decision and in the Summary of Recommendations.206 The CCJ asserted that ‘the State of Barbados breached Ms Myrie’s right of entry without harassment or the imposition of impediments. The right was breached by the denial of entry, the treatment to which she was subjected, the conditions under which she was detained and her unjustified deportation, all of which contravened the 2007 Conference Decision in conjunction with Article 45 RTC’.207 The Court awarded damages for breach of the right to travel within the Community ‘without harassment or the imposition of impediments’.208 C. The Parliamentary Assembly of the Caribbean Community and Human Rights The CARICOM founding treaty did not foresee the existence of a parliamentary body or an institution of a similar nature. The initiative of creating a Parliament in the Caribbean Community emerged in 1987, during the Eighth Meeting of Heads of Government of the Community, in which the Prime Minister of Barbados launched the proposal to establish a representative and deliberative institution to allow participation of the people of the region, through their elected representatives in the regional integration process. It was, however, at the tenth meeting of the Conference of Heads of Government of the Community, that agreement was reached to establish the Parliamentary Assembly as a deliberative body to deepen the integration.209 As a result, the Assembly of Caribbean Community Parliamentarians (ACCP) held its first meeting between 27 and 29 May 1996; since then the Assembly has held meetings once a year.210 In any event, the ACCP has been defined as a mechanism comprising members elected by member states and parliaments, with powers, at least in theory, to serve as a bridge between 206 

Myrie v Barbados, para. 45. Myrie v Barbados, para. 100. 208 ibid. 209  The Conference of Heads of Government held in Grand Anse, Granada, from 3 to 7 July 1989. The agreement establishing the CARICOM Parliamentarians Assembly, entered into force on 3 August 1994. The meetings are held by rotation in the member and associated states: in each, they choose a spokesperson, responsible for chairing the Assembly, who shall be qualified to vote. 210 Not all CARICOM states have ratified the agreement of the Assembly: so far those who have signed are Antigua and Barbuda, Barbados, Bahamas, Belize, Dominica, Granada, ­Guyana, Jamaica, St. Vincent and Nevis, Saint Lucia and Trinidad and Tobago. 207 

196  The Protection of Human Rights in the Caribbean Community citizens and the process of integration.211 The Assembly seeks to involve the people of the Community, through their representatives, in the process of consolidating and strengthening the integration.212 Indeed, according to the main objectives mentioned in the treaty, the ACCP must provide a forum for the people of the Community to express their views to their representatives; in order to have more monitoring policies and strengthen the coordination of the member states’ foreign policies. Although there is not a direct reference to human rights, it is expected that the Parliamentary Assembly should promote greater understanding between member states and partners to achieve and safeguard the ideals and principles of democratic governance in the Community and to facilitate economic and social progress of their peoples. As for the social dimension, it is stated that member states should strengthen the adoption by CARICOM governments of a common policy on economic, material social, cultural, scientific and legal aspects. One may infer from these provisions that issues concerning human rights are, a priori, within the scope of consideration of the Assembly. The main function of the Assembly is, however, to be a forum of deliberation and consultation in the discussion of policies and programs within the scope of the treaty, which has powers to make recommendations to the Conference, the Council, the Community institutions and partner institutions and the Secretariat; and require from them information and reports for discussion. Among its potential functions, it also has the power to discuss and make recommendations on matters within the scope of the CARICOM integrations and to adopt resolutions on any matter within the treaty provisions. Furthermore, the Assembly could also make recommendations on any issue filed by an institution within CARICOM, and adopt resolutions on these issues. The limitation is the prohibition on discussing or adopting resolutions that fall into the exclusive jurisdiction of member states or associated states.213 To conclude, the parliamentary body has the potential to develop a significant role regarding the protection of human rights and has few limits

211  Gil (n 134). It is composed of representatives of the Member States and associated States, elected by national vote or appointed in the way parliamentarians both members and the Parliament decide, by a maximum of four representatives from each Member State and two by each partner. Only representatives of the Member States can vote on it; however, representatives of observers and partner countries are allowed to participate and speak. 212 See the document entitled ‘Associated membership in the Caribbean Community— Strengthening Bermuda’s Links to the Caribbean’: Discussion Paper, Bermuda, 26 July 2002. 213  Conde Pérez (n 6) 144 and 145. An example of the breadth of the field of action assigned is when the Third Session of the Assembly resolved a territorial issue between Venezuela and one of the Member States, in particular Guyana. Through the adopted document the Assembly resolved to ask the governments of the Caribbean Community to reaffirm their continued support and commitment to maintaining the territorial integrity and sovereignty of Guyana and to inform the Conference of Heads of Government of the Community.

The Institutions of the Caribbean Community 197 when it comes to placing on its agenda issues relating to human rights. It could constitute a body that would offer general guidance to member states with regard to the protection of human rights. D.  CARICOM’s Council for Human and Social Development The Council for Human and Social Development (COHSOD) is an intergovernmental body formed at ministerial level which consists of Ministers designated by the member states.214 Pursuant to the provisions of Article 12 (Functions and Powers of the Conference) of the Revised Treaty of Chaguaramas establishing the Caribbean Community including the CARICOM Single Market and Economy, COHSOD shall be responsible for the promotion of human and social development in the Community. In particular, COHSOD shall: (a) ‘promote the improvement of health, including the development and organisation of efficient and affordable health services in the Community; (b) promote the development of education through the efficient organisation of educational and training facilities in the Community, including elementary and advanced vocational training and technical facilities; (c) promote and develop co-ordinated policies and programmes to improve the living and working conditions of workers and take a­ ppropriate measures to facilitate the organisation and development of harmonious labour and industrial relations in the Community; (d) establish policies and programmes to promote the development of youth and women in the Community with a view to encouraging and enhancing their participation in social, cultural, political and economic activities; (e) promote and establish programmes for the development of culture and sports in the Community; (f) promote the development of special focus programmes supportive of the establishment and maintenance of a healthy human environment in the Community, and (g) undertake any additional functions remitted to it by the Conference, arising under this Treaty.’215

214 

Each Member State shall be entitled to designate alternates to represent it on COHSOD. Revised Treaty of Chaguaramas, article 17 CARICOM. Official documents. Available at: http://www.caricom.org/jsp/community/revised_treaty-text.pdf> 215 

198  The Protection of Human Rights in the Caribbean Community Without prejudice to the requirements of any other provision of the Revised Treaty, COHSOD shall promote co-operation among the Member States in the areas set out in the schedule to the Revised Treaty in furtherance of the objectives set out in Article 5 of the Revised Treaty. Despite these laudable goals, in practice, the COHSOD has not regularly met.216 VI.  ASSESSING THE IMPLEMENTATION OF THE CARICOM HUMAN RIGHTS PROVISIONS IN PRACTICE

In an assessment of the implementation of CARICOM law regarding the protection of human rights, one can observe that the process lacks supranationality in practice.217 As a result, the full enforcement of the relevant legal instruments218 such as the Charter of the Civil Society or other relevant instruments for the protection of social rights has been difficult.219 Two central questions must be addressed for the continuity and development of the integration agreement. The first question regards the institutional architecture and in particular the still predominantly intergovernmental character of its structure. This is the underlying cause of the implementation deficit that afflicts CARICOM law in most of the cases.220 The second question is the ‘participation deficit’, i.e. the lack of an appropriate and ad hoc institutional channel for the participation of civil society organisations.221 As regard recent developments, there has been little progress in implementing the CSME since the Single Market was inaugurated in 2006. This slow-down has negatively impacted on the progression of other commitments made by member states in other key areas, such as with regard to the implementation of freedom of movement. Another relevant trend is that several member states are embarked on external association with other blocs.

216  Meetings of the Council For Human And Social Development (COHSOD). CARICOM. Official documents. Available at: http://www.caricom.org/jsp/community_organs/cohsod_ meetings.jsp>. 217 KO Hall, The Pertinence of CARICOM in the 21st Century: Some Perspectives (­Bloomington, Indiana, Trafford Publishing, 2012) 292. 218 DE Pollard (ed), The CARICOM System: Basic Instruments (Kingston, Jamaica, ­Caribbean Law Publishing Company, 2003). 219  For a comprehensive and authoritative coverage of labour law issues in the region, see NGS Corthésy and CA Harris-Rope, Commonwealth Caribbean Employment and Labour Law (London, Routledge, 2014). 220 N Girvan, ‘CARICOM’s Original Sin’, retrieved from The Integrationist Caribbean. W Grenade ‘Regionalism and Sub-regionalism in the Caribbean: Challenges and Prospects– Any insights from Europe? Jean Monnet/Robert Schuman Paper Series Vol 11 n 4 2011. 221  KE Bravo, ‘CARICOM, the Myth of Sovereignty, and Aspirational Economic Integration’ (2005) 31 North Carolina Journal of International Law and Commercial Regulation 145, 146.

Assessing the Implementation of the CARICOM 199 Two member states are already participating in UNSASUR; and three others are in ALBA (the Bolivarian Alliance of the People of Our America). In particular, there are several topics concerning the protection of human rights that must be underlined: i.

CCJ’s role in the protection of human rights: The potential of the CCJ as a judicial community body has not yet been deployed. The CCJ was introduced as a step forward in the consolidation of the judicial autonomy of the Caribbean. Furthermore, under the Charter, the CCJ would be called to play a significant role in replacing the Privy Council.

After the landmark case of Myrie v Barbados, one can conclude that up to the present, the CCJ has declined to accept jurisdiction to adjudicate alleged violations of international human rights treaties. The main reason behind is the CCJ’s interpretation that its jurisdiction was established and circumscribed by the terms of the RTC and the Agreement Establishing the Court. Both instruments restrict the CCJ’s jurisdiction to the interpretation and application of the RTC and secondary ‘legislation’ emanating from the CARICOM institutions. Like other courts of justice in economic integration agreements, the CCJ would only exercise jurisdiction within those limits. The CCJ declines to accept jurisdiction to adjudicate alleged violations of international human rights treaties which generally provide their own dispute resolution procedures for such violations. Despite this limitation, the CCJ could and should take into account principles of international human rights when seeking to develop relevant Community law. The case of Myrie v Barbados was a missed opportunity for the CCJ to make more explicit the link between the rights granted by the RTC and the underpinning principles, including the principles of international human rights law and also the constitutional traditions of CARICOM member states. The CCJ could have underlined the respect for fundamental rights as part of the general principles of Community law. Unfortunately, this step was not taken here.222 ii. Caribbean citizenship: As previously explained, freedom of establishment has been included in the founding treaties. The implementation of this right has, however, proved to be very problematic.223 In order to give substantive meaning to the status of ‘Citizen of the Caribbean Community’ the possibility should be considered that civil society organisations and individual citizens would appear before the C ­ aribbean Court

222  D O’Brien, ‘Fundamental Human Rights and the Community Law of CARICOM’ Oxford Human Rights Hub, 21 November 2013, available at: http://ohrh.law.ox.ac.uk/fundamentalhuman-rights-and-the-community-law-of-caricom/>. 223  Hall (n 217).

200  The Protection of Human Rights in the Caribbean Community of Justice, after all national avenues have been exhausted, to have their rights and responsibilities clearly established. Specially, this would be pursuant to the Charter provisions regulating the rights of vulnerable groups such as indigenous peoples, women, children, disabled persons; and of the family and of workers. In this manner, the Charter could have a clearer impact on the protection of human rights within member states and at the same time, this would enhance the rights of citizens. iii. The implementation of the Charter: The fate of the Charter relied on the member states’ commitment to implement its provisions. Even if the Charter represented a significant leap forward for the protection of the human rights, some relevant provisions contained therein do not yet have legal effect. In particular, this includes all the provisions setting up a monitoring mechanism pursuant to Article XXV and regarding the member states’ obligation to prepare national reports on measures adopted and progress achieved; the establishment of national committees; and the annual submissions by the Secretary General. iv. Participation of civil society: Despite several attempts to have a formal recognition in CARICOM law of the participation of the civil society, there is still a lack of formal and structured participation. The ­Liliendaal Declaration, adopted in 2002, called for the establishment of a Task Force in order to draft a comprehensive regional framework on strengthening the relationship between governments and civil society. However, the Conference of the Heads of Government has not implemented the recommendation to take account of civil society’s views in an institutionalised form.224 Even though the CARICOM Charter of Civil Society has as one of its main objectives the mandate to promote the participation of civil society, there are no effective systems of ongoing consultations in order to further the participation of the people in the democratic process. v. The role of the Assembly of Caribbean Community Parliamentarians: Being a crucial body for the participation of the civil society, with potential functions in the protection of human rights, it is surprising that up to the present the ACCP has no decision-making powers which delimit its participation in the governance of the Community. Although it was created by an additional protocol, the ACCP was not formally included in the Revised Treaty of Chaguaramas. In other words, it has not been constitutionalised in community primary law. In addition, it

224  ‘Liliendaal Declaration Beyond Grand Anse’, endorsed by the Heads of Governments in July 2009. CARICOM. Official Documents. Available at: http://caricom.org/jsp/communications/ meetings_statements/liliendaal_declaration_caricom_beyond_grand_anse.jsp>.

Assessing the Implementation of the CARICOM 201 lacked an independent source of finance.225 So far, the ACCP has been able to hold few meetings since its creation in 1994.226 As a result of all of these shortcomings, the ACCP has failed to carry out fully the functions that were envisaged. Institutional reform is necessary in order to boost the ACCP’s functions and to reach consensus regarding its effective participation in the integration process.

225 

Girvan (n 220).

226 ibid.

4 The Protection of Human Rights within the Central American Integration System (SICA) I. INTRODUCTION

W

ITHIN THE SUB-REGIONAL integration agreements in Latin America and the Caribbean, the Central American integration process dates back to the first decade of the twentieth century, to the extent that one could say that this integration process is one of the oldest in this area.1 However, it should be noted that, like other integration processes analysed in this book, issues relating to human rights were not initially included within the scope of this economic integration agreement.2 In other words, 1 The first concrete manifestations of the regional integration process were the Central American Common Market (CACM, 1960) and the Latin American Free Trade Association (LAFTA, 1960). Through the creation of the Central American Common Market, the five Central American countries agreed to co-operate in trade and other economic areas in order to form a unified market and created various institutions to promote their operation. The second organisation, consisting of 10 South American countries and Mexico, was a more flexible and less ambitious approach to a Free Trade Area through the negotiation of trade preferences for lists of products. See SELA, Guía de la integración de América Latina y el Caribe (1999) Chapter I n 12. In 1991, SICA comprised Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica and Panama as member states. Belize joined in 2000 as a full member, while the Dominican Republic became an associated state in 2004 and a full member in 2013. 2 On the Central American integration, see, among others: MB Olmos Giupponi and E Ulate Chacón, El Sistema de la Integracion Centroamericana (SICA): Estructura institu­ cional, ámbitos de actuación y perspectivas de futuro (Madrid, Plaza y Valdés, 2009); MB Olmos Giupponi and LA Rubio Ríos eds, La Adopción de Políticas en el Sistema de la Inte­ gración Centroamericana. Propuestas para su perfeccionamiento (Madrid, Plaza & Valdés, 2011); Secretaría Permanente del tratado de la Integración Económica Centroamericana (SIECA), Official documents; INTAL, Informe centroamericano (IADB, Buenos Aires, 2000); CEPAL, Diagnóstico de la institucionalidad regional centroamericana-LC/MEX/R.581 (Santiago de Chile United Nations, 1996); G Fonseca, ‘Las fuentes del Derecho Común Centroamericano’ (1992) 1 (3) Derecho de la Integración 51, available at www10.iadb.org/ intal/intalcdi/Derecho_Integracion/documentos/001-Estudios_03.pdf; JR Hernández Alcerro, ‘Reflexiones en torno al problema institucional de la integración centroamericana’ (1975) VI (6) Revista de Derecho de la Universidad Nacional Autónoma de Honduras 31; P Caldentey, Los desafíos estratégicos de la integración centroamericana ­(Mexico, ECLAC/CEPAL, 2014) and W Soto Acosta and M Sáurez Ulloa (eds), Centroamérica: casa común e integración regional (San José, Universidad Nacional de Costa Rica-CSUCA, 2014).

Introduction 203 one can hardly find any norm or political statement that shows that since its inception, the Central American integration process have addressed issues relating to the recognition, promotion and protection of human rights as one of the cornerstones of the integration process. The Central American integration process, as the oldest in the region, was traditionally favoured by the common historical past of the member states, the relative homogeneity of socio-economic structures and the small size of the countries involved, which operated as important ‘stimuli’ to integration.3 In this regard, this integration process features elements of uniformity not found in other integration processes in the Americas.4 Therefore, the Central American integration process would, a priori, offer favourable conditions for the creation of a human rights system. From a legal standpoint, although the integration process began early in 1951, only recently there has been a partial (and perhaps ‘belated’) recognition of human rights consistent with the adoption of instruments of protection. Indeed, once the integration process became more advanced and developed from both a normative and an institutional perspective, after major reforms occurred in the 1990s, issues relating to human rights arose as an integral and specific area within the Central American integration process. In its evolution over the years, the Central American integration process has gone through various stages: beginnings, a phase of development, a ‘stand-by’ period and the revamp of the process. What is relevant for the present analysis is that during the 1990s, a new cycle of integration in Central America was initiated, being mainly characterised by the democratisation and normalisation of economic relations and trade among the states involved in this integration process within a new policy and institutional framework.5 Against this background, human rights issues have acquired relevance due to the institutional developments achieved within the Central American integration process, especially regarding institutional aspects, in that decade.6

3  Instituto de Relaciones Europeo-Latinoamericanas (IRELA), Integración y Cooperación (1992) Ch I n 19, 25. 4 VG Arnaud, MERCOSUR, Unión Europea, NAFTA y los Procesos de Integración Regional 2nd edn (Buenos Aires, Abeledo-Perrot, 1999). 5  See IRELA (n 3); the 1990s started under a positive political perspective. The pacification of the region and the consolidation of democracy made feasible the process of reform and reorientation of economic and social policies. In this sense, the economic integration process concurs with national projects converged and international context that the region should be re-allocated. Thus, in June 1990 the Central American presidents agreed to restructure, strengthen and revitalise the integration process and its agencies, in order to imprint a new dynamism and facilitate their adaptation to new strategies of external opening and modernisation of production. See also H Rodas Melgar, ‘Integración económica y relaciones comerciales en Centroamérica’ (1997) 49 Capítulos del SELA. 6  This happens in all the integration processes taking place in Latin America and the Caribbean, where changes are significant and which will need to define the content and scope of

204  The Protection of Human Rights within the SICA Prior to analysing human rights issues in the Central American integration process, a brief reference to some central features and the development of the integration process is in order.7 Therefore, in the following sections, the most salient characteristics with regard to the recognition of human rights are examined in greater detail. In particular, a section III of the chapter focuses on the legal and political instruments adopted that address, directly or implicitly, matters relating to human rights from different perspectives as an integral part of the Central American integration. In fact, at present, the recognition and protection of human rights are part of the actions that the Central American states have developed in order to encourage and strengthen integration. Although it is true that the integration process is still at a very early stage in the field of human rights, Central American integration institutions have gradually focused on human rights issues. In other words, the regulatory and the institutional framework of the Central American integration process clearly demonstrates that although it lacks a perfect human rights system, the protection of fundamental rights constitutes a specific sector within the integration process being considered as a special field in the regulatory framework. II.  THE MAIN FEATURES OF THE CENTRAL AMERICAN INTEGRATION PROCESS AND THE ISSUES RELATING TO HUMAN RIGHTS

In order to provide an in-depth analysis of the existing norms and institutional set-up relating to human rights in the Central American integration process, it is worth distinguishing different periods in the evolution of this process integration. The first period began with the signature of what is known as the ‘first Charter’ of the Organization of Central American States (ODECA: Organización

integration, since, as stated, the process of integration of Latin America and the Caribbean are now at a stage of definitions. The coexistence of ongoing integration schemes, free trade agreements between countries and projects with Latin America and Continental, requires decisions on economic and political spaces to be filled and the compatibility between different forms of relationship. See SELA, Tendencias de la integración regional (1997) Ch I n 9. 7  See LR Cáceres, La integración de Centroamérica: promesa y reto vigente (Tegucigalpa, Banco Centroamericano de Integración Económica, 2002) available at: http://www10.iadb. org/intal/intalcdi/PE/2007/00879.pdf; HR Carrillo Corleto, ‘Orígenes, evolución y perspectivas de la integración centroamericana y su entorno’ in Los procesos de integración y coop­ eración regionales (Santiago de Chile, Instituto de Estudios Internacionales, 2002) 61–93; VH Blanco Fonseca, ‘La nueva arquitectura de la integración regional centroamericana a partir de los años 1990: el SICA’ in W Soto Acosta and M Sáurez Ulloa (eds), Centroamérica: casa común e integración regional (San José, Universidad Nacional de Costa Rica-CSUCA, 2014) 73–104 and CEPAL, Istmo Centroamericano: evolución del proceso de integración regional—2000–2001 (Mexico, United Nations, 2002).

The Main Features of the Central American Integration Process 205 de Estados Centroamericanos) in 1951.8 It is important to stress that in 1960, Central American states adopted the General Treaty of Central American Economic Integration, which identified the basic objectives of the Central American integration process and created the institutions for the establishment of the Central American Common Market (known by its acronym in Spanish as MCCA: Mercado Común Centroamericano).9 This initial stage of integration was abruptly interrupted by a period of social and political upheaval in the region, which not only prevented the progress of the integration process, but, above all, paralysed the effective achievement of the objectives that had been set out the legal instruments.10 In any event, this first period was crucial for the foundation and the history of the integration process in the subregion.11 The instruments adopted during this period dealt not only with economic issues, but also touched upon questions relating to human rights, although at that time economic considerations prevailed.12 In this initial period of the evolution of the integration process, member states expressed their intention to launch a political project, even if they emphasised the economic goals of integration.13

8 The precedent is the Central American Court of Justice during the period 1907–1918. See also CG Fenwick, ‘The Organization of Central American States’ (1952) 46 (3) American Journal of International Law 509–12. 9  The treaty establishing the Central American Common Market was signed in Managua, Nicaragua, Guatemala, Honduras and El Salvador. Costa Rica joined in September 1963. It entered into force on September 23, 1963. Panama joined as a full member in June 1991. In this way, five Central American countries in trade and other economic areas in order to form a unified market and created various institutions to promote their operation, SELA (n 1). For an analysis of subsequent developments, see J Briceño Ruiz, ‘Nueva etapa de la integración centroamericana’ (1988) 48 (1) Comercio exterior 880–87; EJ Chamorro, ‘Sistema de integración centroamericana: desarrollo e impacto’ in CEFIR, Participación de la sociedad civil en los procesos de integración (Montevideo, CEFIR, 1998) 149–62; H Monge, ‘Síntesis subregional centroamericana’ in CEFIR, Participación de la sociedad civil en los procesos de integración (Montevideo, CEFIR, 1998) 343–69. 10  J Arancibia Córdova and J Carranza Valdés, ‘Centroamérica: la crisis económica en los ochenta y sus perspectivas’ (1989) 20 (78) Problemas del Desarrollo 127–49. 11  M Ortega Gómez, ‘Factores externos que han incidido en la integración centroamericana’ in XVIII (1999), Jornadas de la Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI) (Madrid, Boletín Oficial del Estado, 2000) 125. 12 The Charter of the OCAS, 1962, indicated that it was ‘necessary to provide the five states more effective bodies to ensure their economic and social progress, remove barriers that divided, constantly improve the living conditions of their peoples, guarantee the stability and expansion of the industry and confirm the Central American solidarity. It was even created in Article 17, a Central American Economic Council that would have as its primary mission planning, coordination and implementation of economic integration’. Text in Spanish (author’s translation). SICA. Official Documents. Available at: http://www.sica.int/consulta/documento. aspx?Idn=992&IdCat=28&IdEnt=401&Idm=1&IdmStyle=1 13 See E Cruz, Derecho, desarrollo e integración regional en Centroamérica: Análisis y evaluación (San Salvador, Secretaria General/Organisation of Central American States, 1967); A Herrarte, La unión de Centroamérica: tragedia y esperanza (Guatemala, Editorial del Ministerio de Educación Pública, 1955); M Saurez and D Marín Corrales, ‘La ODECA:

206  The Protection of Human Rights within the SICA In sum, the first stage of the Central American integration process is characterised by weak reference to human rights. Therefore, founding treaties are silent on this matter and there has been a lack of human rights instruments emanating from the integration process. Indeed, the Charter of San Salvador, signed in Panama on 12 December 1962, contains no direct reference to human rights and only mentions solidarity among its goals, as one of a number of aspects that, incidentally, could be linked to the protection of human rights. In particular, Article 1 of the Charter states that ‘in order to strengthen the links between countries, they shall consult each other to secure and maintain fraternal coexistence in this region and conjure up any misunderstanding and to ensure peaceful settlement of any dispute arising between them; to help each other, seek peaceful solutions to their common problems and promote their economic, social and cultural development, through cooperative action and solidarity’.14 The most significant achievement in this area is the Special Meeting of Central American Presidents held in El Salvador in July 1968. On that occasion, the Central American governments stated that ‘integration is the most appropriate means for the common destiny of their peoples, to ensure current and future generations the full expression of their potential in the economic, political, social and cultural development’.15 In particular, the Declaration emphasised integration in areas such as education and health, directly related to the social dimension of the integration process and to human rights provisions. However, it was in the mid-1980s that, following serious armed conflicts in some of the countries of the region, more specific references to human intento de integración política centroamericana’ in W Soto Acosta and M Sáurez Ulloa (eds), Centroamérica: casa común e integración regional (San José, Universidad Nacional de Costa Rica-CSUCA, 2014) 47–58 and F Villagrán Kramer, Aspectos jurídicos e institucionales de la integración económica centroamericana (Guatemala, Colegio de Abogados, 1967). For a historical account of legal developments in the region see KL Karst and KS Rosen, Law and Development in Latin America: A Case Book (Los Angeles, UCLA Latin American Center/ University of California Press, 1975). 14 As remote antecedent, would include the Central American Peace Conference, which adopted the Treaty of Peace and Friendship, signed at Washington on December 20, 1907. Article 1 stated that ‘The Republics of Central America consider as the primary duty, in their mutual relations, maintaining peace, and undertake to observe always the most complete harmony and resolve any disagreements or difficulties that may occur among them, of any nature whatsoever, by the Central American Court of Justice, established by the Convention that have concluded to that effect’. It should be noted, the Central Union Pact, signed in San José de Costa Rica on January 19, 1921, the Constitution of the Federal Republic of Central America, signed at Tegucigalpa on September 9, 1921, the Washington Agreements of 1923, the Draft General Treaty of Peace and Friendship that the delegation of Guatemala submitted to the Study of the First Central American Conference (First Central American Conference, Guatemala, May 1934), the Central American Treaty, signed in Guatemala on April 12, 1934, and the Constitution of the Federal Republic of Central America, Guatemala, November 22, 1824. 15 SICA. Official Documents (above n 12). Available at: http://www.jstor.org/ stable/20856055?seq=1#page_scan_tab_contents.

The Main Features of the Central American Integration Process 207 rights began to appear. Some of these were primarily included in the declarations adopted during the Summits of Central American Presidents. These are regular meetings of the Heads of Government and State which represents the highest government level responsible of the adoption of the general guidelines to be followed by the integration process. Overall, these meetings determined the orientation of the integration process.16 Among the relevant instruments of this period that could be mentioned as regards human rights is the ‘Joint Declaration of Esquipulas’ (August 1986), which states that ‘it is not possible to achieve peace without development’.17 More specifically, mention should be made of the ‘Procedure for Establishing Firm and Lasting Peace in Central America’, known as ‘Esquipulas II’, which decisively contributed to the democratic transitions in Central American states and encouraged the emergence of a new concept of subregional integration as a means to promote human development. Both declarations are undoubtedly the immediate antecedent to the reconstruction of the new subregional integration process, since Esquipulas Declaration provides the starting point of the new agenda insofar as it constitutes the commitment of all Central American countries to create social and political conditions that ensure peace.18 On that occasion, the Central American states emphasised aspects related to peace and security in the region to overcome the instability that existed at the time. The Presidents underlined that the protection of human rights was a necessary basis for the establishment and consolidation of the peace among Central American states. Thus, the Declaration of Esquipulas clearly states that ‘Central American peace can only come from an authentic pluralistic and participatory democratic process that involves the promotion of social justice, respect of human rights, sovereignty and territorial integrity of States and the right of all nations to freely determine, without external interference of any kind, its economic, political and social model understanding this determination as the outcome of the freely expressed will of the people’.19 Moreover, in Esquipulas II, human rights are linked to the objective of achieving democracy in the region by the statement that ‘governments

16 

SELA (n 1) 57. Official Documents (above n 12). Available at: http://www.corteidh.or.cr/tablas/ 13610.pdf. 18 The Esquipulas Declaration of 1986 explicitly states that ‘it is necessary to establish and complement efforts of understanding and cooperation with institutional mechanisms to strengthen dialogue, joint development, democracy and pluralism as fundamental to peace in the region and the integration of Central America’, SICA. Official Documents. See CM Díaz Barrado, ‘La contribución de América a la formulación político-normativa de la democracia: la consagración de un principio y el establecimiento de políticas democráticas’ in MB Olmos Giupponi and LA Rubio Ríos (eds), La Adopción de Políticas en el Sistema de la Integración Centroamericana. Propuestas para su perfeccionamiento (Madrid, Plaza & Valdés, 2011) 13–39. 19 SICA. Official Documents (above 17). Original in Spanish. Author’s translation. 17 SICA.

208  The Protection of Human Rights within the SICA undertake to promote an authentic pluralistic and participatory democratic process that involves the promotion of social justice, respect for human rights, sovereignty, territorial integrity of States and the right of all nations to freely determine, without external interference of any kind, its economic, political and social model, and conduct the measures directed to its establishment and, where appropriate, to fulfil the democratic systems to ensure representative and pluralistic political parties; the organization and effective popular participation in decision-making and to ensure freedom of speech in elections and newspapers, based on the full respect of citizens’ rights’.20 As a consequence, it can be seen how human rights are progressively being taken into consideration as one of the elements that should form part of the integration process in Central America, with a progressive inclusion of human rights issues on the Central American integration agenda. At the same time, in this period, human rights issues were usually linked to the achievement of other objectives such as peace and democracy. The relevant aspect is that the construction of Central American integration relies on respect of human rights. In sum, during the first phase of integration in Central America, although there were no specific provisions concerning human rights, one can find several soft law instruments relating to the achievement of the objectives of integration which rely on the respect and promotion of human rights as a core principle of the regional integration process. The second period begins in the early 1990s. Evolution was driven by the peace process that brought about a new political consensus in the region and led to the revamping of the integration process and the adoption of several measures to reactivate it.21 This period runs from 1991, the year of the adoption of the Treaty of Tegucigalpa,22 which significantly modified the ODECA, replacing it with the Central American Integration System (SICA) as a new legal and policy framework in all areas of integration. The trend towards the protection of human rights increased during the 1990s, with the revival of the integration process and, especially, with the expansion of its initial scope. Similarly, in terms of external relations, there

20  ibid. Original in Spanish. Author’s translation. In the Declaration of Alajuela, in January 1998, the Presidents expressed their appreciation to the international community for political and financial support committed to promote regional projects, aimed at achieving economic and social development of Central America, aim directly linked with the task to achieve, maintain and consolidate peace, as being the economic and social root causes of this conflict, we cannot achieve peace without development. And in the Declaration of San Isidro de Coronado, December 1989, the commitment to full respect for human rights, including civil, social and cultural rights, political, economic, established in their constitutions and in international agreements ratified by the member states. 21 LA Rubio Ríos, ‘La coordinación de las políticas externas en Centroamérica y las posibilidades de una Política Exterior Común’ in MB Olmos Giupponi and LA Rubio Ríos (eds), La Adopción de Políticas en el Sistema de la Integración Centroamericana. Propuestas para su perfeccionamiento (Madrid, Plaza & Valdés, 2011) 41–74. 22  The Treaty of Tegucigalpa entered into force in February 1993.

The Main Features of the Central American Integration Process 209 are constant references to cooperation with other integration processes. In particular, it the cooperation established with the European Economic Community (now the European Union) should be highlighted, which was primarily aimed at ‘ending the violence and instability and … promote social justice, economic development, respect for human rights and democratic freedoms’.23 At this stage, and with regard to human rights issues, mention should be made of the Antigua Declaration, adopted in June 1990, which establishes in its Preamble that member states reaffirm ‘that the full respect and enjoyment of human rights is the fundamental basis of democratic systems’ and, at the same time, underlines ‘the purpose of strengthening and expanding the scope of the regional peace process’.24 Thus, there is an express and unequivocal reference to human rights, despite the fact that no specific obligations are imposed on the states.25 Specifically, the relevant aspect of the Antigua Declaration is that the recognition, protection and promotion of human rights is indicated as an orientation of this integration process and, from then on, references to human rights will be present in most of the positions expressed by the Central American Presidents, being conceived not merely as guidelines to be followed by the integration process undertaken but also as a ‘principle’.26 In short, the progressive advances in Central American integration will bring the respective references to human rights as one of the indispensable elements for the development and consolidation of the process. So, from an initial phase in which there are scarce references to human rights, the Central American integration process entered a period in which human rights were very closely linked to the democratisation in the region and, finally, where human rights are considered as an autonomous element to be taken into account when shaping the policies and regulations of Central American integration. On this basis, some features of the integration process that define and make up the backbone of integration taking place in Central America should be underlined since they relate to the protection of human rights in this integration process and the gradual establishment of obligations for member states in this field. In particular, some specific features should be succinctly noted.

23 Arnaud,

MERCOSUR, Unión Europea, NAFTA (1999) n 4, 192. Official Documents. Available at: http://www.minex.gob.gt/MDAA/DATA/ MDAA/201011081331098601990-6-17%20%20VIII%20CUMBRE%20ORDINARIA%20 (Antigua%20Guatemala).pdf. 25 ibid. 26  The Preamble to the Declaration of Copan (Honduras) of 27 January 2002, reflects the idea that the Central American countries are ‘united by the values of democracy, committed to peace and respect for the dignity of the human person’ and, therefore, they are ‘determined to strengthen the traditional ties of friendship, solidarity and cooperation … according to the purposes and principles of international law’. SICA. Official Documents. 24 SICA.

210  The Protection of Human Rights within the SICA First, it is important to note the evolving nature of the Central American integration process, which has gradually incorporated human rights as part of the integration process, achieving a certain conceptual and policy autonomy. The Central American integration process has evolved, like any other Latin American integration process, subordinated to the domestic conditions in the member states and the changes verified in the international context. In this manner, the integration process has reinvented itself and has re-adjusted to the realities imposed by the new international trends in political, economic and social development. This explains how, after an extremely difficult decade in all areas, the Central American states, acting together, have managed to lay the foundations for a sustainable model of development, including the articulation of a new consensus and regional strategies in the context of the integration process.27 In this evolution, the reform of the Central American institutions provided significant impetus to the integration process by establishing the Summit of Central American Presidents as the supreme body of the system, ensuring that aspects relating to the recognition and protection of human rights were taken into account.28 These meetings clearly express the evolving nature of the integration process and, in particular, the incorporation of the various areas within it, including those relating to human rights. In the early 1990s, as noted above, a shift towards the protection of human rights can be perceived. The reason behind this was the member states’ political will to include aspects relating to human rights in the rationale and objectives of the Central American integration process. The inclusion of human rights issues is accomplished in at least two ways. On the one hand, there are explicit references to human rights as integral and constitutive fundamental principles and values of the Central American integration process. Thus, in the Declaration of San Salvador (July 1991), it was stated quite clearly that ‘the efforts in the search for peace and economic and social welfare of our peoples, through respect for human rights, national reconciliation and dialogue, consolidation of democracy, and strengthening its institutions, the rule of law and the mechanisms leading to the creation of a climate of trust, cooperation and security’, must be taken into account.29 More references to human rights are found in the Declaration of Tegucigalpa (December 1991), which states that ‘Central American citizens aspire to a democracy where … human rights and civil liberties are the basis

27 

Rodas Melgar (n 5). Integración e institucionalidad (2001) Ch I n 4. 29 SICA. Official Documents. Available at: http://www.minex.gob.gt/MDAA/DATA/ MDAA/201011081537562161991-7-17%20X%20REUNION%20ORDINARIA%20 (El%20Salvador).pdf 28 

The Main Features of the Central American Integration Process 211 of collective consensus’ and that the Central American Presidents also reaffirm ‘the need to achieve a firm and lasting peace in the region by strengthening the rule of law, strengthening democratic institutions and full respect for human rights and reconciliation of societies through open, frank and constructive dialogue’.30 These two presidential declarations demonstrate a particular concern of the member states involved in the Central American integration process in addressing issues relating to human rights. Although these are soft law instruments and do not establish a catalogue of rights or specific mechanisms of protection, they draw attention to human rights and include them as another area of action within the integration process. There are other references to aspects closely related to human rights which are essential for their protection. Thus, a significant example is the Declaration of Puntarenas, adopted in December 1990. In this instrument, the Central American Presidents agreed to ‘declare Central America as a region of peace, freedom, democracy and development’.31 This constitutes the basic elements that define, as principles and values, the integration process in Central America as being closely related to the recognition and protection of human rights. Moreover, in the Declaration of San Salvador, member states explicitly condemned violence, terrorism and acts of destabilisation against the democratic governments of the region. Whereas in the Declaration of Tegucigalpa (December 1991), it was agreed to ‘conduct the process of Central American economic integration within the current view of globalization of the economy and adding to the integration process social development concerns in the region’.32 As a result, social development (a matter directly related to human rights issues) was included on the regional agenda. Therefore, these different instruments underline aspects of the integration process that will influence the development of a multidimensional process in which respect for human rights is included, even if they do not set up rules or human rights mechanisms. Moreover, the evolving nature of Central American integration has also been reflected in the constant process of institutionalisation through the establishment of mechanisms and bodies to give greater coherence

30  ibid. In the same vein, the Declaration of Managua adopted in June 1992, stated that the ‘full respect for all human rights is the main foundation in the management of the governments that represent and the most concrete manifestation of the life of the democracy and its institutions, so we reiterate our strong commitment to the promotion and preservation of these rights to ensure full compliance’. SICA. Official Documents. Available at: http://sajurin.enriquebolanos.org/vega/docs/106_Declaracion_de_Managua.pdf. 31 SICA. Official Documents. Available at: http://sajurin.enriquebolanos.org/vega/docs/103_ Declaracion_de_Tegucigalpa.pdf. 32 ibid.

212  The Protection of Human Rights within the SICA and consistency to the process of integration. This reform directly affects matters concerning human rights, on the one hand, by granting certain rights to Central American citizens and, on the other hand, by creating the bodies and institutions that would be responsible to ensure the effectiveness of the rights granted. In other words, the higher the degree of institutionalisation of Central American integration has harnessed the adoption of human rights provisions. The progress attained in terms of the regulation of issues relating to human rights provides more ways to establish a broader recognition of rights and consolidate a system of protection.33 In other fora, there is a reference, either directly or indirectly, to matters relating to human rights. Indeed, the Central American integration process creates, from its constitution as SICA, a regulatory and institutional framework which includes the issues relating to human rights, making significant advances in this field. The new integration is also perceived as ‘the new regional reality embodied in the Central American Integration System (SICA), [which] represents a more open, more orderly and democratic process’.34 In particular, the integration process appears to be more organised because its objectives and principles are defined in a specific and structured manner, including the issues concerning human rights.35 After the adoption of the Tegucigalpa Protocol, the Central American integration process has continued to evolve in various fields.36 There has been a ‘proliferation of institutions’ after the reform approved in Panama in 1997, in order to move towards improved mechanisms for regional integration to achieve the Central American Union.37 The approved document stated that reform will take place through a gradual process of progressive and flexible implementation based on a single legal instrument, except in the case of the Central American Parliament and the Central American Court of Justice, given the nature of their respective functions.38

33  At least, we must acknowledge that ‘the revival of integration, which occurred during the last decade has driven the institutional development in the sub-regional schemes in Latin America and the Caribbean, in parallel with a relative weakening of fields of integration and cooperation regional in scope, as ALADI and SELA, or even the same Rio Group’. SELA, Una institucionalidad para la convergencia (2003) Ch I n 365. 34 ibid. 35 Chamorro, Sistema de integración centroamericana (1998) n 9. 36 After 1998, at the institutional level, there were two summits: the Second Summit of Tuxtla and the Summit of Central Mexico and three extraordinary meetings, which helped to revitalise the integration. 37  It was adopted at the XIX Summit. Previously, in 1994, the Central American Presidents expressed their consensus in favour of reform in the Declaration of Guácimo. Also in Managua in 1997, the Presidents mentioned the establishment of the Central American Union as an objective of regional integration. 38  SELA (n 1) 58.

The Main Features of the Central American Integration Process 213 In this regard, it must be borne in mind that SICA functions as a ‘nexus of all levels of integration and the Central American common market … in order to formalize coordination and ensure coherent action between the various regional institutions’.39 The Tegucigalpa Protocol defines SICA, quite clearly, as the legal framework of the Central American integration ‘in the context of a global concept of integration comprising educational economic, social, cultural and political elements’, being mainly focused on the achievement of the Central American region in order to constitute it as ‘a Region of Peace, Freedom, Democracy and Development’.40 Hence, SICA appears to be heading slowly towards a series of far-reaching institutional changes, which prioritise the protection, respect and promotion of human rights as a fundamental principle of the integration process. As noted above, the reform of the integration process aims to ‘consolidate Central America as a region of peace, freedom, democracy and development’.41 This view is complemented by the creation of a Central American social space in which the reduction of social inequalities and questions concerning human rights are relevant.42 In sum, the Central American integration has achieved a satisfactory degree of institutional development, widening the scope to include other fields, like human rights, as well as more specific spheres of action, such as the social dimension. Notwithstanding the efforts and progress in the institutionalisation of the process, from a strictly legal perspective, the integration process still remains characterised, to certain extent, as a subregional inter-governmental organisation. Even if certain acts of secondary legislation would theoretically take precedence in the domestic law of member states, in the realm of human rights, there are numerous soft law and programmatic norms.43 In addition, in practice, the main organs are all of an inter-governmental nature, except for certain independent institutions and the judicial settlement of disputes.44 Moreover, it should be noted that the incorporation of human rights in the Central American integration process has been articulated in close connection with the affirmation of the democratic principle. Democracy and human rights are seen as intertwined and complementing each other in the progressive development of the Central American integration process as central elements of the system or, at least, as foundations that promote,

39 SICA. 40 ibid. 41 

Official Documents.

ibid, 61 and 62. Rosenthal, ‘Los desafíos de la globalización para Centroamérica’ (1998) 114 Revista de la CEPAL 204. 43  These acts are classified as ‘administrative acts’ as specified in Art 55 of the Tegucigalpa Protocol. 44  Pérez González, Las organizaciones internacionales (2002) Ch III n 1, 711–21. 42  G

214  The Protection of Human Rights within the SICA facilitate and make viable the achievement of the objectives of the integration process.45 After a period of democratic instability in the subregion, institutional reform has strengthened the links and the common objectives and strategies among Central American governments.46 This new wave of integration, characterised by the consolidation of democratic institutions, has generated a favourable environment for the protection of human rights as one of the pillars the integration process. This trend is confirmed by the later adoption of a ‘democratic clause’,47 which asserted a straightforward recognition of democracy as an essential precondition for integration in Central America.48 Indeed, it is clear that the link between democracy and respect for human rights as a prerequisite for membership in the integration agreement is present at this stage of the Central American integration process.49 This takes place both ‘ad intra’, within the agreement in the commitments made by the member states, as well as ‘ad extra’ in the external action of SICA. Declarations adopted in the successive summits exhibit a clear recognition of democracy as a core principle of Central American integration. Thus, for instance, the Declaration of Panama (1992) contains two important statements in this area that are worth underlying. First, the improvement of the democratic processes (which may be pluralistic, participatory and respectful of fundamental political freedoms and human rights) and the preservation of democracy in the region constitute a principle of the integration process.50 Second, in the external relations of SICA, there is a clear consensus to condemn ‘any attempt to alter the constitutional order and democratic institutions in the hemisphere; the use of violence to achieve political power; the existence of armed groups outside the law; terrorism and destabilization actions that violate human rights’.51 Subsequently, the ‘Commitment to peace and democratic development of the region’, adopted as a Joint Declaration in Guatemala in 1993, refers to the structural character of democracy for the Central American integration process. In the Declaration, the membership of the Central American integration agreement is only open to those states that show a ‘representative and

45 

SELA (n 33). Caballeros, ‘Reflexiones sobre la integración centroamericana en la década de 1990’ (1992) 185 Revista Integración Latinoamericana 18. 47  W Hummer, ‘El “Diálogo Político” y el Compromiso Democrático en las zonas de integración económica en América Latina’ in Z Drnas and E Rey Caro (eds), Libro Homenaje al Profesor Ernesto Rey Caro (Córdoba, Lerner, 2002). 48  A Tirado Mejía, Integración y democracia en América Latina y el Caribe (Buenos Aires, BID-INTAL, 1997) 1–2, available at: www.iadb.org/wmsfiles/products/publications/documents/35309700.pdf. 49  ibid, 14. 50 SICA. Official Documents. 51 ibid. Member states have expressed support for democracy in other countries, like Venezuela, Haiti and Colombia. 46  R

The Main Features of the Central American Integration Process 215 pluralistic system of political organization, with full observance of human rights’.52 Furthermore, the Declaration also highlights the involvement of various sectors of civil society as a means to ‘achieve social frameworks to ensure full and dignified development of the human person’.53 From the analysis of these instruments, the close link established between human rights and democracy in the Central American integration process is clear, to the extent that they are intertwined principles that are key to promoting the achievement of the objectives of integration, with two important implications. First, more attention is given to overcoming the existing democratic deficit in the internal structure of the process, which had been criticised by the marked absence of the participation of social sectors in the institutional framework, since decision-making is reserved only for political sectors and business groups of the different states.54 In this respect, there is an attempt to articulate ‘mechanisms and strategies to ensure the participation of civil society and to broaden and strengthen the participation of the region at the international level’.55 The global integration process and the democratic participation of all social sectors in it are targeted as key elements of the system, which emphasises legal certainty in the relations between member states and the peaceful settlement of disputes. In fact, a remarkable aspect is that the Central American integration process has come to actively include other actors in the integration process, reinforcing the participation of civil society.56 Therefore, the new design of the Central American process is intended to confer democratic legitimacy upon it, based on a greater involvement of the civil society sectors to promote the ‘emergence of new voices with different views’ within the institutional set-up. This implies including the participation of groups other than the economic sectors that were already involved in the process in order to give a more prominent role to representatives of Central American civil society.57 Clearly, in this new phase of the integration, agreements and norms cannot only be discussed by the member states, as happened in the past, but an intense debate must also be generated in the 52 ibid. 53 ibid.

54  Fundación para la Paz y la Democracia (FUNPADEM), Repensando la integración cen­ troamericana: recomendaciones para la renovación de su institucionalidad (San José, ACDI, FUNPADEM, 2004). See also H Dada Hirezi, ‘Evaluación de la integración centroamericana’ (1983) 86 Revista Integración Latinoamericana 24. 55 See SICA General Secretariat Document on the Central American Integration. SICA. Official Documents. 56  See W Campos, ‘Participación social en la integración social centroamericana’ in CEFIR, Participación de la sociedad civil en los procesos de integración (Montevideo, CEFIR, 1998) 255–68. 57  A Enríquez, ‘Integración económica centroamericana y participación de la sociedad civil’ in R Grinspun, C Alvarenga and Y Shamsie (eds), Hacia una Integración desde Abajo: Par­ ticipación, Sociedad Civil e Integración Centroamericana (San Salvador, SICA/CERLAC/PAR, 1999).

216  The Protection of Human Rights within the SICA civil society.58 In this regard, civil society participants must give their views on the regional integration process. Furthermore, as previously explained, within the Central American integration process, the protection, respect and promotion of human rights are articulated as a structural principle of democratic legitimacy. Along these lines, it is worth noting that one of the main purposes of SICA is to ‘consolidate the democracy and strengthen their institutions on the basis of the existence of governments elected by universal, free and secret suffrage, and unrestricted respect human rights’.59 At present the founding treaty also includes as a fundamental principle of integration the protection, respect and promotion of human rights in SICA. As a consequence, both governments and civil societies have unified their efforts in Central America in order to ‘protect the exercise and safeguard of individual or collective rights, and improve the rules and social institutions upon which are based the legitimacy of governments and social cohesion of peoples’.60 In this framework, a specific legal instrument that addresses the issue of human rights is the Framework Treaty on Democratic Security in Central America, adopted in San Pedro Sula in 1995.61 This adopts a broader concept of ‘security’, extending its scope, which was traditionally limited to the meaning of regional military security, in order to cover ‘human security’ which, as stated by the Treaty itself, ‘transcends the threats to the physical safety of people by mere criminal acts, political or military’, referring to ‘the welfare and social development of people in a democratic context’.62 The ‘New Democratic Security Model’ is inserted into the legal framework of the Tegucigalpa Protocol, operating as a complementary tool and as a basis for enforcement of the Treaty. The Treaty clarifies that this model ‘is based on democracy and the strengthening of its institutions and the rule of law, through governments elected by universal, free and secret suffrage, and the full respect of humans rights in Central America’, underlying the link between democracy and human rights as indivisible elements of the integration process in Central America. Consequently, the model of democratic security proclaimed in Article 1 of the Treaty is based on democracy and full respect for all human rights. It follows from the previous analysis

58 A Enríquez Villacorta, ‘Integración centroamericana: desafío para la sociedad civil’ (1997) 46 Alternativas para el desarrollo 14–20. 59  An overview about the connection between democracy, human rights and integration is provided by M Marini. See M Marini, América Latina: integración y democracia (Caracas, Nueva Sociedad, 1993). 60  Caballeros (above n 46) 18. 61  The Framework Treaty on Democratic Security entered into force on 26 December 1997, in accordance with art 70 available at: www.state.gov/p/wha/rls/70979.htm. 62 SICA. Official Documents.

The Main Features of the Central American Integration Process 217 that the foundation of the new security framework, understood in the broad meaning indicated before, is the respect, promotion and protection of all human rights through the creation of mechanisms to ensure social development and peace, freedom and democracy.63 More importantly, there are principles expressed in relation to the security of persons and property that provide a detailed definition of what is meant by democratic security as an integral and indivisible concept, and including all aspects of sustainable development in Central America and inseparable from the human dimension. In this respect, the Treaty specifically states that ‘the respect for the essential dignity of human beings, improving their quality of life and full development of their potential are required for security in all its orders’.64 In any case, member states assume the obligation to boost the protection of human rights.65 The concept of human dignity appears repeatedly throughout the text of the Treaty as central to its setting and thus ‘the Parties recognize that poverty and extreme poverty damage human dignity and are a threat to the security of the people and to the democratic stability of the societies of Central America, and to that end, they undertake to give priority to efforts to overcome the structural causes of poverty and improve the quality of life of the people’.66 The Framework Treaty constitutes the basic instrument governing the actions of the SICA institutions within the scope of its content, making evident not only the link between democracy and human rights, but also including the protection of certain rights or, at least, providing a complementary framework for the possible development of a system of recognition and protection of human rights in the Central American integration process. Finally, human rights are recognised in the Central American integration process in the context of the development and strengthening of both the political and social dimension of the process. Thus, it incorporates the concept of social integration and respect for economic social and cultural rights by providing that ‘sustainable development of Central America can 63  The treaty also sets out the principles that govern the MCSD, especially the rule of law and strengthening democratic institutions in each state. In this regard, Central American states undertake to respect international human rights instruments in any action taken by public authorities. 64  Art 10. 65  Art 13. 66  Art 15. As regards the institutional level, the Treaty sets out three instances of the MSDC: The Meeting of Presidents, the Council of Ministers of Foreign Affairs and the Security Committee. Actually, the real novelty of this new organisation or structure is the Security Commission. The Security Commission acts as a subsidiary body for the implementation, coordination, evaluation and monitoring, preparation of proposal and recommendations of early warning, and when appropriate, early action, subject to the Meeting and Presidents and the Council of Ministers of Foreign Affairs (Art 50). In this scenario, the Advisory Committee established by the Protocol of Tegucigalpa, shall provide, through the Secretariat of Central American Integration System, its views to the Security Commission on issues related to security of persons and property.

218  The Protection of Human Rights within the SICA be achieved only within the framework of a shared regional juridical system which protects, nurtures and promotes human rights’.67 These developments are backed up by the commitment of member states to promote and defend in all circumstances the respect for fundamental human rights and strengthening the rule of law.68 Last but not least, the political dimension of the Central American integration process was boosted by the Declaration of Guatemala adopted in October 1992 by El Salvador, Guatemala and Honduras, which undertakes to ‘promote the process of political union in order to create a Central American Federation’69 and direct elections to the Central American Parliament (PARLACEN).70 With regard to the social dimension of Central American integration and its relationship to issues concerning human rights, as a significant advance in this regard, mention should be made of the First Ministerial Conference Countries of Central America and the Caribbean Community (CARICOM), also known as San Pedro Sula Summit, which took place on 31 January 1992 and in which both integration agreements issued a Joint Statement. In fact, this Joint Statement outlines a regional strategy that emphasises investment in the social field and the coordination of efforts to achieve economic and social development while trying to enhance education and training through human capital investment within the framework of the respect for the political, social and economic rights of present and future generations.71 In the same vein, the Declaration of Managua adopted in June 1992 emphasises the need to accelerate the integration process, reducing poverty and promoting development, consolidating peace and democracy in Central America in the context of sustained international cooperation.72 More importantly, in the so-called ‘Agenda of Managua’, the Central American presidents underlined as the main objectives of the integration process to improve the democratic institutions, to achieve economic and social development and to strengthen ‘the idea of a​​ united Central America that meet the challenges of the century’.73 It should also be highlighted that during the Thirteenth Summit of the Presidents of Central America in 1992, the Presidents adopted the Declaration of Panama.74 The Declaration outlined general guidelines for the next 67 

The Framework Treaty on Democratic Security, preamble. Arts 3 and 13. SICA. Official Documents. 69 ibid. 70 IRELA, Procesos de integración y parlamentos regionales: el PE y el PARLACEN, Madrid, 1998. See also JM Vacchino (ed), La dimensión parlamentaria de los procesos de integración regional, vol II (Buenos Aires, Depalma, 1990). 71 SICA. Official Documents. 72 ibid. 73  Arnaud (n 4) 192. 74  The Summit was held in Panama, from 9 to 11 December 1992. The Presidents examined the progress made towards establishing a free trade zone in the region. 68 

The Main Features of the Central American Integration Process 219 stage of development of the integration process, providing ‘a new impetus to the integration process as a way to consolidate the democratic institutions and combat extreme poverty’, thus including the social dimension of the integration process and, therefore, human rights matters.75 All these legal instruments are included in the overarching vision of development in Central America as ‘a regional organization designed to meet the needs of present and future generations because its objectives and principles are consistent with the political, social, economic, cultural and ecological importance of Central American countries and with the traditions and deepest aspirations of their people’.76 The current development strategy has reinforced these objectives, extending the scope of integration beyond the purely economic realm, and gradually focusing on the recognition and protection of human rights. As a result, the Central American integration process has gone beyond the purely economic and trade dimension and has entered decisively into other areas, mainly in the social dimension, which has deep implications for the protection of human rights. Taking as a reference this new broad concept of integration, including economic, social, cultural, political and ecological dimensions, and in order to promote the integral development in a harmonious and balanced manner, SICA has developed other dimensions of integration. Thus, the Fourteenth Summit Meeting held in October 1993 culminated in the adoption of the Guatemala Declaration, the Protocol to the General Treaty of Central American Economic Integration,77 the Agenda of Guatemala and a number of different agreements.78 In particular, the first of these instruments provides clearly that ‘the Tegucigalpa Protocol and presidential directives have been given a new impetus to the integration process and, in turn, the General Treaty of Central American Economic Integration has allowed progress in various fields (…) requiring to adapt the rules to the realities and needs of the countries of the region’.79

75 

Arnaud (n 4) 193. SICA General Secretariat Document on the Central American Integration. Official Docu­ ments, available at: www.sgsica.org. 77 This treaty is supplementary to the Protocol of Tegucigalpa and substitutes the 1960 treaty. 78 Summit meeting held from 27 to 29 October 1993 in Guatemala. The Conventions referred to are: Convention on mutual assistance, the Treaty on Criminal Matters, the Regional Convention on Climate Change, the Regional Convention for the Management and Conservation of Natural Forest Ecosystems and the Development of Plantation Forest Agreement of the Coordination Centre for prevention of Natural Disasters in Central America, and the Convention establishing the Permanent Central American Commission for the eradication of drug production, trafficking, consumption and use of narcotic drugs and psychotropic substances. 79  See CEPAL-ECLAC, Bases y propuestas para la reestructuración del sistema centroameri­ cano de integración (Mexico, United Nations, 1991). 76 

220  The Protection of Human Rights within the SICA Clearly, the adoption of the Alliance for Sustainable Development (ALIDES) in 1994 defined a new comprehensive development strategy aimed at the consolidation of democratic transition in the region. ALIDES promotes sustainable development, consisting of a set of political, economic, social, cultural and environmental principles, which cover almost all dimensions of the integration process.80 As noted previously, the instruments underlying the deepening of subregional integration processes outweigh those that prevailed in the early 1980s. In this sense, various treaties complement and expand the field of Central American integration, which regulate issues concerning the social dimension in SICA. Basically, these are legally binding instruments that are shaping the development of the social dimension of the subregional integration process. Among these treaties, one could cite, for instance, the Convention on the Exercise of Academic Professionals81 and the Framework Treaty on Democratic Security, both adopted in 1995. A significant advance in the process of integration was the signing of the Treaty of Social Integration, which states that the consolidation of the social dimension constitutes ‘the highest priority in the Central American Integration System and seeks, ultimately, the creation of Central America in a region of peace, freedom, democracy and development’.82 In sum, the legal instruments mentioned above demonstrate that the Central American integration process has included ‘extra-economic dimensions’, in particular, a social dimension which certainly has clear consequences in matters concerning human rights, establishing a close link between the social dimension and respect for human rights. The recognition of human rights, the protection of democracy and governance with the inclusion of the social and political dimension correspond to the stage of ‘relaunching’ the Central American integration process with a new institutional structure and the Tegucigalpa Protocol as the central instrument laying down the basic legal framework and institutional system.83 This new regulatory and institutional framework has contributed

80  See ECLAC/CEPAL, La integración centroamericana: beneficios y costos (Mexico, United Nations, 2004). 81  Convenio sobre el Ejercicio de Profesiones Universitarias y reconocimiento de estudios universitarios, available at: http://legislacion.asamblea.gob.ni/SILEG/Iniciativas.nsf/0/867111 733a37733206257cde00072524/$FILE/CERTIFICACI%C3%93N%20ESTUDIOS%20UNIVERSITARIOS.pdf. 82  The treaty was signed on 30 March 1995, and it entered into force on 15 May 1996. 83  In addition to the Protocol of Tegucigalpa, the legal framework is completed, the Convention on the Status of the Central American Court of Justice (signed in Panama on 13 December 1992 and in force since 2 February 1994), the Treaty Establishing the Central American Parliament and other political bodies and the three protocols annexed thereto (signed in Guatemala on 8 October 1987 and in force since 1994), the Protocol of Guatemala to the General Treaty of Central American Economic Integration (Guatemala, 29 October 1993 and in force since 17 August 1995), the Framework Treaty on Democratic Security, not yet in force, and

The Gradual Adoption of Legal Instruments Relating 221 to the adoption of various provisions concerning the protection of human rights. III.  THE GRADUAL ADOPTION OF LEGAL INSTRUMENTS RELATING TO THE PROTECTION OF HUMAN RIGHTS

As part of this new stage of the ‘re-launch and strengthening’ of the Central American integration process, significant progress has been achieved in relation to human rights, particularly within the social dimension. This has resulted in a growing number of treaties and declarations adopted forming a network of relevant legal provisions. In turn, this has led to institutional reform through the creation of new organs, and the allocation of new functions to the traditional institutions of the Central American integration process, articulating, for instance, channels for the participation of civil society.84 This is also reflected in the declarations adopted in each of the presidential summits, some of which have greater significance as they provide the basis on which the work of regulatory bodies will be developed in the Central American integration process. In any case, the most important contribution of the Summits of Central American Presidents is the commitment to preserve democracy, overcome poverty, promote sustainable development and protect human rights. However, it should be highlighted that in the ‘old Central American integration’ process, some legal instruments linked to the social dimension were adopted which indirectly refer to the protection of human rights. In this respect, among these, two deserve to be mentioned: the Central American Agreement on the Unification of Basic Education and the Multilateral Agreement on Social Security, signed in 1962 and 1967, respectively. The Central American Agreement on the Unification of Basic Education expressly recognises the right to education as a human right by providing that ‘every person in Central America is entitled to the benefits of the education’ and by setting forth in Article 1 that ‘in Central America, the right to education should be based on Article 26 of the Declaration of Human Rights, [and] Articles XIII and XXXI of the American Declaration of the Rights and Duties of the Man’.85 Therefore, it establishes that there is a clear imperative that education in Central America ‘must include

the ­Middle-environment Treaties adopted in the Central American Ecological Summit called ‘Commitment of Masaya’ signed on 13 October 1994. 84 L Quinteros de Aguilera, ‘La nueva etapa de la integración’ (1992) 179 Integración Latinoamericana 22. 85 SICA. Official Documents.

222  The Protection of Human Rights within the SICA comprehensive training and be oriented towards the economic and social development of Central American peoples … strengthening awareness in Central America’, as set out in Articles 2 and 4. In addition, included among the purposes of ‘education in Central America’ as indicated in Article 12 is the ‘obligation of educating citizens in the exercise of democracy as a political organization and a way of living’.86 Even though it was adopted early on in the Central American integration process, the agreement deals with one of the aspects that are traditionally included in the social dimension of any integration process and, at the same time, it also implies the recognition of a fundamental social right. The Multilateral Agreement on Social Security87 acknowledges the ‘fundamental right’ to social security ‘of workers and their families moving within the territory of Central America’, proclaiming the principle of equal treatment in matters of rights and obligations under the social security legislation in the territory of the member states.88 In this regard, this agreement provides an early concept of integration exceeding purely economic content, embodying the right of migrant workers to receive social security benefits and maintain the rights acquired as one of the key factors for the development of socio-economic integration in the region.89 Although adopted in the 1960s, this agreement is in line with the idea of social dimension, comprising the recognition of fundamental rights included, later on, in various human rights international instruments. In sum, these two legal instruments only partly address issues relating to human rights that are actually manifestations of specific aspects of the social dimension of the Central American integration process. They outlined priority areas for action for the eventual establishment of social policies which will lead to the recognition of certain rights, especially those of a social nature. The evolution of integration in Central America has become a multidimensional process, resulting in the adoption of legal instruments of a soft law nature, but also binding instruments that regulate the central aspects of the social dimension in specific areas that affect the recognition of human rights.

86  In order to fulfil these purposes the Convention foresees different activities to be carried out by the states. 87  Multilateral Agreement on Social Security, signed by the Governments of the Republics of Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica and Panama, El Salvador on 14 October 1967, has not yet entered into force, requiring the deposit two instruments of ­ratification, date from which it will have 60 days to the entry into force, at the moment there is only one instrument of ratification deposited. 88 SICA. Official Documents. 89 C Mesa Lago, ‘Desafíos actuales de la seguridad social en América Latina’ (1997) 1 Contribuciones 31–44.

The Central American Social Dimension 223 IV.  THE CENTRAL AMERICAN SOCIAL DIMENSION AND THE SAFEGUARDING OF HUMAN RIGHTS

As in other subregional integration processes, the social dimension in Central America is associated with development and the equitable distribution of its benefits, with increased citizen participation in decision-making and the improvement of the quality of life of people, including in the fields of education, health and social security.90 In terms of the legal and institutional framework, the progress attained in the social dimension in SICA has resulted in the adoption of legal instruments that address human rights issues. As a general legal framework, the 1993 Guatemala Treaty translated into the formal launching of a social agenda in the Central American integration process. As specifically stated in the Declaration adopted on that occasion, the SICA Presidents assumed the commitment to ‘deepen the democratic process and ensure the respect of human rights in the region to combat poverty and advance the modernization of production with benefits for all the sectors … preserving the environment’.91 In particular, the Declaration stressed the need for the enhancement of the social dimension of the integration process. In order to achieve this, the Presidents foresaw the strengthening of the instruments and the coordination of policies and social programmes at the regional level. More importantly, this led to the drafting of the Central American Social Integration Treaty, which established the principles, scope and priority areas as well as the institutional framework of the social dimension.92 Subsequently, following the requirements laid down in the Treaty of Guatemala, the Central American Presidents signed the Social Integration Treaty and the Declaration of San Salvador II for Investment in Human Capital93 as well as the Declaration on the Strengthening of Peace and Security in Central America in 1995.94 These are, in essence, the legal instruments that outline the development of the social dimension in the integration process and that grant social rights, concentrating and coordinating the efforts to develop economic and social integration, and to enhance education and training by investing in

90  S González Cravino, ‘Globalización, integración y cohesión social. El caso Mercosur’ R Franco and A Di Filippo (ed), Las dimensiones sociales de la integración regional en América Latina (Santiago, CEPAL, 1999) 53. 91 SICA. Official Documents. 92 ibid. 93  The treaty was signed during the Summit of San Salvador, held from 28 to 30 March 1995. 94  The Declaration was adopted in the San Pedro Sula Summit, held from 13 to 16 December 1995. Another treaty that also should be noted in this venue is the Democratic Security Treaty, adopted on this opportunity, and in force since 1997.

224  The Protection of Human Rights within the SICA human capital in a framework of respect of political, social and economic rights of present and future generations.95 There have been significant advances in the social dimension within the Central American integration process and these advances are reflected both in the declaration adopted by the Central American Presidents in each of the Summits which have been held and in the adoption of legal instruments that define the content and scope of the social dimension of this process. The main underlying goal is overcoming the strict commercial version of integration, incorporating new commitments and institutional reforms aimed at achieving social development.96 From the review of the existing legal instruments in this area, we can conclude that the issues relating to human rights are closely linked to the aspects that constitute the social dimension. In other words, the study of aspects relating to the recognition and protection of human rights within the Central American integration process should largely be done in close connection with the aspects that define and shape the social dimension. In turn, the deepening of the social dimension of the integration process is also closely linked to the strengthening of Central American integration. As already mentioned, the integration process must overcome the challenge of ‘achieving social goals to overcome the lack of integration in each of these scenarios, which is a latent source of possible adverse political and social movements to expand and link the different agreements’.97 Therefore, the Central American integration process had to address the so-called ‘social deficit’ through the respect and guarantee of social rights in order to contribute to the eradication of poverty, the increase of civil society participation and the reduction of inequality. Along these lines, a new comprehensive strategy was put forward under Esquipulas III (‘Esquipulas of the Peoples’) in 2004 to consolidate peace through economic and social development.98 The Central American Parliament is in charge of following up the proposal and, in an innovative move, opened

95 SELA, Informe sobre el Proceso de Integración Regional 2011–2012, SP/CL/XXXVIII. O/Di Nº 23-12 (Caracas-Venezuela, SELA-Secretaría Permanente, 2012) available at: www10. iadb.org/intal/intalcdi/PE/2012/11327.pdf. 96  LA Rubio Ríos, ‘El Mercado Común Centroamericano, la integración y la Unión Europea: Tres ejes complementarios’ in LA Rubio Ríos (ed), Estudios Europeos e Integración Regional (San José, UNA, 2005). 97 SELA, Líneas de acción y bases de un programa regional (2003) Introduction n 6. 98  The proposal was first introduced in July 2004 by the former President of Guatemala Vinicio Cerezo. Later that year, the Committees on Regional Integration and Foreign Affairs of the legislative bodies of the region approved the proposal at the meeting organised by these committees and the Central American Parliament in Managua, Nicaragua. In turn, the Esquipulas foundation has been working with SICA institutions of the system that is assigned or created to track the strategic plan, its implementation and socialisation, to the peoples of the region and the international community. The Committees on Regional Integration and Foreign Affairs of the legislative bodies of the region approved the proposal at the meeting organised

The Central American Social Dimension 225 consultations in 2007 for the proposal to be discussed with Central American civil society organisations through the CC-SICA. A. The Legal Standing and Scope of the Central American Social Integration Treaty Among the instruments mentioned above, the Social Integration Treaty (SIT), which established the principles, scope, priority areas and institutions of social integration in Central America, stands out as a result of its uniqueness and transcendence.99 This initiative resulted in the adoption of SIT, which took place in Cerro Verde, San Salvador, on 30 March 1995 and entered into force on 15 May 1995.100 The adoption of the SIT represented a decisive response to the establishment of a regulatory framework to address the main social aspects of Central American integration in order to ensure the welfare of the population and, in this way, to contribute to the respect of fundamental rights. As stated in Article 1: ‘States Parties undertake to reach a voluntary, gradual, complementary social integration in Central America, to promote greater opportunities and improved quality of life and work for the Central American people, ensuring their full participation in the benefits of sustainable development.’101 by these committees and the Central American Parliament in Managua, Nicaragua. As stated by the Esquipulas Foundation, the goal is to draft ‘a strategic development plan for the region; promote the participation of all sectors of civil society in defining the objectives of Esquipulas III; propose a strategic plan to the Presidents of Central America and the Caribbean to sign the agreement in question, you become a treaty that defines, as did Esquipulas II to achieve peace and democratic institutionalization, objectives and timing of the strategic plan that with the leadership of the heads of state, all institutions of the integration system undertakes its implementation and execution, for which he will go to the support of the international community’. See Fundación Esquipulas, Esquipulas III available at: www.fundaesq.org/esquipulas-iii. 99  This treaty is part of the initiative contained in the Agenda of Guatemala adopted during the XIV Summit of Central American Presidents in which they instructed the Regional Committee for Social Affairs, through its Technical Secretariat and in coordination with the General Secretariat of Central American Integration System to elaborate and present to the Fifteenth Meeting of Central American Presidents Summit a draft of the Treaty on Social Integration of Central America; available at: www.internationaldemocracywatch.org/index.php/centralamerican-integration-system-treaties-and-protocols/241-treaty-of-san-salvador-central-american-social-integration-treaty-spanish-text-1995-. 100  The Treaty of Social Integration expected entry into force eight days after the date of deposit of the third instrument of ratification for the first three depositors and others, on the date of deposit of its instrument of ratification (Art 21.3). The Treaty is in force as of 15 May 1995, when the ratification instruments were deposited by the Republics of El Salvador, Panama and Guatemala. This Agreement responds to one and the objectives of the Central American integration which is ‘to achieve a regional system of welfare and social and economic justice for the American people’. SICA. Official Documents. 101 SICA. Official Documents. See generally R Franco and A Di Filippo (comp), Las dimen­ siones sociales de la integración regional en América Latina (Santiago-Chile, CEPAL, 1999) 40.

226  The Protection of Human Rights within the SICA Overall, it should be noted that the SIT clearly states that the social dimension is ‘the highest priority in the Central American Integration System’, which aims to achieve ‘the consolidation of Central America as a region of peace, freedom, democracy and development’. With this aim in mind, social aspects of the integration process are seen as central elements and, in fact, as the basic and essential foundation in this evolution.102 The SIT organises, regulates and structures the ‘Social Integration Subsystem’ in SICA, based on the need to establish a legal framework to ensure the substantial improvement of the quality of life of the peoples of Central America and thus creating a regulatory and institutional framework to address issues of social content that are embedded within the integration process and, consequently, human rights concerns that arise is this area.103 As regards the legal nature of the SIT, it is clear that it is a binding legal instrument regardless of the more or less programmatic character of some of its (often generic) provisions and formulations, which are contained therein. Moreover, the Central American states wanted to provide this instrument with a ‘constitutional’ character within the legal system that sets up the integration process. Hence, it has been determined that the legal and institutional framework of SICA is the general framework within which the SIT is an instrument that is complementary to and derived from the Tegucigalpa Protocol, that ‘regulates and structures the social subsystem’, as stipulated in Article 3.104 Therefore, this is a legal instrument whose interpretation and application depends on the treaty establishing SICA, but, at the same time, it is conceived as a necessary and complementary regulatory instrument to carry out actions in the social dimension. Significantly, the SIT constitutes the centrepiece of the social dimension in the Central American integration process. However, it must also be noted that, in Article 5, taking into consideration the precise scope and its legal nature, the social integration process must be ‘consistent with the realities and own characteristics and evolution of each country, respecting the values ​​and cultures of different ethnic groups and the

102  Already indicated in some Central American Presidential Summit by saying, for example in the Declaration of Copan 27 January 2002, that ‘it is necessary to increase investment in human beings by promoting access to higher education opportunities, training, science and technology, culture, food and nutrition, health, housing, water, sanitation, social security, productive employment and income for the entire population. In this regard, we reiterate that this effort requires solidarity and international cooperation and participation of civil society will, and its extent on the assistance of international financial organizations’, SICA. Official Documents. 103 A Ciudad Reynaud, Las normas laborales en los acuerdos de integración en las Américas- ILO Report 110 (Lima, ILO/Regional Office for Latin America, 1999) 12. 104  At least, it is intended to satisfy the complementary principle of ‘gradualism, specificity and gradual process of economic integration, based on the harmonious and balanced regional development and the special treatment to countries less developed members, equity and reciprocity; and Central American exception clause’, SICA. Official Documents.

The Central American Social Dimension 227 Central American community as a whole, which, basically, refers both to the social circumstances in which they must enforce the rights and policies recognized herein and to the domestic laws of the Member States’.105 Now, with regard to the reasons that have led member states to adopt this legal instrument, four aspects are extremely important to determine the essence and the legal status of the SIT. First, the SIT establishes a definition of ‘social subsystem’ within the overall structure of SICA, stating that this is the ‘legal and institutional framework of global integration of Central America and within it, the social sector is a subsystem for integration in this area’.106 The social aspects are seen as a central element of the integration process and therefore human rights issues are also dealt with. The creation of a space in the framework of the Central American integration process specifically devoted to the social dimension reveals the multidimensional nature of this process of integration. This shows the growing importance in Central American integration that the social dimension has assumed in the national and local agendas.107 Regarding the discussion of issues concerning human rights, in absence of a proper regulatory and specific framework in the sector, the protection of fundamental rights takes place within the social dimension. Second, the importance of social aspects in the Central American integration process must be highlighted. In particular, social aspects constitute an integral and inseparable part of the regulations adopted by the Central American countries in the political, economic, cultural and environmental fields.108 From this perspective, social integration, as a whole, represents the need to coordinate economic policies with social policies placing these issues on the integration process agenda, contributing to its consolidation and deepening of social matters.109 This is expressed directly in the SIT in order to achieve the other objectives stated in Article 7, in addition to those established in the Tegucigalpa Protocol, placing the new goals of social integration at the core of the integration process, thus extending the strictly economic dimension before adding the recognition of new social and human dimensions. Third, this process reveals the need to establish a legal and institutional framework in the social dimension. In this sense, it must be based on the premise that the human being is the centre and primordial subject

105 SIT.

106 SELA, Informe final de la reunión de expertos sobre aspectos sociales de la integración de América Latina y el Caribe (Caracas, SELA, 2000). 107 ibid. 108  On cultural aspects see, B Barreiro Carril, ‘La producción cultural en el proceso de integración centroamericana’ in MB Olmos Giupponi and LA Rubio Ríos (eds), La Adopción de Políticas en el Sistema de la Integración Centroamericana. Propuestas para su perfeccionami­ ento (Madrid, Plaza & Valdés, 2011) 245–54. 109 SICA. Official Documents.

228  The Protection of Human Rights within the SICA of development, with the aim of guaranteeing the substantive improvement of the quality of life of people in Central America, which is a clear reference to human rights issues. In fact, the SIT recognises human rights as the essential reference point for the social dimension. Therefore, this legal instrument should be interpreted as a whole, in line not only with the development of particular social policies but also with other regional instruments regulating on fundamental rights. Thus, SIT establishes a close link between the achievement of an integrated social space and respect for the rights of those who are recipients of social measures contemplated therein and that it would cover all persons which are under the jurisdiction and control of the member states or, where appropriate, those who enjoy the nationality of any state participating in the Central American integration process. Finally, the SIT also determines the participation of civil society in the Central American integration process, which would have consequences concerning the recognition of human rights. Above all, ‘the importance of active participation of different groups of civil society in building the social integration of Central America’ is recognised ​​and the need for suitable mechanisms to ‘constantly involving them in efforts so that our peoples live together in a climate of fairness, justice and development’ is also determined.110 This highlights the importance of the participation of civil society in this integration process and makes clear that the ultimate goal is achieving social integration. The implementation of the SIT should ensure the welfare of the population. Therefore, it is stated in Article 3 that ‘social integration will implement a series of policies, mechanisms and procedures that, under the principle of mutual cooperation and solidarity, ensure both access of all people to public services, such as developing the full potential of Central American men and women on the basis of the improvement of the structural factors of poverty, which affects a large percentage of the population of Central America’.111 Overall, the mere reading of this agreement leads us to argue that regardless of how effective the SIT is, it constitutes a crucial instrument for establishing a general framework for the development, consolidation and deepening of social issues within the Central American integration process, with the following goals: to set clear objectives to be achieved and specific legal acts through which to achieve these objectives, and, of course, to establish an institutional system, to encourage and promote the overall

110  According to the complementary principle the integration process must be considered as ‘a global process including the democratic participation of all social sectors’. SICA. Official Documents. 111  Campos (n 56) 255–68.

The Central American Social Dimension 229 development of the Central American social dimension. Largely, the treaty represents an advance in the field on human rights because it recognises rights and, moreover, provides for certain mechanisms, more or less effectively, through which it is intended to ensure the effective exercise thereof. As regards the legal standing of the SIT, this is a binding legal instrument that aims at establishing a general framework for the development of the social agenda within the Central American integration process. In sum, the SIT sets basic provisions concerning social dimension across Central America and explicitly lays down a comprehensive set of human rights to be protected in the regional context. With regard to the main features that define the content of the SIT, relating to human rights, the following points should be underlined. First, Chapter I of the SIT, entitled ‘The Nature and Concept of the Social Integration Process in Central America’, indicates the objective of the social integration as provided in Article 1, which states that member states must ‘promote greater opportunities and improved quality of life and work to the Central American people, ensuring their full participation in the benefits of sustainable development’.112 This would therefore be the basic principle which should guide all the actions taken based on this legal instrument and place it as a backdrop to the human person as the ultimate recipient of the policies and recognised rights. In fact, the whole treaty is permeated with references to the need to encourage and foster the social development of the entities that make up the Central American integration process, with particular reference to individuals and groups. Therefore, in Article 7, member states undertake to ‘achieve the development of the Central American population in a comprehensive and sustainable manner in a context of equity, subsidiarity, responsibility and self-management through the promotion of solidarity among societies and as cooperation between individuals, families, communities and peoples of the region’.113 Second, the SIT establishes the principles, objectives and scope of the social integration process in Central America in Chapter II, which makes explicit the principles that shall guide the member states’ action. Thus, it is important to note that, although formulated as principles, these provisions contain the recognition of certain rights on the basis of the concept of the human person as the centre and subject of development, which requires a comprehensive and coordinated vision between the various aspects of the integration process, so as to enhance sustainable social development. There are several considerations related to the social dimensions as in paragraphs (a) and (c) of Article 6 which refers to the ‘respect for life in

112  113 

SIT. Chapter I. SIT, article 7.

230  The Protection of Human Rights within the SICA all its manifestations and recognition of social development as a universal right’ and to ‘the family as the core of the society and the focus of social policy’.114 In this case, the SIT places the emphasis on the achievement of the social development of the human person. It is worth noting that the principle of non-discrimination is contained in all legal instruments of human rights as a structural principle for the protection of human rights. Thus, paragraph (e) of Article 6 provides for ‘non-discrimination on grounds of nationality, race, ethnicity, age, illness, disability, religion, sex, creed, marital or family status or any other types of social exclusion’.115 This is complemented by paragraph (e) of Article 7, where the responsibility of member states is stated: ‘To promote equal opportunities for all people, eliminating discriminatory practices by law or in fact.’116 In addition, certain social rights receive special protection in paragraph (h) of Article 6, which refers to the promotion of ‘universal access to health, education, housing, healthy recreation, as well as an economic activity, dignity and fair remuneration’.117 Even though in a rather imprecise way, some fundamental social rights are protected, such as the right to education, the right to health, the right to rest and some basic rights of workers. The protection undertaken the field of social rights reveals that certain areas covered by the SIT rest on the recognition of rights within the Central American integration. Finally, the question that arises is whether this legal instrument requires additional regulatory actions. In a final appraisal, the SIT presents the basis for the adoption of specific norms that will focus specifically on the recognition of social rights. B. The Alliance for the Sustainable Development of Central America (ALIDES) The Managua Declaration, which was adopted on 12 October 1994, during the Central American Ecological Summit for Sustainable Development, was clearly aimed at achieving the objective of comprehensive development focused on more than rarely economic aspects as established by the Guácimo Declaration. Thus, it is remarkable that it is not confined to regulating exclusively environmental issues, but, on the contrary, presents a concept of development in a broad sense, under which the human being is placed as the reference for the action of the member states, which is of

114 

SIT, article 6 (c). SIT, article 6 (e). 116  SIT, article 7 (e). 117  SIT, article 6 (h). 115 

The Central American Social Dimension 231 interest for the study of human rights within the Central American integration process.118 In other words, the Alliance for the Sustainable Development of Central America (ALIDES) is intended to be a general framework and benchmark in sustainable development in the region and it is also, ultimately, an instrument which addresses issues relating to human rights included in the concept of sustainable development. In the ALIDES, it is stated that sustainable development ‘is a process of progressive change in the quality of human life, which places it as the centre and primordial subject of the development through economic growth with social equity and changing production methods and consumption patterns and is based on the ecological balance and vital support of the region’.119 In any case, it must be noted that ALIDES lays the foundations for what has been defined as a ‘regional strategy for coordination and harmonization of interests, efforts, responsibilities and harmonization of rights within the Central American integration’, the latter being conceived from an institutional standpoint as a ‘comprehensive Central American initiative in the political, moral, economic, social and ecological field’, so that it emphasises that this is a form of integration that goes beyond the strictly commercial to penetrate other sectors or areas of integration, thus acquiring a multidimensional character.120 From a purely formal standpoint, the ALIDES lists the elements of this project, consisting of a harmonic set of policies, programmes and actions to attain this new vision, which has to inspire and guide the Central American member states by assuming specific commitments. The review of the ALIDES document allows us to draw some conclusions on the content of the Alliance in relation to matters concerning human rights. First of all, it must be underlined that one of the most important aspects of what constitutes ALIDES is the catalogue of principles that govern the activity of the Central American subregional integration process, which constitute ‘the basis of the objectives and commitments of common interest’.121 Therefore, compliance with these principles is a priority in the implementation of policies, programmes and activities carried out by the Central American states, whether acting individually or jointly. Somehow, most of these principles suggest that the recognition of human rights is closely linked to them. These principles can be categorised according to the matters they deal with. Accordingly, some of them are established to underline what the action is that must be taken by member states in Central America, while other principles refer to environmental protection. Finally, it is important 118 SICA. Official Documents. ALIDES. Available at: http://www.minex.gob.gt/Consulta_ Doc.aspx?IdDoc=1094 119  Franco and Di Filippo (n 110) 43. 120 ibid. 121  ALIDES (above n 118).

232  The Protection of Human Rights within the SICA to note those which are devoted to providing elements to ensure respect for human rights. In all these three areas, there are human rights aspects involved. The underlying concept is related to the development of a political and legal instrument for the protection of human rights. The establishment of these principles is linked to the recognition of rights. First, ALIDES places peace and democracy as basic underpinnings of the Central American integration process and as essential elements for ensuring sustainable development. More importantly, it defines the promotion of peace and democracy, highlighting its importance as ‘basic forms of human coexistence’; as such, both concepts are closely related to the field of human rights. In order to achieve this, ALIDES calls for the respect of the guarantees of the rule of law, political freedom, protection of human rights, including respect of international treaties and the fight against corruption and impunity, as necessary to consolidate peace in the area with full observance of democratic regimes. In addition, another important corollary that follows from this principle is the need for mechanisms to ensure citizen participation in the Central American integration process. ALIDES also refers to the recognition of certain rights and, in particular, political rights, affirming democracy as a basic foundation for the integration. Thus, this not only links democratic development to the respect of human rights but, at the same time, draws the conclusion that the relationship between human rights and democracy is essential, and that citizens should enjoy fundamental rights. Second, it is important to underline the recognition of the right to life in ALIDES, which is closely related to environmental protection. The instrument suggests courses of action in relation to the respect and use of biodiversity of the land in a sustainable manner and the principle that advocates respect for life in all its manifestations. In addition, ALIDES recognises inter-generational responsibility in handling and protecting the environment and in achieving sustainable development.122 At least two conclusions can be drawn from this: first, the human right to the environment is configured in international human rights law as a right of solidarity so that, regardless of its content and scope, we enter a realm of fundamental rights;123 and, second, these rights are formulated from the perspective of the protection of the environment. Third, and more specifically, with respect to the promotion and protection of human rights, in ALIDES we can see the existence of provisions

122 ibid.

123  See A Boyle and M Anderson, Human rights approaches to environmental protection (Oxford, Clarendon Press, 1996); H Gros Espiell, ‘El derecho a vivir y el derecho a un medio ambiente sano y ecológicamente equilibrado’ (1992–93) Anuario Argentino de Derecho Inter­ nacional 45 and A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ available at: www.law.ed.ac.

The Central American Social Dimension 233 relating to certain groups who would be recipients of specific rights, Moreover, it also includes direct references to certain social rights. As regards the former, it should be noted that the Central American region incorporates the principle of respect for multiculturalism and ethnic diversity in the region as well as the recognition of the right to cultural identity as a ‘fundamental human right and the basis for coexistence and national unity’.124 This freedom must be exercised to facilitate cultural expressions. As part of this recognition, special attention is devoted to indigenous peoples, ensuring not only their cultural rights, but also the continuity of their ancestral practices ‘consistent with preservation of the natural environment’, and member states should ensure access to self-sustaining development.125 As regards the latter, ALIDES regulates the protection of economic, social and cultural rights, together with the achievement of greater degrees of economic integration between countries of the region and the rest of the world.126 ALIDES upholds the principle of improving the quality of human life and the achievement of economic growth with equity. This is enshrined together with social participation in democracy, respect for cultural and ethnic diversity, access to education and the right to professional training.127 In full compliance with these principles, the foundation of ALIDES is laid down in four main areas, with implications for the promotion of human rights in the Central American region, these being democracy,128 cultural,129

124 

ALIDES. Principle 5. Respect for the multiculturalism and ethnic diversity. ALIDES (above n 118). 126 ibid. 127 ibid. 128  In terms of the recognition of democracy as an essential element for achieving development in Central America, ALIDES stipulates the strengthening and consolidation of democratic institutions, local and municipal governments, civil society participation in processes of decision-making, especially in the formulation of public policies, and strengthening of NGOs. As an innovation, ALIDES includes the creation of the national Council for Sustainable Development, at national level which must include representation from public sector and civil society, and the Central American Council for Sustainable Development. These councils will be responsible for maintaining the consistency of policies, programmes and projects with the regional strategy. See ALIDES VI. Instruments of the Alliance for Sustainable Development A. National Council for Sustainable Development and B. Central American Council for Sustainable Development. 129  With regard to the socio-cultural dimension, SICA member states, recognising the role it plays in achieving social equity, have established certain priority areas, such as basic education, health, and education and training. ALIDES also provides a special protection for vulnerable groups such as children, adolescents, the elderly and women. All these areas belong to the social dimension and impact on the recognition and protection of human rights. ALIDES also contains provisions on the protection of cultural heritage and expressions in art, science and technology. The objective of achieving integration in the cultural dimension adds to the path defined in the context of presidential statements that established the need to harmonise legislation, urging the authorities concerned to take appropriate legislative or administrative measures aimed at greater effectiveness in the implementation, updating and modernisation of the laws of protection or defence of cultural heritage. See, for instance, the terms expressed in the Panama Declaration, issued at the XIII Summit of Presidents of Central America. In addition, 125 

234  The Protection of Human Rights within the SICA social and economic rights, the sustainable development and sustainable management of natural resources, and improving environmental quality.130 Before concluding the analysis of this instrument, we should briefly note the annex to the Declaration in which specific objectives that the Central American states aim to achieve through ALIDES are explained. In this vein, the annex reaffirms the following as policy goals: the promotion and full respect of human rights, strengthening the rule of law and democratic institutions, and improving the mechanisms of political and electoral participation. It also highlights the social and political sustainability of the processes of democratisation, which is related to the development of plans to combat poverty, according to the criteria of subsidiarity, community solidarity, responsibility and community involvement. It is worth noting that, with regard to social rights, ALIDES makes particular mention of close links between environment and human rights, such as the protection of vulnerable groups and, in particular, the protection of women’s rights, aiming to eliminate ‘all the forms of legal or de facto discrimination against women’ in order to ‘improve their status and improve their quality of life’.131 Similarly, ALIDES provides for the respect for the rights of displaced persons and refugees, within a stable and secure environment in Central America which guarantees equal opportunities.132 In sum, this instrument has set as a priority the establishment and consolidation of sustainable development, addressing subjects closely related to human rights, primarily considering the situation of vulnerable groups and also referring to social rights, such as the right to education or the right to health. Therefore, we can say that although it does not represent a complete catalogue of rights in Central America, it may help to identify and determine, in a complementary manner and in relation to other Central American instruments, the content of rights specially protected by this integration process. C. Other Instruments Adopted within the Framework of the Central American Integration Relating to Human Rights In addition to the SIT, which, as explained above, constitutes the framework agreement in the area of social integration, there are other provisions Honduras, Guatemala and El Salvador have signed the ‘Guatemala Agreement’ of 29 October 1993 to preserve the Mayan heritage. 130  The concept of economic development is rooted in the values ​​of freedom, dignity, justice and social equity. Among other economic considerations ALIDES focuses on the promotion, the strengthening and the consolidation of commitments assumed in the Central American integration as ‘fundamental to improving the quality of life of the population’. ALIDES Principle 3 and Section 3. ALIDES (above n 118). 131 SICA. Official Documents. 132 ibid.

The Central American Social Dimension 235 contained in various instruments refer to the specific recognition of rights adopted in the field of the social dimension of the Central America integration process. Most of them belong to the so-called second and third generation of human rights.133 At the very least, it should be noted that the new Central American integration process combines development with social justice, so from the declarations made by the Presidents and relevant official documents, one can infer references to a common project with regard to the fulfilment of two major objectives: the modernisation of the integration, on the one hand, and democracy with equity, on the other hand.134 But beyond these instruments, which are scattered and of a diverse nature, other references to human rights can be found within the Central American process, in particular, in certain legal instruments that have been adopted during the evolution that has occurred in the integration process in Central America. In this regard, it is important to highlight the following features. First, some declarations issued focus on the mechanism of consultation and dialogue, known as the ‘Tuxtla Process’ which is inspired by the aim to preserve the freedoms and the protection and promotion of human rights in order to promote comprehensive and sustainable development in the Central American region.135 These declarations are relevant because they determine the main lines that guide the process of institutional action to protect human rights and fundamental freedoms, as well as the development of programmes in fields relating more closely to economic, social and cultural rights. In this regard, it should be highlighted that the meetings of the Central American Presidents have stated ‘the importance of the Tuxtla mechanism of dialogue and consultation to advance political, economic, social, environmental and cultural

133  On the evolution of the Central American integration in the field of social dimension, see, among others: C Bollin, Centroamérica: Situación y perspectivas del proceso de integración a finales de los 90’s (Guatemala, INCEP, 1999) and V Bulmer-Thomas (ed), Integración regional en Centroamérica (San José, FLACSO, 1998); C Bollin, Centroamérica de cara al tercer mile­ nio: algunas tesis sobre las perspectivas y desafíos de la integración (Guatemala, INCEP,1999); CEPAL, Centroamérica: evolución del proceso de integración subregional, 1999–2000, (México, United Nations, 2000) available at http://www.cepal.org/es/publicaciones/25462-­ centroamerica-evolucion-del-proceso-de-integracion-subregional-1999–2000; JA Sanahuja and JA Sotillo (eds) Integración y desarrollo en Centroamérica: Más allá del Libre comercio (Madrid, Ed Los Libros de la Catarata/Instituto Universitario de Desarrollo y Cooperación, 1998); CEPAL, Panorama social de América Latina (Santiago de Chile, United Nations, 1997). 134  Caballeros (n 46) 19. 135  The so-called ‘Tuxtla Process’ has its origin in the Tuxtla Gutierrez meeting held between the States belonging to SICA, Belize and Mexico on 11 January 1991. The next meeting, held on 11 February 1996, established a mechanism for consultation and dialogue to analyse on a regular and systematic basis regional affairs, hemispheric and global interest. The particularity of this process lies in the participation of a State ‘extra-SICA’, plus Belize, which is Mexico, next due to geographic, historical, political and economic (possible formation of a free trade area) to the sub-State but not part of the agreement.

236  The Protection of Human Rights within the SICA cooperation’136 in a multidimensional interpretation of Central American integration which does not exclude the recognition and protection of human rights. In this area, the declarations adopted have focused attention on the recognition of the rights of certain vulnerable groups, especially by promoting the integral development of women and children and, in particular, the promotion of projects and programmes aimed at the equitable participation of women in all sectors, particularly in education, work, health and access to employment. But, in addition, special treatment is accorded both to the rights of indigenous peoples and to the protection of migrants.137 Second, with regard to the regulation of certain social aspects, the Summits of Central American Presidents have been shaping a regional agenda which focuses on the protection of human rights. These summits include initiatives that would influence the possible configuration of a Central American human rights system of protection and, in any case, the adoption and ­development of common policies in the social dimension. In this regard, the Declaration of Panama stands out for its importance in indicating priorities with respect to social security, as it establishes universal coverage with a sense of fairness, providing for the access to health benefits, the economic and social services in accordance with the legislation of each member state. The instruments adopted in this area, arising from the Thirteenth Summit of Central American Presidents held in Panama in 1992, emphasise the development of a set of provisions on social security, whereas the instrument that integrates the main body of standards is the Declaration of Central American Presidents on Social Security, which was signed on 10 December 1992. This Declaration was adopted to support the strengthening of social security institutions in order for member states to fulfil their responsibilities of achieving national and regional development and, at the same time, guaranteeing equity.138 It establishes the necessary mechanisms to enable the social protection of Central American citizens present in any of the countries of the region other than their country of origin or permanent residence. It is also important to emphasise that in this Declaration, social security must be conceived as a fundamental right of social content, so that, as noted herein, it is agreed ‘that social security as a response protective to the different

136  E Pérez and R Zapata, Pasado, presente y futuro del proceso de integración centroameri­ cana (Mexico, CEPAL, 2001) 28. 137  Indeed, the Mérida Declaration, adopted on 28 June 2002, renewed the commitment to promote and respect the full enjoyment of human rights. In this sense, the Presidents expressed their ‘determination to improve and strengthen the mechanisms for their defence, both domestically and in the system and in the United Nations Organization’. SICA. Official Documents. 138  In the area of social security, the Central American social security institutions and the Regional Commission for Social Affairs function as cooperating agencies.

The Central American Social Dimension 237 contingencies and social risks, is an inalienable human right and as such must be fully understood by the various States’.139 Along these lines, mention must be made of the Declaration of San ­Salvador II, adopted in Cerro Verde, San Salvador on 30 March 1995, which specifically dealt with investment in human capital. In this Declaration, the Central American Presidents undertook to focus their efforts in investing in human capital by creating greater opportunities and access to, inter alia, social security, productive employment and income for all Central American citizens. In the social and labour fields, it provided for the promotion of technical education, involving the Ministries of Education and Labour and the Social Integration Council.140 This instrument also deals with issues concerning the harmonisation of national laws in family matters in the context of the promotion and protection of rights, as well as the intervention of the Central American Parliament and the Central American Court of Justice. Moreover, the initiatives underline the protection of women’s rights and the mechanisms to ensure equal opportunities in terms of training, job resources for production and new technologies, and promoting women’s participation in democratic processes. Moreover, the Declaration incorporates provisions for the protection of children’s rights in accordance with international and regional standards and, to that end, instructs the relevant national institutions to review and update national plans to protect childhood. In sum, as explained above, progress in the Central American integration process ‘should be consistent with the protection of natural resources and the environment of the region as well as the distribution of the benefits of growth within the framework of pluralist political systems and participatory’.141 Third, we must mention the Protocol to the General Treaty of Central American Economic Integration,142 which features a new model of economic integration. Even if its character is predominantly economic, it comprises certain provisions relating to the protection of human rights. In particular, it includes principles regarding solidarity in the integration process, as stipulated in Article 5), which represents an important step, since it introduces a new consideration that paves the way for the social dimension of integration and, therefore, for the recognition of human rights. More specifically, member states express their commitment to establish ‘flexible mechanisms for protection of consumer rights’.143 Moreover, in Article 18, the Central

139 SICA.

Official Documents. Reynaud, Las normas laborales Las normas laborales en los acuerdos de inte­ gración en las Américas (ILO Regional Office, Lima, 1999). 141  Caballeros (n 46) 17. 142  Guatemala Protocol adopted on 29 October 1993. 143 ibid. 140  Ciudad

238  The Protection of Human Rights within the SICA American states agree to ensure the free movement of labour and capital in the region through the adoption of policies necessary to achieve this, and the article also even introduces provisions to protect the environment and cultural heritage.144 In addition, and in a similar fashion to the agreements that have been signed, there are other actions relating to the social dimension with direct implications for the field of human rights, such as programmes undertaken as part of social cooperation process. In this regard, mention must be made, first, of the health programme implemented in the period following the end of the armed conflicts that took place in the 1970s and 1980s in order to assist displaced people. There is also a constellation of existing programmes that deserve to be mentioned, such as the Central American Council on Housing and Human Settlements, the protection programme for the circulation of cultural goods, the Regional Commission Social Affairs and the Central American Commission for Human Development.145 Finally, with regard to environmental protection, the legal framework is made up of a number of declarations adopted at the Central American Ecological Summit, among which is is the Environmental Commitment of Central America.146 This commitment provides for the implementation of an integrated environmental protection system in Central America and for civil society participation. From the analysis of these instruments, it can be concluded that in the Central American area, the instruments have enshrined the right to a healthy environment. All these legal instruments are important to the extent that, irrespective of their legal standing, they show the interest that has been unfolding in the Central American integration process in issues concerning human rights. Although it is true that they contain a broad definition of protection, the scope and content of the rights may perhaps in the future lead to the eventual creation of a Central American system of recognition and protection of human rights. D. Towards the Adoption of a Regional Policy on the Protection of Human Rights Notably, among the key issues for the adoption of coordinated policies on human rights in SICA, we can identify the following relevant areas regarding the protection of human rights in the Central American integration.

144 C Fernández Liesa, MB Olmos Giupponi and B Barreiro Carril, La cultura en la cooperación e integración iberoamericana (Madrid-Mexico, Plaza y Valdés, 2009) 187–97. 145 See Coordinación Educativa y Cultural Centroamericana (CECC/SICA), Política Cul­ tural de Integración Centroamericana 2012–2015 (San José, MasterLitho, 2012). 146 See Comisión Centroamericana de Ambiente y desarrollo. Observatorio Ambiental Regional (OAR). Available at: www.sica.int/ccad/observatorioambiental.aspx.

The Central American Social Dimension 239 i.  The Protection of Environmental Rights The right to the environment is further configured as a right of solidarity with clear implications for the protection of other human rights. Central America is a region of great diversity but, at the same time, there is high environmental vulnerability, which directly affects the protection of human rights of Central American citizens. Therefore, the environmental dimension must be reinforced in the construction of a Central American human rights policy through concrete actions that ensure access of individuals to effective means to defend their diffuse interests of environmental protection, both domestically and before SICA bodies. ii.  Right to Development and the Fight against Extreme Poverty The Democratic Security Framework Treaty identifies extreme poverty as a threat to regional security. At the same time, it highlights the responsibility of the State in adopting public policy to combat poverty from the perspective of human rights. Thus, a regional policy on human rights must incorporate as a central focus the fight against extreme poverty, enabling the adoption of measures aimed at their reduction on the basis of the interdependence between civil and political rights and economic, social and cultural rights. iii.  Rights of Migrants There are certain aspects related to migration that should be addressed at regional level, especially considering the social vulnerability in which migrants found themselves when facing the problem of trafficking. The experience of the Regional Conference on Migration (CRM), which includes not only SICA member states but also Mexico is a valuable precedent for the design of a harmonised policy of regional scope. In addition, with regard to undocumented migration, the measures adopted should be based on an integrated approach based on respect for human rights and the pursuit of a coordinated policy response approach, including the areas of freedom, security and justice, development, employment, gender equality and non-discrimination. iv.  Strengthening the Protection of Social Rights As seen above, social rights were included in the development of the Central American social policy. The main aspects that should be reinforced include extending social protection, strengthening the social dialogue, access to social security and protection of labour rights. In recent years, there have been various initiatives to promote the adoption of international labour

240  The Protection of Human Rights within the SICA standards and the ratification and implementation of a large number of ILO conventions.147 v.  The Right to Food and Food Security Since 1990 the region has experienced an increase in terms of food vulnerability. A significant percentage of the Central American population is under the poverty line and nutrition problems exist in rural and indigenous populations. In this sense, at a recent meeting in Central America the importance that the states in the region develop common policy actions progressively was emphasised, involving joint resources and efforts to realise the right to food in Central America Dominican Republic and make the development of specific plans for the expansion of production chains, strengthening producers’ organisation at all levels, generating employment and income for mitigation, care and prevention of causes related to the reality of malnutrition of people and reduced levels of poverty and extreme poverty of the population.148 vi.  The Right to Equal Treatment and Gender Equality The assertion level of international law of the principle of equal treatment and, consequently, of the prohibition of discrimination based on various reasons has led to several joint regional strategies for the implementation of plans and actions in that direction. In Central America specific policies adopted in these fields should include the protection of fundamental rights and the promotion of equal opportunities and inclusion as cross cutting issues. In this sense, gender equality should be promoted at the regional level through the design of policies, pilot initiatives and exchange of good practices. Regional action in this area should take particular account of the balanced participation of men and women in the workplace and combat gender violence. Several meetings of Central American Presidents stressed the importance of achieving the comprehensive development of women and children and, in particular, promoting projects and programmes aimed at the equitable participation of women in all spheres, particularly in education, professionalism, health and access to productive employment.

147  This in part is due to the participation in the Generalised System of Preferences Plus (GSP +) of the European Union that it benefits the States that observe international standards on ­environmental, human and labour rights. 148  Instituto Interamericano de Derechos Humanos (IIDH), Los derechos humanos desde la dimensión de la pobreza—Una ruta por construir en el sistema interamericano (San José, IIDH, 2007).

The Central American Social Dimension 241 vii.  Rights of Indigenous Peoples and Cultural Rights It should be borne in mind the need for the adoption of a Central American policy to protect fundamental rights of indigenous groups and ethnic minority groups, ensuring the participation of representatives of these communities in the design of such policy. In that sense, it is recalled that the document ALIDES incorporates the principle of respect for multiculturalism and ethnic diversity in the region, which means the recognition of the right to cultural identity as a fundamental human right and the basis for coexistence and national unity. As part of this recognition, a special attention to indigenous populations is dedicated, guaranteeing their rights not only cultural, but also the continuity of its consistent with the preservation of the natural environment ancestral practices, and ensuring access to sustainable development.149 viii.  The Protection of Public Safety as a Fundamental Right The Framework Treaty on Democratic Security underlines the need to ensure security in Central America broadly comprising several dimensions. In recent years, as a result of the spread of the phenomenon of organised crime, public safety, in particular, has been threatened by drug trafficking and trafficking in persons. Insecurity affects more intensely the most vulnerable groups (women, children and indigenous groups). These threats to the protection of human rights’ transnational nature, require coordinated action by the Central American countries through a strategy to ensure respect for public safety. ix.  Children’s Rights The protection of children at risk is another area where greater coordinated action would be necessary. In Central America, as happens in other Latin American countries, various phenomena threaten the rights of children, as in the case of homeless children (so-called ‘street children’) who are extremely vulnerable, being often recruited by the various organisations of organised crime (the so-called ‘maras’).150 In the design of a Central American human rights policy particular attention is needed for the protection of fundamental rights of vulnerable children.

149  Programa Estado de la Región en Desarrollo Humano Sostenible (Costa Rica), Cuarto informe Estado de la Región en Desarrollo Humano Sostenible (San José, PEN, 2011). See also Subregional programme for Central America of the European Union 2014–2020 (in Spanish Programa Indicativo Plurianual), available at: www,eeas,europa,eu/lac.docs.index_en.html. 150 UNICEF, Niños desaparecidos en Centroamérica: Investigación sobre prácticas y legis­ lación para la prevención y la recuperación (Alexandria-United States, International Centre for missing and exploited children, 2011).

242  The Protection of Human Rights within the SICA x.  The Right to Education and Reducing Inequality The ODECA treaty recognised the right to education at a regional level. In several instruments, the importance of ensuring an effective access to education has been emphasised. In a profoundly unequal region like Latin America, access to basic education takes a central role in reducing the inequality gap. Therefore, the Central American policy of fundamental rights should include the right to education in their interdependence with the rest of the basic rights and achieving development in the region. V.  THE HIERARCHY OF THE LEGAL INSTRUMENTS ON THE PROTECTION OF HUMAN RIGHTS

The existence of new legal instruments, whether binding or in the form of soft law instruments, raises questions regarding their validity, enforceability and supremacy. In this regard, the Central American Court of Justice issued a relevant Advisory Opinion upon the request of the SICA General Secretariat, on 24 May 1995, on the legal status of the Tegucigalpa Protocol, regarding the legal instruments and subsequent acts including the Alliance for Sustainable Development, which meets the requirements set in the declarations issued by the Presidents of SICA member states. The considerations put forward in the advisory opinion contribute to establishing a ranking of the various instruments concerning human rights adopted in the framework of SICA.151 As a starting point, the Court made clear that the Protocol of Tegucigalpa is the ‘Treaty establishing the framework of Central American integration’ or, in other words, the ‘treaty making power’ of SICA, it follows that this is the most ‘fundamental basis of any other Central American norm’. At a lower level, other legal norms would be placed, whether they would be binding treaties or other normative acts: treaties, conventions, protocols, agreements and other binding legal acts adopted before or after the entry into force of Protocol Tegucigalpa. According to the Court, the Treaty of Tegucigalpa ‘incorporates and modifies some institutions which are not completely suppressed, leaving untouched all the provisions of conventions, agreements or treaties previously approved provided they do not enter in conflict’.152 Thus, ‘those legal bodies and institutions prior to the entry into force of the Protocol remain in force as they are compatible with the principles, purposes and the organizational structure of the system created, if not already repealed’.153 151  Annual Report 1994–1995, Central American Court of Justice available at: www.ccj. org.ni. 152  Tegucigualpa Protocol, art 35 para. 1. 153  Advisory Opinion upon the request of the SICA General Secretariat, on 24 May 1995.

The Hierarchy of the Legal Instruments on the Protection 243 As for the relationship between the Tegucigalpa Protocol (TP) and complementary instruments and actions that develop the contents thereof, the Court said they have a ‘relationship of dependency’,154 also relying on the provisions of Article 35 TP, therefore, the treaty in terms of hierarchy is at the top. Consequently, any Convention, Agreement or Protocol signed between member states bilaterally or multilaterally on matters relating to Central American integration, including the human rights, are situated below hierarchically. Provisions of these instruments that were adopted before remain in force as long as these instruments are not in conflict with the constitutional instrument or hinder the achievement of its aims and objectives. In another advisory opinion, the Court was required to evacuate the consultation on the legal status of the Alliance for Sustainable Development, adopted through the Declaration of Guácimo, on 12 October 1994, during the XV Meeting, and has the legal form of a presidential statement issued by the meeting, an instrument which, moreover, contains important references, as noted, on human rights. In general terms this ‘Declaration’ has the aspiration to engage regional policy towards the achievement of sustainable development in Central America. Both the nature of the terms used and its content may lead one to think that the instrument has more political character than legal effect. Contrary to the latter position, the Court with basis on Article 15 e) of the Tegucigalpa Protocol, described ALIDES as a legally binding agreement on member states for which is in effect the aforementioned Protocol, since it was adopted ‘by the Supreme Organ of the Central American System of Integration (SICA) and within it, in exercising its powers set out in Articles 14, 15, 30 and 31 of the aforementioned Protocol, the required legally binding for those member states’.155 The Court went on to distinguish that, however, this is not the case for those states for which the Tegucigalpa Protocol is not in force and which have signed the Partnership for Sustainable Development (like in the case of Belize). In addition, the Court clarified that ALIDES is understood to have been concluded by the main organ of SICA as an international agreement in simplified form and its provisions must be complied with, the member states being subject to ‘the responsibilities incurred by not complying with it, according to international law’.156 In sum, the aforementioned Alliance, according to the Central American Court, has mandatory character that could be extended to the declarations signed by the Presidents in the context of regular meetings, which responds in accordance with the legal provisions of the Tegucigalpa Protocol to the legal classification of ‘agreements’ derived from the above mentioned

154 ibid. 155 ibid. 156 ibid.

244  The Protection of Human Rights within the SICA Protocol, ‘adopted by the main body of SICA and with other states, which by their nature already mentioned and rank lower, unless modified, repealed or replaced by the Protocol of Tegucigalpa’.157 Therefore, the Court placed at the top of the organisational structure the regular meeting of Presidents, giving ALIDES the character of a binding agreement. It should be clarified, however, even recognising its binding nature, that agreements like the ALIDES are characterised by the programmatic character of their provisions and provide few opportunities for imposing direct and specific obligations on the member states. VI.  THE GRADUAL EMERGENCE OF A ‘CENTRAL AMERICAN CITIZENSHIP’

As noted above, the protection of human rights in Central America has been driven mainly by developments that occurred in the context of the social dimension, as regulated in the Treaty of Central American integration, which aims as a primary objective to improve the lives of its inhabitants. Over time, SICA bodies have been adopting a set of legal instruments of sectoral nature that regulate the various components of the social dimension.158 The development of this social dimension is closely linked to the establishment and consolidation of what might be called the ‘Central American citizenship’. In this vein, it is noteworthy to underline that some Central American constitutions contain an allusion to the ‘Central American Union’ or, at least, emphasise the achievement of the subregional integration. Furthermore, one must recall, as a significant precedent, that the draft Constitution of the ‘old Central American integration’, adopted on 9 November 1921, created a ‘Central American citizenship’ regulating the rights arising from such recognition.159 As more immediate precedents, the instruments adopted in the 1990s refer to a Central American identity, specifically, to a ‘Central American citizenship’ or ‘Central American community’, while that beneficiaries of certain actions or holders of certain rights would be the nationals of the SICA member states. Against this background, SICA has sought to provide a Community framework for the migration as a result, in particular, of the Summit of Presidents (called Tuxtla II), which decided the establishment of a Regional

157 ibid.

158 B Cornejo Castro, ‘La integración regional y la “transfronterización” de las políticas sociales: Experiencias Subregionales Latinoamericanas y futuros desafíos’ in CEFIR (n 240) 29–36, original. 159 SICA. Official Documents.

The Gradual Emergence of a ‘Central American Citizenship’ 245 Conference on Migration, which materialised, specifically through the Puebla Process, which also involves Mexico, the United States and the Dominican Republic.160 This forum adopted in 1997 the Panama Action Plan, which ‘expresses the consensus of the member countries regarding the guidelines for regional action on migration and provides a framework to coordinate the activities of both governments as the international agencies involved’.161 One of the targeted priority issues is the protection of migrants’ human rights. Specifically, in the framework of the Tuxtla process, the central objective is to address ‘under a comprehensive perspective, the causes and manifestations of migration, from the recognition of its regional and structural economic and social factors’ and to ‘take actions to ensure respect for human rights of migrants, both in countries of transit and destination’.162 Among SICA instruments that contain relevant elements for the Central American citizenship, there is the already mentioned Protocol to the General Treaty on Central American Integration (also known as ‘Protocol of Guatemala’). This agreement highlights in the objectives to be achieved the free mobility of productive factors, among which includes ‘labour’. In addition to this, in Article 31 the Protocol specifically provides for the harmonisation of the legislation on the exercise of professions in member states, in order to render effective implementation of the Convention on academic professions and recognition of university degrees of 22 June 1962 adopted within the social dimension of integration and concerning the recognition of human rights. A step further is the Declaration of Montelimar II, adopted in 1996. Although the fundamental issue addressed in the Declaration is the development of tourism in the region, it indicates the need to harmonise and standardise policies, laws, procedures and systems of information on migration, providing the member states support for it. Following these footsteps, the agenda of the Central American process has included the free movement of persons between territories under the so-called CA4 agreement, removing in four member states (Guatemala, El Salvador, Honduras and Nicaragua) the requirement of visas for the nationals of the member states participating in the agreement and trying to improve the immigration border service.163

160  About the Puebla-Panama Process see: ‘Plan Puebla-Panama: to strengthen a region in the process of Globality’ (Guatemala, Florencio Salazar, 2001) and Plan Puebla-Panama: Introduction: Diagnosis Central America (Mexico, Presidence of the Republic, 2001). 161 Consejo de la Integración Social de Centroamérica, Programa intersectorial para la reducción de la vulnerabilidad en Centroamérica (San Salvador, SICA, 2000). 162  Excerpts from the Joint Statement issued on February 16, 1996. SICA. Official Documents. 163  Acuerdo Regional de procedimientos CA-4 para la extension de la visa única centroamericana, signed on 30 June 2005. It entered into force on 1 July 2005; https://reddhmigrantes. files.wordpress.com/2014/06/acuerdo-regional-ca4.pdf.

246  The Protection of Human Rights within the SICA From an institutional perspective in 1990, SICA created the Central American Commission of Migration Directors (OCAM).164 This regional body is in charge of ‘decision-making and the adoption of regional measures, which aim to improve migration systems in Central America and facilitate the movement of nationals between countries, to contribute to enable the regional integration process’.165 Through its regular meetings, the OCAM has helped to establish standards to address the issue of migration in the Central American integration process.166 Despite the commitment of the Central American states to achieve the free movement of persons within the sub-regional area, more efforts are needed specifically with regard to bilateral relations between member states facing major labour migration, as occurs between Costa Rica (which is not party to the C4 agreement) and Nicaragua. In order to address this issue, bi-national programmes are implemented with the collaboration of the International Organization for Migration (IOM) and the direct intervention of the respective Ministry of Social Integration, which has worked to ensure the enjoyment of rights, in particular social security and other social, cultural and economic rights to migrants and their families in the host state.167 In designing these programmes, the main aim is to guarantee the protection of migrants’ rights, with emphasis on two sets of vulnerable groups: women and children. These programmes contain specific actions to protect the right to vocational training and access to basic education for regional migrants. Another special provision regards the protection of cultural groups within the framework of recognition of multiculturalism and the explicit inclusion of civil society participation in the management of the education system. In spite of the implementation of the programmes referred to, they are not strictly rules issued by the Central American institutions concerning the protection of migrants’ rights. In order to guarantee social security, the Panama Declaration, discussed in another section of this chapter, seeks to ensure the enjoyment of rights in the case of movement of people within the integrated area.

164 Pursuant to the provisions of the Declaration of Antigua, SIECA called a meeting of Directors General of Immigration, held in San Jose, Costa Rica, 4 and 5 October 1990 in order to create the commission. 165 Consejo de la Integración Social de Centroamérica y la Secretaría de la Integración Social, Programa intersectorial (n 160). 166  There are several contentious issues, such as human trafficking and non-­ accompanied minors. Available at: http://eeas.europa.eu/delegations/nicaragua/press_corner/all_news/news/ 2014/20140930_01_es.htm. 167  In this regard, we refer to and discuss the general guidelines of the Binational Program between Costa Rica and Nicaragua to improve living conditions in places of life and fate of migrant populations, dated July 2000. It should be noted that these actions on the immigration issue fall within the framework of the Cooperation Agreement between the Central American Integration System (SICA) and the International Organization for Migration (IOM) signed in El Salvador on 27 January 1999.

The Institutions of the Central American Integration System 247 Furthermore, the Constitutive Treaty of the Central American Parliament (PARLACEN) provides that its members should be elected through elections ‘respecting a wide political and ideological representativeness’ and ‘in a democratic and pluralistic system that guarantees free elections on terms of equality’ for all parties.168 In this manner, there is the possibility for SICA member states to vote in the elections to the PARLACEN. As discussed above, the analysis of the different legal instruments demonstrated that SICA has adopted a series of norms granting rights to Central American citizens within the sub-region. Nevertheless, there are still contentious issues mainly related to labour migration that are dealt with in the bilateral relations established between member states. VII.  THE INSTITUTIONS OF THE CENTRAL AMERICAN INTEGRATION SYSTEM AND THE PROTECTION OF HUMAN RIGHTS

Turning now to consider the institutions which play a relevant role in the recognition and protection of human rights, the main bodies of the integration with functions in human rights-related issues are as follows: the Central American Court of Justice, the Central American Parliament (PARLACEN), as instance of political cooperation, and the Consultative Committee of the Central American Integration System (CC-SICA), which represents various social sectors.169 Noticeably the democratisation process and the relaunching of regional integration led to the necessary reform of the institutional setting up in order to include new organs. Thus, the implementation of the Central American Court of Justice, was conceived as a ‘major step in realizing the American demands for justice, legal certainty and regional common good that reaffirms the integration process’ as stated in the Panama Declaration (1992).170 Similarly, the PARLACEN has emerged in the pacification of the Central American region, as an institution specialising in the ‘analysis, recommendation and approach to regional issues’, including the protection of social and human rights. The initial legal and institutional framework of the Central American integration was highly criticised because of the exclusion of different social sectors which did not participate in the Central American integration process. In order to overcome this deficit a consultative body was created: CC-SICA.

168  Constitutive Treaty of the Central American Parliament (PARLACEN) signed in October 1987, Art 6. Available at: www.internationaldemocracywatch.org/index.php/parlacen. 169  The revival of integration, which occurred during the last decade has driven the institutional development in the sub-regional schemes in Latin America and the Caribbean. SELA (n 33). 170  The Declaration was issued on 11 October 1992.

248  The Protection of Human Rights within the SICA A. The Central American Court of Justice and the Protection of Human Rights The Central American Court of Justice follows the long legal tradition of the sub-region, and its origins date back to the early twentieth century, with the creation of the Central American Court for the Central American Peace Conference, decided at the meeting held in Washington from 14 November to 20 December 1907. As a result, a treaty instituted a judicial body which operated for ten years in Costa Rica.171 The ‘new’ Central American Court was established on 12 October 1994. The Court is part of the bodies established by the Protocol of Tegucigalpa and has the generic mission of ensuring respect for the law in the interpretation and implementation of the Protocol and its complementary instruments or acts pursuant to it.172 The Court has both contentious and consultative jurisdiction.173 Thus, within the ‘broad and complete jurisdiction’ assigned by the respective Statute,174 the Court acts in different areas as an international tribunal, as the Court of SICA integration, as the Court of consultation, as a Central American Constitutional Court, even if the parties request, it can act as a Court of arbitration.175 In particular, the Court is called to settle disputes between individuals or corporations and a state or any organ or organs that make up the Central American Integration System. On the other hand, it ‘works as a Court of permanent consultation’.176 By way of illustration the Supreme Courts of Central America and the member states may ask questions about the interpretation of any treaty or international convention in force or in respect of conflicts of agreements among themselves or with the domestic law of each member state.177 In a preliminary consultation, the Court may evacuate any consultation required by any judge or court pending a case regarding the uniform

171  The Central American Court of Justice has as a main function to guarantee the compliance with SICA law through the interpretation of the Tegucigalpa Protocol and its additional protocols, and to settle controversies that may arise between member states pursuant to art 12 of the Tegucigalpa Protocol. Corte Centroamericana De Justicia, Régimen Jurídico 2nd edn (Managua, CCJ, 2007). 172  Art 12. 173  The Central American Court in its new version was established on 12 October 1994, and its permanent headquarters is located in the city of Managua. It consists of two Magistrates for each of the States that have ratified the statute. 174  Central American Court of Justice. Statute. Art 22 regulates the jurisdiction, while Arts 23 and 24 refer to the advisory jurisdiction. The Statute is available (in Spanish) at: http://­ portal.ccj.org.ni/Ccj2/LinkClick.aspx?fileticket=XvbOVLKnlf4=&tabid=67. 175  R Chamorro Mora, ‘La Corte Centroamericana de Justicia’ in C Molina del Pozo (ed), Integración Euro-latinoamericana (Buenos Aires, Ciudad Argentina, 1996) 411, 414. 176  Central American Court of Justice. Statute. Art 22. 177  ibid, 410.

The Institutions of Central American Integration System 249 application of the rules comprised in the SICA legal system and consultation bodies or agencies of the Central American Integration System in the interpretation and application of the Protocol of Tegucigalpa and acts complementary and derivatives thereof.178 Finally, the Court is empowered to make comparative studies of the laws of Central America to achieve harmonisation and develop draft uniform laws for the legal integration of Central America. For the purposes of this book, Article 25 of the Statute is the most relevant because it makes it clear that ‘the Court’s jurisdiction does not extend to human rights, on which the Inter-American Court of Human Rights is solely competent’. According to a literal interpretation of the wording, it would say that the Court cannot exercise jurisdiction over issues involving human rights.179 However, despite this interpretation, in exercising its jurisdiction, the Court has taken a step further in landmark cases. Hence, the Central American court has ruled in favour of recognition of its competence in the field, though limited to specific cases. In the case Viquer v Nicaragua brought before the Court, the petitioner argued that during the criminal trial instructed by the judicial authorities in Nicaragua, procedural irregularities had presumably been committed based on prejudice of race.180 The Central American Court distinguished the source of the alleged violation of human right, considering that ‘if the alleged violations were attributed to a body, agency or institution of the Central American Integration System (SICA), resulting from a breach of the regulations governing this system’ the Court could have exercised its jurisdiction.181 In this latter case, the jurisdiction of the Court was based on the consideration that ‘one of the pillars underpinning the Central American Integration System (SICA) is the full respect, protection and promotion of human rights, pursuant to Articles 3 a) and 4) of the Protocol of Tegucigalpa’ and, on the imperative placed on the Court regarding its ‘duty to safeguard and enforce SICA legal system’.182 In any case, what the Court emphasised was the need to address a potential violation of human rights by the SICA legal system and its ‘bodies, agencies and institutions which are not subject to the jurisdiction of the Inter-American Court of Human Rights’.183 In Viquer v Nicaragua the Court dismissed the complaint because the case involved an alleged violation of fundamental rights given to the actions of

178 

ibid, 411. ibid, 420. 180  The case involved the allegations of a Spanish citizen (José Rodrigo Viguer) who had been imprisoned in Nicaragua due to the alleged commission of a crime. 181  Resolution on the case against José Rodrigo Viguer Judiciary of the Republic of Nicaragua for alleged human rights violation, 2 October 2000, SICA. Official Documents. 182 ibid. 183 ibid. 179 

250  The Protection of Human Rights within the SICA judicial authorities of member states subject to the American Convention on Human Rights, under Articles 44 and 61 paragraph 2 of that Convention, and appealing to Article 25 of the Convention and Statute of the Central American Court of Justice could not be heard by the Court. Since Nicaragua is a state party to the Inter American Convention on Human Rights, consequently, the alleged violation fell under the exclusive competence of the Inter-American Court of Human Rights, in accordance with the provisions of Articles 44 and 61 paragraph 2 of that Convention.184 This resolution represented a shift in the interpretation of the Court and a significant contribution to the development of a human rights system, as the Court began to recognise its jurisdiction to protect human rights vis-à-vis cases in which there is a human rights violation committed by the action or inaction of a body, agency or institution of SICA, resulting from a breach of the rules that govern the regional integration process. In these cases, the intervention of the Court would find its foundation in the rules of the Protocol of Tegucigalpa, according to which the fundamental principle of the organisation expresses that the protection, respect and promotion of human rights constitute the basis of SICA and more specifically, Article 3 a) and 4), which place on the Court the obligation to protect and enforce human rights within the system, since outside the sphere of the organs, agencies and institutions, human rights are protected by the Inter-American Court of Human Rights.185 Otherwise, the individual affected by the violation would be in a situation of vulnerability. Therefore, one might conclude that the rule set forth in Article 25, which denies jurisdiction to the Central American Court to hear human rights cases, includes this exception. Indeed, Viquer v Nicaragua is a leading case since in 1995 the Court had decided otherwise on the admission of a lawsuit (Duarte Moncada v ­Nicaragua) filed by a person jointly against the Government of Nicaragua, the mayor of Managua and the Central American Bank for Economic Integration (an organ that it is part of the Central American institutional structure) for violations of some of the individual rights and damage to a building this person owned. On that occasion, the Court considered that its jurisdiction did not extend to human rights, citing in support of its argument the rules of its statute and indicating that this kind of jurisdiction was exclusive of the Inter-American Court of Human Rights. Despite this, the complaint was not successful due to formal defects that were not corrected.186

184 ibid.

185  Accordingly, the Court does not hear human rights claims against member states that have ratified the American Convention on Human Rights and accepted the Inter-American Court’s contentious jurisdiction, circumstance which applies to all SICA member states. 186  Complaint filed on 13 January 1995 by Ricardo Duarte Moncada against the Government of Nicaragua, the Mayor of Managua and CABEI. Observations were made on ­certain

The Institutions of Central American Integration System 251 In the light of the new criterion of judicial interpretation, another case involving the action of a body of SICA has been solved in a similar manner. In Portillo Cabrera v Guatemala in 2008 the Court found in favour of the petitioner asserting that Guatemala violated community law by failing to request the suspension of a Central American Parliament member’s immunity before prosecuting him.187 In sum, the Court may exercise its jurisdiction over complains regarding the violation of human rights arising under SICA law. Some commentators have underlined that the Central American Court of Justice as the principal and permanent organ of the Central American Integration System should exercise jurisdiction over human rights complaints under community law, and as ‘representative of the national conscience of Central America as depository of the values ​​that constitute the Central American citizenship’ should integrate as an essential element of its regulations the acceptance of individuals as active participants in the process with the ability to appear before it in cases in which their human rights are violated under the operation of SICA.188 B. The Central American Parliament (PARLACEN) and its Role in the Protection of Human Rights The Central American Parliament (PARLACEN) was constituted as a regional body with the function of issuing analysis and recommendations on political, economic, social and cultural interest, in order to achieve peaceful coexistence within a framework of security and social welfare, which is based on representative and participatory democracy, pluralism and respect for national laws and international law.189

While its creation dates from the Declaration of Esquipulas, it was only ‘constitutionalised’ in the Tegucigalpa Protocol and in 2008 its constitutive treaty was reformed in order to increase PARLACEN’s participation in SICA law-making.190

essential formalities of his claim to rule on its admissibility, but the term expired on 20 February 1995. Ricardo Duarte Moncada v Nicaragua et al, Judgment of 13 January 1995. Available at: http://cendoc.ccj.org.ni/ExpedientesFichaLectura.aspx?id=27. 187  Alfonso Antonio Portillo Cabrera v Guatemala, Judgment of 5 May 2008. Available at: http://cendoc.ccj.org.ni/Documentos/75-02-11-08-2006/04744/Res-75-02-11-08-2006.pdf. 188  Chamorro Mora (n 172) 411. 189 Treaty establishing the Central American Parliament and other political instances— PARLACEN Constitutive treaty (n 9) Art 1. The Treaty was ratified by El Salvador, Guatemala, Honduras and Nicaragua, Costa Rica left out. The PARLACEN is composed of 20 representatives of each State member, elected for a period of five to direct universal suffrage, which may be re-elected. The PARLACEN headquarters are located in Guatemala. 190  In the institutional framework of SICA, PARLACEN has the potential to play a prominent role since it can boost the political and democratic dimension of the Central American

252  The Protection of Human Rights within the SICA The functions of PARLACEN in the field of human ​​ rights are expressed in several directions. First, the Preamble of the Treaty itself establishes that the Central American Presidents emphasise their commitment to human rights and, thus, recognise that the PARLACEN’s role is to move towards gradual and progressive constitution of the Central American union and to achieve sustainable development in a context that guarantees peace and respect of human rights.191 Second, among the working committees established within the Central American Parliament, there is one Commission on ‘Peace, Public Safety, Human Rights and Ethnic Groups’.192 In accordance with the Treaty, this commission has unlimited duration and is responsible for the study of human rights and shall prepare a detailed report of issues relating to the protection of human rights. The relevance of these commissions is that the Parliamentary Groups have been conceptualised as forums for multi-party and multinational political participation, which gives the work of the parliament ‘a supranational dimension’.193 Within the SICA, the PARLACEN is authorised to require annual reports to the institutions of the system to evaluate the progress of the work and programmes as stipulated in Article 29, which becomes relevant if one considers that the PARLACEN is a ‘deliberative forum for the analysis of political, economic, social, cultural and security issues of Central America’, as provided in Article 5 of the Treaty. Third, and in the area of its external powers, the Central American Parliament can participate in the negotiation of agreements and conventions with other organisations to fulfil its objectives of promoting the consolidation of democracy and respect for human rights. In this case, it is worth citing the framework cooperation agreement signed between UNESCO and the Central American Parliament, to collaborate in implementing programmes, projects and activities, founded on ‘the universal values ​​of respect for life, liberty, justice, solidarity, tolerance, human rights and equal treatment between human beings’.194 In addition, the Central American Parliament has conducted other activities in the field of human rights and concluded

integration process. See ‘Protocolo de Reformas al Tratado Constitutivo del Parlamento Centroamericano y otras instancias políticas’, signed on 26 February 2008. Available at: www. parlacen.int. 191 Treaty establishing the Central American Parliament and other political instances (n 187). 192 ibid. 193  In order to achieve these goals, recognising a special ability PARLACEN aims to: develop initiatives to achieve integration; make timely decisions and seek financial resources for developing their programmes and projects and act as the forum-political excellence with the participation of all ideological trends in the region, Integral Mission Statement the Central American Parliament, available at: www.parlacen.int. 194 See Framework Agreement between UNESCO and PARLACEN, signed on 21 May 1999; UNESCO, Archives, Agreement 794.

The Institutions of Central American Integration System 253 various agreements (memoranda of understanding) with the European Union and Central American universities.195 Finally, among other initiatives undertaken by the PARLACEN, there is, for instance, the establishment of a Central American inter-parliamentary Commission on Human Rights and the possible creation of the figure of a Regional Obudsman. The Commission would consist of deputies to the National Assembly and to the Central American Parliament, with the aim of strengthening the defence of human rights in the isthmus. This proposal for a Central American ‘Ombudsman’ foresees the possibility to receive complaints from citizens of the region in defence of their rights. However, its creation has to be decided by the Central Council of Attorneys, the Central American Inter-parliamentary Commission and Central American Parliament.196 To conclude, the PARLACEN has the potential to play a significant role as an institution within the Central American integration which addresses and discusses issues relating to human rights, thereby proving that it pays particular attention to the integration process. The main shortcoming in this regard is the lack of involvement of citizens in the PARLACEN elections. C.  Human Rights and the Relevance of the Consultative Committee of the Central American Integration System (CC-SICA) Among the institutional changes introduced by the SIT, as noted above, is the creation of the Consultative Committee of the Central American Integration System (CC-SICA). The Tegucigalpa Protocol established that it should involve various sectors of the civil society. The Tegucigalpa Protocol, in Article 16, states its nature and functions, as ‘a committee with a purely advisory function’ which is in charge ‘to advise the Secretariat of Social Integration and will be related to the Consultative Committee of SICA in the context of Article 12 of the Protocol of Tegucigalpa’.197 This body shares similar characteristics to other committees channelling the participation of different sectors (economic, social and cultural) of the civil society in the integration process and providing support and assistance to other organs of the system within its competences. In a recent development, the CC-SICA

195 A Vela Mena, ‘El Parlamento Centroamericano’ Justicia’ in C Molina Del Pozo (ed), Integración Euro-latinoamericana (Buenos Aires, Ciudad Argentina, 1996) 577–88. 196  Conclusions of the Meeting of Ombudsmen Representatives and Central Area meeting in Guatemala in April 2002, organised by the Central American Parliament, the Unit for the Promotion of Democracy of the OAS and the Finnish Parliament. Consejo Centroamericano de Procuradores de Derechos Humanos, Políticas publicas regionales sobre la reducción de la pobreza en Centroamérica y su incidencia en el pleno disfrute de los derechos humanos (Instituto Interamericano de Derechos Humanos, San Jose de Costa Rica, 2008). 197 SICA. Official Documents.

254  The Protection of Human Rights within the SICA organised (through the different national chapters) the consultation with the civil society on ‘Esquipulas III’ agreements and resolutions across the region, receiving a proactive response in the different member states.198 The Council has enabled greater participation of civil society through the development of mechanisms for communication and exchange of information between different organisations and between them and the General Secretariat of SICA. The Council also works with regional networks, with the aim of bringing the process of integration close to the civil society, in order to provide its perspective on the development of the integration process, ensuring through this means the effectiveness of its participation.199 Two sectors of civil society that are particularly interesting in terms of human rights are trade unions and non-governmental organisations dedicated to promoting human rights. It is clear, as regards specifically the trade union sphere, that the trade unions have claimed the necessary link between the economic and social spheres. This represents a series of questions that must be taken into account in the integration process. In particular, the issues falling into the competence of the Central American Economic and Social Council, regarding the ratification and implementation of the ILO Conventions on trade union rights and to design policies to promote employment and equal opportunities of access to it, and targeted employment policies for women, disabled and older workers. Beyond that, in relation to human rights issues and within the regional organisations that make up the CC-SICA, it is worth mentioning the

198  Guatemala and El Salvador convened the consultation under the moto ‘Esquipulas Social de los Pueblos Centroamericanos’. Guatemala held its activity on 15 April 2008. The participants stressed the need to address the social issues, to address the issues of the productive sectors, science and technology and environmental protection. El Salvador held the consultation on 29 and 30 April 2008 and collected a large number of proposals on economic, social and food safety issues. In Honduras, the activity was carried out on 20 May 2008 and the process highlighted various topics related to the social area, political and integration; meanwhile, in Nicaragua the consultation took place on 22 May 2008 involving various issues, but emphasising regional integration and strengthening the institutions of SICA. Panama carried out a consultation on 21 May 2008, participants highlighted the need to accelerate the integration, the participatory democracy, consolidate the inclusive economic growth and the implementation of a uniform and belligerent social policy. In the Dominican Republic the consultation took place on 17 June 2008 and participants stressed the necessary integration of a Central American common social policy. The outcomes of the consultation are available at http://library.fes.de/pdf-files/bueros/fesamcentral/07595.pdf. On civil society participation in Central American integration see J Delgado Rojas, ‘Integración formal, integración real y sociedades civiles en la Centroamérica actual’ in W Soto Acosta and M Sáurez Ulloa (eds), Centroamérica: casa común e integración regional (San José, Universidad Nacional de Costa Rica-CSUCA, 2014) 105–28. 199 R Grinspun, C Alvarenga and Y Shamsie (eds), Hacia una Integración desde Abajo: Participación, Sociedad Civil e Integración Centroamericana (San Salvador, SICA/CERLAC/ PAR, 1999).

The Institutions of Central American Integration System 255 Commission for the Defence of Human Rights in Central America (CODEHUCA).200 This commission is a non-governmental organisation at regional level, with the Category II Consultative Status at the United Nations Organization since May 1991. Among its objectives it must be highlighted that it aims at developing and implementing a comprehensive conception of human rights, deepening the concept of Central American union. In connection with the integration process, it seeks to achieve coordination with other social sectors in the region to defend human rights in the context of Central American integration, in order to build ‘a common agenda and strategy organizations that defend human rights and social sectors in the region for the defence of economic, social and cultural rights’.201 The remaining challenge is to increase the ability to make effective the participation of the civil society organisations in Central America, favouring the CC-SICA, as a forum for action to achieve a higher incidence in the integration process in the formulation of policies and strategies of the organisation. Through the CC-SICA, the civil society groups have channelled their views and proposals on the transformation and evolution of the system. D.  Other Bodies Among the initiatives coming from the institutions of integration, it is worth mentioning the work carried out by the SICA General Secretariat which is responsible for providing support to other bodies and institutions to promote integration and full participation of the civil society regionally with the aim of establishing a ‘region of peace, freedom, democracy and development’, by integrating political, economic, social, cultural and ecological elements. In particular, the SICA General Secretariat is working with ­governments in the implementation of decisions taken within the ALIDES.202 In its internal structure, the General Secretariat of SICA (hereinafter: SG-SICA), has a division dedicated to Legal and Political Affairs. In the framework of the existing treaties and presidential declarations, this division coordinates its activities with the specialised secretariats in the implementation of projects, such as the one to combat poverty. SG-SICA also plays an important role in the preparation of the initiatives that will be discussed 200 IEPALA, CODEHUCA, available at: www.gloobal.net/iepala/gloobal/fichas/ficha.php? entidad=Agentes&id=2522&opcion=descripcion. Inter-American Yearbook on Human Rights, Inter-American Commission on Human Rights/La Comision Interamericana de Derechos Humanos (The Hague, Kluwer Law International, 1996) 1451. 201  Enríquez (n 57). See F Santos Carrillo, Sociedad civil e integración centroamericana (San Salvador, ETEA, 2013). 202  MB Olmos Giupponi, ‘El diseño de una política centroamericana en materia de derechos humanos: bases para su desarrollo’ in MB Olmos Giupponi and LA Rubio Ríos (eds), La Adopción de Políticas en el Sistema de la Integración Centroamericana. Propuestas para su perfeccionamiento (Madrid, Plaza & Valdés, 2011) 195–223.

256  The Protection of Human Rights within the SICA in the meetings of Central American Presidents, among others. The role of the SG-SICA has increased after the period of institutional reform initiated in 1997. In this regard, even it has participated in a functional cooperation framework agreement with the Council of Social Integration to provide secretariat services to the social subsystem as part of the transition period towards a unified General Secretariat.203 In the external dimension it develops an important task, through agreements with agencies responsible for human rights in the exercise of the powers granted by the treaty, for purposes of cooperation and collaboration in the promotion and protection of human rights in Central America, such as the treaty of cooperation signed with the Central American Council of Human Rights Attorneys in 1996.204 In conclusion, it can be said that in Central America, the dimension of recognition and protection of human rights is ‘under construction’, imbued with the new impetus of this phase of integration. While it should be noted that the new legal and institutional framework have allowed progress in the integration, the challenge is to try to move forward with necessary reforms to deepen the integration. As stated in the Declaration of Nicaragua, the regional institutions enjoy greater strength and rationality, in order to attain the goal of achieving full respect for human rights in the Central American region.205 VIII.  CHALLENGES FOR THE PROTECTION OF HUMAN RIGHTS IN SICA

The SICA’s regional agenda has moved towards the inclusion of political and human rights questions in a process previously strictly centred on economic integration. This shift has been backed up by a series of regional development treaties, strategies and programmes mainly in the realm of sustainable development, social integration and democratic security. These legal developments indicate a higher level of cooperation and integration among SICA member states and a specific commitment to achieve greater levels of progress. As for external relations, member states have agreed to

203 See Functional Cooperation Framework Agreement between the Council of Social Integration and the General Secretariat of Central American Integration System, signed on 26 June 1998. 204 There are also technical and administrative bodies responsible for coordinating the work of certain areas, we refer to the accumulation of various existing departments on matters within the institutional framework of the process, called Specialized Ministries, which may be cited by their relationship to the social dimension the Secretariat of the Central American Educational and Cultural. Besides her, there is the Executive Secretariat of the Commission on Environment and Development. 205 SICA. Official Documents.

Challenges for the Protection of Human Rights in SICA 257 establish a political dialogue (including the promotion and protection of human rights, actions against insecurity, the strengthening of the rule of law, poverty reduction and social cohesion); strengthen multilateralism developing joint initiatives in the international arena, and cooperating in the area of Common Foreign and Security Policy. Despite the progress accomplished in the framework of SICA, the region currently faces several challenges, which can be summarised as follows: i.

Weakness of the rule of law: Democratic instability is one of the main obstacles as seen during the coup d’état in Honduras. At the same time, several human security threats have arisen such as rising levels of social violence, high levels of violence against women, migratory pressures, organised crime and drug smuggling. ii. The slow progress made in the integration: Currently, the economic integration sub-system includes Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua as parties to the 1993 Guatemala Protocol. Panama has signed this Protocol, but is not party to the economic integration sub-system. This process is mainly inter-governmental (based on the decision taken by the Ministers of Economic Integration). The Secretariat for Central American Economic Integration (SIECA) provides technical support. iii. Achieving supranationality: As regards institutional aspects, SICA in practice is still an inter-governmental organisation although the treaties foresee a supranational structure.206 The main organs (Central American Court of Justice, Central American Parliament, Executive Committee, General Secretariat and Consultative Committee) present some features of supranationality, as in the case of the Court. Nevertheless in practice, inter-governmentalism is still the rule. iv. Advancing in the protection of human rights: SICA has emphasised the priority issues as identified by the Central American Presidents on 12 February 2008, such as: financing for development, migration, ­environment, public safety, and the access to economic and financial credit. The EU is still perceived as a desirable model of integration. Consequently, SICA is trying to move towards a comprehensive notion of development that comprises the economic and commercial aspects, but also fundamentally social aspects and human rights.

206  J Delgado Rojas, ‘Supranacionalidad y libre comercio en Centroamérica: de la ilusión comunitaria a la realidad multilateral’ in MB Olmos Giupponi and LA Rubio Ríos (eds), La Adopción de Políticas en el Sistema de la Integración Centroamericana. Propuestas para su perfeccionamiento (Madrid, Plaza & Valdés, 2011) 135–62.

258  The Protection of Human Rights within the SICA v.

Increasing the participation of the civil society: Despite the need to increase the role of the civil society, there have been two successful experiences in the past years regarding the participation of civil society groups in trade negotiations. The experiences of the DR CAFTA and the bi-regional agreement with the EU demonstrate the high level of engagement of the civil society, thus, underlying the need for a greater function of the SICA Consultative Committee.

5 The Andean Community and the Protection of Human Rights I. INTRODUCTION

I

SSUES DIRECTLY OR indirectly concerning human rights within the context of the Andean process of integration1 currently underway have existed since integration began. It is also true, however, that special consideration of this issue as well as implementation of relevant legal instruments have resulted from progressive development, and that states participating in the integration process are showing an increasingly independent and particular interest in human rights.2 Essentially, although the Cartagena Agreement does not guarantee a system of recognition and protection of human rights within the process of Andean integration, it is clear that the process of integration that is evolving has taken gradual, decisive steps in human rights issues. It is thus worth considering the stance on human rights, which builds on earlier precedent,3 taken by Andean nation presidents in the Act of Carabobo of 2001, wherein they declare their

1  The Andean Pact was founded in 1969 by Bolivia, Chile, Colombia, Ecuador and Peru. In 1976 Chile withdrew claiming economic incompatibilities. Venezuela joined the Pact in 1973 but withdrew in 2006. The executive body is the Secretary General. In 1979, the Andean Council of Foreign Ministers, the Andean Court of Justice and the Andean Parliament were created. In 1990, the Andean Presidential Council was created. See generally ‘Las organizaciones internacionales en América (II)’ in M Díez de Velasco, Las Organizaciones Internacionales 12 edn (Madrid, Tecnos, 2002) 731–44. 2  See CM Díaz Barrado and MB Olmos Giupponi, ‘El reconocimiento y la protección de los derechos humanos en el seno de la Comunidad andina’ in FM Mariño Menéndez (ed), El Derecho Internacional en los albores del siglo XXI, Homenaje al profesor J M Castro-Rial Canosa (Madrid, Trotta, 2002) 175, 191, 198. As previously stated, issues relevant to human rights have ‘gradually’ been given specific attention by key figures in the Andean Community of Nations, extending beyond the protection already granted within the framework of the ­so-called ‘social dimension’ of this integration process. 3  As pointed out above, an immediate precedent to be considered is the Riobamba Code of Conduct, signed on 11 September 1980 by the Presidents of Colombia, Ecuador and Venezuela and the Personal Representative of the President of Peru, as ‘in it the Andean countries reaffirmed that respect for human, political, economic and social rights is a fundamental domestic rule of conduct of the Andean States and that its defence is an international obligation to which the Status are bound, and that, as a result, joint action taken to protect those rights does not violate the principle of non-intervention’. Andean Community of Nations, Official Documents.

260  The Andean Community and the Protection of Human Rights firm aim of continuing to consolidate democracy in Andean nations and ­encouraging the more widescale participation of citizens in the construction of a more just and democratic society that ensures the effective exercise of human, civil, political, economic, social and cultural rights.4

Human rights in the Andean Community of Nations (CAN), then, must be analysed in the context of both the essential characteristics or features that define the process of integration, with special consideration given to the Andean social dimension, as well as in the context of their basis in the diverse legal instruments which have been adopted over time in a most unique manner and which address human rights. In general, action relevant to human rights within the framework of Andean immigration can be said to structure itself on the Andean Social Charter of 1994, as well as on the contents and scope of the Andean Charter for the Promotion and Protection of Human Rights, eventually adopted in Guayaquil in July of 2002 at the Second Meeting of South American Presidents.5 These are undoubtedly the two legal instruments at the heart of the integration scheme which evince the highest degree of interest in recognising and protecting human rights, although it must be stressed that the two instruments not only address different goals but also differ greatly in terms of content.6 Before proceeding to a detailed study of the legal instruments and ­elements with a direct bearing on human rights in the Andean Community of Nations, we must thresh out the aspects and characteristics that have come to constitute what might be called the ‘Andean system’ as regards the recognition, promotion and protection of human rights, given that we are in the face of a sub-regional integration scheme in Latin America and the Caribbean in which human rights have been approached with increasingly particular and focused attention through regulation, which is perhaps the area where the most significant advances have been produced.

4  And in which their commitment to drafting an Andean Civil Rights Charter is established when the Andean presidents express their ‘decision to approve an Andean Civil Rights Charter that helps to guarantee the effective exercise of human rights, reinforce democratic governance and the rule of law, and firmly establish a culture of peace in the Andean nations’. Andean Presidential Council. Documents from Andean Presidential Council Meetings (1989–2002). See, also, Díaz Barrado and Olmos Giupponi (n 2). 5  In order to gain insight into the drafting of this legal instrument and its importance in the Andean immigration process, it is advisable to consult the Memorandum on the Andean Charter for the Promotion and Protection of Human Rights, a document drafted on October 2002 by Ecuador’s Ministry of Foreign Relations, in which a summary is given of the history of events leading to the drafting of the Charter as well as of its contents and contributions. 6  It is also worth mentioning, alongside this, the stance maintained by Andean nation presidents in their capacity as the constituents of the Andean Presidential Council, whose Declarations contain very clear references to matters pertaining to human rights. See, in particular, Andean Presidential Council, Documents from Andean Presidential Council Meetings (n 4).

Characteristics of Andean Integration Linked 261 II.  CHARACTERISTICS OF ANDEAN INTEGRATION LINKED TO PROTECTION OF HUMAN RIGHTS

Amongst the features that define the Andean process of integration, it is important to select those we consider most relevant when identifying issues pertinent to human rights, in terms of regulation as well as the Community’s institutional framework.7 To this end, we must begin by affirming that the process of Andean integration boasts a long history in the area of human rights. At the very least, from its beginnings an overarching aim which exceeds the boundaries of economics and encompasses other aspects such as social and political concerns has been apparent.8 This has led to a gradual and significant broadening of the scope of integration in the Andean region.9 It is clear that these advances would not have been possible without the organic framework which was laid in the 1990s and the reform which culminated in the creation of the Andean Integration System through the Trujillo Protocol which, as previously mentioned, introduced a ‘new institutional and management design to the Andean Group intended to consolidate democratic processes, improve international competitiveness and address challenges endemic in the region such as, amongst others, social imbalances’.10 In addition, and in contrast with other sub-regional initiatives, the initial institutional architecture was that of a Community.

7  The literature on Andean integration is abundant: see, for instance: J Córdoba Zuloaga, Integración andina en perspectiva: su importancia en la era de la economía internacional ­globalizada (Lima, ERICKSON, 1997); O Castañeda Arrascu, ‘Comunidad Andina y el nuevo sistema andino de integración’ (1996) 1 Revista Jurídica del Perú 21–24; J Oré León, ‘Comunidad Andina: Instituciones y Órganos’ (1996) 1 Revista Jurídica del Perú 25–30; Andean Community of Nations. General Secretariat, European Communities: Nueva realidad andina: resumen ejecutivo (European Union, Brussels, 1998); Andean Community of Nations. General Secretariat: Veintiocho años de integración andina: un recuento histórico (Andean Community, Lima, 1998); E Camacho Omiste, ‘Pacto Andino: la integración vive’ (1991) 42 Nueva Socie­ dad 9–13; A Grados, ‘Grupo Andino y su plan de acción ante recientes iniciativas integracionistas’ (1992) 176(17) Integración Latinoamericana 38–49; IRELA, Perfiles de países Comunidad Andina de Naciones (Madrid, IRELA, 1998); FV García Amador, El ­ordenamiento jurídico andino (Buenos Aires, Depalma, 1977). 8  Bondía García, El compromiso de los Estados miembros en la Comunidad Andina (2000) ‘El compromiso de los Estados miembros en la Comunidad Andina con el mantenimiento del orden democrático. ¿Compromiso real o retórica?’ in Iberoamérica ante los procesos de integración, XVII Jornadas de la AEPDIRI (Madrid, Boletín Oficial del Estado, 2000) 111. 9  See JJ Taccone and U Noriega (eds), Informe Andino (Buenos Aires, BID-INTAL, 2002) 9. The first strategic measures implemented were based on the Caracas Declaration, signed on 3 February 1989, and began with a ‘series of meetings among the member states Presidents aimed at analysing, driving and strengthening the process of sub-regional integration’. G Molano Cruz, ‘La integración andina: origen, transformaciones y estructuras’ (2011) 33 (15) Revista BID-INTAL 35–46. 10 JL Da Cruz Vilaça and JM Sobrino Heredia, ‘Del Pacto a la Comunidad Andina: El ­Protocolo de Trujillo de 10 de marzo de 1996, ¿Simple reforma institucional o profundización en la integración sub-regional?’ (1996) D-26 Gaceta Jurídica de la Comunidad Europea 87–88.

262  The Andean Community and the Protection of Human Rights Although the geopolitical map of the region has been significantly changed by Venezuela’s withdrawal as a Member State in 2006, the legal ­developments attained in recent years have remained undisputed.11 It is also true that the disagreement experienced regarding the political and ideological approaches in the negotiations of Free Trade Agreements (FTAs) generated a fracture that led to an internal crisis which culminated with Venezuela’s withdrawal.12 In an attempt to boost the integration process in July 2011 the CAN Presidents reaffirmed their commitment to i­ntensify Andean integration and launched the reform of the Andean Integration ­System (SAI). Throughout, inclusion of the issue of human rights at the very heart of the Andean integration process has come about due to the constant evolution of the integration scheme, and has been incorporated into Andean integration via two routes. First, through the strengthening of democracy in the Andean sub-region, which has led to general advances in the recognition and protection of human rights. Second, through mechanisms designed to guarantee rights as part of the integration process, ie the social dimension of integration. In addition to these two routes, recently an autonomous approach to human rights has emerged at the core of Andean integration and has led to the drafting of specific legal instruments addressing the issue.13 We will now pause to point out two features of Andean integration which have promoted and fostered the incorporation of human rights into the integration process: the constant evolution that has been accompanied by ­profound institutional reform and the affirmation of democracy as a ­governing principle of the Andean Community of Nations.

11 There were several factors behind Venezuela’s withdrawal, partly determined by the i­deological character of the governments in charge in Bolivia and Venezuela which have taken the decision to nationalise hydrocarbons. After Venezuela left the bloc, Bolivia was considering whether to follow in its footsteps, which would have thrown the regional integration into disarray. 12  These disagreements were made evident at the Fourth EU-Latin America and Caribbean Summit, held in Vienna in 2006. European Union-External Action, ‘4th EU-Latin America/ Caribbean Summit in Vienna (Austria) 12 May 2006’ available at: http://eeas.europa.eu/lac/ vienna/index_en.htm. 13  Due to this, it has been argued that ‘the achievements made during sub-regional consultation, through work carried out in conjunction between the state and civil society in each country, justify the claim that the drafting and adoption of the Andean Charter of Human Rights is not a merely diplomatic effort between Andean states, but rather is aimed, as suggested above, at providing a modern international human rights instrument, revolutionary and innovative in the field of international law, incorporating a holistic view of human rights and the principle of universal justice. It is, in short, a joint effort between states and communities towards sub-regional integration in the field of human rights that has long been desired and is not an impossibility for our peoples’, Memorandum on the Andean Charter for the Promotion and Protection of Human Rights (n 5).

Characteristics of Andean Integration Linked 263 A. The Progressive Incorporation of Human Rights into the Andean Integration Scheme Owing to difficulties arising under LAFTA (the Latin American Free Trade Area),14 developing countries in the Andean region signed the Cartagena Agreement to create, on 27 May 1969, a sub-regional integration group initially called the Andean Group (henceforth: ANGR).15 Of all sub-regional agreements in the area, one characteristic unique to Andean integration is that it is often referred to as the group boasting the greatest degree of improvement to its legal and institutional architecture.16 At any rate, the salient point is that since its beginnings Andean integration was designed to be a project of integration aimed at reaching common 14  The Treaty of Montevideo of 1960 had resulted in creation of the Latin American Free Trade Area (LAFTA), which in 1980 became the Latin American Integration Association (ALADI). 15 The signatories to the Cartagena Agreement were Bolivia, Colombia, Chile, Ecuador and Peru, and Venezuela later joined the group in 1973. This Agreement came into effect on 16 October 1969, establishing the integration project originally known as the Andean Group. Currently, Panama participates in the group’s meetings as an observer. In April 1997 Peru announced its withdrawal from the Community after five years in which it enjoyed a ‘special status’ with respect to compliance with Community obligations. In June 1997 its reintegration in the sub-regional group was agreed, a process which ended in 2005. Among the extensive literature on the topic and in addition to the scholarly literature already cited, see: I B ­ asombrio, Integración Andina: Instituciones y Derecho Comunitario (Santiago de Chile, CEPAL, 2004); Instituto de relaciones europeo-latinoamericanas (IRELA), Tres décadas de integración andina: logros y nuevos retos (Madrid, IRELA, 1999; H Maldonado Lira, Treinta años de integración andina: Balance y perspectivas (Lima, Secretaría General de la Comunidad Andina, 1999); JA Quindimil López, Instituciones y Derecho de la Comunidad Andina (Valencia, Tirant Lo Blanch, 2006) and B Vela, ‘La encrucijada del proceso andino de integración’ (2007) 12 OASIS 425; A Gutiérrez, ‘La Comunidad Andina de Naciones: Balance y perspectivas’ (1998–99) Aldea Mundo 27–34 available at: www.saber.ula.ve/bitstream/123456789/17996/1/art4_ am_n6.pdf; General Secretariat, ‘Agenda Estratégica CAN 2010. Principios Orientadores y Agenda Estratégica Andina’ (Lima, CAN, 2010) available at: www.comunidadandina.org/ public/libro_118.htm; JJ Chan Sánchez, ‘Aspectos políticos de la integración del Grupo Andino, 1989–1996’ (1997) 47 Comercio Exterior 378–85; A Fairlie Reinoso, ‘A 30 años del Proceso: fortalecer la Unidad Andina’ (1999) 2 Integración & Desarrollo 27–30; H Maldonado Lira, Treinta años de integración andina: Balance y perspectivas (Lima, General Secretariat of the Andean Community of Nations, 1999) and G Sánchez Avendaño, ‘Marco legal e institucional de la integración en la Comunidad Andina de Naciones’ (1999) 132 Revista Javeriana 191–98. 16  Indeed, although it is true that the ‘ambitious objectives’ of the ANGR resulted in a high degree of institutionalisation, some analysts—and not without reason—have argued that this occasionally creates certain problems of coordination amongst its organs. Along these lines, it has been argued that there are three characteristics essential to the Andean Community of Nations: the existence of an Andean legal order, its supranationality and the existence of Community organs which are also supranational, tasked with administering Andean justice in administrative authorities (the General Secretariat) and judicial authorities (the Court of Justice of the Cartagena Agreement). To these can be added a fourth characteristic, which is the fact that Community regulations cover increasingly broad spheres of activity, both economic and social. CM Díaz Barrado, ‘Iberoamérica ante los procesos de Integración: Una aproximación general’ in XVIII (1999), Jornadas de la Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI), (Madrid, Boletín Oficial del Estado, 2000) 57.

264  The Andean Community and the Protection of Human Rights goals which were not limited exclusively to economic and trade spheres but extended to social and political spheres.17 In this way, the ANGR encompassed, in addition to the goal of economic and trade integration, political collaboration and coordination in different areas such as culture, health, science and, crucially, labour.18 With these foundations, it is evident that as regards the progressive incorporation of issues involving the recognition and protection of human rights within the evolution of the Andean Community of Nations, at least three different phases can be identified, essentially corresponding to the different periods that comprise this process of evolution. On one hand, we see a period of growth, expansion and design of the Andean integration scheme, spanning from 1969 to 1976, when Chile withdrew from the integration process.19 This ‘stagnancy’ in the development of the integration scheme was in part due to a lack of political support for integration on the part of Member States.20 In this first phase, as regards recognition and protection of fundamental rights, the most significant point is that perusal of the founding text shows that one of the agreement’s most noteworthy objectives was to ‘promote the balanced and harmonious development of the member states’, as laid out in Article 1, and that this development, as defined in Article 2 of the Cartagena Agreement, ‘must lead to a fair distribution amongst the member states of the benefits deriving from integration, so that the existing differences among them are reduced’. It is apparent that although no express mention is made of the recognition and protection of human rights, the agreement does highlight the importance of ‘the principles of equality, justice, peace, solidarity and democracy’.21 In addition, a second phase can be identified, beginning when the previous phase ended and lasting almost throughout the eighties. This phase 17 Bondía García (n 8) 111. For a more detailed study of social aspects, see R Franco and A Di Filippo (ed), Las dimensiones sociales de la integración regional en América Latina (­Santiago, CEPAL, 1999), available at: http://repositorio.cepal.org/bitstream/ handle/11362/2190/S9860431_es.pdf?sequence=1 18 IRELA (n 7) 33. This is made clear in all declarations by the Andean Community of Nations. It is stated, for example, that the key objectives of this process of integration are to ‘promote the balanced and harmonious development of the Member countries under equitable conditions, through integration and economic and social cooperation; to accelerate their growth and the rate of creation of employment; and to facilitate their participation in the regional integration process, looking ahead toward the gradual formation of a Latin American Common Market, and to bring about an enduring improvement in the standard of living of the sub-region´s population’. Andean Community of Nations. Official Documents. 19  Chile withdrew from the Agreement on 30 October 1976. Nonetheless, according to the Protocol for withdrawal, rights and obligations arising from Decision 40 on double taxation, Decision 46 on Andean multinational corporations and Decision 56 on international roads among others remain binding. 20  See IRELA (n 7) 33. 21  A Lattuca, Asimetrías en el tablero comunitario. El crecimiento frente a la equidad (Montevideo, ALADI. Secretaría General, 1997). Presentation at the IV Seminar ‘La Dimensión Jurídica de la Integración’ 2-3 octubre 1997, Santiago de Chile available at: www.aladi.org/ biblioteca/Publicaciones/ALADI/Secretaria_General/SEC_di/1000/1050.PDF.

Characteristics of Andean Integration Linked 265 is known as the ‘lost decade of integration’, a period widely accepted to have been distinguished by conflict between commitments undertaken and their failure to be applied due to the precarious situations of members of the Andean Group during this period.22 This phase nevertheless ended with important changes to the Andean integration process. On 12 May 1987, after the aforementioned crisis, the Quito Protocol was signed with the aim of reducing this conflict. This legal instrument is particularly relevant, as it brought important progress in the institutional scope of the Andean integration process, particularly as regards the more active incorporation of social aspects and cooperation within the Andean framework. From a more pragmatic point of view, it can be said to have comprised the first attempt at revival of the ANGR, including modernisation of its legal structure.23 As mentioned above, during this period we can identify an instrument with immediate bearing on the area of human rights—the Riobamba Code of Conduct—which came into effect in 1980. It is worth pausing to consider the fact that in this instrument Andean nations reiterated their commitment to the notion that respect for human, political, economic and social rights should constitute the fundamental rule of internal conduct of the Andean Group States and that defence of these rights is an international obligation to which states are subject. They also declared that joint action exercised in protection of these rights therefore does not violate the principle of non-intervention.24 Finally, the decade of the nineties saw a revival of the integration process. It is of particular importance that this process was led by Andean heads of state. During this phase, democracy in regional and sub-regional integration processes took root. A period characterised by Presidential meetings began, and culminated in profound institutional reform of the integration process to adapt it to the new social, economic and political reality.25 The most significant point is that during this period issues involving human rights began to occupy a special position in the daily concerns of the Andean Community of Nations. Evidence of this can be seen in the fact that in 1990 Andean heads of state enacted the Act of La Paz and, similarly, the Acts of ­Cartagena,

22  It could be argued that use of the expression ‘the lost decade of integration’ stems from the situation suffered by Andean Group members during these years. 23  Another important milestone during this phase of the evolution of integration is the Presidential Meeting that took place in the Galápagos in December of 1989, at which Heads of State introduced the changes needed to rectify existing problems. This was achieved through meetings of the Andean Presidential Council, and the changes were implemented in the early nineties. Building on the notions of reform established by the Quito Protocol, the foundations were laid for what was called the ‘Strategic Design for the Orientation of the ANGR’, eg consolidation of the sub-regional Andean area. See IRELA (n 7) 33. This Protocol is available in Documents from Andean Presidential Council Meetings (n 4). 24  IRELA, ibid. 25  A Ciudad Reynaud, Las normas laborales en los acuerdos de integración en las AméricasILO Report 110 (Lima, ILO/Regional Office for Latin America, 1999), 13.

266  The Andean Community and the Protection of Human Rights Caracas and Barahona. At the end of the decade, two ­particularly important Amending Protocols to the Cartagena Agreement were adopted: the Trujillo Protocol of 199726 and the Sucre Protocol of 1998. These protocols led to advances in the process of integration as they resulted in important changes to its organic structure.27 It has been said that this new era of integration represented ‘one of the most important institutional reforms to occur on the legal scene with respect to regional integration processes’, as it introduced a ‘new institutional and management design to the Andean Group intended to consolidate democratic processes, improve international competitiveness and address challenges endemic to the region such as, amongst others, social imbalances’.28 In this regard, the new name ‘implies the will of governments to advance towards a deeper phase of the integration process, in that social and political aspects which were previously considered tangential are involved in the process’.29 Also worth noting during this period is that during the 11th Andean Presidential Summit special attention was paid to enlarging the integration scheme to make it a political project designed to create an ‘Andean

26  Specifically, through reforms carried out under the Cartagena Agreement the Trujillo Protocol contributed to the creation of a more solid, modern, flexible institutional character with widespread political support. In this sense these instruments, which resulted in the incorporation of the Andean Presidential Council and the Andean Council of Foreign Affairs, can be interpreted as expressing political will. The Protocol modified the Andean Sub-regional Integration Agreement (or the Cartagena Agreement) and the names Andean Community of Nations (henceforth: ACN) and the Andean Integration System (henceforth: AIS) were adopted. The Trujillo Protocol has been effective since 3 June 1997. It has thus been correctly suggested that the Trujillo Protocol imbued the integration process with a more political overtone. A Tirado Mejía, Integración y democracia en América Latina y el Caribe (Buenos Aires, BID-INTAL, 1997) 31. 27  Documents from Andean Presidential Council Meetings (n 4). It should also be stressed that economic integration transformed into a concept of ‘Strategic Design’ approved at the Galápagos Meeting, and new approaches were created to adapt it to new national policies and the global situation. This programme was modified and supplemented by the New Agenda for Andean Integration for Strategic Design, approved by the Andean presidents during their 7th Summit, held in Quito in September of 1995. The spirit of the Act of Quito reflects the view that ‘sub-regional integration is one of the main ways for Latin America to accelerate its process of economic and social development’ VG Arnaud, MERCOSUR, Unión Europea, NAFTA y los Procesos de Integración Regional 2nd edn (Buenos Aires, Abeledo-Perrot, 1999). Further to this end, the ‘New Agenda for Andean Integration’ was drafted into this Andean regulation, and comprised the following general aims: (a) to broaden the scale of Andean integration; (b) to harmonise economic policy; (c) to define social policies; (d) to unite the Andean Integration System and (e) to move towards Latin American and hemispheric integration. 28  Da Cruz Vilaça and Sobrino Heredia (n 10) 87–88. 29 Tirado Mejía (n 26) 30. Undoubtedly, the changes produced by the Trujillo Protocol, through establishment of the Andean Integration System which enabled an organic and functional relationship to develop between Social Agreements, the Andean Development Corporation (CAF), the LARF and other Andean bodies and institutions to achieve goals set by the new agenda, have contributed a great deal to the creation of an informal forum of coordination of social policies.

Characteristics of Andean Integration Linked 267 system for the preservation of democracy’ and to lend legitimacy through democratic participation in the integration process. Also important is that in the Declaration of Macchu Pichu on Democracy, the Rights of Indigenous People and the Fight Against Poverty, signed on 29 July 2001 (a legal instrument that will be considered in detail later on) Andean Heads of State expressed their firm conviction that ‘democracy, development, and observance of human rights and fundamental freedoms are interdependent and mutually reinforcing’.30 In summary, two conclusions may be drawn from the evolution of the Andean integration scheme. First, regulatory and institutional advances and substantial changes which have taken place in Andean integration have directly impacted upon the growing consideration being given to human rights issues. As the process of integration has gained force, human rights have come to occupy a more important position at its core. Second, human rights have been present in the Andean integration process practically since its beginning, conceived of as a side-line for consideration or action during the integration process. Nonetheless, it is true that this has often occurred indirectly and many times has been achieved through addressing the social aspects of the process. B.  Human Rights and the Design of a Democratic Framework Inclusion of the issue of democracy within the Andean integration process has had a very favourable effect with respect to furthering regulation on human rights or, at least, it should be pointed out that through different instruments created as part of the integration process, mainly declarations by Heads of State, a base was created upon which the recognition and protection of human rights later drew. Naturally, from its very beginnings the Riobamba Code of Conduct of 11 September 1980 highlighted the relevance of democracy to the integration process, as well as the commitment of Andean nations to respecting human, political, economic and social rights as a fundamental rule of national conduct in Member States. This legal instrument therefore constitutes a benchmark that must not be overlooked due to the close relationship that arose

30  Furthermore, in this Declaration, the presidents renewed the commitment of their governments to the effective exercise of and respect for human rights, as well as their desire to strengthen the Inter-American Human Rights System, including the possibility of the permanent operation of the Inter-American Court of Human Rights and the Inter-American Commission of Human Rights, as well as to foster the universality of the Inter-American System for the Protection of Human Rights. Andean Presidential Council, Documents from Andean Presidential Council Meetings (n 4).

268  The Andean Community and the Protection of Human Rights at the very core of the Andean Community of Nations between democracy and human rights.31 The relationship between democracy and human rights is seen, at least within the framework of Andean integration, in three different dimensions which nonetheless complement each other and which essentially mean that progress in the affirmation of the principle of democracy has a direct bearing on the proclamation of human rights as a key element of Andean integration and, consequently, as a sphere of action for the Andean Community of Nations. On one hand, in the 1989 joint Declaration of Caracas of 3 February, Andean states confirmed their commitment to democracy and stressed that the incorporation of civil society sectors within the regional process of integration was a component necessary to legitimacy.32 Similarly and more expressly, the Declaration of Cartagena de Indias, signed just a few months later, stated that the democratic system constitutes an unbreakable rule, a way of life and ideal instrument for the preservation of peace, the achievement of development and social justice, the guarantee of full respect for human rights and the promotion of cooperation and integration amongst our people.33 In the same manner, the document resulting from the Galápagos Meeting in December of 1989 clearly establishes that Andean Member States are ‘convinced that the democratic system is the most appropriate to ensure the ideals of peace, the effective exercise of human rights and the cooperation between people, and that it contributes to regional safety’.34 In the Andean Presidential Council Declaration on Democracy and Integration of 7 August 1999, Andean states reaffirmed their view of democracy as an element both indispensable and basic to the Andean sub-region, and as the ‘foundation of the process of economic, social and cultural integration within the framework of the Cartagena Agreement and other instruments comprising the Andean Integration System’.35 The Declaration also recognised that one of 31  Documents from Andean Presidential Council Meetings (n 4). See, also See S Alegrett, ‘El papel de las organizaciones regionales y multilaterales en la defensa y la promoción de la democracia’, presentation at the OAS Seminar, Washington DC, 20 February 2001, available at: www. comunidadandina.org/Prensa.aspx?id=1284&accion=detalle&cat=DI&title=el-papel-delas-organizaciones-regionales-y-multilaterales-en-la-defensa-y-la-promocion-de-la-democracia. 32  Documents from Andean Presidential Council Meetings (n 4). 33 ibid. 34 The progress made at this meeting consists of the recognition that the protection of human rights is a principle of ‘singular and decisive importance’, as recognised by the Charter of the United Nations and the Charter of the Organization of American States. The Meeting of Machu Picchu of 23 May 1990 did not result in any textual additions on the subject matter, but did result in the creation of a new body tasked with an important function: the Andean Presidential Council, whose duties were stated to include evaluation, furthering and directing integration and promoting action in matters of common interest. This step was particularly important as it enabled other issues to include in the agenda later on (ibid). 35 ibid.

Characteristics of Andean Integration Linked 269 the main objectives of Andean integration was to develop and consolidate ‘democracy and the rule of law as well as respect for human rights and basic freedoms’.36 It is therefore evident that democracy is a key element of the integration process; this fact is consistently declared and confirmed by legal and political instruments arising from Andean integration.37 Furthermore, it must be pointed out that the establishment and consolidation of democratic regimes is related to the defence of human rights. On a separate note, one point that stands out is that the affirmation of democracy is made not only with respect to the Andean sub-region, but in terms of the defence of democracy in the American region as a whole, ie including other states located on the American continent. To this end the 1990 Lima Declaration of 28 July addressed the institutional situation of Trinidad and Tobago with a view to restoring democracy in the Caribbean nation, and the Act of Caracas gave special attention to the preservation of democracy and the effective exercise of respect for human rights in Haiti. It also focused on guaranteeing democratic elections in Suriname.38 Similarly, in the Andean Community Commitment to Democracy, signed in 1998, it is made clear that the democratic aim of the integration process applies not only to the sub-region but to the whole of Latin America and the Caribbean. To this end, the text states that democratic institutions and a constitutional state that are fully effective are essential to the political cooperation and the process of economic, social, and cultural integration carried out within the framework of the Cartagena Agreement and other instruments of the Andean Integration System.39

As regards the way in which integration of the Andean Community spills over into foreign affairs, it should be noted that the Andean Labour A ­ dvisory 36 ibid.

37 As the Community itself states, ‘the democratic aim of member states of the Andean ­ ommunity of Nations was present from the beginning of the integration process, in 1969, C through its founding in the Cartagena Agreement, which rests on the principles of equality, ­justice, peace, solidarity and democracy … this democratic vocation was reaffirmed over the years in different uprisings, such as the action by Andean nations to contribute to the overthrow of the dictatorship of Somoza, in Nicaragua, and the rejection of the military coup led by Colonel Natush Bush in Bolivia’. Moreover, ‘one of the areas of action of the Common Foreign Policy, in terms of policy, is to affirm the effective exercise of democracy as a requirement for consolidation of the sub-regional integration process and contribute to strengthening democracy and human rights through dialogue and cooperation carried out at an international level by the Andean Community of Nations’. Andean Community of Nations, Official Documents. 38  Documents from Andean Presidential Council Meetings (n 4). 39 It establishes an Andean protocol for cases in which democracy is violated, and also prescribes inclusion of a democracy clause in agreements signed between the Community and third party states. The Andean Council of Foreign Affairs drafted the Additional Protocol, also known as the Andean Community Commitment to Democracy, which was signed by four member states in Oporto, Portugal on 17 October 1998 and by remaining states at the Twelfth Andean Presidential Council in Lima on 9 and 10 June 2000 (Documents from Andean ­Council Presidential Meetings).

270  The Andean Community and the Protection of Human Rights Council (CCLA) drafted a proposal for the Inter-American Democratic Charter to recognise ‘the struggle of the continent’s union and civil society organisations in the defence of democracy’ as well as to include ‘effective mechanisms to defend, guarantee and promote democracy, participation, social dialogue, the effective exercise of economic, social and cultural rights, peace and development through equality and social justice’.40 The high point of this development was undoubtedly the adoption of the Machu Picchu Declaration on Democracy, the Rights of Indigenous Peoples and the War against Poverty, which paves the way for human rights to be established as part of the Andean sub-regional process and for effects on other sub-regional processes, as spokesmen from indigenous groups were consulted during drafting of the Declaration.41 Finally, the concept of democratic governance has gained favour as the central axis around which all matters related to human rights rotate, with all of the consequences that this entails. In this regard, during the Valencia Meeting the Act of Carabobo was signed. Besides affirming the ‘importance of the Andean Community’s Commitment to Democracy, which reflects the firm conviction and permanent will of the Andean countries to promote democratic order and the existence of the constitutional state in the Andean region’, the Andean Presidents were also ‘in agreement that democratic governance is an inevitable priority in their countries and accordingly reiterated their commitment to overcome by constitutional means any temporary ­difficulty that could arise in the Andean region in that regard’.42 Furthermore, the importance of the relationship existing between democracy and participation in civil society as well as with human rights is clearly 40  It is fitting to list, albeit in general terms only, some of the suggestions made by the CCLA with respect to the Inter-American Democratic Charter. With regards to this, Opinion 016 of the CCLA on ‘Workers and the Inter-American Democratic Charter’ expresses views aimed at stressing the close relationship between democracy and effective respect for economic, social and cultural rights. At some points in the text, this relationship is expanded upon to include advocacy of equitable and just development, social dialogue and participation in civil society as the basis of respect for economic, social and cultural rights. Specifically, in the section on a mechanism for the defence of democracy, it is suggested that union and other civil society organisations be permitted to appeal to the OAS when democratic order is disturbed in such a way as to result in serious violations of human rights, or rather when there is a ‘risk of manipulation or disregard of the will of the people, of serious violations of human rights, of serious corruption of public authorities or under other circumstances which are duly defined’. Likewise, the suggestion that the range of sanctions that can be applied to a state be broadened is apparent when it is stated that ‘by virtue of the agreement of the Consultation Meeting of Foreign Affairs Ministers or the General Assembly, the OAS will promote the removal of the offending member state’s rights in all organisations and international forums it belongs to or participates in’. The point, in any case, is that the participation of social organisations is included as part of the scope of this defence mechanism. Andean Community, Official Documents. 41  It should be remembered that at the time the Machu Picchu Declaration was drafted the Presidents of Argentina, Brazil, Chile, Costa Rica, Panama, Paraguay, the Dominican Republic and Uruguay were present, as they had come to witness the swearing-in of Alejandro Toledo as president of Peru. Documents from Andean Presidential Council Meetings (n 4). 42  Documents from Andean Presidential Council Meetings (n 4).

Andean Social Integration and the Safeguarding 271 expressed, as the presidents affirmed their ‘firm intention to continue strengthening democracy in the Andean countries and fostering citizens’ utmost participation in building a more just and democratic society that ensures the exercise of civil and political, economic, social, and cultural human rights’.43 It can be seen, then, that a connection between the matter at hand and human rights was sought. In conclusion, stances affirmed over time by Andean states and relevant regulations incorporated into the Community demonstrate that not only is democracy an indispensable principle necessary to Andean integration, but it is also viewed as a component of the affirmation and defence of human rights. This explains why it has been argued that amongst the noteworthy instruments in which Andean countries have played a significant role is the 1993 Vienna Declaration and Plan of Action, whose key principles include the responsibility of the international community for promoting and defending human rights, the holistic conception of those rights, and the ­connection between democracy, human rights and development.44

III.  ANDEAN SOCIAL INTEGRATION AND THE SAFEGUARDING OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The social dimension of Andean integration has provided a framework within which the recognition of human rights has been brought close to the heart of the integration scheme. At the very least, as has been insightfully noted, ‘the Andean Group is undoubtedly the sub-region that has most explicitly and organically pushed forward the issue of social integration, whether through treaties or inter-government agreements or through specific instruments’.45 Ultimately, this means that human rights issues are being acted on. The importance of the social dimension in Andean integration can be appreciated if we bear in mind that some elements linked to social integration were already present in the Declaration of Bogota, the predecessor to the Cartagena Agreement.46 The Group’s founding treaty even stated, albeit very generally, that one of its objectives was to improve the standard of living of the sub-region’s population through balanced and harmonious

43 ibid. 44 

Andean Community, Democracy and Human Rights, Official Documents. Cornejo Castro, ‘La integración regional y la “transfronterización” de las políticas sociales: Experiencias Subregionales Latinoamericanas y futuros desafíos’ in CEFIR, Dimen­ sión social de la integración regional (Montevideo, CEFIR, 1995) 29–36. 46 It should be remembered that Art 1 of the Agreement describes economic and social ­integration as lying at the root of the goals of the integration process, thereby establishing a clear link between the two. 45 B

272  The Andean Community and the Protection of Human Rights development of Member States.47 As has been pointed out, ‘almost since its creation the Cartagena Agreement, signed in 1969 and subject to several posterior modifications, has featured bodies and mechanisms linked to the social issues and problems of its member countries’.48 The social dimension of integration began to evolve through growing recognition and regulation of its components through diverse social agreements: the Simón Rodríguez Agreement addressing social and labour integration, the Hipólito Unánue Agreement addressing health and the Andrés Bello Agreement on education, science and technology. These agreements were later supplemented with instruments adopted on the subject of labour migration, particularly the Andean Labour Migration Instrument (Decision 116) and the Andean Social Security Instrument. As pointed out by the Latin American and Caribbean Economic System (SELA), social pacts designed to promote integration in the areas of Education, Culture, Science and Technology, Health and Employment, as well as the Food Safety Programme have achieved partial progress in these areas due to, amongst other factors, the development models adopted by Member states in the decades of the 70s and 80s.49

After a promising jump-start, this ‘important regulatory work’ failed to bear fruit and fell into a phase of paralysis that lasted until the recent initiation of ‘its revival through the approval of the Andean Strategic Design (1989) by member state presidents’.50 It will, however, be key decision-takers at the core of the Andean Community that will bring about the advances most relevant to the social dimension of integration. Indeed, as suggested, ‘the decade of the nineties constituted a period of growth and consolidation of the process, with Heads of State playing a crucial role in furthering Andean integration’,51 seen in the fact that the meeting of heads of state which resulted in creation of the Andean Presidential Council introduced not only institutional modifications but also paved the way to significant social advances.

47  R León Oliveros, ‘Lo social en el espacio andino de integración’ in CEFIR, Dimensión social de la integración regional (Montevideo, CEFIR, 1995) 54–63; R Suárez Camacho, ‘Consideraciones para el desarrollo de una agenda social andina’, Integración Regional (Caracas, SELA, 2000); F Kundmüller Caminiti and S Herencia Carrasco, Estrategias para la agenda económico-social de la Comunidad Andina (Lima, Comisión Andina de Juristas, 2006) and Franco and Di Filippo (n 17). 48  Franco and Di Filippo (n 17) 40. 49 Kundmüller Caminiti and Herencia Carrasco (n 47) 199. See, in general, F Jaramillo, ‘Migración, integración y desarrollo’ (2002) 65 Capítulos del SELA 21–25. 50  KH Kratochwil, ‘Movilidad transfronteriza de personas, migración laboral y proceso de integración regional en América Latina’ in CEFIR, Dimensión social de la integración regional (Montevideo, CEFIR, 1995) 108–15. 51 G Noto, ‘Integración e institucionalidad’ (2001) 61 Capítulos del SELA 46; SELA, La ­integración y sus instituciones en América Latina y el Caribe SP/Di Nº 1–05 (Caracas, ­Venezuela, SELA, 2005), available at: www10.iadb.org/intal/intalcdi/PE/2007/00155.pdf.

Andean Social Integration and the Safeguarding 273 In this regard, the presidential meeting in Quito in 1995 was a decisive step in terms of its recognition of Andean social integration. Clearly listed amongst the objectives of integration espoused by the Act adopted at the meeting is that of ‘preserving the principles of international equity and social justice through harmonisation of macroeconomic policy conducive to sustainable development, as well as defining social policies oriented towards the improvement of the standard of living of the sub-region’.52 A New Strategic Design for the sub-region was also drawn up, which incorporated the three central focal points of future integration process development: creation and consolidation of an Andean Common Market, adoption of a Common Foreign Policy and incorporation of a Social Agenda devoted to promoting the values of liberty, justice, equity, dignity, equal opportunities, participation and democracy in our peoples.53

From this point on, a broader form of integration was envisioned, oriented towards social concerns and encompassing the implementation of social policies aimed at achieving equity inside the region, establishing social, ­economic and cultural rights and strengthening the participation of civil society in the integration process. Achievements in trade matters were made secondary to the attainment of social objectives, in such a way that to some extent economic integration became dependent on social development. The new shape of the integration process was apparent when it was declared that all actions and programmes must take into consideration the social situation of member states and must therefore prioritise the elimination of poverty, the affirmation of Andean cultural identity, attention to the basic needs of depressed areas and full participation of all agents of integration as key elements in the improvement and development of democracies in the Andean Sub-region.54

The jointly adopted Andean Declaration on Social Development reflects the trend seen in this new phase, stressing the participation in integration and equity that should be awarded to civil society sectors. This instrument set the guidelines for a New Strategic Design for the Andean Community, focusing action on the eradication of poverty, highlighting the need for protection of certain vulnerable groups and stressing the rights of women, children, education and health. As mentioned above, emphasis was placed on the ‘right of the people to education, science and technology, culture and health’.55 In addition mention was made of elimination of social d ­iscrimination. 52 Andean Presidential Council, Documents from Andean Presidential Council Meetings (n 4). 53  Kundmüller Caminiti and Herencia Carrasco (n 47). 54  General Secretariat of the Andean Community of Nations, Reflexiones sobre la partici­ pación ciudadana en la construcción de la Comunidad Andina, (Lima, General Secretariat, 1999). 55  Document drafted by the General Secretariat of the Andean Community of Nations entitled Directrices y Declaraciones Presidenciales sobre la Dimensión Social de la Integración (‘Guidelines and Presidential Declarations on the Social Dimension of Integration’).

274  The Andean Community and the Protection of Human Rights Social issues were gradually included in the Andean agenda and have newly acquired weight in recent years. From this time onwards, the existence of a true social agenda in the Andean process was apparent, its areas of focus being health, social security, education, the interaction between social and labour issues, participation in civil society and increased environmental protection. The Andean Community actions in terms of social and labour policy got a boost after the creation in 2000 of the Advisory Council of Labour Ministers of the Andean Community as the highest intergovernmental advisory body in this field. As a result, Andean institutions passed various rules to facilitate the free movement and establishment of workers in the Andean territory, guaranteeing national treatment. Furthermore, the Labour Migration Instrument (Decision 545) and important complementary rules (Decisions 583 and 584) were approved.56 In 2005, the Andean Community adopted the Integrated Plan of Social Development (Plan Integrado de Desarrollo Social—PIDS) comprehensively including all the crucial sectors of social policy (Decision 601). In its adoption of the Comprehensive Integration Model (adopted in 2007) the Andean Community opted for a broad vision of integration, including the social dimension, environment, cultural and political aspects. In addition, the Andean Strategic Agenda (adopted in 2010) identified social development as one of the cornerstones of Andean integration and the Strategy for Economic and Social Cohesion (EACES) set specific goals to be attained by 2019 in order to reduce poverty and achieve social justice.57 At present Andean integration is facing a process of institutional reform as anticipated in the introduction to this book. This is reflected in Decision 773 adopted in 2012, which in article 3 stated expressly that ‘a Coordinating Committee Process Reengineering is established within the Andean Integration System (SAI) composed of one representative of each member state’, which will be coordinated by the country holding the Presidency Pro Tempore of the Andean Community, whereby the ‘mechanism of reengineering’ was launched.58

56 

Documents from Andean Presidential Council Meetings (n 4). regards consolidation of the social aspect or ‘dimension’ of integration, it should be remembered that the Cartagena Act of 1999 espoused similar convictions, reaffirming the need to broaden political, economic, social and cultural integration through a broad programme encompassing these elements. Likewise, in 2001 emphasis was given to the creation of new mechanisms permitting civil participation, including the proposal of a social round table as part of the Andean forum. In this manner, the Andean presidents confirmed ‘the commitment stated by Andean Presidential Councils in Guayaquil, Cartagena and Lima to social issues, agreeing to make their top priority the development of an interdisciplinary Andean Social Agenda capable of providing an effective response to poverty, inequality and social exclusion’ (ibid). 58  Decisión 773 ‘Reingeniería del Sistema Andino de Integración’, passed by the Andean Council of Foreign Affairs Ministries on 3 May 2012, in Cartagena de Indias (Colombia). 57  As

Andean Social Integration and the Safeguarding 275 In June 2013 the integration bodies approved Decision 791, ‘Working Group reengineering of the Andean Integration System’,59 in order to adopt a final document containing a proposal for a new vision, strategic guidelines and prioritisation of areas of action of the Andean Community, under the coordination of the General Secretariat of the Andean Community. Consequently, the Andean Council of Foreign Affairs Ministers adopted Decision 792 ‘Reengineering Implementation of the Andean Integration System’ on 19 September 2013. Pursuant to Article 2 a High Level Group has been formed, to ‘review the Andean Integration System in order to suit the new realities and challenges in the international context’.60 Although the foreseen reform of the Andean Integration System may bring progress in terms of the human right and the social dimensions, it has been heavily criticised because it proposes the extinction and substitution of the Andean Parliament by the (so far non-existent) UNASUR Parliament.61 This proposal has led to a recent institutional crisis. The continuity of the Andean Parliament is crucial for ensuring the democratic legitimacy of integration.62 In short, the Andean Community of Nations currently boasts its own system to address social issues. This system has evolved and ultimately has a bearing on issues pertinent to human rights as, on one hand, certain rights are recognised and, on the other, foundations are laid for the establishment of a ‘system’ of recognition and protection of these rights. Since it suits our purposes to highlight the aspects of the social dimension of Andean integration that are most relevant in terms of their impact on the sphere of human rights, we will proceed to analyse the participation of civil society in the integration process as well as the content and scope of social agreements and the modifications they have been subjected to. Finally, we will examine the legal instruments that have been adopted within the social framework which have a bearing on human rights issues, placing particular emphasis on the Andean Social Charter as the social dimension’s most representative and notable instrument from a regulatory point of view. 59  This decision was approved at a meeting of the Enlarged Council (15 June 2013), 23 foreign ministers Andean and members of the Commission. Pursuant to Art 2, this Working Group is formed of eight members, consisting of a direct representative of the Ministers of Foreign Affairs and one of the Principal Representatives to the Commission of the Andean Community, for a term of 30 days, submitting to the Council of Ministers of Foreign Affairs meeting enlarged with the heads of delegation to the Commission. 60  Decision 792 ‘Reengineering Implementation of the Andean Integration System’ adopted on 19 September 2013. 61 L Tello Vidal, ‘¿“Reingeniería” o extinción de la Comunidad Andina?’ (2014) 10 (1) Construyendo nuestra interculturalidad 17. 62  See Euro-Latin American Parliamentary Assembly, Declaration of Support for The Andean Parliament (European Union, 2014) available at: www.europarl.europa.eu/intcoop/eurolat/ assembly/plenary_sessions/athens2014/adopted_docs/andean_parliament/ap101.595v02_en. pdf. IDB-INTAL. ‘Reengineering the Andean Integration System’, INTAL Monthly Newsletter N° 211—March 2014, available at: www10.iadb.org/intal/cartamensual/Cartas/PDF/211/en/ MonthlyNewsletter211_Integration%20Blocs_Andean%20Community_Art2.pdf.

276  The Andean Community and the Protection of Human Rights A.  The Participation of Civil Society in Andean Integration The participation of civil society in the Andean integration scheme deserves special attention as an expression of the Andean social dimension. It is one of the cornerstones of the democratic legitimacy of the Andean Community and affects human rights issues. With respect to this aspect of integration, it seems there is a consensus amongst member states on the need to broaden the social base of support for the Andean integration process in such a way that it grows from existing as a mere state experience with little or no participation by key social organisations to a phase characterised by the democratisation of the sub-regional project.63

For this reason, chances for participation by civil society’s diverse sectors, which form the Andean social backbone, have grown constantly, although to date they remain minimal. Thus, gradual reflection of the realisation of the need to facilitate and promote participation by social sectors in Andean integration can be seen in the various legal and political instruments which have been adopted. Within the context of this evolution, in which the participation of s­ ociety in the Andean initiative has gained an increasingly decisive role, some c­ rucial factors can be identified, which will be outlined below. Firstly, when the Cartagena Agreement was signed it provided for an Economic and Social Advisory Council. The council was intended as an instrument in which business owners and workers could take part, although it was ultimately unable to fulfil its assigned duties. Similarly, the Andean Parliament was created to act as a deliberative political body.64 At a later date, in addition to these initial channels of participation, other bodies were gradually added as Andean integration was completely restructured. Of paramount importance is that, since the very beginning, bodies were created to facilitate participation and these bodies were able to act to influence matters related to human rights. In this context, it is worthy of note that through Decisions 441 and 442 the Commission confirmed the Andean Labour Advisory Council (CCLA) and the Andean Business Advisory Council (CCEA) as advisory institutions within the Andean Integration System.65 This was undoubtedly in response to the fact that

63 

León Oliveros (n 47). information on the political dimension of integration, see A Wagner Tizón, ‘Hacia una integración política andina’ (2002) 67 Política Internacional Academia Diplomática del Perú 148–60. 65  It should be noted that the Business Advisory Council and the Labour Advisory Council had been established in Decisions 174 and 176, respectively, in 1983. 64  For

Andean Social Integration and the Safeguarding 277 the harmonisation of public and private interests inside our societies requires an active and effective participation of civil society in the decision-taking process both nationally and at the Community level, which will result in strengthening of, amongst other factors, the legitimacy and stability of democratic institutions, governance and the implementation of strategies of economic and social development which are sustainable in the long-term.66

The participation of both bodies in matters connected to human rights is apparent in the views they have expressed as well as in specific policies and programmes implemented to cover diverse areas. Amongst these is the joint declaration published on 7 April 2003 by the Andean Labour Advisory Council and the European Trade Union Confederation, in which they agreed to draft a document detailing the minimum requirements as regards respect for labour rights, based on the Fundamental Principles of the ILO and the legal instruments present in both blocks such as the EU Charter of Fundamental Rights or the Andean Community Charter for the Promotion and Protection of Human Rights.67

Secondly, the general importance of participation by civil society sectors in the drafting of human rights regulations was recognised with the adoption of the Andean human rights charter, in whose creation and approval trade union representatives were involved. This claim is substantiated by the fact that Ecuador’s Ministry of Foreign Affairs began a participative and democratic process of consultation in Andean nations in conjunction with the General Secretariat and the Andean Commission of Jurists. It can therefore be argued that these events enriched the contents of the text, so that when it was approved it featured a high degree of civil society consensus.68 Perhaps this is why the legal instrument is so firm in its insistence that ‘programmes and social and economic policies must be designed with the participation of the population, aimed at achieving a better distribution of wealth, eradicating poverty in the sub-region and a better allocation of the benefits of development’.69 Furthermore, the section devoted to ‘Social Integration and the Eradication of Poverty’ stresses the need for local and community groups to be strengthened as mechanisms of social incorporation into development and integration, for contribution to the creation of an Andean Community conscience through dissemination of the importance and necessity of integration and for development of harmonious programmes and

66 

Kundmüller Caminiti and Herencia Carrasco (n 47). Andean Community, Official Documents. 68  Memorandum on the Andean Charter for the Promotion and Protection of Human Rights (n 5). 69 General Secretariat of the Andean Community of Nations: Reflexiones sobre la ­participación ciudadana en la construcción de la Comunidad Andina, May 1999. 67 

278  The Andean Community and the Protection of Human Rights adoption of policies intended to facilitate social and economic participation to achieve a better redistribution of wealth and eradicate poverty in the sub-region.70

Thirdly, economic sectors have developed a firm belief that their participation is required for progress in the sub-regional integration process, which is why, for example, the Confederation of Private Andean Business Owners was created to facilitate ‘the participation of private business owners in the integration process’, as set out in the Act which resulted from the meeting at La Paz. Upon this occasion, the Andean Council of Foreign Affairs was granted the authority to define ‘the manner of business and labour sector participation in the work carried out by the Commission of the Cartagena Agreement’.71 The increase in business and labour participation has occurred due to the efforts of the Andean Council of Foreign Affairs, which has implemented action agreed upon in successive meetings ‘in the aim of strengthening and activating the participation’ of both sectors in the Andean integration process. In this manner, its voice and role as another relevant advisory body have taken on importance in meetings of the Andean Council of Chancellors.72 Apart from the Councils, however, additional forums exist for civil society to participate in other issues, such as those pertaining to sustainable development and the environment, the protection of consumer rights and the culture of integration and Andean identity, all of which are strongly linked to human rights. With this in mind the Andean Presidential Council stressed the need to draw up a ‘proposal for the organised participation of civil society in the construction of the Andean Community, which should be supplemented by business and labour participation’.73 Finally, specific mention of the participation of civil society in Andean integration and its connection to human rights issues can be found inside the framework of the rights of indigenous peoples. In line with the contents of the Machu Picchu Declaration, through Decision 524 the Andean Council of Foreign Affairs approved the creation of a Working Group on the Rights of Indigenous People, in which representatives from indigenous organisations and human rights organisations as well as civil society

70  ibid. This is so much the case that, in reference to the participation of civil society, the Act of Quito states that ‘in the context of the decision to strengthen Community institutions and consolidate the Andean Integration System, the strengthening of the participation of business and labour sectors in the integration process is suggested, as well as the establishment of mechanisms more effective in channelling the initiatives of these important social sectors’ (see the General Secretariat document ‘Directrices y Declaraciones Presidenciales sobre la Dimensión Social de la Integración Andina’). 71  Documents from Andean Presidential Council Meetings (n 4). 72  See the Presidential Council Meeting in Caracas and its respective Act of 18 May 1991: Documents from Andean Presidential Council Meetings (n 4). 73  For this reason the Integrated Social Development Plan, drawn up in 2001, advocates increasing citizen participation with the establishment of a round table (ibid).

Andean Social Integration and the Safeguarding 279 r­ epresentatives and representatives from the governments of each member state would participate.74 This working group was incorporated into the institutional structure of the Andean Integration System as another advisory body, intended to ‘promote the active participation of indigenous people in affairs linked to the economic, social, cultural and political aspects of ­sub-regional integration’.75 The working group will act through recommendations and conclusions to be presented before the Andean Council of Foreign Affairs or the Commission, depending on their respective areas of authority. The measures the working group can suggest include those aimed at ‘the eradication of poverty, development with social equity and recognition of native contribution to the society of the Andean countries’.76 The group was therefore assigned the task of presenting its views before the bodies mentioned above, either pro-actively or at their request, ‘on matters connected with the participation of indigenous peoples in the sub-regional integration process’.77 In addition, however, the working group will be able to opine on the adoption of common positions in international forums dealing with m ­ atters connected to indigenous peoples. Specifically, the working group will be involved in the promotion of the cultural identity of indigenous people and in the exchange, evaluation and dissemination of successful experiences and practices, organisational reinforcement and, in general, cooperation between indigenous peoples or organisations, government bodies and human rights and civil society organisations in Member States.78

74 During the period before the creation of this Working Group, the General Secretariat carried out consultations in the five Member States with directors of indigenous organisations, government bodies with authority over the area, Ombudsmen and independent experts. An inaugural meeting of the panel was then held in Urubamba, Cusco between 8 and 10 May 2002 with a view to drafting an institutionalisation proposal and a schedule of activities for the Working Group, to be presented before the Andean Council of Foreign Affairs. At the end of the meeting the Act of Urubamba was signed, which outlined options as to the nature, objectives and composition of the Working Group, as well as the procedure the Ministers of Foreign Affairs should follow to set it in motion. All of this preparatory work eventually resulted in the creation of the Working Group on 7 July 2002. 75  Decision 524, Working Group on the Rights of Indigenous People. Andean Community, Official Documents. 76 ibid. 77  Another important duty will be to collaborate in the follow-up of decisions and other measures implemented in the Andean integration process, such as monitoring compliance with international treaty regulations, agreements and pacts on indigenous rights (ibid). 78 The composition of the Working Group is varied, with balanced representation of all parties involved. Meetings are held ‘as needed’ once a year, on an ordinary and extraordinary basis. The text is slightly vague, as it does not specify whether in the latter case it is necessary for the Council or the Commission to convene a meeting or whether the Working Group can convene itself. Article 4: The Working Group will have the following membership: a) Seven full members per member country, accredited to the Andean Community General Secretariat by the Foreign Ministries and distributed as follows: three native delegates elected by organisations that represent the indigenous peoples of each member country in accordance with their respective internal democratic and participatory procedures, three government delegates

280  The Andean Community and the Protection of Human Rights In short, it could be concluded that, on one hand, the participation of society in the Andean model of integration has been planned and developed both as an aspect of the social dimension of integration as well as one of the aspects that will make a definitive contribution to the emergence and consolidation of an individual identity.79

On the other hand, however, it has also been planned and reflected in the adoption of regulations which, in one way or another, can affect matters connected to human rights or, at least, it is clear that this participation of civil society manifests itself in spheres and sectors in which matters affecting human rights occasionally arise. B.  Social Agreements Adopted at the Core of Andean Integration Of the policies adopted in the early stages of Andean integration, aimed at unifying and fortifying ties of cooperation between Member States, the Cartagena Agreement fostered the adoption of social agreements which essentially established frameworks of cooperation between different sectors that were closely linked to human rights issues. These included the Andrés Bello Agreement on educational, scientific and technological integration, the Hipólito Unánue Agreement80 on integration in the areas of health and science as well as the Simón Rodríguez Agreement, which addressed social and labour-related issues. Examination of the content and factors that roughly characterise these social agreements allows us to identify at least some elements which demonstrate how through the agreements cooperation or ‘integration’ frameworks between Andean states are affected, often giving rise to issues connected to human rights. At the very least, as we have pointed out, the relevance of these agreements for our intents and purposes hinges on the fact that through them the sectors and main factors essential to the Andean social dimension will be identified and defined, and it will be illustrated that the process

appointed by the competent authorities of each member country, a delegate from the Office of the Ombudsman of each member country; b) Seven consultative members distributed as ­follows: an independent expert or technician from each member country invited by the General Secretariat in consultation with the full members, a representative of the ‘Coordinadora de las Organizaciones Indígenas de la Cuenca Amazónica’ (Coordinating Group for the Indigenous Organizations of the Amazon Basin), COICA, a representative of the Development Fund for the Indigenous Latin American and Caribbean Peoples. 79 

Kundmüller Caminiti and Herencia Carrasco (n 47). The Hipólito Unanue Agreement was signed in Lima on 18 December 1971 by Ministers of Health who aimed to coordinate policies on the transmission of disease in border areas or through migration as well as policies on malnutrition, environmental clean-up, manufacturing and sale of drugs and basic foodstuffs, etc. Other agreements associated with the Andean Integration System exist, such as the Celestino Mutis Agreement on agriculture and food safety. 80 

Andean Social Integration and the Safeguarding 281 of integration, both in theory and practice, is multidimensional in nature. Further to the point, these agreements establish rights for those at whom Andean integration is aimed.81

In a brief summary, we shall now highlight some factors concerning the nature, content and scope of these agreements as they pertain to the aim of this study. First, with respect to the nature of Andean social pacts, it has been ­correctly argued that they may be considered (in terms of their purpose, at least) as organs aimed at promoting rights and guarantees at a Community level. Nonetheless, analysis of concrete results to date shows that they may be better catalogued as advisory and cooperative action, as is the case of the Andrés Bello Agreement (on education and culture) and the Hipólito Unanue Agreement (on public health), both of which were established at the beginning of the 1970s.82

Evidently, they constitute mechanisms for the development of Andean Community action within the social sphere, insofar as they recognise certain social policies and affect, by way of mutual cooperation, specific sectors in which social factors come into play. As previously stated, these agreements promote rights and therefore facilitate their recognition and incorporation into the daily concerns of the Andean Community. Second, with respect to the socio-cultural front, it has often been argued that there is a need for this to be restructured and adapted to permit the coordination of previously isolated action to increase benefit distribution, allowing benefits to reach the majority of the constituents of civil society. To this end, the Andrés Bello Agreement recommends that Member States make ‘combined efforts in education, science and culture’ through action aimed at promoting mutual knowledge and the movement of people and cultural goods as well as encouraging the exchange of know-how and harmonising educational systems.83 The original agreement was replaced with another on the same subject matter, signed in 1990, which helped to revive the goal of achieving cultural and educational integration.84 Analysis of the new text shows that it defines its main objective as procuring integration in the areas of education, culture, science and technology, calling these ‘key

81 

Díaz Barrado and Olmos Giupponi (n 2). Franco and Di Filippo (n 17). 83  C Fernández Liesa, MB Olmos Giupponi and B Barreiro Carril, La cultura en la cooper­ ación e integración iberoamericana (Madrid-Mexico, Plaza y Valdés, 2009) 153–86. 84  The Treaty on the Organisation of the Andrés Bello Agreement on educational, scientific, technical and cultural integration was signed during the Fifteenth Meeting of Ministers of Education of the Andrés Bello Agreement, on 27 November 1990. Andean Community, Official Documents. 82 

282  The Andean Community and the Protection of Human Rights instruments in the integral development of the member countries, leading to an improved standard and quality of life for the Andean people’.85 Particularly as regards the sphere of education, ‘member countries of the Andean Community have recognised the predominant role of education, achieving substantial progress with improvement of access to, availability and quality of education’.86 During meetings of the Community’s Ministers of Education, they have expressed their consensus on topics including Education for a Culture of Integration, Harmonisation of Educational Systems, a System of Statistical Information and Educational Indicators and Education for Life and Work.87 In summary, it can be seen that policies, actions and programmes have been created hinging on fundamental rights of a social nature and, in particular, the right to education, which as the Quito Declaration on social development states, ‘calls for supporting and strengthening national and international policies and strategies to promote social development in the areas of, amongst others, abject poverty, women’s rights, childhood, education and health’.88 The Declaration also reaffirms the right of the Andean peoples ‘to education, science, technology, culture and health, aimed at the integral development of the human person’.89 In a general analysis of the agreement under study, O Ermida Uriarte points out that ‘concrete results have been scarce’,90 although an effort has been made since the meeting of Andean Chancellors in April 1995 to ratify and legitimise the agreement’s function. Along the same lines, in ­September 1998 the General Secretariat signed a Collaboration Agreement with SECAS to jointly carry out tasks in areas of mutual interest such as ­education, culture, science and technology. Similarly, both bodies also hold 85 Decision 439 of the Commission of the Andean Community contributed to the ­ evelopment of educational integration, as it facilitated the mutual recognition of licences, d certificates, professional qualifications and accreditations. It should also be remembered that the General Secretariat of the Andean Community of Nations signed a collaboration agreement with SECAS aimed at establishing a common agenda of action, into which matters involving integration, education, education, culture, science and technology have been incorporated. Kundmüller Caminiti and Herencia Carrasco (n 47). 86 ibid. 87  One example is the Meeting of Ministers of the Andrés Bello Agreement, held in 1992, in which Ministers agreed to ensure the relationship between education and the productive system in an ‘environment of technical, progressive and rapid change’. I Vittini, ‘La dimensión social del proceso de integración del Grupo Andino’ in O Stahringer (ed), Mercosur en el nuevo orden mundial (Buenos Aires, Ciudad Argentina, 1996) 175–89, 183. 88  Documents from Andean Presidential Council Meetings. 89  Hence the recommendation of ‘investment in the development of human capital, assigning special priority to educational policies and programmes directed at renewing and improving the quality of basic education and programmes that seek to diversify and raise the technical level and availability of professional and job training systems, encouraging growing direct involvement of productive infrastructure’ (ibid). 90 O Ermida Uriarte, ‘La ciudadanía laboral en el Mercosur’ in B Podestá et al (eds), ­Ciudadanía y mundialización: la sociedad civil ante la integración (Madrid, CEFIR-CIDEALINVESP, 2000) 175–210, 177.

Andean Social Integration and the Safeguarding 283 coordination meetings to discuss mechanisms and programme areas in order to enable coordination of cooperation efforts inside and outside the Andean Community.91 It is evident that educational integration is the area where the agreement’s most relevant contributions can be seen, particularly as regards the harmonisation of educational programmes through the creation of basic and intermediate equivalence tables which directly facilitate the recognition of studies between Andean states and therefore promote the free movement of people within the area. In order to achieve these objectives, factors essential to recognition of rights and the creation of programmes or frameworks for cooperation have been identified. We can therefore point out that, with this in mind, the Andean Presidential Council used the Act of Sucre of 23 April 1997 to instruct ministers of education to progress towards the mutual recognition of university degrees ‘in the aim of supplying professional services in the Sub-region’.92 The Act of Cartagena de Indias two years later stressed that ‘an educational, cultural, scientific and technological policy that preserves and promotes our identity and an Andean strategy of sustainable development’ must be designed.93 Apart from this, initiatives have been carried out which contribute to the attainment of cultural integration, reinforcing ‘the idea expressed within the context of the Agreement’s doctrine, in the regard that this process is fundamentally an instrument of cultural integration’.94 In this respect, the Seventeenth Meeting of Ministers of Education of the Agreement revealed the basic lines along which the General Secretariat and coordinators of education, culture, science and technology had previously created a programme framework for the interdisciplinary development of projects with a cultural focal point.95 91  Kundmüller Caminiti and Herencia Carrasco (n 47). To this end, the agreement advocates development of educational projects in border and depressed zones to contribute to greater border integration, such as the origination of local skills aimed at seeking harmonious solutions in the fight for the eradication of poverty. 92  In addition, the general arguments of this Act included creation of educational and cultural policies as elements of integration, as these were the elements that had been focused on in the Action Plan adopted on the matter. Documents from Andean Council Presidential Meetings (n 4). 93  This instrument stated the parameters of the ‘educational policies to design an education for a culture of integration and peace whilst simultaneously promoting recognition of cultural diversity, affirming the Andean identity and promoting the culture of our peoples. These aims are a strategic blend of science, technology and innovation to improve development and human safety’. In our opinion, an important point is that this confirms the Andean Community’s predisposition towards establishing the promotion of and effective respect for cultural rights as part of the integration process. ibid. 94  Vittini (n 87). 95 On this topic it has been said that ‘as part of the Andean effort to advance cultural integration, the work of the Andean Parliament led to creation of the Simón Bolivar Andean University and, inside the university and with the support of the Andean Court of Justice, the Department of Integration Law and the Faculty of Andean Integration’. Cornejo Castro (n 45).

284  The Andean Community and the Protection of Human Rights Third, with respect to the Hipólito Unanue Agreement, signed alongside the others, it is evident that the agreement’s main objective is to improve human health in countries within the Andean region and that it prioritises addressing border area problems of health, malnutrition, environmental clean-up, maternal and child health care, health education, environmental pollution and occupational health,96 although it may be argued that concrete results have been scarce in this case as well. At any rate, through this agreement the Andean Community approaches the right to healthcare as a fundamental right that is social in nature and must be recognised and protected under the set of actions designed to achieve the objectives set out in the agreement. Along these lines, it should be noted that the ministers of health of Member States made a strategic proposal on the division of responsibility between Member States for the purposes of monitoring subsections. The main strategic points were defined in the Action Plan for the period 1998–2000, and encompassed Health Sector Reform, Supranational Projects, Healthy Border Areas, Emergencies and Disasters and Healthcare Communication Campaigns.97 Of utmost relevance is that concern is shown for establishing health as a right which is part of social integration, a right which ‘should be exercised equitably by providing the proper conditions to allow people to be healthy and by giving all inhabitants the right to take care of his own and his family’s health in a favourable and self-sustaining environment’, as stated when the Hipólito Unanue Agreement became effective as a social health care agreement operating within the Andean Integration System.98 Fourth, with respect to the Simón Rodríguez Agreement, this agreement outlines the priorities for action within the Andean integration process, especially in the sphere of social and labour integration, and adopts strategies and action plans which orient action by sub-regional and national bodies towards achieving ‘lasting improvement in the living and working conditions in the countries of what was at that time called the Andean Group’. This is laid out in Article 2 of the Agreement.99

96  Decision 445 of the Andean Council of Foreign Affairs approved the incorporation of this agreement into the Andean Integration System, once again including the variable of public health as part of the integration process equation. Andean Community, Official Documents. 97 Kundmüller Caminiti and Herencia Carrasco (n 47). The agreement has resulted in ­specific action in the field of new IT application and healthcare communication, with a view to optimising resource use efficiency, seen for example in the Epidemiological Surveillance Network and the Telemedicine Network, implemented through the ‘Intranet Andina en Salud’ (Andean In-Health Intranet). 98  This declaration was issued on the occasion of the 30th anniversary of the beginnings of Andean integration, alongside the Act of Cartagena of 27 April 1999 (Documents from Andean Presidential Council Meetings (n 4)). 99  The Agreement was signed in Caracas on 26 October 1973 by Ministers of Employment in the aim of harmonising labour and social security laws and solving unemployment and

Andean Social Integration and the Safeguarding 285 In order to achieve its specified goals the Agreement provided for the adoption of specific measures, particularly a) the establishment of coordination and collaboration mechanisms for the improvement of the respective management of employment and social security systems; b) ratification of international labour agreements whose implementation would facilitate harmonisation of labour and social security legislation; c) adoption of basic laws on social security and migrant workers; d) special handling of problems related to Andean labour force migration, planning of human and employment resources, professional training, social security and other social and labour factors and e) creation of a body tasked with conducting research into the matter. This list, which demonstrates ‘the importance that the integration experience has assigned to labour-related matters, not only by approval of a specific labour agreement but by creation of a specific structure devoted to handling important, previously defined objectives’,100 also highlights that fundamental rights are often impacted, particularly rights that are social or labour-related. In spite of the fact that the Agreement dates back some time, all of its provisions remain effective and the Agreement is a reflection of the general position on social and labour matters. Nonetheless, meetings of Ministers of Employment are the venue at which analysis into social and labour m ­ atters takes place, and these meetings aim to improve and promote integration in this area.101 In the ‘new era’ of the Agreement, five focal points for social and labour-related concerns were established: fostering employment, job training, health, social security and labour force migration. Recently to these the creation of the Andean Labour Observatory has been added, agreed upon in the Second Meeting of the Andean Community Advisory Council of Labour Ministers held in the city of La Paz in December 2001. The Observatory’s purpose is to contribute to the handling of social and labour-related issues.102

underemployment problems as well as problems of labour force migration, etc. Years later an Additional Protocol was adopted in Cartagena de Indias on 12 May 1976. Andean Community, Official Documents. 100 

Ciudad Reynaud (n 25). should be remembered that although in 1983 the decision was made to revoke the Agreement, it once again became effective when the Replacement Protocol was signed on 24 June 2001. This instrument defines the Agreement as an instrument that is part of the Andean Integration System, wherein it exists as a ‘Forum for Debate, Participation and Coordination of social and labour matters’. This illustrates its valuable contribution to the development of the Andean social agenda. 102  The CCLA’s proposal is that this observatory be attached to the Simón Rodríguez Agreement and that it ‘constitute an instrument to support analysis, monitoring and definition of community policy on social and labour issues for the Andean region’. 101  It

286  The Andean Community and the Protection of Human Rights The Agreement contains a detailed list of the instruments required to achieve the desired goal and also indicates which social and labour issues take priority: a) harmonisation of labour and social security laws; b) ­adequate use of human resources and the search for a solution to unemployment and underemployment; c) coordination of policies and action in the area of social security; d) improvement to professional training; e) labour force mobility within the sub-region and e) participation of employers and employees in sub-regional development and integration processes.103 The agreement’s regulations define labour rights and constitute a base upon which to design social policies. The CCLA itself, in Opinion 015 of 18 May 2001 on the creation of an Andean Common Market, stressed the role of the Simón Rodríguez Agreement as a forum of discussion for social and labour issues affecting the attainment of Andean integration. As regards this, the important point is that the agreement has brought about recognition of other rights within the social dimension of integration. With regard to social agreements as a whole, in spite of the difficulties outlined as to their application, they must be ascribed the importance they truly possess and classified accordingly inside the Andean social dimension. As a general observation, it can be said that these agreements provide institutional frameworks for the development and protection of certain rights, such as the right to education, a series of labour rights and the right to health.104 C. Andean Regulation Covering the Most Relevant Aspects of the ‘Social’ Framework and its Connection to Human Rights In the context of the Andean social dimension, apart from the aforementioned social agreements other regulations have emerged governing specific aspects of this dimension, particularly with respect to the movement of people and the guarantee of rights inside the Andean sub-region, mainly those of social security, labour force migration and harmonisation of Andean documentation. As previously stated, over recent years a ‘critical analysis of the institutional organisation, its actions and the search for new areas of focus’ has begun.105 It is true that legal instruments adopted in this sphere differ in nature, scope and content and apply to very diverse areas and subject matter.

103 

Andean Community. Official Documents. From a strictly legal perspective, the Simón Rodríguez Agreement on Social and Labour Integration could perhaps be considered to lean towards promoting activities designed to protect Community rights and guarantees. Nevertheless, its results so far suggest it has not evolved far beyond an approach of consultation and cooperation. Ermida Uriarte (n 90) 42. 105  Kratochwil (n 50). 104 

Andean Social Integration and the Safeguarding 287 ­ onetheless, we can focus our attention on those which have a bearing N on rights that are more well-established, in terms of degree of recognition, within the Andean Community, and on those which in a more general manner and from a social perspective lead to the recognition of fundamental rights. This does not mean that importance should not be assigned to other, more sectorial spheres, in which attention to human rights issues can also be found. Thus, for example, regulations on the Control of Employment, although formal in nature, contribute principles that could well be considered standards of protection in the social sphere such as social justice in labour relations, improvement of labour conditions and the labour environment, promotion of action aimed at social and labour advancement, improvement of the standard of living of workers and their families and active participation of employers and employees in the formulation, execution and control of social and labour policies, channelled through mechanisms of consultation and collaboration.106 i.  Andean Social Security Regulations It cannot be denied that the search for mechanisms to ensure the effective exercise of workers’ rights at a national and Community level with respect to, amongst other factors, pensions, compensation for disability or job dismissal and health and safeguarding the rights of migrant workers in an expanded market constitutes an important challenge for the Andean integration process.107

At any rate, regulation on social security in the Andean integration process was originally condensed into the Andean Social Security Instrument, approved in Decision 113 and adopted through Decision 148 and its corresponding regulations. Both decisions were issued in the decade of the seventies and were approved during the Seventeenth Period of Extraordinary Sessions held in Lima in February 1977. With a view to updating the regulations, the Andean Presidential Council plans to draft an Andean Social Security Agreement, and therefore tasked sub-regional authorities in this area with reaching an agreement, through mutual cooperation, on the adoption of an instrument to facilitate the ‘goal of attaining better efficiency in the provision of Social Security services’.108 This was decided at the Presidential Meeting in La Paz on 30th November 106  An Instrument on the Administration of Employment also exists. This was approved at the Seventh Ordinary Meeting of the Conference of Ministers of Employment in Caracas in November 1982, with a view to organising Andean Ministers of Employment. Andean Community: Official Documents. 107  Kundmüller Caminiti and Herencia Carrasco (n 47). 108  Documents from Andean Presidential Council Meetings (n 4).

288  The Andean Community and the Protection of Human Rights 1990, when the task was assigned. To this end, meetings were held between social security representatives from the Andean region and a system of consultation was created, although to date the aforementioned agreement remains unapproved. Due to this, we must focus our study on the Andean Social Security Instrument approved in the 24th Period of Extraordinary Sessions of the Commission, held from 3–7 September 1979 in Bogota. This instrument regulates all issues related to the enjoyment of social security benefits (maternity, unemployment, work accident or job-related illness, old age, death benefits and funeral subsidies) for workers that move to another country within the Andean Community under the general principle of equal conditions. As stated by the local ILO office, ‘the main objective of the instrument is that every Member State must grant individuals from other Member states equal treatment, ie treatment identical to that afforded to national citizens in all of the aforementioned cases’.109 It is evident, therefore, that it aims to achieve the recognition of rights inside the sphere of social security and aspires to establish mechanisms to make this recognition effective. We are dealing, then, with a regulation stemming from the Andean integration process that clearly tackles rights of a social nature. Perhaps this is the result of the Community’s stated aim, ie that social security in the sub-region and its dual economic and social function should promote the attainment of sufficient domestic and individual savings to guarantee the existence of an adequate quality of life during old age, invalidity and survival. It should contribute to the growth of equity through its solidarity with those who are not able to save for their old age.110

The Community has also stated that sub-regional countries should take care to adopt the necessary measures for broadening the coverage of social security systems to take in the entire economically active population and those who are less favoured. In order to deepen and to consolidate the common market, it will be necessary to create appropriate instruments that will guarantee that the sub-region’s migrant workers receive old age, invalidity, and survival benefits.111

It can be seen that the area of social security is currently being overhauled, with the collaboration of the Ibero-American Social Security Organization (OISS), in order for both the Andean Social Security Instrument and the existing regulation to be adapted to suit ‘current conditions, where there is

109 

Ciudad Reynaud (n 25). Andean Community. Official Documents. 111 ibid. 110 

Andean Social Integration and the Safeguarding 289 greater participation by the private sector’.112 The ultimate aim is to ‘guarantee the right of migrant workers to receive benefits and conserve rights already acquired in their countries of origin’.113 It can therefore be argued that the right to social security, as a fundamental human right established by these international instruments, has been given wide recognition within the Andean area. As stated by the CCLA, there is a wide body of principles, norms and declarations in the Andean Community which comprise a political and regulatory framework for the development and execution of policies and action within the context of social integration in general and social security in particular, comprising the Official Coded Text of the Cartagena Agreement, the Andean Social Charter approved by the Andean Parliament, the Andean Social Security Instrument (Decision 113) and its Regulations (Decision 148).114

At any rate, what does exist is an area of sub-regional law devoted to the right to social security. Within this sub-regional framework, priorities include: revision of Andean regulations (Decisions 113 and 148) with a view to reintroducing them, ensuring that existing regulations governing the matter are applied, creation of a permanent working group composed of representatives from both councils and social security authorities from Member States to provide support at meetings of ministers of employment and, finally, ratification of ILO conventions which are specifically relevant. ii.  Recognition of Rights and Protection of Migrant Workers With a substantial degree of haste, and very soon after the Andean integration project began, the situation of migrant workers within the context of integration was addressed through regulation. This illustrates the growing concern within the context of integration over recognising rights and protecting those individuals that find themselves in certain circumstances. In this area, as in other areas which fall within the scope of what we have

112  J Vega Castro, El tema sociolaboral en el proceso andino (Lima, Secretaría General de la Comunidad Andina, 2000). Available at: www.comunidadandina.org/Upload/2011227144 655sociolaboral.doc. 113  General Secretariat of the Andean Community document, ‘La Agenda Social de la Integración Andina: Hacia una Estrategia Comunitaria de Cohesión Social’ (2006) available at: www.comunidadandina.org/Prensa.aspx?id=2171&accion=detalle&cat=DI&title=la-agendasocial-de-la-integracion-andina-hacia-una-estrategia-comunitaria-de-cohesion-social. 114  CCLA Opinion 009: Lines of Action to Strengthen Social Security. As the text itself states, of the main ILO social security conventions including numbers 102 (Convention on social security of 1952), 121 (Convention on employment injury and job-related illness benefits of 1964), 128 (Convention on invalidity, old-age and survivors’ benefits of 1967), 130 (Convention on medical care and sickness benefits of 1969) and 157 (Convention on the maintenance of social security rights of 1982). Bolivia, Venezuela and Ecuador have ratified four and Peru has ratified one, whilst Colombia has not ratified any.

290  The Andean Community and the Protection of Human Rights termed the ‘social dimension’ of Andean integration, the Andean P ­ residential ­Council has expressly ordered that existing legislation be studied with a view to its updating. This study is currently in progress.115 In any case, we must make specific mention of the Andean Labour Migration Instrument, adopted in 1977. This instrument specifically ‘defines its scope as being applicable to the member country nationals who immigrate to another member country’.116 It contains important definitions, in that it draws distinctions as to types of migrant worker, distinguishing between the ‘company worker’, the ‘border worker’ and the ‘seasonal worker’ and also drawing a line between ‘undocumented migrant workers’ and ‘families of migrant workers’. The regulatory framework stipulates that no restrictions or obstacles should be placed on the movement of workers within the sub-region, and that if bilateral agreements are implemented they cannot contain stipulations contrary to or conditions inferior to those established in the instrument. A brief analysis of the instrument’s contents allows us to highlight, a priori, two elements present in its regulations. On one hand, the instrument opens with the principle of non-discrimination in the employment of migrant workers by reason of their nationality, race, sex, creed, social status or sexual orientation. To this end, migrant workers are guaranteed the same labour rights as national workers, including rights under collective contracts and the right to join trade unions under equal conditions. On the other hand, however, the instrument also widely recognises the rights of the families of migrant workers to education, housing, health and social security. In particular, children are given the right to work upon attainment of the minimum age set by the legislation of their country of residence. Rights granted therefore exceed the bounds of mere labour rights, as they extend to all members of the immediate family. Subsequent to this basic legislation, specific provisions applicable to the different categories are included. With this in mind, we can focus our attention on the following areas. Firstly, seasonal migrant workers are granted free entry and exit to a country in the season in which they carry out their work and border workers are also given the same freedom of movement. These two cases are examples of how such legal regulation could be extended to other Andean workers in a true Andean social area. Secondly, particular mention must be made of regulations on undocumented migrant workers, who are protected against arbitrary deportation and extended the right to remain within territory of the state they have migrated to during processes of regularisation or, if they should be deported, Article 29 stipulates that ‘their exit must be carried out in accordance with principles of human dignity’ and guarantees

115  116 

Documents from Andean Presidential Council Meetings (n 4). Kratochwil (n 50).

Andean Social Integration and the Safeguarding 291 the involvement of the consulate or embassy of their country of citizenship. Even deportation, however, will not diminish the labour rights they possess, which they continue to enjoy under Article 31.117 In general terms, it can be said that although both regulations directly impact the recognition of fundamental rights, it is the former—regarding establishment of an area characterised by free movement—which guarantees that certain rights are enjoyed. These regulations are an important precedent, albeit from an essentially theoretical perspective as unfortunately they have not been applied in practice even though it was stipulated that they must be incorporated into domestic law within 12 months from approval of the instrument.118 At any rate, regulations on migrant workers, including regulations protecting undocumented migrant workers and their family members, are governed by the principle of ‘national treatment’ for citizens of any Member State.119 Updating regulations on labour migration is necessary to achieve consolidation of the Common Market, which is one reason the Andean Labour Migration Instrument must be adapted to the new reality, and why consideration must be given to the sub-regional context in which the Instrument was approved, to the Instrument’s legal dynamic, to modification of existing national migration and labour legislation—particularly that related to migrant workers—and to evaluation of the functions of national Labour Immigration Offices as well as the possibility of adaptation to new Community realities.120

For these reasons, other objectives have been included, such as creation of a system to provide migration information at the Andean level, the possibility of establishing job certifications recognised between countries and guaranteeing equality of labour rights for national and migrant workers as well as training programmes for migration authorities, mainly on administrative systems.121

As regards this issue, CCLA Opinion 008—which gave consideration to the foundations necessary for progression to modernisation of the labour migration instrument—should not be overlooked. Amongst other provisions, this 117  Whatever their circumstances, decisions and regulations taken or adopted by state immigration authorities with respect to denying the right of residence to undocumented migrant workers must allow for repatriation ‘in safety and dignity of the worker and, if applicable, the worker’s family’. In this respect, clear limitations are imposed on any arbitrary decisions that might be taken, protecting the rights and dignity of the worker, even undocumented workers, as well as those of their families. 118  Due to diverse problems this instrument has not been applied in the sub-region, neither with respect to Labour Immigration Offices nor with respect to the facilities and guarantees provided to migrant workers. See Ciudad Reynaud (n 25). 119  Franco and Di Filippo (n 17). 120  Kundmüller Caminiti and Herencia Carrasco (n 47). 121  Vega Castro (n 112).

292  The Andean Community and the Protection of Human Rights Opinion is of paramount importance to the realisation of free movement of people and to defending the rights of Andean citizens that migrate from one country to another. Firstly, it views harmonisation of migration legislation as essential, as it views the standardisation of domestic labour and social security legislation, and it advocates standardisation of national identity documents, arguing for implementation of an Andean passport. Secondly, it identifies border areas as places in which migration procedures should be simplified. More recently, the Andean Parliament took action to protect the rights of migrant workers through Decision 1022, adopted during the Twentysecond Period of Sessions on 31 March and 1 and 2 April 2003, when it exercised its power to create the Special Committee on Migration Issues to safeguard respect for human rights and improve the quality of life for the Andean population. According to the legal instrument itself, the Commission’s objective is to ‘protect respect for the human rights of Andean migrant workers abroad and to work towards improvement in labour and human conditions afforded them by their countries of destination as well as elevation of the standard of living of family members who have remained in their countries of origin’.122 In summary, these regulations are important and, relating as they do to the specific sector of migrant worker rights, highlight the close relationship that has come to exist between development and consolidation of the social aspects of Andean integration and the affirmation of human rights as an essential base for the integration process. Ultimately, the result is that certain rights are recognised, as seen with the labour migration regulations described above. iii. Other Areas of Interest as Regards the Recognition and Protection of Rights Also possessed of a very sectorial application are instruments adopted at the core of the Andean integration process which either allude to certain fundamental rights or at least can be considered to have a bearing on human rights. In this respect, it is perhaps appropriate to select and highlight two particular areas in which rights are protected. On one hand, as regards environmental protection it is clear that this aim has been adopted as one of the issues that comprise the Andean integration agenda. It has often been dealt with through political declarations and has manifested itself in some of the instruments adopted on human rights. 122  The functions to be carried out by this Committee include working on the harmonisation of migration laws, controlling the quality of life of migrant workers in their country of residence, recommending the adoption of policies and collaborating in the development of an Andean Community Strategic Migration Plan.

Andean Social Integration and the Safeguarding 293 Nonetheless, as with other areas it is the upper echelon of decision-takers which has most profoundly affected the evolution of environmental protection. This began with the view that the environmental dimension was part of the Andean integration process and, as such, states must unify their stances on the issue. Such unification was seen at the Rio de Janeiro Summit, when Andean states arrived at an important consensus and approved the Tlatelolco Platform on Environment and Development, which resulted from the Meeting of Ministers of Developing Countries belonging to ECLAC.123 What is therefore evident is that the environment is an issue tackled in instruments adopted at the core of the Andean Community, most often by those issued in the form of recommendations or programmes, although it is approached as a right corresponding to those to which the Andean legal system is addressed. On the other hand, extensive improvements have been made to the protection of indigenous peoples in the Andean sub-region, manifested through efforts to create an Andean policy on indigenous cultures. A significant example of this is the decision to create an Intergovernmental Committee tasked, in collaboration with the Inter-American Indian Institute, with drafting reports on the situation of existing indigenous peoples to be submitted for consideration by the Andean Presidential Council, which will in turn create a policy that ‘takes into account their economic, political, social and cultural rights’.124 This is clearly further evidence of a trend of recognition and protection of human rights. This regulation, then, protects the rights of indigenous people and is complemented by national provisions, as the Community itself has stated that it must be noted that the constitutions of the five Andean countries recognise their countries as multicultural and multi-ethnic and provide for the rights of indigenous communities. As such, Andean countries guarantee indigenous peoples the right to preserve their identity and organisations, and ensure their representation and participation in the organs of the state.125

The regulation also received significant impetus with the adoption of the Andean human rights charter, which will be covered later on.

123  In this regard, the Act of Caracas of 18 May 1991 established a mechanism of consultation and information about the environment, executed through Meetings of Environmental Authorities ‘to define and consolidate agreements in common treatment of the matter’. The first meeting was held in August 1991 in Caracas, and based on agreements adopted at the meeting, the Andean Environmental Committee was established. Documents from Andean Presidential Council Meetings (n 4). 124  Andean Presidential Council Meeting, Act of Paz of 30 November 1990. Documents from Andean Presidential Council Meetings (n 4). 125  There are specific provisions which cover the health of indigenous peoples, such as the Telemedicine programme and health promotion programmes for the Aymara communities of Bolivia, Peru and Chile.

294  The Andean Community and the Protection of Human Rights iv. The Andean Social Charter: The Legal Instrument most Pertinent to the Social Dimension of Andean Integration Within the context of revival of the Simón Rodríguez Agreement, the ­Conference of Andean Ministers of Employment entrusted the Executive Secretariat with creation of a social charter. Scholarly writings have pointed out that it was already necessary to ‘unify the autonomous functioning of social systems with the establishment of a social charter for the Andean Pact’.126 It was also perceived that the main objective of this charter should be to gather together ‘a catalogue of common social principles and rights’ which would shape the legal tradition of labour legislation on trade union freedom, collective negotiation, the right to strike and job stability in line with the levels imposed by the ILO.127 The Andean Social Charter was thus supported by the Andean Parliament, and met with a favourable response by the Andean Labour Advisory Council, which welcomed the proposal and developed a project in coordination with the Andean Parliament. As a result, the Latin-American Institute for Social Research (ILDIS) was tasked with conducting relevant research. In this process, we must point out that during the first session of the Andean Social Summit in April 1994 the project detailing the Charter’s definitive structure was approved.128 This joint decision culminated in the adoption of said instrument during the tenth session of the Andean Parliament on 30 September 1994.129 Drafting of this legal instrument did not end here, however, as in the second Andean Social Summit in 1999 a modification to the adopted text was proposed. The proposals were delivered to a drafting committee which, after completing an initial draft, sent this for consideration to the Andean Parliament, which approved it in Decision 815, adopted on 7 December 1999 during the Fifteenth Period of Sessions in Lima.130 The aim was, in a few lines, to give the new Charter binding legal effect or, at least, for the new Charter to include some proposals that were binding in nature, with the possibility of including a control mechanism, either in the form of periodic reports by a new monitoring body or through the potential intervention of 126 C Zuleta de Merchán, ‘Integración latinoamericana a la medida del hombre’ (1995) XXIX(72) Revista de la Universidad del Zulia 111, 114. 127  ibid, 120. 128  Ciudad Reynaud (n 25). 129 G Mendoza Fantinato, ‘Carta social andina y su importancia en la consolidación de la integración sub-regional’ (1999) 2 Integración & Desarrollo 4. See also, ILO, Avances Y Recomendaciones Para La Implementación De La Normativa De La Comunidad Andina En Materia De Migraciones (Lima, ILO, 2012). At the III Andean Social Summit (2012) the Andean Parliament proposed to revisit the text of the Andean Social Charter, see www.oiss.org/ III-CUMBRE-SOCIAL-ANDINA.html. 130  Andean Parliament, Ecuador. National Conference, ILDIS, Modifications to the Andean Social Charter proposed at the second Andean Social Summit in Quito on 24, 25 and 26 ­February 1999. Bogota, Andean Parliament, 1999.

Andean Social Integration and the Safeguarding 295 the Andean judicial authority, to ensure compliance with obligations taken on and thus with the rights recognised in this legal instrument.131 v.  The Legal Status of the Social Charter The information covered above enables us to reflect on the legal status of the Social Charter. As regards how binding the Charter is, it can be described as a declaration by the Andean Parliament, which as per Andean legislation is therefore non-binding. Monitoring of compliance with the provisions of the Charter is carried out by the Andean Parliament via the board of directors and the commissions. Of special relevance is CCLA Opinion 014 of 18 May 2001. This Opinion expresses the view that the Andean Social Charter is an instrument of supreme priority in the Andean social agenda and describes the Charter as one of the legal instruments ‘of a regional scope that guarantee full respect for Human Rights, crucial to the integration of citizens’.132 The Opinion expresses particular support for the idea that the Andean Charter should become binding on Andean nations and be incorporated into the Andean legal system. With this in mind it urges the Andean Parliament to carry out joint action to create a clear statement of common values and principles intended to form a sub-regional mechanism of supervision of human rights which ‘addresses rights, freedoms and duties fundamental to human dignity’, and ‘must provide general and effective legal protection as well as effective legal guarantees that ensure it is complied with’.133 At present, the Charter is rather programmatic in nature, as it highlights areas in which specific actions have been agreed, such as the adoption of programmes at the national or Community level. The merit of the instrument can be said to be its identification, within the Andean framework and in connection with human rights linked to social integration, of aspects requiring specific attention, even though for the most part it leaves the details of this attention to the discretion of individual states and fails to outline a course of Community-wide action. An example of this is when it advises that ‘governments and national congresses’ carry out the Charter’s mandates. It could be argued, then, that its provisions are rather instrumental in nature, and imply tacit recognition of the right in question.

131  CAN General Secretariat, Balance y perspectivas para una Carta Social Andina (Lima, General Secretariat, 2001). 132  Andean Community. Official Documents. 133  ibid. This Opinion clearly expresses that ‘it is necessary to have a binding legal i­ nstrument that clearly defines the ideals and values underpinning the creation of the Andean Community of Nations, placing humanity at the centre of the Andean Community Project’. It even goes so far as to state that ‘said instrument should not be reduced to a mere non-binding statement limited exclusively to listing rights, but rather should also feature a surveillance mechanism to which common citizens can appeal when they are affected by a flagrant violation of their fundamental rights’.

296  The Andean Community and the Protection of Human Rights vi.  The Content and Scope of the Andean Social Charter The Charter begins by listing the general principles governing Andean ­Community action and those which should shape the Community’s social dimension. In this way, these principles have an impact on the area of human rights. The principles which can be included within this definition consist, at the very least, of the following: First, the Charter reaffirms the democratic principle and stresses the commitment to strengthening democracy in the sub-region by ‘stimulating within Andean people a culture of democracy and solidarity’.134 Second, the principles of the universality, indivisibility and interdependence of human rights are listed, in line with the Declaration of Vienna of 1993. The Charter, however, goes on to cover aspects linked to the goal of Andean social integration, clearly stating that the promotion of ‘respect for the fundamental rights of the citizens of any state whilst inside the territory of any member state’ is an indispensable prerequisite for ­progress in social integration.135 Within the framework of these principles, we must not forget that we are dealing with a legal instrument that fundamentally acts inside the social sphere, and therefore the economic measures listed include ensuring social rights such as the right to food, health, housing, education, employment and social security. As a consequence of this, the Charter states the objectives that economic as well as social sub-regional policies must pursue, advocating a better redistribution of wealth, the eradication of poverty in the subregion and an equitable distribution of the benefits of development.136

134  As previously mentioned, the ‘Andean Social Charter establishes a strong relationship between democracy and human rights, reaffirming the commitment of the Andean Parliament to democracy as an ideal political system for the sub-region, and arguing for greater protection of human rights in the region. In this manner, once more it becomes apparent that the recognition and protection of human rights must be carried out in a democratic setting. For this reason, the Charter begins with recognition of the democratic system of government as a regime in which human rights obtain full protection by the law’. See Díaz Barrado and Olmos Giupponi (n 2). 135  To this end, amongst other objectives, strengthening of local and Community institutions is described as ‘a mechanism of incorporating social factors into development and integration’, in addition to fostering ‘an Andean Community conscience through dissemination of the importance of the need for integration’. Amongst the measures necessary for this dissemination, mass media communication is identified as a strategy. 136  A particularly striking section of the set of regulations under analysis is Ch IX, which falls under the heading ‘Economic Solidarity’ and begins by proclaiming that the economy is secondary to human welfare. It contains measures that are strictly economic in nature, such as measures aimed at strengthening the participation of small and mid-sized companies in the integrated market, stimulating the development of the indigenous and the food and agriculture economies, ensuring productive employment and advocating, on the other hand, an international market free from any type of barrier. However, there is repeated insistence, for example, on the right to professional training as part of a ‘policy of employment generation’. Furthermore, consumer rights are recognised and the relevant sub-regional authorities are instructed to promote them.

Andean Social Integration and the Safeguarding 297 Based on these principles, the Andean Social Charter goes on to list c­ ertain rights of diverse content and scope, which are both individual and collective. In light of this, we will now briefly consider certain aspects of the Charter. First, on one hand it is unquestionably clear that special attention is given to the protection of the rights of certain vulnerable groups. In this way, and as previously mentioned, ‘as a human rights instrument the Charter lists rights but also provides for others which actually transcend the strictly social sphere, as its title suggests’.137 In particular, the Charter’s top priority is to promote compliance with commitments arising under the Agreement on the Elimination of All Forms of Discrimination Against Women in the Andean Sub-region.138 Another group that receives attention as a secondary consideration is that of children and families, as per the prescriptions of the Convention on the Rights of the Child and the World Summit for Children. In this regard, the Charter urges governments and national congresses to adopt instruments to eliminate the marginalisation of children.139 Finally, it protects the rights of ethnic and indigenous peoples, recognising the multiethnic, multi-lingual and multi-cultural character of the Andean population and the resulting social, educational and specific human values which must be preserved and strengthened.140 As regards the provisions of the Social Charter aimed at certain vulnerable groups, it is logical to arrive at the conclusion that, in general, recogni-

137 

Díaz Barrado and Olmos Giupponi (n 2). Later on, national adoption of a series of measures is suggested, such as approval of laws eradicating any type of violence against women, provision of support to organisms that develop public policies to advance women and their participation and promotion of programmes aimed at cutting the high levels of death in childbirth seen in the Andean sub-region. 139 Particularly, it is argued that in the sub-region governments and national congresses should push forward the adoption of instruments aimed at consolidating, strengthening and preserving bonds within the family unit, which is the backbone of the social framework, to ensure that the family remains ‘the best environment for the integral development of children and citizens’. Similarly, harmonisation of regulation governing family development is recommended through establishment of a sub-regional Family Code. As regards the elderly, studies and the execution of programmes to facilitate their social incorporation and provide for their protection and well-being are outlined, especially for abandoned elderly parents. 140  Thus, the right of indigenous communities to preserve their identity and their right to integrate with ‘national societies’ are recognised, and strengthening of the Community conscience is also promoted. For the purpose of implementing these provisions, strengthening of official bodies offering assistance to indigenous communities and peoples is provided for, and governments are urged to support the Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean, whose headquarters is located in the region. The right of those affected by sustainable development policies and programmes to participate in their creation is also recognised. Within the context of the international regulatory framework, the need to support and approve the project ‘Universal Declaration on the Rights of Indigenous Peoples’ drafted by the United Nations is stated, as is the need to ratify ILO Convention 169 on Indigenous and Tribal Peoples to guarantee recognition and protection of the rights of indigenous peoples. Furthermore, the adoption of specific policies and programmes to support indigenous peoples is proposed. 138 

298  The Andean Community and the Protection of Human Rights tion is given to the rights of specific vulnerable groups which form part of the groups generally protected by international law governing this subject matter. It is true, however, that whilst the indigenous issue is insisted upon, many times the rights conceded to indigenous peoples lack any sort of social content. Second, as is to be expected, however, this legal instrument deals mainly with rights that are social in nature or, in other words and as previously stated, ‘social, economic and cultural rights’. These ‘are the focus of the rights contained within the Social Charter’.141 In this section, we find rights differing greatly in content, although for some this content can be defined as essentially social. As mentioned above, this framework includes rights of a social nature, and emphasis is placed on rights which are social and labour-oriented through the universal use of very general terms to recognise these rights, which can essentially be grouped together in the same way as seen in the European Social Charter.142

In spite of this, the following factors can be highlighted. With respect to health, the implementation of the Hipólito Unanue Agreement is confirmed. At the Community level, harmonisation of health and social security legislation and support for execution of programmes of education and dissemination of information on health and nutrition carried out with the participation of civil society is advocated. A series of tasks to be undertaken by Andean states is recommended to enable them to improve their ability to continue to develop policies and make progress in terms of investment in and decentralisation of the health sector. Creation of health programmes must be undertaken with participation by civil society. Promoting, through national congresses, ‘institutional improvement to legislative commissions in the social and health spheres’ is also advocated. Although nutrition is mentioned, specifications as to the exercise of the right of access to food are not given, except to suggest the creation of educational programmes on nutrition.143 The Social Charter encompasses rights connected to education, science, culture and sports. As regards education, it encourages the creation of

141 

Díaz Barrado and Olmos Giupponi (n 2). CM Díaz Barrado, ‘La Carta Social Europea un instrumento válido para el desarrollo de los derechos sociales en Europa’ in F Marino Menéndez and C Fernández Liesa (eds), Política Social e Internacional Europea (Madrid, Universidad Carlos III de Madrid, 1996) 231–62. 143 This right is recognised under Art 11.2 of the International Covenant on Economic, Social and Cultural Rights and Art 12 of the San Salvador Protocol. The same section also regulates matters related to housing and the environment. The adoption of policies that protect and preserve the environment and educational and awareness programmes on conservation and defence of the environment are advocated, and adoption of sub-regional community-wide legislation on the issue is even proposed. The Charter also contains measures to facilitate access to housing, such as implementing programmes aimed at covering habitual shortages as well as the adoption of special instruments. 142 

Andean Social Integration and the Safeguarding 299 ­ rogrammes to address illiteracy and home and rural schooling, ensuring p the right to pre-school and basic education is enjoyed. This right is recognised at a regional and international level, and the Charter stipulates that efficient allocation of resources must exist in order to provide an adequate educational infrastructure.144 Along these same lines, implementation of national programmes designed to improve academic instruction at all levels is advocated, and the right of Andean citizens to obtain professional training appropriate for the sub-regional area is protected. A special measure provides for the free movement of educational, cultural and sports ­material free from customs duty inside the sub-region. The Charter also stipulates as imperative the need to ‘defend and protect the diversity and cultural ­heritage of the Andean people’.145 The section of greatest interest is that which addresses Employment and Social Security, as it recognises and protects the ‘rights of the Andean employee’ in what is clearly an establishment of rights within the Andean sub-region. In this regard, three recognised groups of rights can be singled out: those already listed in other international regulations of universal or regional application, those protecting vulnerable groups and those which take on meaning within the context of the Andean integration process. As regards the first set of rights, in addition to listing ‘classic’ rights such as the right to adequate remuneration enabling a worker to provide for himself and his family the means necessary for their development as people, the right to free choice of profession or activity under existing legislation and to enjoy a healthy and safe work environment, the Charter establishes other rights such as the right to professional job training, the right to employment, the right to academic study and the right to professional development for young students.146 As regards the second set, it should be pointed out that equality between men and women is stipulated, as well as protection of maternity and the family, and women are guaranteed adequate protection before and after childbirth. Similarly, the Charter also protects the right of disabled individuals to employment suitable for their capabilities.

144  The ICESCR establishes this under Art 13, and the San Salvador Protocol reiterates it in Art 13(a). Both stipulate that primary education should be free and universally accessible. The Social Charter goes even further and aims to guarantee that pre-school education also meets these conditions. 145 Promotion by governments and civil society institutions inside and outside the subregion of other regions, of educational, cultural, scientific and technological exchange is advocated, strengthening and reinforcing the provisions of the Andrés Bello Agreement. Finally, the Charter addresses Andean youth, aiming to facilitate exchanges through appropriate policies in the fields of education, science, culture and sport. 146  The right to fair protection during the privatisation of public companies in sub-regional countries is also recognised, as well as the right to be informed of and protected during changes in employment conditions arising from industrial restructuring and the incorporation of new technology. All of this is complemented by recognition of the employees’ right to organise themselves into and join trade unions.

300  The Andean Community and the Protection of Human Rights As regards rights recognised which are specifically applicable inside the Andean sub-region, free movement within the territory of member states and the right to social security are protected. The Charter also particularly recommends implementation of an Andean Social Security System. Scrutiny of the Charter allows us to conclude that its virtue lies in its expression of the agreement of Andean states on matters of priority within the social dimension. Some of these had already been addressed in previous legislation and mainly comprise social agreements. Also of value is that the Charter essentially introduces issues connected to human rights as matters to be dealt with inside the framework of the Andean social dimension. The area in which the Social Charter demonstrates the greatest weakness is with respect to the implementation of instruments or precise mechanisms to ensure enforcement. Prior to the adoption of the Charter great emphasis was placed on the commitment to transcend the merely declaratory effects of the social declarations in international treaties to draw up detailed ‘rules of play’ and accept the ‘effective application’ of the Social Charter under the control of a supranational body such as the Andean Court of Justice … with the authority to ensure application of Andean legislation, guarantee its consistent interpretation and settle disputes arising from its application, with total independence from the governments and bodies of the Cartagena Agreement.147

Nevertheless this has not occurred, and thus we can continue to argue that it is an insufficient legal instrument, although it is useful insofar as it relates to the regulatory development of human rights in the process of Andean integration, since for the purposes of its application the Andean Parliament is the only deliberative body common to the sub-regional integration process mentioned, and in its capacity as evaluator of the application of the proposals of the Andean Social Charter it will exercise control through the Executive Board and the main relevant Commissions, as laid out in point 59 of said Charter.148

IV.  THE STATUS OF ELEMENTS OF HUMAN RIGHTS RECOGNITION AND PROTECTION IN THE ANDEAN AREA: ANDEAN REGULATIONS AND HUMAN RIGHTS

The body of Andean Community regulations mainly consists of declarations establishing areas of focus for action on human rights within the context of integration as well as legal instruments that have been gradually adopted at the core of the integration process and which are particularly relevant to human rights. In addition to references to human rights found in the c­ ontext

147  148 

Zuleta de Merchán (n 126) 120. Díaz Barrado and Olmos Giupponi (n 2).

The Status of Elements of Human Rights Recognition 301 of the social dimension of the Community analysed above, it should be noted that this process of integration has created instruments that specifically and particularly mention human rights. Perhaps it cannot be argued that there is a complete and ordered ‘system’ pertaining to human rights, but it is evident, particularly in recent times, that the Community has made significant progress towards the recognition and protection, through regulation, of fundamental rights. To this effect, in addition to the stances taken by Andean presidents,149 two legal instruments deserve special mention: the Machu Picchu Declaration and the Andean Charter for the Promotion and Protection of Human Rights. Alongside these, we must examine the role of Andean bodies in the area of human rights, as well as the reference to human rights that is inherent in the notion of designing a ‘common foreign policy’ shared by Andean nations. All of this shapes a conceptual and regulatory framework for issues connected to human rights, substantiating the argument that the Andean Community is a sub-regional process of integration currently evolving in Latin America in which, with growing intensity, detail and breadth, attention has been focused on human rights, which in turn have advanced remarkably in recent times. In any event, it cannot be denied that Andean integration insofar as it relates to human rights has taken shape through declarations containing political content, whether jointly or individually issued. These declarations can be analysed from two perspectives. On one hand, their issue constitutes an act with certain international legal effects, as they express the views of the Andean Community in its capacity as an international organisation. On the other hand, and perhaps more specifically concerning the content of these declarations, they are the seeds of future legal regulations that will build on the lines of thought and basic concepts they express. Proposals to revise the Social Charter and to improve the implementation of the existing norms have been put forward at the South American Summits on Migrations.150 149  On this issue, see Díaz Barrado and Olmos Giupponi (n 2). It should be remembered that ‘the Presidents of the member states of the Community stated in the Joint Declaration of Caracas on 3 February 1989 that democratic regimes ‘enable the advancement of sub-regional integration based on legitimacy and the participation of national communities in decisiontaking’. This Joint Declaration was followed by the Manifesto of Cartagena de Indias, signed at the Presidential Summit on 25 and 26 May 1989 on the twentieth anniversary of the Cartagena Agreement, wherein Member State leaders stated that ‘Andean integration is imperative to strengthen peace, security, improvement in living conditions and the integral development of our peoples. As a political project its execution should call for full participation by all sectors and inhabitants within the Sub-region. The democratic system constitutes an unbreakable rule, a way of life and ideal instrument for the preservation of peace, the achievement of development and social justice, the guarantee of full respect for human rights and the promotion of cooperation and integration among our people’ (Documents from Andean Presidential Council Meetings (n 4). 150  In this respect, XI Conferencia Sudamericana sobre Migraciones. Declaración de Brasilia Rumbo a la Ciudadanía Sudamericana. Brasilia, 19 al 21 de octubre de 2011, available at:

302  The Andean Community and the Protection of Human Rights Furthermore, alongside the adoption of declarations of a political nature, the adoption of legal instruments has also taken place. These instruments, independent of their value and effectiveness, represent a rather decisive contribution to the creation and consolidation of an Andean human rights agenda. They lay the foundations for possible construction of an ‘Andean system of recognition and protection of fundamental rights’ and, at any rate, are palpable benchmarks of the adoption of regulations and decisions at the core of Andean integration. A. The Machu Picchu Declaration on Democracy, the Rights of Indigenous Peoples and the War against Poverty Breaking this instrument down into its constituent parts reveals the existence of certain essential aspects, amongst which the following can be highlighted: firstly, the affirmation that there is an unyielding relationship between democracy and human rights, which ties in perfectly with the stances expressed over the course of meetings between Andean presidents. These stances have also been reflected in the evolution of regulation within the framework of integration. Secondly, stress is placed on the war against poverty, which is unquestionably tied to the issue of social integration and the attainment of social development, and as such leads to issues relevant to human rights. Finally, heavy emphasis is placed on recognition of the multicultural and multi-ethnic nature of Andean societies and, in line with this, the special protection of a specific human group, ie indigenous peoples. In the initial description of its main convictions, the Declaration reaffirms the interdependence of democracy as a system of government and respect for human rights, and emphasises the importance of this for integration processes. With this in mind, it is agreed to progressively strengthen the InterAmerican Human Rights System, including the possibility of the continuing operation of the Inter-American Human Rights Court and the Inter-American Human Rights Commission. As previously mentioned, one important conclusion that can be drawn from the text of the Declaration is that it does not establish the creation of sub-regional control mechanisms. Rather, the Declaration advocates parameters given form through instruments which

www.acnur.org/t3/fileadmin/Documentos/BDL/2011/8166.pdf?view=1. See also the Act of Santa Cruz de la Sierra resulting from the Extraordinary Meeting of the Andean Presidential Council from 28–30 January 2002 in Santa Cruz de la Sierra in Bolivia which describes, for example, a ‘social and political agenda’, stating with regard to political integration that ‘the dynamic interaction between presidents and Foreign Affairs ministers generates, in addition, a new regional agenda on issues of particular importance for the countries, both individually and collectively’. Amongst these principles is the strengthening of democratic processes and respect for human rights. Taccone and Noriega (n 9) 3. Documents from Andean Presidential Council Meetings (n 4).

The Status of Elements of Human Rights Recognition 303 will act to orient the adoption of Community policies, as seen in the Andean Charter for the Promotion and Protection of Human Rights.151 Within the framework of sub-regional democracy and ascribing value to the ethnic and cultural diversity that distinguish the Andean area, respect for and promotion of diversity is demanded, through implementing strategies and policies for reassessing the multi-ethnic and multicultural characteristics of our countries. In addition, importance is ascribed to the participation and involvement of indigenous peoples and ethnic minorities. One area tackled by the Declaration is that of the interdependence of democracy, human rights and social development. This translates into impartial promotion of the integration process in which economic benefits are distributed to all sectors of the population, and efforts are focused on the war against poverty. Bearing this in mind, the conclusion is reached that social justice is a basic element of democracy, and social justice is referred to as essential for guaranteeing political stability and government legitimacy. Andean states thus affirm their commitment to attaining ‘economic growth with social equity to allow our societies to overcome their inequalities, emerge from their poverty, and meet the challenges that face them’.152 In keeping with this line of thought, priority is assigned to the social agenda in terms of strengthening political cooperation.153 Finally, the Declaration stipulates the desirability of increasing development cooperation ‘and financing for projects in the critical areas of the war on poverty. We attribute special priority to debt-for-development project swaps in benefit of the most vulnerable sectors of society’.154 In line with the rest of the contents of the Declaration, the defence of the fundamental rights and freedoms of indigenous peoples is advocated. The instrument goes on to provide a non-exhaustive list of the rights protected. These include the right of indigenous peoples to their spiritual, cultural, linguistic, social, political, and economic identity and traditions. Although the wording is slightly deficient, we imagine it should be understood as referring to both individual and collective rights. As regards the latter, the Declaration guarantees indigenous people the right to retain control of their historic cultural heritage, preserve their systems, know-how and practice of ­traditional 151  Instructions given to Ministers of Foreign Affairs seem to confirm this aim, in that ministers were tasked with drafting a proposal on the adoption of programmes to strengthen democracy, the participation of civil society, democratic education, exchange of knowledge between political parties in the Andean sub-region and policies to promote and spread democratic values. Andean Community. Official Documents. 152 ibid. 153  At the same time, good administration that is both efficient and transparent as well as citizen participation are advocated as measures to overcome social inequality. In this regard, the importance of fighting against corruption as a contributing factor to social inequality is advocated through cooperation in ‘any joint measures that may be necessary in keeping with international law and regional agreements on the subject’ (ibid). 154 ibid.

304  The Andean Community and the Protection of Human Rights medicine, including the right to the protection of ritual and sacred places as well as the right to education on diversity. It should be noted that a limitation is incorporated with respect to the public order of the state and existing constitutional and legal provisions, which seems to mean that if there were to be a conflict between an ancestral custom or tradition and a legal regulation, the latter must prevail.155 With a view to extending the participation of indigenous peoples into ‘all spheres of national life’ and, particularly, discussion of the issues that affect them, the creation of a Working Group featuring participation by indigenous people was proposed. This initiative was later approved by the Andean Community and the Working Group was established. In summary, the instrument under study directly tackles issues connected to human rights and, whilst it is true that it focuses specifically on certain areas of action, it also provides an overview of the entire area. B. The Andean Charter for the Promotion and Protection of Human Rights The enterprise of drafting and approving an Andean human rights charter is a recent aspiration of the Andean Community, although it is underpinned by a long Andean democratic tradition and also by the incorporation of human rights as a key element of the integration process. To this end, in 1999 the General Secretariat clearly expressed its ‘desire to draft and approve an Andean Charter on Human Rights establishing Community policy on this subject, to be executed by Andean nations and the bodies comprising the Andean Integration System’.156 Furthermore, at that time the need was expressed for the ‘Charter to include the principles and main focuses of Community policy as well as a programme of cooperation to strengthen human rights in the countries comprising the Andean Community’.157 Thus, although it is true that adoption of this Charter has meant that issues connected to human rights have gained importance in actions by Andean states operating as a Community, it is also true that for the most part this legal instrument is the result of a process in which the legal system of the Andean Community increasingly stressed the need for a catalogue of fundamental human rights or, at least, revealed the interest of Andean states in addressing the issue.

155  At an international level, support is expressed for the American Declaration of the Rights and Duties of Man to guarantee that indigenous peoples enjoy their rights in accordance with the non-discrimination principle, and creation and approval of the American Declaration on the Rights of Indigenous Peoples is also sanctioned (ibid). 156 ibid. 157 ibid.

The Status of Elements of Human Rights Recognition 305 Many elements combine to define this legal instrument and many conclusions can be drawn from it. It should be stressed that the short time since its approval, the legal status it has been assigned and its contents, which are often very general as to the rights that are recognised, make it difficult to wholly specify its meaning and scope as well as the future effectiveness of its provisions. At any rate, there can be no doubt that for the purposes of this study this particular Andean Charter deserves a detailed commentary.158 i.  The Nature, Content and Scope of the Charter Detailed study of this legal instrument leads to the identification of at least three issues of great interest as regards how to assess the legal value of an instrument of this type. These are: first, to determine as precisely as possible its legal status and to what extent its provisions are binding; second, to pinpoint the main elements of its content with respect to the human rights recognised, the different categories they fall under and, specifically, the targets of regulations recognising fundamental rights; and third, to note the existence of mechanisms guaranteeing the exercise of the rights recognised or the establishment of measures aimed at this purpose. All of these elements comprise a sort of ‘system’ of recognition and protection of human rights which operates within the integration process. If this ‘system’ is assigned greater legal value, if its contents are determined with greater exactitude and if mechanisms of control and protection are incorporated, the Andean Community will be closer to a true and effective system of protection of human rights. ii.  The Content, Scope and Targets of the Andean Charter Upon analysis of the Charter’s content, the first thing that captures one’s attention is the existence of at least five pillars on which the area of human rights in the Andean sub-region rests. It should be remembered, however, that the original draft of this legal instrument covered more ground and featured different systems of classification, and though a large number of segments from the original draft have been retained in the current version significant sections have been cut, as will be seen as each topic is analysed.159 It could be argued that the first pillar of the Charter is its description of the principles and ‘essential elements’ of human rights action. The Charter recognises that human rights are inherent to the nature and dignity of every

158  For a general overview of the Charter see MB Olmos Giupponi, La Carta Andina para la promoción y protección de derechos humanos para la integración andina (2003) 55(1) Revista Española de Derecho Internacional (REDI) 516–22. 159 ibid.

306  The Andean Community and the Protection of Human Rights person. Due to this, it reaffirms the principles of universality, indivisibility and interdependence which were coined, as previously mentioned, in the 1993 Vienna Declaration at the Second Summit on Human Rights.160 To these must be added the principle of entitlement to all rights, a principle that was absent from the original draft but was added after the consultations carried out.161 The principle of respect for democracy, and commitment to its preservation, protection and defence, also established in other Andean instruments, constitute the second pillar that can be detected in this legal instrument. This claim is substantiated by the fact that the Charter emphasises the need to promote ‘the participation of civil society in the preparation and execution of member states’ national action plans and programmes in favour of the observance of human rights’. In particular, as regards the principle of defence of democracy, the Charter imposes an obligation on Andean states to ensure full exercise of all civil, political, economic, social and cultural rights, as well as the right to development, and reiterates commitments made in Andean and regional regulations.162 What is truly remarkable about this section is the recognition it provides to each citizen of a right unique to the Andean area, which is the right to elect and participate in the elections of the Andean Parliament, through free, direct and secret universal suffrage. As the third pillar, Andean states assume the general obligation of contributing to the functioning of regional and universal mechanisms to protect and promote human rights, through ratification of appropriate instruments and harmonisation of national legislation. As can be seen, no mention is made of the creation of new safeguard instruments at the sub-regional level. To compensate for this, the Charter includes the obligation to comply with the rulings of the Inter-American Court of Human Rights and to take a constructive attitude to favourably accept the decisions and recommendations of regional and global non-jurisdictional mechanisms, when applicable, pursuant to relevant human rights treaties and constitutional provisions.163

160 See, in particular, C Villán Durán, ‘Significado y alcance de la universalidad de los ­ erechos humanos en la Declaración de Viena’ 46(2) 1994 Revista Española de Derecho d ­Internacional (REDI) 505–32. 161  Indeed, in the section of the text entitled ‘Right to Development’, finalised in the subregional workshop on the Charter, conclusions included advocating improved equity to permit effective defence in the case of alleged violations. Memorandum on the Andean Charter for the Promotion and Protection of Human Rights (n 5). 162  Specifically, ‘it is important to emphasise the link the Charter establishes between protection and promotion of rights both civil and political and the democratic system, given that the application of the Charter constitutes a guarantee of these rights’. Díaz Barrado and Olmos Giupponi (n 2) 195. 163  Nevertheless, the draft proposal had advocated the creation of sub-regional mechanisms to guarantee the ‘promotion and protection of human, civil, political, economic, social and cultural and collective rights within the integrated Andean area, in which inhabitants of Andean nations will enjoy the same set of rights’. Andean Community, Official Documents.

The Status of Elements of Human Rights Recognition 307 As the fourth pillar, the Charter declares that ‘every person, whether a citizen or a foreigner, located within the territory of an Andean Community member state’ is entitled to all human rights and fundamental freedoms set forth in international human rights law and pertinent national legislation. From a rather procedural perspective, the Charter affirms ‘the right of all people’ to file accusations of violations of human rights and fundamental freedoms with relevant national bodies in Andean states. Similarly, Andean states also reaffirm their commitment to supporting judicial organs and Ombudsmen. Finally, with respect to the fifth pillar, consideration must be given to Section II, entitled: ‘Discrimination and Intolerance’. This section has been added since the draft version and notably broadens the provisions originally laid out on the topic. Amongst these provisions, the decision to combat all forms of discrimination and the promotion of national legislation punishing racial discrimination clearly stand out, signifying that the nondiscrimination principle is understood in broad terms. This translates into, for example, a commitment to establish educational programmes and to take measures necessary for the protection of minorities. Before moving on to analyse the rights stipulated in the Charter, it must be pointed out that as regards specific regulations, international and regional regulations pertaining to each of the diverse categories are singled out. In this sense, they are used as precedents. The importance of compliance with them is stressed, and a certain protocol to be followed within the Andean framework is established. Having clarified this, as regards to the rights recognised we can argue the following. The Charter first tackles civil and political rights, listing the regional and universal instruments that establish them. It then goes on to affirm full respect for freedom of thought, opinion and expression, particularly free operation of the media without public political interference of any kind, guaranteeing access to electronic information media and finally guaranteeing a right along the lines of ‘habeas data’, ie the right of individuals to access information that government bodies and private corporations may have on them, as per national constitutional law. This text was added to the initial draft proposal. Likewise, protection of people with respect to their right to seek asylum as well as the right of those to whom asylum has been granted to enjoy it is introduced. This is a right recognised under Article 14 of the Universal Declaration of Human Rights, including both territorial asylum and diplomatic asylum (a regional custom within the Latin American framework).164

164  Although no mention is made of what subcategory of this institution is referred to, from the article it can be deduced that both are encompassed, as it is stated that this recognition is ‘pursuant to national and regional regulations in effect’.

308  The Andean Community and the Protection of Human Rights Another important point is that Article 22 of the Charter commits Andean states to applying the provisions of the International Covenant on Civil and Political Rights as well as the American Convention on Human Rights with respect to safeguarding human rights during periods of officially declared ‘states of emergency’. These situations are respectively regulated in Articles 4 and 27. Interestingly, the Charter stipulates that the Andean Community will launch action plans designed to prevent, eliminate, investigate and try to punish crimes against humanity. To this end, the Charter specifies that such plans will feature participation of competent public bodies and civil society and will be applied against the practice of torture and other cruel, inhuman or degrading treatment or punishment as well as the forced disappearance of persons and extrajudicial executions. In conclusion, it should be pointed out that in this section the draft proposal of the Charter established the right of inhabitants of Andean Community states to report violations of their civil and political rights to Ombudsmen in their respective states of residence. This was a significant contribution towards consolidation of Andean citizenship and would have constituted a mechanism complementary to the notion of an ‘Andean dimension’ aimed at guaranteeing the effective exercise of recognised rights. Unfortunately, however, it was removed from the final version. The Charter next deals with economic, social and cultural rights, beginning by reaffirming the obligation of Andean states to comply with and enforce compliance with obligations set forth in the International Covenant on Economic, Social and Cultural Rights, to the full extent of their resources. Once more, no specific Andean protection measures are stipulated. Rather, the Charter endorses the drafting of a universal non-binding protocol to the International Covenant on Economic, Social and Cultural Rights establishing a Committee similar to the one in place for civil and political rights.165 Proposals resulting from a forum featuring participation by civil society highlighted the need to counteract the negative consequences that ‘the current process of globalisation produces for human rights and, particularly, for economic, social and cultural rights and the right to development’.166 In line with this, the Charter gives a non-exhaustive list of the priorities of the Andean sub-region, specifically that of guaranteeing the right to make a living through freely chosen or accepted work, under just and satisfactory working conditions, the right to form and join trade unions and to 165  The San Salvador Protocol is also described as forming part of the body of international regulations governing the issue, and the need for compliance with it is reaffirmed, as is the need for compliance with other human rights instruments. For this purpose, it should be remembered that the draft proposal contained the principles of court review of and entitlement to economic, social and cultural rights, which are things not found in the final version. 166  Conclusions and recommendations from the Workshop on Human Rights, Development and the Andean Community held in Lima, Peru from 3–5 July 2002.

The Status of Elements of Human Rights Recognition 309 ‘enjoy other labour rights’. It also affirms the duty of Andean states to respect labour rights ‘in accordance with national legislation, international human rights law and labour standards issued by the International Labour Organization’.167 In summary, a significant arsenal of rights featuring social content can be identified. These rights, together with those established under the Andean Social Charter, comprise an important reinforcement of the content that can be said to constitute the social dimension of Andean integration. One important point is that the Charter goes beyond what is established under other Andean instruments, in that recognition of rights of a social nature is made within the general and systematic framework of an instrument specific to human rights. Third, in Section VI the Charter deals with the right to development, which was covered in greater detail in the initial draft version. The Charter generally follows the principles expressed in the Declaration on the Right to Development (1986) of the General Assembly of the United Nations as well as the principles expressed in international human rights instruments. Once again, in the final version an article was eliminated which promised full support by Andean nations for the work carried out by the United Nations Human Rights Council in order to ‘foster the application, promotion and protection of the right to development, a human right indivisible from and interdependent on other human rights’.168 In addition, the right to a healthy environment found in the draft proposal under the section ‘New Spheres of Protection from a Human Rights Perspective’ is covered in the final version of the Charter in its own section, and is expressed as ‘the right of all individuals and of societies to a safe and protected environment’, in compliance with instruments of international human rights law. The current text, however, is rather less broad than the provisional version, in which aspects such as the balance between regional

167 Continuing with its description of Andean priorities, the Charter affirms the right to social security and the right of families to protection and assistance, as well as to an adequate standard of living including the right to adequate food, clothing, and housing and continued improvement of their living conditions. The right to health, both physical and mental, the right to education and the right ‘to culture and enjoy the benefits of scientific advances and intellectual production’ are also included. 168  Throughout this instrument, however, the priorities of the right to development in the Andean area are stated. These aim to ensure the social welfare of the population and the equitable distribution of wealth with the participation of civil society in the creation of development programmes. In this section, provisions are made which are closer to the economic sphere, such as ‘promotion of an international economic order that addresses individual rights and the needs, conditions and aspirations of Andean countries and their access to the benefits of the global society’. This is seen when the Charter advocates elimination of international trade barriers, but is especially apparent when it aims to eliminate the harmful effects of foreign debt on development. In this manner, the Charter argues that a link exists between development and respect for the environment as a component of sustainable development. Andean Community, Official Documents.

310  The Andean Community and the Protection of Human Rights development and environmental programmes featuring an appropriate adjustment to national legislation were covered in detail.169 As previously stated, perhaps one of the most novel features of this instrument is the inclusion of specific provisions aimed at regulating the human rights of indigenous peoples and communities of African descent, as laid out in Articles 32 and 41. What must now be pointed out is that the Charter gives detailed recognition of the diversity and identity of the peoples and communities of Andean nations, and the right of these groups to preserve and develop their cultural heritage.170 Fourth, Section VII of the Charter is devoted to indigenous peoples and communities of African descent, and starts by recognising the multi-ethnicity and multicultural nature of the member states of the Andean Community, affirming that this is a cornerstone of sub-regional integration. In the original draft this was considered in a separate section. As a consequence of this recognition, amongst the rights unique to the Andean area the Charter reaffirms the right of the peoples and communities of Andean countries to the preservation and development of their own identities within the societies they are integrated into. When detailing the conclusions of the consultation process, the importance of ‘the multicultural and multi-ethnic nature of the sub-region and the contribution of those of African descent, immigrants and indigenous peoples to the development of their societies’ was stressed.171 Measures proposed within the Andean area include the promotion of programmes that foster inter-cultural exchange, understood as ‘the preservation and development of the ancestral identities of indigenous peoples and communities of African descent, through the fostering of social spaces for contact, dialogue and interaction between such peoples and communities and the rest of societies in Andean countries’ as well as the inclusion of multicultural content in educational systems. Along these lines, Andean states express their commitment to complying with and enforcing compliance with the rights and obligations set forth in international instruments aimed at promoting and protecting indigenous peoples and communities of African descent, although they give no definition of how these groups can be identified. Particular mention is made of ILO Convention 169 on Indigenous and Tribal Peoples in Independent Countries. It is very relevant that the Charter not only guarantees the individual rights of members of both groups, but also states that as ‘human groups of 169  In the draft version of the Charter references were made to human genome research as it related to the protection of human dignity. Furthermore, addition of the issue of the environment into plans for the educational system was considered, and praise was made of the contribution of indigenous and local communities to conservation of biodiversity through use of traditional methods. 170  Díaz Barrado and Olmos Giupponi (n 2) 195, 196. 171  Andean Community, Official Documents.

The Status of Elements of Human Rights Recognition 311 ancestral roots’ they are also entitled to collective rights. These rights can be said to fall under three categories: those pertaining to land ownership and the ability for self-organisation,172 those relating more to the cultural aspect173 and, finally, those relating to environmental protection.174 As mentioned above, ‘this legal instrument contains … a detailed and meticulous description of the rights of certain groups which are in a situation of vulnerability’.175 At the very least, the Charter gives detailed consideration to certain groups, in the form of protection of vulnerable groups. This is seen with women, children and adolescents, the elderly, the rights of disabled workers, the rights of migrant workers and their families and the rights of people of different sexual orientations. New additions are people who have been deprived of their liberty, refugees and expatriates, and after consultation processes were carried out the protection of internally displaced persons was also included. As regards the rights of women, the Charter clearly supports recognition and protection of women’s rights as set out in international instruments. In particular, it cites the International Convention on the Elimination of all Forms of Discrimination Against Women (1981) and its Optional Protocol (1999), the Convention on the Political Rights of Women (1954) and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (1995), amongst others.176 172  The first category encompasses their right to ownership and possession of lands or territories that they traditionally occupy, as well as the right to be protected against forced eviction and to return if they have been displaced. In line with other regional and universal declarations on the rights of indigenous peoples, the Charter recognises their right to establish their own forms of social organisation, and extends this right to communities of African descent. The right to social organisation guaranteed to them includes the right to the exercise of authority and administration of justice. 173  The second category of rights includes their right to maintain and develop their identities and customs in the cultural, spiritual, political, economic and legal spheres, to develop and maintain their tangible and intangible cultural heritage and their right to protect their ancestral collective knowledge and the exercise of their traditional practices. 174  Finally, the third category includes recognition of the right ‘to preserve and promote their traditional practices for the conservation and sustainable use of biological diversity; to participate in the sustainable use, management and enjoyment of natural resources found within their lands or territories; to be consulted about decisions made concerning the exploitation of nonrenewable natural resources found within their lands or territories and on any activity affecting the environment and their life styles; to share, whenever possible, the benefits derived from activities related to the management of natural resources within their lands and territories; to obtain equitable compensation for any damages sustained as a result of such activities; to be consulted and to participate in the drafting, application and evaluation of development plans concerning them; and to formulate their own sustainable development plans and take steps to obtain from the states resources for their funding and international assistance’. 175  Díaz Barrado and Olmos Giupponi (n 2) 196. 176  Areas of priority, in accordance with national and Community legislation, include promotion of the protection of the rights of life, security, ownership, effective remedies against the violation of rights, respect for the standards of due process before the courts in the receiving country and the right not be expelled except in accordance with the law and never to be expelled if deportation poses a threat to their lives, security or liberty. To this end, the Charter

312  The Andean Community and the Protection of Human Rights In the same manner seen in regulations pertaining to other vulnerable groups, when addressing children and adolescents the Charter cites international regulations which recognise and protect their rights. In the draft version, the rights of young children and those of adolescents and youth were dealt with separately. The Charter guarantees that attention in the subregion will be given to these groups in terms of guaranteeing equality of the rights of children and adolescents with respect to other members of society and protecting them against any type of discrimination, even as regards the ‘immigration status of their parents’. The Charter also guarantees effective application in legal and institutional spheres of the ‘higher interest of the child’ criterion, which is defined in the 1989 Convention on the Rights of the Child. Respect is guaranteed for the right to an identity and the right to keep this identity confidential where permitted by legislation, the right of children to know the names of their parents, to have a name and a nationality, to have a legal representative and to be heard on subjects that concern them.177 As regards the rights of elderly adults, Andean countries agree to attempt to protect against societal discrimination, to facilitate quick attention from public and private bodies and to promote the participation of older adults in public issues concerning them at both a national and Community level. The Charter also guarantees the right of the elderly to social security and to enjoy retirement, and agrees to promote the participation and integration of older adults in society. Another protected group is people with disabilities, for whom the Charter guarantees protection from all forms of discrimination and violence and advocates prevention of circumstances leading to disability through education, workplace safety and public information campaigns. It also guarantees their right to social security and adequate medical care and promotes advocates implementation of programmes that actively promote the participation of women in the public and private spheres of society, and the incorporation and promotion of gender considerations in the private sector. It also advocates taking action to prevent, eradicate and offer compensation for gender-based violence. Special protection against sexual harassment and all forms of sexual and labour exploitation, and even against forced sterilisation is included. Likewise, it recommends measures be taken to ensure equal rights inside marriage. 177 The rights of children and adolescents deprived of liberty are protected, and protection is guaranteed against slavery, trafficking, illicit transport and holding of children and adolescents abroad as well as against the illegal or arbitrary deprivation of their liberty. The Charter advocates the eradication of child labour and any other form of labour exploitation, in accordance with ILO conventions and national laws. To this end, it advocates adoption of a comprehensive social protection system that guarantees economic, social and cultural rights, the design and execution of which must include the participation of civil society. The protection of these groups against domestic violence is advocated. Furthermore, from a penal perspective the Charter advocates punishment of those that interfere with the rights of children, mainly those responsible for the recruiting and involvement of children and adolescents in any armed conflict. It even recognises the right of adolescents to receive adequate education and information on responsible sexuality.

The Status of Elements of Human Rights Recognition 313 their integration in society and the eradication of prejudice, stereotypes, ­discrimination and restrictive architectural designs. One group of particular relevance to strengthening Andean integration is that of migrant workers and their families. To shield them, the Charter recognises and protects rights applicable within the Andean social sphere such as respect for the right to migration, to free transit and movement of migrants and their families as well as the freedom to choose a residence in accordance with national legislation and Community regulations.178 The Charter includes the possibility of creating information and assistance centres for migrants. Two rights arising specifically due to migration are mentioned: the right of migrants to reunite with their families and to regularise their immigration status. This means that in addition to addressing reunification, the Charter also protects the rights of family members who have remained in the country of origin. An equally important provision in terms of progress that can be seen in Andean Community action is the promise to foster joint action between Andean nations to promote and protect the rights of migrants and their families before other countries and groups of countries, as well as in international and regional forums. Additional provisions protect the rights of people ‘with different sexual orientation’, without specifying who these people are or what exactly is referred to. In contrast to the broad and detailed regulation which appeared on the subject in the draft version, the final copy retains just two paragraphs which vaguely establish equality of rights for all people, irrespective of their sexual preferences, as well as protection against discrimination, prevention and punishment of violence and discrimination and the guarantee of legal remedies for effective compensation for damage arising from such ‘offences’, a word that appeared in the draft version of the Charter as ‘acts’, which in our opinion was more appropriate.179 The rights of internally displaced persons also enjoy special recognition. The Charter refers to those ‘forced or compelled to leave their homes or their habitual place of residence, in particular to avoid the effects of armed conflict, situations of generalized violence, mass violations of human rights or natural or man-induced catastrophes, and who have not crossed over an internationally recognised state border’, reiterating the commitment of

178  In line with the provisions of the Andean instrument on migrant workers, the Charter guarantees equality in terms of access to the public services of education, health, housing and lodging, social security and sources of work as well as the provision of identity papers. 179  The draft gave express recognition to a list of non-exhaustive rights including the right to education, health, work and provision of social services, freedom of association, expression and movement and the right not to be arrested arbitrarily, not to be tortured, not to suffer interference in their private lives, the right to provision of effective legal remedies for violation of their rights and the right to honour.

314  The Andean Community and the Protection of Human Rights Andean states to compliance and enforcement of compliance with norms set forth in international humanitarian law and international public law.180 Another new addition is the set of regulations aimed at regulating the situation of persons deprived of liberty, who are to be protected through the implementation of programmes designed to improve living conditions in detention centres and penitentiaries, the adoption of measures aimed at avoiding violations of the human rights of detainees, the creation of programmes on rehabilitation and social reinsertion and the consideration of establishing sentences alternative to confinement. From a procedural point of view, the Charter suggests that the principle of procedural celerity be given priority in the administration of justice during trial and sentencing. The section covering refugees and stateless persons recognises their right to protection against all forms of discrimination and guarantees them access to education, social services, health, housing and work as well as freedom of movement, expression and religion and provision of proper documentation without any distinction whatsoever in the receiving country. Likewise, fundamental human rights are protected, including the right to life, security, ownership, adequate standards of due process before the courts of the receiving country, the right not to be expelled arbitrarily and never to be expelled where their lives, security or liberty are threatened. Finally, it must be pointed out that Section X covers ‘Other Spheres of ­Protection of Human Rights’, and replaces Section VII of the draft charter, which was entitled ‘New Spheres of Protection From the Perspective of Human Rights’ and included the articles: A) Consumer Rights, B) The Right to a Healthy and Protected Environment, C) International Humanitarian Law, D) Democracy and The Culture of Peace, E) The Ethical Society: Anti-Corruption, Transparency and Accountability and F) Organised Cross-Border Delinquency, Drug Trafficking and Terrorism. This section aimed to penetrate ‘issues or notions which do not appear or are not yet expressly recognised by instruments related to human rights’, and proposed further progress on these issues.181 The final version of the section features just one article containing a general statement in which Andean states affirm their desire to encourage this legal dynamic in national and international spheres and to work jointly to advance the regulatory development of human rights.

180  Citing the ‘Guiding Principles on Internal Displacement’ (1998) of the United Nations, the Charter creates a core of protection inside the Andean area in which equal rights are ­guaranteed between internally displaced persons and the rest of their countries’ p ­ opulations, providing for humanitarian aid and for their voluntary return to their habitual place of ­residence or their voluntary resettlement in other parts of the country. 181  Memorandum on the Andean Charter for the Promotion and Protection of Human Rights (n 5).

The Status of Elements of Human Rights Recognition 315 iii.  Protection Mechanisms Advocated in the Charter The current version of the Charter systematically classifies protection mechanisms, drawing a distinction between national and international mechanisms. On a national level, the Charter details the elements of proper and independent administration of justice, recognising the important role played by Ombudsmen’s Offices as ‘institutional guarantees for the protection of human rights’. Andean states reiterate their commitment to cooperating with ‘human rights advocates’, including both individuals and groups. Curiously, the ‘right of every person to resort to international mechanisms for the protection of human rights’ is located in the section dealing with national mechanisms, under the subsection dealing with the administration of justice. In the same vein, the Charter also includes the recommendations of the 1993 World Conference on Human Rights held in Vienna with respect to the creation of National Human Rights Plans. Andean states declare their commitment to encouraging the participation of civil society sectors in the drafting of such plans, and encourage cooperation with international human rights bodies such as the United Nations Office of the High Commissioner for Human Rights.182 Still further, under national mechanisms the Charter includes a section entitled ‘Human Rights and Law Enforcement Agencies’, which proclaims that a balance exists between citizen safety, freedom and human rights, and advocates promotion of suitable personnel training to ensure their respect for human rights regulations and, in the event of internal conflicts, of the rules governing international humanitarian law. The section dealing with international mechanisms contains a general statement advocating cooperation with universal and Inter-American systems for the promotion and protection of human rights. The Charter imposes an obligation on Andean states to cooperate with bodies that monitor human rights treaties and, in particular, an obligation to submit periodic reports requested from such bodies on time and to ensure they are drafted with participation by civil society as well as an obligation to give consideration to the final observations of these bodies after they have studied the reports. Furthermore, the Charter specifically mentions the United Nations and Inter-American systems for the protection and promotion of human rights. Cooperation with these systems is advocated, and the importance of the recommendations of the Inter-American Commission on Human Rights is stressed. The states also reaffirm their commitment to compliance with the decisions and resolutions of the Inter-American Court of Human Rights. One innovative provision is the inclusion of support for the International Criminal Court, due to the progress such support represents in international 182 

Olmos Giupponi (n 158).

316  The Andean Community and the Protection of Human Rights humanitarian law and its contribution to the war against the impunity of those that engage in genocide, crimes against humanity, war crimes and aggression. Andean states agree to push forward the ratification of the Statute of the International Criminal Court. The draft version of the Charter provided for the creation of a Community protection mechanism in the form of a Specialised Human Rights Commission within the Andean Court of Justice, tasked with ensuring compliance with the Charter by addressing claims or complaints filed by individuals or groups as to violation of the Charter by a signatory state. This Special Commission would have had the power to make recommendations to Andean governments, which could then take progressive measures in favour of human rights in accordance with the principles and lines of thought established in this Charter. Requirements for filing a complaint were to be those established under international human rights law with regard to admissibility and rejection due to inadmissibility, and the Commission would also have been required to approve its own statute and internal rules of operation. Recommendations that emerged from the consultation process also appeared in this section. During consultation, Member States discarded the initiative that would create a Special Commission in the Andean Court to receive and deal with claims, arguing that the institutional structure of the Andean Integration System already contained bodies capable of monitoring compliance with the Andean Charter, such as the Andean Council of Foreign Affairs, the Andean Parliament and the Andean Council of Ombudsmen, in addition to the collaboration of civil society sectors.183 To ensure implementation, during the Twenty-Second Period of Sessions of the Andean Parliament in 2003, through Decision 1047, the Andean Council of Foreign Affairs was urged to hold meetings with the Andean Parliament, the General Secretariat of the ACN and the Andean Council of Ombudsmen to draft a programme of consultation mechanisms for countries in the Andean sub-region, designed to facilitate execution and tracking of compliance with the provisions of the Andean Charter for the Promotion and Protection of Human Rights.184 Amongst the Charter’s general provisions, it is stipulated that the Charter cannot be construed to limit the enjoyment and exercise of any right or freedom that may be recognised under the laws of any of the Member States or under the international human rights instruments they adhere to. It should also be noted that in the final provision the Andean Council of

183  Memorandum on the Andean Charter for the Promotion and Protection of Human Rights (n 5). 184  This decision was issued during the Twenty-Second Period of Sessions of the Andean Parliament, held in Quito, Ecuador on 31 March and 1 and 2 April 2003.

The Progressive Construction of the ‘Andean Citizenship’ 317 Foreign Affairs is instructed to review the contents of the Charter every four years. V.  THE PROGRESSIVE CONSTRUCTION OF THE ‘ANDEAN CITIZENSHIP’ FROM A HUMAN RIGHTS PERSPECTIVE

When the sub-regional agreement was reached, the cornerstone of future development in the area of human rights was laid when free movement of workers was established as one of the fundamental and essential objectives of the Andean integration process.185 Within the context of the ‘new Andean integration’, it is unarguably evident that directives issued by the Andean Presidential Council have tended towards the creation of an Andean social sphere, as well as towards shaping a specific status for the citizens of Andean Community Member states. Study of diverse instruments that have emerged from the Andean legal system and the views that have been expressed with respect to them reveals that an ‘Andean citizenship’ is gradually taking shape, which will mean the recognition of specific rights for people who alongside their national citizenship also enjoy Andean citizenship. Nevertheless, some of the features that define this ‘citizenship’ are not very precise, which is why the following considerations are worth bearing in mind. Firstly, at present Andean citizenship is indistinguishable from the issue of migration, as this is the area that ‘the basic regulatory framework of sub-regional mobility has focused on, under which the particular types and rules as to different categories of migrants are defined’, in addition to other factors ‘related to mobility, such as safety, legal and political cooperation … and the recognition of degrees, diplomas and other documents as well as temporary transnationalisation of personal professional services’.186 Of the regulations issued when the Andean Group was in existence, Decisions 116 and 148 have been salvaged. These have been cited and commented on above. At any rate, the spirit and letter of these two Decisions aimed to proclaim Community rights and guarantees which, when developed, could constitute the seed of Community citizenship. This implies overcoming the limitations represented by the lack of implementation of the Andean legislation already adopted.187 To this end, during the Meeting of La Paz an agreement was reached on visa supervision for Andean citizens for stays of up to 90 days, a decision which was given form in the Act approved at the meeting. In the desire 185  It must be borne in mind that, since its beginnings, one of the provisions of the Andrés Bello Agreement has been the mutual recognition of degrees and studies carried out in different member states, reaffirming and facilitating the principle of free movement of people. 186  Kratochwil (n 50). 187  Documents from Andean Presidential Council Meetings (n 4).

318  The Andean Community and the Protection of Human Rights to guarantee freedom of movement, it was also decided that an ‘Andean ­system of information and migration control’ would be created.188 In these developments, different courses of action were taken to facilitate the mobility of business owners, professionals, qualified technicians and civil servants in the Andean Integration System. It was decided to task the Board of the Cartagena Agreement with drawing up plans for the next Andean Presidential Council Meeting on the following issues: the validity of national driving licenses within the Andean Community, elimination of exit taxes for Andean citizens during trips within the sub-region, authorisation of the use of Andean personal ID documents for expatriates, authorisation of free transit of personal and household goods and personal effects belonging to Andean citizens resident within the sub-region, establishment of an Andean passport and harmonisation of regulations to facilitate the residence of Andean citizens in member states.189

As regards the movement of people in border areas, the Andean Council of Foreign Affairs (the body which coordinates the issue) adopted the Community Policy on Border Integration and Development ‘intended to bolster the economic development of border regions and improve the quality of life of their inhabitants, as well as to develop the infrastructure and facilitate the mobilization of persons, goods and vehicles in those zones’.190 It should not be forgotten that these areas boast the highest level of movement of people, and have benefited from the strengthening of the integration process. Actions that have been carried out reveal progress in terms of the movement of people within the Andean sub-region. With the aim of achieving greater fluidity in the transit of people, decisions were approved on the Recognition of National Identification Documents and on the Creation of the Andean Passport. As stated by the Andean Presidential Council, both decisions ‘are highly important steps towards consolidating an Andean space in which people can circulate freely, and towards building a community of 188 ibid.

189 ibid. Beginning in 1992, a body composed of civil servants dealing with migration between Member States was created, called the ‘Andean Committee of Immigration Authorities’. This body is technical and administrative in nature, and deals with the issue of migration within the Community. Notable aspects of this include the ‘harmonisation of immigration regulations, the development of documents valid throughout the Community, review of Decision 116, facilitating the mobility of professional workers with an impact on the integration process such as technicians, scientists, business owners, teachers and other. See Kratochwil (n 50). The Andean Committee of Immigration Authorities has worked on issues pertaining to the movement of people, ‘with particular emphasis on harmonisation, simplification and unification of immigration procedures, recognition of identity and circulation papers amongst member states as well as the establishment of mechanisms permitting exchange of information and coordination between authorities, with a view to advancement, bearing in mind the particular situation of each country’ in the aim of increasing mobility of people in the Andean sub-region by 2005. See the Act of Cartagena de Indias of 27 May 1999. 190  Act of Cartagena de Indias of 27 May 1999, para. 18 entitled ‘Border Development’, Documents from Andean Council Presidential Meetings (n 4).

The Progressive Construction of the ‘Andean Citizenship’ 319 Andean citizens’ (Paragraph 20 of the Act of Carabobo).191 It can be seen that the Council’s aim is ambitious, as it aspires to the creation of Andean citizenship, although it can also be observed that the same degree of commitment is not always shown in regulations. At the Presidential Meeting in Lima in 2000, the Council ratified the establishment of an Andean Common Market. This necessitates the adjustment of national provisions on requirements as to the circulation of people. It was therefore decided that national identification documents would be valid for movement within the Andean area, beginning with the free movement of tourists within the Community. Another important initiative is that of establishing an integrated sub-regional identification system for standardising national identification documents. Also important is the commitment to approve common provisions on labour, retirement, health and work safety, as well as recognition of the right to residence, complemented by the establishment of mechanisms facilitating residence and the acceptance of job offers.192 Thirdly, Andean nations have made progress with respect to the movement of tourists and, at least in this area, they adopted Decision 503 in 2001, which came into effect on 1 January 2002 and under which the sole requirement for citizens of any member country to enter any other member country as tourists is presentation of their national identification documents, with no need for a consular visa.193 Furthermore, the Act establishes the Andean Immigration Card, which is the standardised control document for entering and exiting Andean Community member states, although it is a tool used essentially for statistical purposes as ‘its use does not preclude presentation of a passport, visa or other travel document required under national or Community regulations as well as under bilateral agreements in effect’.194 Lastly, Decision 504 of 2001 establishes creation of an Andean passport, although it describes the passport as a ‘travel document’. The Decision 191 ibid.

192  In order to follow through with these initiatives, harmonisation of migratory requirements for students, business people, investors and artists was agreed. It was also agreed that an inventory of obstacles and barriers to the unimpeded circulation of persons between Member Countries and their residency would be conducted, as well as a comparative study of social and labour legislation in Member States. In summary, the Act aims to bring about harmonisation of legislation on identification documents in order to promote inter-regional circulation (ibid). 193  The Decision stipulates that Member States that have this requirement in their national legislation when the Decision comes into effect must eliminate it by 31 December at the latest. Venezuela is the only Member State which currently requires visas from other Andean states. Other states do not, except for Bolivia which maintains the visa requirement as part of a reciprocal agreement with Venezuela. This country has committed to elimination of the requirement by 31 December 2004 at the latest. 194  The Preamble to this Decision states that it is ‘indispensable to facilitate and simplify control of the movement of people entering and leaving states that are signatories of the Cartagena Agreement, in order to promote the Andean integration process and foster tourism’.

320  The Andean Community and the Protection of Human Rights stresses the importance of the passport as ‘an instrument contributing to the consolidation of a Community consciousness and cohesion amongst the citizens of the Member Countries; it shall also identify the Andean Community internationally as a group of countries committed to a shared integration project’. Its intention is effectively for this common identification document to be used in migratory movement within the Andean Community.195 An accurate summary of the wealth of material outlined above might be that ‘the process of creating an institutional framework for the free movement of people has recently recommenced’.196 We support this view, and would add that this Andean framework has been delayed by restrictions arising from a lack of sufficient political will to implement it as well as from the characteristics of the sub-regional labour market. The notion of such recommencement also permeates the different spheres and actions of Andean institutions. This is seen in that when addressing the protection of disabled people the Andean Parliament stated that ‘amongst the objectives of the Andean Community of Nations, promotion of full Andean citizenship should be rescued and carried out by ensuring a high level of teaching, training, employment, social protection and equal opportunities for everyone’.197 Similarly, in one of its Opinions the CCLA advocates strengthening the components of Andean citizenship, such as free movement of people inside the Andean region, through the elimination of barriers to movement such as the requirement for visas.198 To this end, it specifically mentions displacement for the purpose of employment inside the Andean area, and expressly establishes a framework of protection of human rights by safeguarding worker rights and establishing minimum standards of protection for migrant workers and their families. As regards the movement of workers, adoption of an Andean Community regulation on the recognition and standardisation of degrees is currently under study. This will enable the movement of qualified workers.199 As previously mentioned, the free movement of people is one of the prerequisites of gradual construction of a Common Andean Market, but even more to the point is that in accordance with other national migration regulations it is a right enjoyed by Andean nationals and any foreigner with permanent residence in any member state.200 195  At a later date, in the aim of drawing up guidelines on the technical specifications of the Community passport, Decision 525 was adopted on 7 July 2002 as to the ‘Minimum Specific Technical Characteristics of Andean Passport Nomenclature and Security’. 196  Taccone and Noriega (n 9) 26. 197  Taken from Decision 1051 in 2003, which urged all Andean Community Member States to establish a forum of ministers responsible for policies directed at disabled people. 198  Advisory Opinion No 015 on measures to be adopted for consolidation of the Common Market. 199  Document drafted by the Andean Community of Nations entitled ‘Circulation of People’, available at: www.comunidadandina.org. 200  Taccone and Noriega (n 9) 26.

Challenges for the Andean Community Concerning 321 However, this incipient ‘Andean citizenship’ that has resulted in the a­ doption of instruments addressing the movement of people and migrants needs to be accompanied by the implementation of the norms. As to the current state of Andean integration, the Community regulations on movement of people are not been fully implemented by the Member States, although attempts to move towards common migration policy protecting the fundamental rights of migrant workers have been laid.201 With regard to the regulation under study, it is also important to point out that in this process, which will lead to the establishment of ‘Andean citizenship’, a right would inherently be given—albeit a latent right—to every Andean citizen to elect and participate in the elections of the Andean Parliament. Another possible development would be for any Andean citizen located in any Andean state to appeal to the Ombudsman’s Office in the state in which they are located to defend their rights.202 It seems, at least from a legal and theoretical viewpoint, that the Andean citizenship is taking root. This citizenship would mean the recognition of certain rights, particularly for nationals of Andean Community Member States. Nevertheless, the main obstacle remains the effective implementation of the Andean norms: Member States are delaying the effective application of the norms sine die. As a way forward to progress to a true ‘Andean citizenship’ the Andean Parliament proposed that the Andean Community should ratify in block the MERCOSUR Agreement on residence, which is analysed in detail in the next chapter.203 VI.  CHALLENGES FOR THE ANDEAN COMMUNITY CONCERNING THE PROTECTION OF HUMAN RIGHTS

From the viewpoint of the legal and institutional design, the Andean Community probably represents the most sophisticated sub-regional integration agreement. However, the lack of political will on the part of Member States 201 See O Gómez Díez, ‘La migración laboral en la región Andina. Los desafíos de una política ausente’ (2011) 7 Diálogos Migrantes 110–19. 202  Along these lines, we could perhaps mention the right to professional training, which has been specifically guaranteed as a right within the Andean area and, as it is a human right and a duty of Andean Member States, will ensure a permanent process of acquisition of professional skills aimed at better and safer execution of work, improved employment possibilities, improved quality of goods and services, construction of citizenship and social and personal development, contributing to equality of opportunities. 203  L Alvites and R Jiménez, ‘Parlamento andino promueve la adhesión de la CAN al acuerdo de residencia del Mercosur’ (2011) 7 Diálogos Migrantes 120. A provision linked to Andean citizenship can even be found in the Machu Picchu Declaration, which will be discussed further on, which stipulates that ‘combined with the execution of commitments in regard to the circulation of people, the Andean passport and border integration and development, will ensure the establishment of the Andean Common Market by the year 2005’. Documents from Andean Presidential Council Meetings (n 4).

322  The Andean Community and the Protection of Human Rights has undermined the success in the implementation of Andean law. The exit of Venezuela weakened the integration process but, at the same time, Member States have increased their participation in UNASUR. In an appraisal of the various changes the Andean Community faces at the moment, the following aspects can be underlined in relation to the protection of human rights within its institutional framework. i.

Overcoming the internal crisis: After Venezuela left the bloc, the Andean Community had to re-design the regional strategy.204 Venezuela’s withdrawal from the Andean Community of Nations (Comunidad Andina de Naciones or CAN) has had major repercussions in the region, including an impact on the process of Andean integration itself, but also affecting MERCOSUR as discussed in the next chapter. As for the CAN, the withdrawal brought the need to articulate plans to boost the CAN’s revival. ii. The Court of Justice of the Andean Community’s role in the protection of human rights: The Court of Justice of the Andean Community does not have competence to hear individual complaints of alleged human rights violations. Nevertheless, individuals can bring claims to determine whether member states are in compliance with trade-related obligations to respect the rights of certain groups. In particular, this refers to CAN instruments and decisions pertaining to regional trade and competition, but also those touching upon the rights of workers, labour migrants, and consumers; public health; and intellectual property. However, the non-compliance action can only be after the General Secretariat: has issued a finding of noncompliance, but does not bring the case to the Court within 60 days; has issued a finding of compliance; or has failed to issue a finding regarding the alleged noncompliance within 75 days of receiving the complaint.205 iii. The enforcement of the legal provisions on human rights: From a theoretical perspective, the legal and institutional framework set up in the Andean integration process enjoys supranationality. In particular, taking into consideration that supranational elements were already in the late 1970s. Nevertheless, the Andean Community has not lived up to the expectations in terms of the implementation of the different legal instruments, thus, in many areas it still works as an intergovernmental organisation. Although the Andean Community has made considerable progress in the field of human rights by adopting the Andean Charter for the Promotion and Protection of Human Rights, in practice,

204  See C Malamud, Venezuela’s Withdrawal from the Andean Community of Nations and the Consequences for Regional Integration, Working Paper (WP) 28/2006, 15 November 2006 available at: www.realinstitutoelcano.org/documentos/273/273_Malamud_Venezuela_CAN.pdf. 205 ibid.

Challenges for the Andean Community Concerning 323 this legal instrument is regarded as a statement of Community values, rather than a binding source of Community law. Therefore, it is not interpreted or applied by the ACJ.206 It is, indeed, true that the Andean Charter embodies ‘the will of the Andean Community Member States to accept the decisions of the Inter-American Human Rights Court’ being bound to ‘cooperate actively with the United Nations and Inter-American systems for the protection and promotion of human rights’ without including a clear reference to the Andean Court of Justice.207 Despite this apparent restriction, the Charter already provides for the possibility to include other mechanisms, where in Article 86 it expressly mentions ‘the future incorporation of other follow-up ways and means through the pertinent Community channels’. Thus, there is already a provision in the Community law that foresees a greater role to be given to the Andean Court. Again, it seems to us that it is a matter of political will to further develop the legal provisions and implement them. iv. The long path towards a regional citizenship: The difficulties arisen in the effective implementation of the Andean citizenship as clearly seen in the problems experienced in the migration policy. However, certain progress has been achieved. Since 1 January 2005, the citizens of the member countries can enter the other Andean Community Member States without the requirement of visa. Passengers only need to present their national ID cards. As previously explained, the Andean passport was created in June 2001. Hence, passports of all Member States are issued based on a standard template which features harmonised characteristics of nomenclature and security. As another relevant trend, regional citizenship is being discussed in the framework of UNASUR, as examined in-depth in section VII of Chapter VI of this book. By way of illustration, in 2011 the Andean Parliament met in Lima to discuss and agree on joint measures to solve the problems faced by migrants abroad. In the broader framework of UNASUR, at the meeting MPs assessed the regulations in the functioning of the Parliament of the Union of South American Nations (UNASUR).

206  See Tratado de Creación del Tribunal de Justicia de la Comunidad Andina, art 1; Estatuto del Tribunal de Justicia de la Comunidad Andina, art 2; Consejo Andino de Ministros de Relaciones Exteriores, Decisión 586: Programa de Trabajo para la Difusión y Ejecución de la Carta Andina para la Promoción y Protección de los Derechos Humanos, § II, 2.2. 207  Andean Charter, art 82.

6 The Common Market of the South (MERCOSUR) and the Protection of Human Rights I. INTRODUCTION

A

S PART OF the 1990s integration wave, the Common Market of the South (MERCOSUR)1 was established in 1991 on the basis of different bilateral agreements concluded between Brazil and Argentina.2

1  MERCOSUR as a sub-regional integration agreement comprises Argentina, Brazil, Paraguay, Uruguay and Venezuela. Chile, Bolivia, Peru, Colombia and Ecuador are associate states; as well as Guyana and Suriname, which acquired that status in July 2013. The structure of MERCOSUR is as follows: the Council of the Common Market (CCM); the Common Market Group (CMG) and its various Working Sub-groups; the MERCOSUR Trade Commission (MTC); the Joint Parliamentary Commission (JPC) replaced by the Parliament of MERCOSUR (since 2007); the Economic-Social Consultative Forum (ESCF) and the MERCOSUR Administrative Secretariat (MAS). For a detailed analysis of this question, see MB Olmos Giupponi, Derechos humanos e integración en America Latina y el Caribe (Valencia, Tirant Lo Blanch, 2006) 317–39; MB Olmos Giupponi, ‘Sources of Law in MERCOSUR’ in M Toscano Franca Filho, L Lixinski and MB Olmos Giupponi (eds), The Law of MERCOSUR (London, Hart Publishing, 2010) 57; M Toscano Franca Filho, L Lixinski and MB Olmos Giupponi, ‘Protection of Fundamental Rights in Latin American FTAs and MERCOSUR: An Exploratory Agenda’ (2014) 20(6) European Law Journal 811–23 and L Lixinski ‘Human Rights in Mercosur’ in Toscano Franca Filho, Lixinski and Olmos Giupponi, ibid. See also the analysis of Olavo Baptista, ‘MERCOSUR, Its Institutions and Juridical Structure’ (1998), available at http://ctrc.sice.oas.org/geograph/south/mstit2_e.pdf; see also G Gari, ‘The MERCOSUR Legal System’ in The Liberalisation of Trade in Services in MERCOSUR (London, Cameron May, 2009), 43. 2  The intensification of the bilateral relations, in particular, between Argentina and Brazil Mercosur prior to the establishment of MERCOSUR laid the groundwork for the creation of the trade bloc. A significant aspect of this process was the adoption by Argentina and Brazil, in July 1986, of the Program Integration and Economic Cooperation (PICAB) which eventually led to the creation of MERCOSR. See SELA, Guía de la Integración Latinoamericana (Caracas, SELA, 1999); M Izam, Evolución, análisis y perspectivas del Mercado Común del Sur (Santiago de Chile, CEPAL/IUC, LC/R.1706, 1997) and J Duque Domínguez, MERCOSUR y la Unión Europea: Dos modelos de Integración Económica (Valladolid, Lex Nova, 1998). See also GL Gardini, The Origins of Mercosur: Democracy and Regionalization in South America (New York, Palgrave, 2010); A Franco Montoro, ‘Importancia política de los acuerdos ArgentinaBrasil’ in M Hirst (ed), Argentina-Brasil, Perspectivas comparativas y ejes de integración (Buenos Aires, Editorial Tesis/ Facultad Latinoamericana de Ciencias Sociales, 1990) 379–89, VG Arnaud, MERCOSUR, Unión Europea, NAFTA y los Procesos de Integración Regional

Introduction 325 Despite the obstacles faced,3 MERCOSUR has been revealed over the past 20 years as a very dynamic integration process.4 As happens with the rest of the integration processes analysed in this book, the MERCOSUR legal system is closely linked to the progress made in economic integration. Thus, the evolution of MERCOSUR law shows the attempts to adjust to each period through which the integration process has gone. Over the years, the initial legal architecture was adapted to the dynamic of a pragmatic and intergovernmental integration process. In the absence of a court of justice, the dispute settlement mechanism and the awards issued by the Ad Hoc Arbitration Tribunals (in the period 1999– 2005 and from 2005 up to the present)5 and the Permanent Tribunal of Review (created in 2002) have contributed to laying down the basis of MERCOSUR law.6 In terms of the social dimension, MERCOSUR7 did not remain at the fringes of the trends observed in the regional integration. Even if the treatymaking power (1991 Treaty of Asunción) did not embody any provisions on social rights, the subsequent developments that occurred in MERCOSUR in the 1990s brought up the safeguard of human rights. The evolution of MERCOSUR has been in the direction of protecting certain rights and, among them in particular, labour and environmental rights. In recent years, this trend has been confirmed by the adoption of specific legal instruments and the various awards issued by MERCOSUR arbitration tribunals. The main aim of this chapter is to analyse the protection of human rights in the framework ofthe MERCOSUR legal system, underlying the main aspects of the evolution. At the outset, it should be emphasised that this sub-regional integration process did not include among its legal system a ‘bill of rights’ or social clauses. However, subsequent protocols adopted

2nd edn (Buenos Aires, Abeledo-Perrot, 1999) 160; M Pérez González, ‘Las organizaciones internacionales en América (II)’ in M Díez de Velasco, Las Organizaciones Internacionales 12 edn (Madrid, Tecnos, 2002) 744–56. 3  D Chudnovsky and JM Fanelli (eds), El desafío de integrarse para crecer: balance y per­ spectivas del MERCOSUR en su primera década (Buenos Aires, Siglo Veintiuno de Argentina Editores, 2001). 4  SELA (n 2) 39. 5  MB Olmos Giupponi, ‘El Tribunal de MERCOSUR’ in C Fernández Liesa (ed), Tribunales Internacionales en el Espacio Iberoamericano (Madrid, Thompson Reuters, 2009) 148–51. During the period 1999–2005, there were 10 ad hoc arbitration tribunals constituted under the Brasilia Protocol. 6  The Permanent Tribunal of Review was created by the Olivos Protocol in 2002 and effectively established in 2004. 7 MERCOSUR law constitutes the legal system originated from the Treaty of Asunción (signed in 1991 by Argentina, Brazil, Paraguay and Uruguay) which created the Southern Cone Common Market (known as MERCOSUR). Venezuela was admitted as a Member State in 2006. However, its membership was pending for some years because of the Paraguayan Congress’ reluctance to approve it. At present, Bolivia, Chile, Colombia, Peru and Ecuador are associate states.

326  The Common Market of the South (MERCOSUR) and, particularly, norms enacted by MERCOSUR institutions have come to supplement and complete the initial legal system. Therefore, the integration process has incorporated some provisions that concern directly or indirectly, the protection of human rights in MERCOSUR.8 The features that define this Latin American integration show it to be a ‘multidimensional process’, so that it is not just a process of integration which aims at the attainment of purely economic objectives. Thus, MERCOSUR has gradually incorporated in its framework the political and the social dimensions.9 Hence, questions concerning human rights have been raised gradually, either in a broad sense, configured as a foundation principle or a main purpose of the integration, or, in specific examples, through the recognition of certain fundamental rights in some of the instruments that have been emanating from the main decision-making bodies of this regional agreement.10 From this perspective, the chapter examines the adoption of provisions regulating on human rights issues within MERCOSUR. In order to do so, the development and consolidation of the social dimension is analysed, as the social dimension and human rights are intertwined.11 On the whole, there is no complete and proper system of recognition and protection of human rights as such in MERCOSUR. Therefore, the analysis will focus on legal instruments which contain elements concerning human rights, even though, from the beginning, it must be stressed that the core provisions arise in close relation to social issues.12 Special attention is paid to UNASUR and the developments relating to migrations, the recognition of

8  As J Duque Dominguez explains, MERCOSUR was conceived in the framework of the promotion of economic and social development of Member States through regional integration, aiming at creating a common market based on the free movement of persons, capital, goods and the adoption of a common commercial policy and a macroeconomic policy and harmonisation of national legislation between Member States, Duque Domínguez (n 2). 9  AV Pecci, ‘Por una dimensión social del Mercosur’ in C Hugueney Filho and CH Cardim (eds), Grupo de reflexão prospectiva sobre o MERCOSUR (Brasilia, IPRI, 2002) 265–70. For a more complete discussion of this process in all its dimensions, see in this same work, in particular the following articles: P Da Motta Veiga and SP Ríos, ‘O Mercosul na encruzilhada: uma agenda para os próximos años’ 335–49; A Costa Vaz, ‘Mercosul: os desafíos de um necessário revigoramento’ 323–33; R Rodriguez Silvero. ‘Mercosur en el futuro inmediato: ¿libre comercio en sudamérica antes del Alca?’ 315–22; H Lafer Piva, ‘Analise prospectiva sobre o MERCOSUR’ 289–300; F Peña, ‘Reflexiones sobre el Mercosur y su futuro’ 271–88; V Orsi, ‘Reflexiones sobre el rumo del Mercosur: uma cabalgata mirando al futuro’ 257–63; R Díaz Labrano, ‘El Mercosur, evolución jurídica e institucional 1991–2002’ 187–200. V de Barros, ‘Opinião do coordenador sindical do Foro Consultivo Econômico Social do ­Mercosul—FCES’ 27–30. 10  See H Gross Espiell, ‘La naturaleza jurídica del Tratado de Asunción y de sus Protocolos’ in H Gross Espiell (ed), El Derecho de la Integración del MERCOSUR (Montevideo, Universidad de Montevideo, 1999) 59. 11  See, generally, E Bascuñan and J Durston (eds), Aspectos sociales de la integración (Santiago de Chile, CEPAL/ECLAC, 1997). 12  Pecci (above n 9).

The Creation of a MERCOSUR ‘Human Rights System’ 327 a ‘South American citizenship’ and the protection of human rights observed in its framework. II.  STEP-BY-STEP: THE CREATION OF A MERCOSUR ‘HUMAN RIGHTS SYSTEM’

Human rights issues did not initially receive autonomous and differential treatment within MERCOSUR, which does not mean in any way that the questions concerning them are absent in MERCOSUR law. Notably, as a main feature, the general framework of recognition and protection of human rights is the result of a gradual evolution in which human rights are being incorporated and developed in certain MERCOSUR legal instruments; in many cases, in a fragmentary manner. In this vein, the founding instrument, the Treaty of Asunción (TA),13 which was concluded in 1991, regulated only aspects relating to the economic sphere to achieve the creation of a common market on the basis of a customs union, without considering the political, social and cultural dimensions that are also an essential part of the integration process.14 Consequently, there were no references in any way to issues concerning the protection of human rights.

13  The Treaty of Asunción was signed on 26 March 1991, International Legal Materials, 1991, 1042. The ratifications by the Member States’ legislatures were completed by September 1991. 14  There is a vast literature in Spanish and Portuguese on MERCOSUR: see, for instance, D Achard, M Flores Silva and LE González, Estudio de la variable política en el proceso de integración regional de los países pequeños del MERCOSUR y análisis de las opiniones de sus elites sobre dicho acuerdo (Buenos Aires, BID/INTAL, 1993); Arnaud, Mercosur (n 2); PR De Almeida, O Mercosul no contexto regional e internacional (Sao Paulo, Edições Aduaneiras, 1993); Z Drnas de Clement, MERCOSUR (Córdoba-Argentina, Advocatus, 1996); Z Drnas de Clement (ed), MERCOSUR y Unión Europea (Córdoba-Argentina, Lerner, 2007); R Dromi, Derecho comunitario: Régimen del MERCOSUR (Buenos Aires, Ciudad Argentina, 1995); Toscano Franca Filho, Lixinski, and Olmos Giupponi (n 1); JR Franco Da Fonseca, ‘Los nuevos problemas jurídicos e institucionales en la integración de América Latina: El MERCOSUR y los modelos de libre comercio’ (1995) 12 Anuario Hispano-Luso Americano de Derecho Internacional 29–55; H Gross Espiell, ‘El Tratado de Asunción y algunas cuestiones jurídicas que plantea’ (1991) Derecho-jurisprudencia General 913–27; A Mangas Martín, ‘Unión Europea y Mercosur: Perspectiva jurídico-institucional y política’ (1997) VII Anuario Argentino de Derecho Internacional 97; A Martínez Puñal, ‘La solución de controversias en el Mercado Común el Sur; Ante un modelo abierto y dinámico’ (2000) Anuario Argentino de Derecho Internacional 53–82; MT Moya-Domínguez, ‘El Tratado del Mercado Común del Sur (MERCOSUR)’ (1993) Anuario Argentino de Derecho Internacional V 201–15; J Pueyo Losa and E Rey Caro (eds), MERCOSUR. Nuevos ámbitos y perspectivas de desarrollo (Buenos Aires, USAL-Universidad del Salvador/Ciudad Argentina, 2000); E Rey Caro, La solución de contro­ versias en los procesos de integración en América. El MERCOSUR (Córdoba-Argentina, Marcos Lerner, 2000); E Rey Caro, El Protocolo de Olivos para la Solución de Controversias en el MERCOSUR (Córdoba-Argentina, Marcos Lerner, 2002) and O Stahringer (ed), El MERCO­ SUR en el nuevo orden mundial 1 edn (Buenos Aires, Ciudad Argentina, 1996).

328  The Common Market of the South (MERCOSUR) Before analysing in detail the various instruments, it is worth identifying four stages in the evolution of MERCOSUR, in order to achieve a better understanding of its evolution concerning the recognition, promotion and protection of human rights. These different stages reveal, too, central aspects in the evolution that has taken place in this area. A first stage, often called the ‘transitional period’, runs from 1991, the year in which the TA was concluded, until 14 December 1994, the date of the signature of the Ouro Preto Protocol (OPP) which introduced significant policy and institutional changes. During this period, human rights issues as such were not included as a priority in the MERCOSUR integration agenda. If one examines the instruments adopted in this period, it can be observed that there were only very specific and isolated references to certain fundamental rights. The second stage can be regarded as the ‘consolidation and deepening’ of the MERCOSUR integration process (1994–2000) and this runs from the signature of the OPP until 2000. This phase undoubtedly represents a significant advance at the policy level, as the Ouro Preto Protocol (1994)15 defined the legal status of MERCOSUR, improving its institutional structure. The operation of the dispute settlement system adopted under the Brasília Protocol (BP)16 constitutes another relevant progress experienced by the legal system. During this period we will, indeed, observe the most important developments in human rights, both with regard to the legal system and objectives of MERCOSUR and in terms of specific recognition of certain fundamental rights. A third period was inaugurated after the ‘relaunching’ of MERCOSUR. In 2000 the Member States decided to start a new phase in order to strengthen the customs union ad intra and improve its role in terms of international relations ad extra. In order to do so, MERCOSUR Member States developed a specific agenda to prioritise different issues to deepen the agreement enabling the formation of the common market. One of the topics included in the agenda was the content and scope of the recognition of human rights within MERCOSUR: in particular, to examine if MERCOSUR could develop a specific policy in the field.17 15  The Protocol of Ouro Preto developed and updated the Treaty of Asunción. It was signed in Ouro Preto, Minas Gerais, Brazil on 17 December 1994 at the Seventh MERCOSUR Summit. The Protocol of Ouro Preto has been in force since 15 December 1995. This protocol gives MERCOSUR a legal personality in international law that allows it to negotiate and make binding agreements with third countries or regions. From an economic viewpoint, it adopted the common external tariff and implemented a regional customs union from 1 January 1995. This instrument sets out the current institutional structure of MERCOSUR. Additional Protocol to the Treaty of Asunción on the Institutional Structure of MERCOSUR. Protocol of Ouro Preto, available at: www.sice.oas.org/trade/mrcsr/ourop/ourop_e.asp. 16  The Brasília Protocol was adopted on 17 December 1991. 17  Thus, during the XXIV Meeting of the Common Market Council in Asuncion on 18 June 2003, the Presidents of MERCOSUR, Bolivia and Chile ‘confirmed that the preservation and

The Creation of a MERCOSUR ‘Human Rights System’ 329 Finally, a fourth period can be drawn, running from 2006 up to the present. This period is characterised by the ‘expanding and deepening’ of the integration process. On the one hand, the reforms envisaged in the MERCOSUR Work Programme 2004–2006 were focused on deepening the different dimensions of the integration: in particular, the political and social dimensions. On the other hand, the expansion is reflected in the incorporation of Venezuela as a new Member State. The participation of MERCOSUR in UNASUR has also led to a new regional balance. Finally, the application of the democratic clause in the institutional crisis in Paraguay in 2012 reaffirmed democracy as an essential element for MERCOSUR’s participation in the integration. After this brief overview of MERCOSUR’s evolution, the next sections address the legislation relating to human rights, and then examine the institutional framework in order to determine what role, if any, the MERCOSUR institutions play in the promotion and protection of human rights. However, it should be noted that MERCOSUR law comprises instruments of diverse legal standing. A. The Adoption of Provisions Regarding the Protection of Human Rights Issues in MERCOSUR In terms of the protection of human rights, MERCOSUR Member States did not at first address the linkage between trade and human rights. Notwithstanding this initial reluctance, MERCOSUR evolved and authorities at regional level started dealing with international labour standards and labour rights. Therefore, the improvement of labour standards was addressed in non-trade fora. The link between economic integration and labour rights brought the need for compliance with the International Labour Organisation (ILO) standards and the adoption of norms aiming at protecting labour rights at sub-regional level. The ILO and its conventions played a crucial role in the definition of a set of basic or ‘core’ labour standards. F ­ urthermore,

deepening of democracy and its values in the region, the full observance of the institutions and the rule of law are cornerstones of Mercosur. In this regard, they stressed the importance of these principles to support governance. MERCOSUR member states also reaffirmed ‘their firm commitment to contribute, through their national capacities for the full effect, promoting and defending human rights … and their support for concrete actions to fulfil the mandates contained in the Plan of Action of the Third Summit of the Americas by strengthening and improving the Inter-American Human Rights System’. Furthermore, MERCOSUR Presidents were ‘convinced of the need to strengthen the social dimension of Mercosur and recognizing the close link between increased poverty and the deterioration of democratic governance, expressed support for the initiative of the Ministers and Development social Mercosur, Bolivia and Chile to develop a social Agenda Mercosur and the efforts aimed at seeking funding’. MERCOSUR. Official Documents. Available in Spanish at: www.mercosur.int/innovaportal/ file/4488/1/cmc_2004_acta01_comunicado_es__mcs.pdf.

330  The Common Market of the South (MERCOSUR) the improvement of labour standards moved forward through a continuous rule-making process mobilising mainly worker organisations, firms and NGOs across local, national and regional dimensions. The incorporation in the MERCOSUR legal system of provisions concerning human rights is characterised by two main features. First, there has been a progressive process which took place gradually by adding human rights provisions and shaping up the integration process, through the actions of the various MERCOSUR decision-making bodies in the field of human rights. This progression also means that both individual rights as well as the protection of human rights as a core principle of the integration process constitute an essential foundation for integration and are increasingly taken into account. Second, significant provisions which specifically address fundamental rights or, in one way or another, deal with human rights, often lack a clear institutional link between them. In other words, up to the present they do not represent an orderly human rights system. i. The Declarations Issued by the Presidential Summits and the Protection of Human Rights The TA is the founding instrument primarily responsible for organising the institutional aspects related to the economic integration process, but it does not contain an express reference to the recognition and protection of human rights.18 However, one can infer the intention to progress to a social dimension from the inclusion of the objective of ‘accelerating their processes of economic development with social justice’.19 Beyond this omission, it should be noted that the four MERCOSUR Member States share the body of values expressed: democracy, pluralism, fundamental freedoms, human rights, environmental protection and sustainable development and their commitment to the consolidation of democracy, legal security, combating poverty and economic development and social equity.20 These shared values have determined the development of the rules of the regional agreement with regard to human rights.21 As a result, the basis for the recognition and protection of human rights were not totally absent from the normative construction of MERCOSUR.

18 O Stahringer, ‘El Cono Sur americano ante el globalismo y regionalización: Nuevos actores’ in O Stahringer (ed), El MERCOSUR en el nuevo orden mundial 1 edn (Buenos Aires, Ciudad Argentina, 1996) 94. 19  Treaty of Asunción, Preamble. F Botchway (ed), Documents in International Economic Law (London, Routledge, 2006) 1101–06, at 1101. 20 Document prepared by the Administrative Secretariat of MERCOSUR, available at: www.mercosur.org.uy. See generally G Caetano (ed), MERCOSUR 20 años (Montevideo, CEFIR, 2011). 21  As pointed out by J Duque Dominguez, the signatories of the Treaty of Asunción, were acting inspired by the common identity, history and cultural heritage, Duque Domínguez (n 2).

The Creation of a MERCOSUR ‘Human Rights System’ 331 Even though the Asunción Treaty does not explicitly contain any indication regarding human rights, the main references to human rights were initially made within the framework of the Declarations that emanated from the Summit of Presidents of MERCOSUR. In the declarations, human rights are considered to be a fundamental part of the objective and purpose of the integration process. Thus, these declarations have filled the initial gap observed in the founding instruments relating to human rights: for example the Las Leñas Declaration, adopted in June 1992, whereby Member States affirmed that ‘the full observance of democratic institutions is essential for the existence and development of MERCOSUR’.22 Indeed, in the Summit of Colonia del Sacramento held on 17 January 1994, MERCOSUR Member States addressed the human rights issues from the perspective of labour rights underlying ‘the relevance, for the construction of the Common Market, to address employment-related issues, such as migration, protection of workers and the process of harmonization of labour laws’.23 Yet there is a step forward in this evolution which is to identify human rights as the foundation or objective of integration and, therefore, to link integration with the respect for fundamental rights. In a clearer manner, the Declaration of Potrero de los Funes, adopted in 1996 at the X Summit of MERCOSUR, members stated their ‘full adherence to democratic principles and institutions, the rule of law and respect for human rights and fundamental freedoms’.24 The evolution that has occurred in the context of the MERCOSUR Summits has been expressed in each of the final declarations issued. In the light of these declarations, the protection of human rights appears gradually with greater autonomy and as a prerequisite for the development of the integration process in all its dimensions. Although the protection of human rights is not regulated in the founding treaties of MERCOSUR, in the sense that they do not contain explicit provisions and do not establish, either, a ‘system’ for the recognition and protection of human rights, the MERCOSUR top decision-making body nonetheless started referring to human rights issues. Hence, the declarations of MERCOSUR Summits, in a progressive way, have stressed that the recognition and protection of human rights is an indispensable element of the MERCOSUR integration process. Therefore,

22 MERCOSUR. Official Documents. Declaration of the Second Summit of MERCOSUR, adopted in June 1992, Las Leñas, Argentina, available at: www.mercosur.int/innovaportal/ file/4488/1/cmc_1992_acta01_comunicado_es_mcs.pdf. 23 ibid. 24  See para. 19. The declaration was adopted on 25 June 1996. See also, in particular, the XIV Summit of Presidents of Mercosur, 24 July 1998, in Ushuaia, Argentina: the Presidents ‘reaffirmed their commitment to the principles and democratic institutions, rule of law, respect for human rights and noted that the democratic principle, along with economic stability and social justice is an essential condition for the integration process underway’. MERCOSUR. Official Documents.

332  The Common Market of the South (MERCOSUR) over time, these soft law instruments have constituted a basis to take specific actions and adopt legal instruments with legally binding content in this area. ii. Other MERCOSUR Instruments Relating to the Protection of Human Rights In the framework of MERCOSUR, there are other manifestations concerning the inclusion of human rights provisions. In this regard, there are several declarations and policy statements that must be highlighted. First, there are various instruments aiming to deepen the political dimension of the economic integration process. Sometimes this new path of integration is referred to as the ‘Political MERCOSUR’. Under this framework, different issues linked to the protection of human rights are addressed, such as the situation of migrants or environmental protection.25 Therefore, in the political dimension of MERCOSUR issues concerning human rights are specifically regulated, or, at least, different areas for co-operation in the field of human rights have been identified.26 Secondly, there is a close relationship between human rights and democracy within MERCOSUR which is reflected in the adoption of different norms. Here must be emphasised the adoption of the ‘Declaration on Democratic Commitment of MERCOSUR’, signed in 1996.27 This declaration stresses the Member States’ full respect for democratic institutions as an essential condition for cooperation in the framework of the TA.28 Although this instrument does not explicitly mention the relationship between democracy and human rights, it sets forth the basis upon which the establishment and strengthening of this relationship was operated through other instruments adopted later on by MERCOSUR institutions. This first step was followed by other acts and resolutions with similar content. Examples include the ‘Ushuaia Protocol on MERCOSUR Democratic Commitment’ and the ‘Political Declaration of MERCOSUR Bolivia and Chile as Zone of Peace’,29 adopted at the meeting of the Common ­Market

25  MA Sardegna (ed), Las relaciones laborales en el MERCOSUR, (Buenos Aires, Ediciones La Rocca, 1995) 37. 26  Moreover, after such an imperative, MERCOSUR Member States have adopted agreements (also signed by the associated states) that include provisions designed to ensure democratic stability in the subregion. The adhesion by the associate states to these principles constitute, surely, an important advance for consolidation and the legal recognition of democracy for the evolution of integration, being also relevant for the inclusion of human rights as an essential aspect of democracy. 27  This Declaration was adopted in San Luis, Argentina, during the celebration of the Tenth Meeting of the Common Market Council, on 25 June 1996. 28  A Prosperi, Mecanismo de consulta y de concertación política del Mercosur (Montevideo, CEFIR, 1998). 29  The Ushuaia Protocol is available at www.state.gov/p/wha/rls/70988.htm. Through this instrument, MERCOSUR Member States affirmed the validity of democratic institutions as a

The Creation of a MERCOSUR ‘Human Rights System’ 333 Council in July 1998 by the Presidents of the MERCOSUR Member States and associate States (Bolivia and Chile).30 It must be stressed that in the latter instrument, Member States recognised specifically that the faithful observance of those principles and purposes as well as the strengthening of representative democracy, respect for human rights, fundamental freedoms, social progress and protection of environment is fundamental to the strengthening of peace and security in the region.31

This instrument provides, therefore, a close link between peace and human rights, as both aspects are configured as indispensable elements of integration. Third, similarly to other sub-regional agreements, in MERCOSUR there are relevant components of the so-called ‘socio-cultural’ that must be highlighted.32 This socio-cultural dimension consists of different Protocols concerning culture and education adopted by MERCOSUR since its inception.33 These agreements belong to the social dimension, an area in which MERCOSUR has incorporated human rights standards. It is worth mentioning the inclusion of education within the scope of the regional process. Certainly, MERCOSUR has incorporated education

prerequisite for the existence and development of integration processes, and also that any interruption or alteration of the democratic order would be considered an insurmountable obstacle to the continuing process of regional integration. In fact, the events in the subregion contributed to the signing of this instrument. First, prior to its signature there had been alteration of the constitutional order in Paraguay, which accelerated the adoption of the ‘democratic clause’. The Paraguayan crisis was also the catalyst to establish a requirement for democratic rule and as a consequence of sanctions in such cases, remembering fines that could reach the suspension of agreements concluded within the MERCOSUR. Moreover, the association of Chile and Bolivia led to establishing the inclusion of a clause affirming the commitment to democratic principles in the MERCOSUR agreements with other countries or groups of countries. 30  The creation of the Zone of Peace is, moreover, the incorporation of peace as an essential element to the continuity and development of the regional integration process. To this end, governments agreed mainly to strengthen mechanisms for consultation and cooperation on security and defence issues between their countries, promoting progressive coordination and joint efforts in the relevant fora to advance the consolidation of international agreements in order to achieve nuclear disarmament and non-proliferation of weapons in all its aspects. See A Wagner Tizón, ‘Democracia y Seguridad: hacia una agenda de cooperación política sudamericana’, General Secretariat of the Andean Community. Paper presented at the International Seminar: the Andean Community and Mercosur in the face of integration: benefits and challenges, organized by the Embassy of the Bolivarian Republic of Venezuela and Foundation Foro del Sur (Buenos Aires, October 2000) available at: www.comunidadandina.org/documentos/ docia/ia16-10-00.htm. 31 MERCOSUR. Official Documents. 32  CM Díaz Barrado, ‘Iberoamérica ante los procesos de Integración: Una aproximación general’ in XVIII (1999), Jornadas de la Asociación Española de Profesores de Derecho Internac­ ional y Relaciones Internacionales (AEPDIRI), (Madrid, Boletín Oficial del Estado, 2000) 39. 33 G Recondo, ‘El MERCOSUR y la cultura’ (1995) I(1) Aportes para la Integración Latinoamericana 23–41; and Sardegna (n 25) 46.

334  The Common Market of the South (MERCOSUR) as one of the main components of the social dimension since the creation of the integration process itself.34 These different aspects relating to education have been present both in the declarations of the MERCOSUR Summit of Presidents and in the work performed by MERCOSUR institutions that has led to certain normative developments within MERCOSUR. Alongside these developments should be noted the establishment of the Meeting of Ministers of Education, an intergovernmental mechanism in charge of cooperation in this area. The Ministers of Education signed the Memorandum of Understanding in December 1991, laying the groundwork for further cooperation in the education within MERCOSUR.35 As a result, education has become one of the main sectors in the activity of this integration process. The aforementioned memorandum contains important references such as where it states that the peoples of MERCOSUR ‘are committed to history to undertake a joint path which leads to prosperity, progress and welfare with social justice’.36 The memorandum states also that ‘the human factor and the quality of the inhabitants of the region constitute a solid guarantee of success of the integration process’.37 The main contribution of this instrument is that education is conceived as a fundamental right within MERCOSUR and its authorities will, consequently, develop programmes and actions in order to make possible the exercise of this right in various fields and at different levels (primary, secondary, undergraduate and graduate). In this sector of MERCOSUR, the social dimension, different soft law and the binding instruments adopted have a clear impact on the protection of human rights: more specifically, the right to education. In addition, other legal instruments worth mentioning are the resolutions of the Common Market Group (hereinafter CMG), as the MERCOSUR main governing body, responsible for conducting the MERCOSUR 34  L Bizzozero, La construcción de la dimensión social en los nuevos regionalismos. El caso del Mercosur (Caracas, SELA, 2000). See also MA Ciuro Caldani, ‘Derecho y cultura en el MERCOSUR’ in M Pérez González (ed), Desafíos del MERCOSUR (Buenos Aires, Ediciones Ciudad Argentina, 1997) 61. 35  Bizzozero, ibid. 36 MERCOSUR. Official Documents. 37  It might be said that the free movement of goods, services and factors of production is essential to recognise education as a dynamic element, which accelerates the economic development with social justice and strengthens integration. Following this trend, the Meeting of Ministers of Education approved by Decision No 7/92 CMC a three-year plan, which was subsequently ratified in Ouro Preto in 1994 in a ‘logic of interaction of education with the integration process and the economic and social development’ (On this issue see O Stahringer and C da Silva, ‘La articulación entre el sistema educativo y el proceso de integración en el MERCOSUR-Conosur americano’ in O Stahringer (ed), Mercosur en el nuevo orden mundial (Buenos Aires, Ciudad Argentina, 1996) 391. The priority areas for cooperation and integration are: formation of a public awareness which is pro-integration, human resources training to contribute to economic development, and harmonisation of education systems, Bizzozero, La construcción de la dimensión social en los nuevos regionalismos (above n 34) 10. See also A Martínez Puñal and MT Ponte Iglesias, La educación en el proceso de integración del Mercosur (Santiago de Compostela, Tórculo, 2001).

The Creation of a MERCOSUR ‘Human Rights System’ 335 i­ntegration process. While these resolutions in many cases consist of a directly applicable norm, they do contain elements that indicate a position or course of action of the integration process on various subjects, including human rights.38 Thus should be mentioned, for instance, Resolution No 79/00 on ‘Harmonisation of legislation on domestic violence’ which ensures special protection for women as a vulnerable group, urging Member States to pass specific legislation on this. Two elements of this resolution should be underlined: first, the reference contained therein to the ‘consensus resulting from the International Human Rights Conference held in Vienna and the OAS Convention of Belém do Pará (which) reaffirm women’s rights’.39 The second is the character of direct applicability conferred in this case on the Resolution, which states ‘this resolution does not require transposition into the domestic law of the member states to regulate aspects of organization or functioning of MERCOSUR legislation’.40 Also the ‘Rio Declaration on the Institution of the Refuge’ shows the need for Member and associate States to draft specific legal rules of protection and to establish similar procedures on the matter.41 These provisions regulate the general principles regarding the reception, protection and assistance to refugees contained in international instruments, even contemplating the possibility of including in the definition of asylum, the protection of victims of severe and widespread violations of human rights. Another aspect to be highlighted is the inclusion of civil society participation in the national bodies to implement policies on refugees.42 To sum up, there are various instruments with different content and scope that have been enacted in the framework of MERCOSUR and, directly or indirectly, deal or, at least, suggest questions concerning human rights. Although these norms could be qualified as ‘scattered’ this law-making process could gradually lead to the emergence of a complete ‘system’ of recognition and protection of human rights. iii. The Ushuaia Protocol and the Montevideo Protocol: Strengthening the Relation between Democracy and Human Rights As regards the link between democracy and human rights as previously examined, in the XVI Summit of June 1999, MERCOSUR presidents

38  A Pastorino Castro, ‘Dimensión Jurídico-Institucional del MERCOSUR: Un panorama en sus veinte años’ (2012) 12 Revista de Estudios Jurídicos 1–18. 39 MERCOSUR. Official Documents. 40  MERCOSUR/GMC/RES No 79/00. 41  Rio de Janeiro Declaration on the Institution of Refuge, adopted at the VIII Meeting of the Ministries of Interior of MERCOSUR, 10 November 2000, available at: www.refworld. org/docid/3de4f8982.html. 42 MERCOSUR. Official Documents.

336  The Common Market of the South (MERCOSUR) ‘­confirmed that the full exercise of democratic institutions in MERCOSUR is essential for process development integration and welcomed the relevance of the democratic clause established in the Protocol of Ushuaia’. This mechanism is a reaffirmation of the validity of democratic values in ​​ the region, along with economic stability, social justice, respect for human rights and fundamental freedoms which constitute ‘core principles’ of the integration process. Furthermore, in a broad sense, in the XVIII Presidential Summit of MERCOSUR, on 30 June 2000 in Buenos Aires, they ‘reaffirmed their adherence to democratic principles and institutions, as one of the pillars underpinning the process begun with the Treaty of Asunción, together with economic stability and respect for human rights’. In this vein, the declaration enhanced the importance of the Democratic Clause featured in the Protocol of Ushuaia and the Declaration of the MERCOSUR, Bolivia and Chile as a Zone of Peace issued on 24 July 1998 which declared MERCOSUR as free of weapons of mass destruction and asserted that peace is an essential element for the continuation and development of the integration process. Following in these footsteps, the Montevideo Protocol (also known as ‘Ushuaia II’),43 concluded in December 2011, endorsed the contents of the Protocol of Ushuaia.44 The novelty is that this protocol extends the scope of application since it is applicable not only in the event of a rupture of the democratic order (already covered by the Protocol of Ushuaia) but also and, more importantly, in the event of a threat of rupture of the democratic order, the violation of the constitutional order or any other situation which jeopardises the legitimate exercise of power and the democratic principles and values.45 The Protocol of Montevideo carries on to specifically describe the measures that can be taken pursuant to Article 6. In particular, the Protocol includes the closure of borders, the suspension of the Member State in question,46 and additional political and diplomatic sanctions.47 The Protocol sets significant limits to its application, as the measures should not put at risk the wellbeing and the human rights of the population, and must respect the sovereignty and territorial integrity of the affected party.48 In sum, the Protocol of Montevideo (or Ushuaia II) updated the content of the democratic clause of MERCOSUR, placing the focus also on the

43  Protocol of Montevideo signed on 20 December 2011. The original text is available at: www.mercosur.int/innovaportal/file/2485/1/ushuaia_ii.pdf. The Protocol is not yet in force. Pursuant to Art 11: it will only come into force 30 days after the deposit of the fourth instrument of ratification by MERCOSUR MemberStates. Ratification status available at: www. mercosur.int/show?contentid=4827. 44  See generally J Heine and B Weiffen, 21st Century Democracy Promotion in the Americas: Standing up for the Polity (New York, Routledge, 2015). 45  Protocol of Montevideo, art 1. 46  Protocol of Montevideo, art 6d. 47  Protocol of Montevideo, art 6f. 48  Protocol of Montevideo, art 7.

The Creation of a MERCOSUR ‘Human Rights System’ 337 ­ revention of coups d’état and events that may interrupt the democratic p order in Member and associate States. B.  The Draft Charter of Fundamental Rights of MERCOSUR As early as 1993 there was an animated debate over the implementation of a Charter of Fundamental Rights for the phase of the establishment of the Common Market.49 During the transition period (explained above), MERCOSUR authorities discussed the content, the scope and the nature of rights that should be included in a Human Rights Charter. As a result a draft charter of human rights was put forward in MERCOSUR. The draft began with the protection of fundamental rights and then focused on the social and economic rights.50 The proposal for the ‘Draft Charter of Fundamental Rights of MERCOSUR’ was presented by the Trade Union Coordination of the Southern Cone in Montevideo in January 1994.51 Unfortunately, the draft was not backed up by government and business sectors, on the grounds that the text presented too ambitious a programme, without ‘adequate internal consistency’.52 Thus, the MERCOSUR authorities decided not to adopt such a legal instrument. That was a missed opportunity to set out a legal framework for the recognition and protection of human rights, in an orderly and complete way, within the integration process. As argued above, the approaches to this matter have been made through regulatory instruments of different scope and content, in the absence of a comprehensive instrument of binding nature and general content. Although the draft charter was not adopted as a legally binding instrument, it is worth examining its content. This draft, entitled ‘Charter of Fundamental Rights of MERCOSUR. Workers’ proposal’, consists of a detailed articled text.53 In our view this is the only draft legislation that offers a complete catalogue of human rights in the integration process. Therefore, this draft Charter presents a catalogue of fundamental rights to establish certain guarantees with a general character and scope. The text 49 See Carta de los Derechos Fundamentales del MERCOSUR, ‘Propuesta de los trabajadores, 1993’ (1994) 3 Revista de Relaciones Laborales en América Latina—Cono Sur (Relasur) 123–43. In this regard, at the Presidential Meeting held in Las Leñas in 1992, MERCOSUR presidents foresaw the development of a Charter of Fundamental Rights of the MERCOSUR, inspired by international standards. 50  Sardegna (n 25) 232. 51  A Jaeger, Temas de Direito da Integracao e Comunitário (Sao Paulo, LTR, 2002) 61. 52  H Nunes Lins, ‘Desafíos do Mercosul Social’ in LO Pimentel (ed), Mercosul: Direito e sociedade v II (Curitiba, Juruá Editora, 1998) 215. See also G Sierra (ed.), El difícil camino de lo comercial a lo societal (Buenos Aires, CLACSO, 2001). 53  This project was developed by the four national trade union centres of the States of MERCOSUR, as part of the Commission 8 of the early Sub-Working Group 11.

338  The Common Market of the South (MERCOSUR) was drafted by the MERCOSUR unions, and it has been clearly inspired by social rights. Moreover, the discussions and studies around the draft Charter have considered the rights to be included in the text, and the effectiveness of the control mechanisms, including the possibility of sanctions for noncompliance and the creation of some kind of international tribunal, or the adoption of measures which could introduce a certain degree of supranationalism,54 which has still not happened in the framework of MERCOSUR. Analysing the draft Charter in detail, it can be observed, first of all, that the Preamble states the adherence of the Member States to the ‘principles of political democracy, the rule of law and full respect of civil and political rights and to the universal and regional human rights law’ as the ‘indispensable basis of the integration project’,55 containing a set of principles relating to the protection of human rights thereof. A significant aspect to be highlighted is that while the draft pays special attention to the labour and social dimensions of the integration, it also develops the protection of human rights, incorporating the fundamental rights of every person, regardless of their status as workers. The scope can be better appreciated by explaining some of the most significant features that define this proposal, with particular reference to the rights and their content which are, in substance, reflected in the text of the proposal. First, it should be noted that there is a close linkage between the recognition and protection of human rights and the social dimension of the MERCOSUR integration process.56 Indeed, as stated in Article 1 of the Charter: Member states undertake to develop an integration process that is not limited to the economic issues, to trade standards and the free movement of goods and capital, but to developing both a legal and political community, in which human, labour, social and cultural imperatives are inspired by solidarity and regional cooperation.57

Thus, it is made clear from the outset that human rights and social dimension complement each other within the context of MERCOSUR.58

54  O Ermida Uriarte, ‘La ciudadanía laboral en el Mercosur’ in B Podestá et al (eds), Ciu­ dadanía y mundialización: la sociedad civil ante la integración (Madrid, CEFIR-CIDEALINVESP, 2000) 175–210, 209, 210. 55 MERCOSUR. Official Documents. 56  J Banderas Casanova, ‘Significación de nuevos temas en esquemas de integración a nivel de Zonas de Libre Comercio’ paper presented at the Seminar held on 11–12 May 1998 in Santa Cruz de la Sierra-Bolivia (Montevideo, ALADI, 1998). 57  Already the Charter stated, quite clearly, in the Preamble that ‘the integration involves aspects and unavoidable effects, which require the need to address the issue of social-dimension of integration’. 58  This also contemplates a specific aspect of the social dimension, adapted to the case, as regards the involvement of certain sectors of society in the integration process, as stipulated in Art 2 of the Charter, which states that: ‘States parties undertake to ensure effective participation of representative organizations of workers and employers of the MERCOSUR countries at all levels of planning, management, implementation and monitoring of the integration ­process,

The Creation of a MERCOSUR ‘Human Rights System’ 339 From this perspective most of the rights referred to in this draft belong, therefore, to the category of economic, social and cultural rights, ie the socalled second generation rights. See in particular the San Salvador Protocol, adopted within the framework of the OAS, which enshrines the close relationship that exists between the economic, social and cultural rights and civil and political rights, in which the different categories of rights constitute an indivisible unit based on the recognition of the dignity of the human being, which requires permanent protection and promotion.59

More specifically, the content of this proposal focuses on social and labour rights, despite the inclusion of other rights. Thus, the draft Charter of MERCOSUR devotes most of its provisions to fundamental rights of social content that specifically focus on workers. At the same time, there is recognition of rights with a more general scope such as civil and political rights, cultural or even solidarity rights.60 As regards the former, the Charter lists a full panoply of social rights, contemplating not only those with an individual character but also collective rights. This area takes as its starting point the recognition of the right to work as an essential right in the socio-labour dimension. Article 21 states that ‘every one has the right to work. The economic policy of the member states will aim to achieve full employment’.61 This provision is complemented by the recognition of other individual rights such as freedom of labour; equality of men and women in labour; labour protection; the right to promote stability and employment; right to decent working conditions; right to rest; right to a fair remuneration; and the right to vocational guidance and training. The rights contained in these provisions have, however, a broad and generic formulation, imposing obligations on Member States with regard to the measures to be adopted in the economic field and in the field of labour relations, in order to implement them. Also, the content of core individual labour rights is completed by the recognition of collective rights. In this regard, Article 40 establishes the right to freedom of association, in broad terms, providing that workers and employers without distinction have the right to establish organizations of their own choice and the members of such organizations are subject to the same rules. Unions can be national or international. Freedom of association

which are to be structured in accordance with the provisions of article 18 of the Treaty of Asunción’. See CEFIR, Integración regional y participación de la sociedad civil: documento final, Montevideo, 1998. 59  Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ‘Protocol of San Salvador’, signed 17 November 1988, in force since 16 November 1999. 60  Ermida Uriarte (n 54). 61 MERCOSUR. Official Documents.

340  The Common Market of the South (MERCOSUR) of workers in any of the countries of MERCOSUR includes the right to join trade unions established in any State party.62

In essence, this instrument, although listing rights in general, sets out in detail the terms of their content and scope. It can be said that in the draft there are rights that belong to the social and labour environment and fundamental rights of workers in line with other legal instruments adopted at international level.63 However, the proposed Charter also enshrines the right to free movement of workers as a basic right in the framework of the MERCOSUR integration process, accompanied by the principle of equal treatment. In Article 6 the draft states that ‘every worker in the member states is entitled to free movement throughout the territory within the scope of the Treaty’ and that ‘the free movement means that all workers, whatever their country of origin, shall at all times receive equal treatment, rights and working conditions as national workers’.64 The effectiveness in the exercise of this right is conditional, therefore, upon the development of the integration process in MERCOSUR, since the right to freedom of movement is established as one of the essential elements for creating the common market in the founding treaties. In addition to these rights of a clear social content, other social rights are recognised in the draft Charter. This includes the ‘right to food, appropriate to the age and conditions of the person, which guarantees the possibility of optimizing their potential physically, emotionally and intellectually’.65 States undertake to ensure effective protection of human rights, taking appropriate measures to ensure production, supply and distribution of food. The draft recognises the right to adequate housing of the person and his family, as inherent to the human condition, imposing on the Member States the obligation to implement social policies of incentives. It should be noted that the draft Charter of human rights grants right to education, an ongoing concern of MERCOSUR, which will be secured through a public education system and required to ‘encourage the

62  There are other rights included, enjoying autonomy as regulations which complement the field of recognition of collective rights, such as the right to collective bargaining, the right to strike, the right of participation, the right to information in all its dimensions and the right of consultation. See CM Díaz Barrado, ‘La Carta Social Europea un instrumento válido para el desarrollo de los derechos sociales en Europa’ in F Marino Menéndez and C Fernández Liesa (eds), Política Social e Internacional Europea (Madrid, Universidad Carlos III de Madrid, 1996) 233; Ermida Uriarte (n 54). 63 ibid. 64  This is a manifestation of the freedom of circulation in the integration process in question. The contents of this freedom bring up the existence of one of the most important ‘community freedoms’, which refers to the more general recognition of the free movement of persons. By analogy with European law, see in particular, D Ehlers (ed), European Fundamental Rights and Freedoms (Berlin, De Gruyter Rechtswissenchaften Verlag, 2007) 196, 197, 198. 65  Draft Charter, art 11. Right to food.

The Creation of a MERCOSUR ‘Human Rights System’ 341 ­ evelopment of consciousness critical and creative capacity of the person, d ­incorporating technological innovations’.66 As for the right to health, the project provides for the planning of a health care system for all people, with particular attention to excluded sectors.67 The draft Charter also features the right to a healthy environment, adding that environment must be suitable for the development of life. In particular, States are to act by observing the legal principles of prevention of environmental damage, the polluter pays principle providing sufficient compensation to cover the damage and cost required to restore the natural condition prior to damage.68 The proposal deals also with cultural rights. With regard to the right to culture, this is recognised not only for individuals but also for ethnic groups, in the following terms: ‘the right to participate in the cultural and artistic life of the community’.69 According to the draft Charter, each Member State is in charge of the specific duty to ensure the collective enjoyment of cultural property, without restrictions or limitations, and provides a MERCOSUR identity. The draft also contains provisions on civil and political rights, although some of these have a clear focus on social dimensions. The proposed Charter recognises, for example, the respect for the right to life as inherent to human beings and the satisfaction of basic needs of life, and the right to benefit from economic development. It also guarantees the right to privacy and family life, and the right of free access to information about a person which exists in any kind of file, whether public or private, including an express prohibition regarding the creation of databases that affect personal privacy for ideological or political control. In the same vein, it provides for the protection of freedom of conscience, with emphasis on the respect for the moral and civic independence of those who are employees.70 Finally, it is interesting to note that the MERCOSUR Charter recognises the rights of vulnerable groups. Thus Member States have the obligation to protect children, irrespective of their family status. Furthermore, States assume the obligation to ensure that children and teenagers have access to physical and human conditions essential to their harmonious and 66 MERCOSUR.

Official Documents. particular, the wording devotes particular protection to ‘high-risk’ sectors because of different circumstances such as poverty and social marginalisation. 68  By way of comparison, see OW Pedersen, ‘European Environmental Human Rights and Environmental Rights: A long time coming? (2008) 21(1) Georgetown International Environ­ mental Law Review. 69  Draft Charter, art 16. Right to culture. 70 As in other international instruments or regional level, the draft Charter includes the right to establish and protect the family. States must guarantee protection, safeguarding the legal equality of spouses, and care and assistance for mother and child, with the joint exercise of parental rights and responsibilities between the mother and the father. Draft Charter, art 17. Derecho a la constitución y protección de la familia. 67  In

342  The Common Market of the South (MERCOSUR) c­ omprehensive growth, ensuring full compliance with children’s rights as established by the Convention on the Rights of the Child.71 In relation to persons affected by a physical or mental impairment, the Charter gives them the right to protection through special measures to exercise their rights on an equal basis with other citizens. States should ensure a dignified and non-discriminatory treatment of people with disabilities that promotes their full educational and cultural insertion in the society and the adequacy of the physical, social and labour conditions for that purpose. However, it is also relevant to note that this proposal sets out some mechanisms to protect human rights. In particular it foresees specific mechanisms of protection. In this regard, one element that must be emphasised is the proposed creation of a MERCOSUR Social Rights Commission and a Committee of Experts. The former would be a tripartite body composed as provided in Article 61 by ‘two representatives of each member state and upon agreement among them they appoint a Chairman and one representative from each of the professional sectors of each state party’.72 The basic functions are ‘to enforce the rights and obligations provided in this Charter’, and ‘to draft guidelines regarding the enforcement of human rights’.73 Moreover, the Committee of Experts was conceived of as ‘a technical body composed of five persons of high reputation, moral character and recognised competence in the field of human and social rights, which should act independently of governments and professional organizations’. Its main functions were to present ‘an opinion on the reports submitted by States parties’ and to deal with ‘claims made against States parties’.74 To conclude, one should note that, while the charter has not so far gained political momentum, the groundwork done has been crucial for the adoption of other instruments in this field and may become essential should MERCOSUR decide to adopt a binding instrument or a Charter of human rights.75

71  Convention on the Rights of the Child. Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entered into force 2 September 1990, in accordance with art 49. 72 MERCOSUR. Official Documents. 73 ibid. 74 Draft Charter, art 64. The charter actually contains two specific mechanisms for the implementation of the Charter: the presentation of reports by MERCOSUR Member States and the possibility of submitting complaints to the Commission thereby created. It is stipulated in Art 63 (d) that the Commission can propose to the Common Market Council the imposition of fines and other economic measures against states parties which do not comply with the resolutions of the Commission taken by itself or based on the opinions of the Committee of Experts. 75  The loss of political momentum due, in large part to the new reconfiguration of the Working Subgroup No 11, as the favourable environment in which negotiations had unfolded was that of the Commission No 8 of Principles. Other scholars still maintain the viability of adopting a charter of fundamental rights. See Ermida Uriarte (n 54) and W Hummer, ‘La elaboración de una “Carta de los Derechos fundamentales del Mercosur” desde una perspectiva europea’,

The Creation of a MERCOSUR ‘Human Rights System’ 343 It can be seen however that despite the various relevant instruments that have emanated from within MERCOSUR relating to human rights, there is not a legally binding instrument that establishes a catalogue of rights. Also, from the analysis of the different legal instruments is clear that MERCOSUR has focused on the recognition of social rights.76 C.  The Charter of Buenos Aires on Social Commitment The ‘Charter of Buenos Aires on Social Commitment’ in MERCOSUR, Bolivia and Chile, adopted on 30 June 2000, follows the trend towards the recognition of human rights in regional integration.77 The process of building a proper human rights system in MERCOSUR, as seen before, is marked by the adoption of instruments on the subject, but unlike the previous instruments, the Charter clearly states the rights included in its scope, even though it has a mere recommendatory value. At the least, it can be said that, regardless of its legal value and effectiveness, the Charter sets up a legal framework for the recognition of human rights linked to the social objectives of the integration in MERCOSUR. From a human rights standpoint there are crucial aspects that deserve to be highlighted. First, it should be noted that the Charter is inserted in the framework of social justice and equity to be developed in MERCOSUR as an ‘indispensable basis of regional integration’. The Charter recognises some principles, such as ‘the principles of representative democracy and the rule of law and full respect for civil and political rights’.78 In other words, integration in the Southern Cone is only possible on the basis of the respect of human rights, so integration and human rights are deemed to be indispensable elements of cooperation amongst MERCOSUR Member States. Moreover, integration is only possible in the context of the recognition, promotion and respect of human rights. It should also be highlighted that in the Charter Member and associate States have reaffirmed their ‘commitment to the consolidation and defence of human rights and fundamental freedoms in line with international and

paper presented at the VI Encuentro de Cortes Supremas de los Estados Partes del Mercosur, Panel IV: Creación de la ‘Carta de los Derechos fundamentales del Mercosur’, Brasilia, 21 November 2008. Available at: www.stf.jus.br/arquivo/cms/sextoEncontroConteudoTextual/ anexo/Texto_dos_Exposiotres/La_elaboracion_de_una__Carta_de_los_Derechos_fundamentales_ del_Mercosur_desde_una_perspectiva_europea_Hummer.pdf. 76  This text constitutes one of the most important instruments of labour content integration of MERCOSUR, which is consistent with the regulation of all fundamental rights. See A Ciudad Reynaud, Las normas laborales en los acuerdos de integración en las AméricasILO Report 110 (Lima, ILO/Regional Office for Latin America, 1999) 77  The text of the Charter is available at: www.state.gov/p/wha/rls/70982.htm. 78 ibid.

344  The Common Market of the South (MERCOSUR) regional human rights instruments’.79 Therefore, within MERCOSUR, the international human rights instruments to which Member and associate States are parties constitute the minimum standard in this subject matter.80 Second, the Charter has a deep humanist character as contributes to reinforcing human rights provisions, specifically in the context of the social dimension of MERCOSUR integration. Indeed, it states that the economic objective as the main goal of the integration should be complemented by other aspects including social clauses, environmental protection and respect for human rights. Indeed, the Charter even proclaims that Member States are ‘convinced that economic growth is necessary but not sufficient to achieve a better quality of life, eradicate poverty and eliminate discrimination and social exclusion’.81 For this reason, the Charter addresses the ­multidimensional aspects of integration examined in the light of the satisfaction of the welfare of peoples within MERCOSUR.82 Third, the Charter deals in particular with social rights, highlighting specifically the recognition of the rights of certain vulnerable groups and granting specific rights, among them the rights of children,83 youth, the third age,84 female heads of households and mothers under age,85 indigenous

79 ibid.

80  With all this, we must not forget that the gradual recognition of human rights and their movement to the central axis of MERCOSUR integration agenda has been facilitated by the existence of basic similarities in the ratification by the States of the main universal and regional instruments that deal with the protection of human rights. The core of international human rights norms common to MERCOSUR Member States is comprised mainly of the following agreements, protocols and declarations: the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the American Declaration of rights and Duties of Man (1948), the Inter-American Charter of Social Guarantees (1948), the Charter of the Organization of American States OAS (1948), the (American Convention on Human rights (1969), and the Additional Protocol to the Convention on Human Rights in the Area of ​​Economic, Social and Cultural Rights (1988). 81 MERCOSUR. Official Documents. 82 MERCOSUR Member States must act consistently with the purpose to contribute together to achieving greater social equity and welfare through balanced and fair economic development. The Charter, moreover, makes clear that this is only possible with the incorporation and attention to social aspects, as a priority to further the social dimension of MERCOSUR taking into account all aspects of the integration process. 83 In this regard, the Charter gives special treatment to children and elderly people. The Charter includes the specific recognition of children’s rights (Draft Charter, art 18), indicating the areas in which such recognition must be operated to introduce and develop appropriate social policies, addressing the special needs of children and youth in situations of violence and sexual abuse, child labour, early pregnancy, drug use and crime. Regarding the second group (Draft Charter, art 19), the draft calls for the effective instrument of guiding principles aimed at comprehensive protection and promotion of specific policies in favour of elderly people. 84  Regarding the situation of older people, especially those who are in poverty or homelessness, the draft Charter demonstrates the intention to intensify efforts to ensure that, through social benefits and housing policies and social integration and training programs (Draft Charter, art 12). 85  In the case of women’s rights, we must not forget that it states, emphatically, the principle of non-discrimination, in stating that the development of societies must be ‘based on equality

The Creation of a MERCOSUR ‘Human Rights System’ 345 communities, rural communities, migrant workers and their families, and persons with disabilities. The list is not exhaustive, as it leaves the door open to ‘other vulnerable social groups’ in need of special protection. The inclusion of these groups and the recognition of certain rights is relevant, however, from the perspective of the adoption of social policies. Therefore, it is argued, first of all, that ‘the primary responsibility of the state is the formulation of policies to combat poverty and other social problems and support civil society activities aimed at the same goal’86 and to determine, also, areas and sectors in which, as a priority, efforts must be made to achieve these objectives. Indeed, the Charter, calls for ‘increased efforts … to improve the quality of life … by giving priority to the most ­vulnerable sectors of the population concerning food, health care, employment, housing and education’.87 Special attention deserves to be given to the right to education, since the Charter establishes a duty to ensure ‘basic education and improve access to secondary education, technical and vocational education as a means to promote a better social and economic mobility and to overcome poverty’.88 These provisions represent the accurate recognition of some of the manifestations of the right to education as a fundamental right. So, although this right must be developed by appropriate social policies, the Charter contains the obligation of States to implement it, at least in certain areas and at some levels. Finally, it is important to note that the Charter of Buenos Aires imposes the obligation of Member States to ‘instruct the authorities to strengthen the work and exchange of experience’, defining areas for coordinated or complementary action. The Charter stresses the coordination role of the Forum of Political Consultation and Coordination of MERCOSUR, Bolivia and Chile, through its guidelines and lines of action, in order to institutionalise a meeting of authorities responsible for social development. In other words, although the Charter’s specific mechanism for consideration of possible cases of violation of human rights has not been created, this forum surely contributes to protection of human rights. Moreover, from a legal perspective, the Charter establishes principles for the further development of common social policies and in the best-case scenario, for the protection of human rights in the establishment of such policies. To conclude, the Charter of Buenos Aires on the Social Commitment is a step in the right direction, in order to establish a ‘system’ of recognition between women and men in social, political, economic and cultural development, according to a conception of citizenship that expands the rights of women and affirms the shared responsibility of both’ (Draft Charter, art 25). 86 ibid. 87 ibid. 88 ibid.

346  The Common Market of the South (MERCOSUR) and protection of human rights in MERCOSUR. At the least, it laid down the basic priority areas in terms of human rights protection that should be developed by MERCOSUR Member States, with a focus on the recognition of rights with social content. D. The Protocol of Asunción on the Commitment with the Promotion and Protection of Human Rights As a result of the work of the Meeting of High Authorities on Human Rights of MERCOSUR (Reunión de Altas Autoridades de MERCOSUR en materia de Derechos Humanos)89 MERCOSUR subsequently adopted the Protocol of Human Rights in 2005.90 This Protocol is part of the Treaty of Asunción. The Protocol relies on previous instruments adopted in the framework of MERCOSUR relating to democracy and human rights: in particular the Presidential Declaration of Leñas of 27 June 1992, in the sense that the full exercise of democratic institutions is an indispensable condition for the existence and development of MERCOSUR; the Presidential Declaration on Democratic Commitment in MERCOSUR and the Ushuaia Protocol on Democratic Commitment in MERCOSUR, Bolivia and the Republic of Chile; and the Presidential Declaration of Puerto Iguazú of 8 July 2004 in which the Heads of States Parties of MERCOSUR highlighted the high priority given to the protection, promotion and guarantee of human rights and ­fundamental freedoms of all people inhabiting MERCOSUR.91 Rather than a complete catalogue of human rights (as included in the draft Charter), the Protocol is a reaffirmation of the obligations of Member States to fulfil international commitments. These include the principles and rules contained in the Declaration of the Rights and Duties of Man, the American Convention on Human Rights and other regional human rights instruments, as well as the American Democratic Charter and the Declaration and Programme of Action of the World Conference on Human Rights in 1993: —— Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing —— Universality, indivisibility, interdependence and interrelatedness of all human rights, whether economic, social, cultural, civil or political

89 See Ad Hoc Group on Human Rights later converted into the Meeting of High-level Authorities of Human Rights of MERCOSUR created by Decision CMC 40/04. The upgrade of the Ad Hoc Group was formally advanced in the MERCOSUR Work Programme 2004–2006. 90  CMC Decision 17/05. The Protocol entered into force in April 2010. 91  Protocol, art 7.

The Creation of a MERCOSUR ‘Human Rights System’ 347 —— The full validity of democratic institutions and respect for human rights and fundamental freedoms which are essential to the life and evolution of the integration process between the Parties —— The Parties shall cooperate mutually for the effective promotion and protection of human rights and fundamental freedoms through institutional mechanisms in MERCOSUR. It is an international treaty, and, therefore, binding on Member States; however its scope is limited to the situations referred to above. Indeed, as regards the object and application of the Protocol, it is to be applied in cases of reported serious and systematic violations of human rights and fundamental freedoms that can occur in the Member States during an institutional crisis or states of emergency under the respective constitutional order.92 In the event of these violations taking place, there are different alternatives under the treaty in order to guarantee human rights. To this effect, the other Member States are to promote appropriate consultations among themselves and with the state concerned. If the consultations prove unsuccessful, the other parties are to consider the nature and scope of the measures to be applied, taking into account the seriousness of the situation. These measures will range from suspension of the right to participate in the various organs of the integration process to the suspension of rights and obligations arising from the same.93 These measures are to be adopted by consensus by the parties, and communicated to the affected party, which is not to participate in relevant decision-making entering into force on the date of the respective communication made to the Party concerned.94 The adopted measures applied to the affected Party are to cease as of the date of the submission to the party that motivated them.95 As can be observed, the application of the Protocol is limited to the aforementioned circumstances. These provisions are complementary to the ‘democratic clause’ adopted by MERCOSUR member states through the Ushuaia I and II Protocols. In the Human Rights Protocol there is also a direct reference to the Inter-American Human Rights System as Member and associate States reasserted their ‘commitment to the principles and regulations of the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and other instruments’.96 This commitment is reinforced by the resolution signed in 2005 by the MERCOSUR HighLevel Authorities on Human Rights, in which they agreed to promote the

92 

Protocol, art 3. Protocol, art 4. 94  Protocol, art 5. 95  Protocol, art 6. 96 ibid. 93 

348  The Common Market of the South (MERCOSUR) enforcement of sentences and recommendations issued by the Inter-American Commissions of Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR), acknowledging that the Inter-American System is ‘one of the most important mechanisms to strengthen the rule of law in the region’.97 Some controversy has arisen as a result of the incorporation of Venezuela as a full Member State, because of Venezuela’s denunciation of the American Convention on Human Rights, which implies its withdrawal from the IACtHR which became effective in 2013. Even though Venezuela was not a full member of MERCOSUR when the Protocol was signed, it automatically endorsed this protocol and other regulations adopted by MERCOSUR when it became a full Member State.98 III.  THE ROLE OF MERCOSUR BODIES IN THE PROMOTION AND PROTECTION OF HUMAN RIGHTS

As clarified before, there was no inclusion of human rights provisions in the context of the institutional structure of MERCOSUR, since the main goal was almost exclusively economic. This feature was a constant one, especially during the first period of existence of this integration process. For this reason, institutions responsible for monitoring human rights were not included within the MERCOSUR framework.99 In other words, MERCOSUR Member States did not create organs to guarantee and protect human rights and, moreover, none of the existing bodies have the primary function to act for the protection of fundamental rights in cases where they have been violated. This is an integration scheme that does not, in essence, include mechanisms for the protection of rights and, therefore, there are no bodies or institutions endowed with such functions. However, various elements show that human rights are not entirely absent in the institutional system of MERCOSUR or, at least, that the changes that are taking place contribute to establishing the basis for the future creation of effective mechanisms for the protection of fundamental rights. In this sense, it is worth noting the following features. First, the evolution experienced in the institutional system of MERCOSUR demonstrates the tendency toward the creation of new bodies as the

97  See, for instance, resolution adopted during the XXI Meeting of the High Authorities on Human Rights of MERCOSUR. 98  JF Alonso, ‘Venezuela breaks three Mercosur regulations by leaving the IACHR Court’, El Universal, Thursday 12 September 2013. Available at: www.eluniversal.com/economia/ 130912/venezuela-breaks-three-mercosur-regulations-by-leaving-the-iachr-court. 99  Instituto de Relaciones Europeo-Latinoamericanas (IRELA), Integración y Cooperación en América Latina: Enfoques nuevos, esfuerzos múltiples (IRELA, Madrid, 1992) 6.

The Role of MERCOSUR Bodies in the Promotion and Protection  349 integration process develops. These new organs have different features and new powers, and, above all, there are bodies involving functions not only in the economic sphere but also in the social field and other sectors. The initial institutional structure of the integration process has been described as ‘simple and pragmatic’ because there were relatively few intergovernmental organs and its construction was based strictly on the performance of two bodies: the Common Market Council (CMC), as the supreme body of MERCOSUR in charge of the political process and decision-making, and the Common Market Group (CMG), as the body of an executive nature, responsible for ensuring the implementation of the TA and programs and measures under the common market framework.100 The institutional structure was certainly not sophisticated. However, during this first period, what must be highlighted is the performance of the Common Market Group (hereinafter CMG) with executive function, being empowered to create working subgroups. These subgroups began to discuss issues and sectors that exceed the purely economic aspects. Two examples in this sense are the working subgroup on environmental issues and the working subgroup on labour issues.101 In this first period, it should also be mentioned that in 1992, the Private Sector Forum of MERCOSUR and the MERCOSUR Trade Commission were created as informal bodies acting in cooperation with the CMG Working Subgroups. They introduced the representation of social actors in the institutional structure, increasing the democratic legitimacy of the project and ensuring a greater consensus among the political and social actors to facilitate joint actions in the framework of the integration process.102 The adoption of the Ouro Preto Protocol (OPP) determined a new institutional structure and recognition of international legal personality as part of the integration process, and opened a new vision of the organisation, leading to a new political conception, which also involves human rights issues. The new institutional structure of MERCOSUR kept the two ­bodies which had

100  See MV Luetto, ‘El Mercosur: debilidad institucional y déficit democrático’ in M Carducci and P Ribero, La dinámica delle integrazioni regionali latinoamericane: Casi e materiali (Turin, Giappichelli, 2014) 79–87. See also DA Sabsay, ‘Integración y supranacionalidad sin considerar los desarrollos europeos recientes, bases constitucionales y límites. La experiencia del MERCOSUR’, presentation delivered in Berlin on 15 May 1999, to mark the 50th anniversary of the German Constitution, available at: www.farn.org/wp-content/uploads/20140060art04. pdf. 101 Since the beginning there have been various sub-working groups established in the framework of the Common Market Group and Working Committees, which act in various areas such as telecommunications, technical regulations, transport and infrastructure, industry, energy, mining, financial affairs, environment, agriculture and labour issues, employment and social security. See TA, ANNEX V Working Groups of the Common Market Group. MERCOSUR. Official Documents. 102  IRELA (n 99) 7.

350  The Common Market of the South (MERCOSUR) already been established under the Treaty of Asunción, and were operative during the transition period, involving the creation or ‘constitutionalisation’ of other organs. But the OPP clearly differentiated those bodies which enjoy the law-making powers from those ones which do not possess them.103 Strictly speaking, the OPP generated a single new body: the Economic and Social Consultative Forum.104 The Joint Parliamentary Commission and the MERCOSUR Administrative Secretariat were regulated, even though very succinctly, by the TA.105 It is important to note that the Economic and Social Consultative Forum represents an important manifestation of the social dimension in MERCOSUR.106 It is interesting to analyse the performance of these organs in the activities of advocacy and enforcement of human rights, ie, to examine the organs and agencies of the institutional structure that play or could play a role in this regard, even if, as is well known, a body with such characteristics does not exist within the structure of MERCOSUR. Second, the Joint Parliamentary Commission (JPC) was created in Article 24 of the TA, in order to facilitate progress towards the establishment of the Common Market. The Protocol of Ouro Preto added to its functions the role of facilitating the legislative treatment and implement regulations issued by MERCOSUR.107 In this regard, the Commission acted as the representative of the parliaments and legislative assemblies of MERCOSUR Member States, as an expression of citizens’ will.108

103 In the first case the two original and interim bodies acquired a definitive character. Despite the reform, the MERCOSUR integration process still possesses intergovernmental features, and the main organs which enjoy decision-making powers do not entail transfer of sovereignty. The Protocol ‘constitutionalised’ the Trade Commission of MERCOSUR, which had been created in a lower regulatory level, and addresses the important role which is to inform and propose to the GMC on the progress of the implementation of common norms as well as on draft new rules or possible modifications of existing norms. 104  See E Rimoldi de Ladmann, ‘La estructura institucional a partir del Protocolo de Ouro Preto’ in R de Landmann (ed), MERCOSUR y Comunidad Europea (Buenos Aires, Ciudad Argentina, 1995) 205 and S Barón Knoll de Bertolotti, Administración y Gobierno del ­MERCOSUR, su análisis a partir el derecho comunitario y del Protocolo de Ouro Preto (Buenos Aires, Depalma, 1997). 105 Art 15. The Common Market Group shall have an administrative secretariat whose main functions shall be to keep the Group’s documents and report on its activities. It shall be headquartered in the city of Montevideo. Art 24. In order to facilitate progress towards the formation of the common market, a Joint Parliamentary Commission of MERCOSUR shall be established. The executive branches of the States Parties shall keep their respective legislative branches informed of the progress of the common market established by this Treaty. 106 CEFIR, El Foro Consultivo Económico-Social del MERCOSUR y las Dimensiones Sociales de la Integración, DT 17/96 (Montevideo, CEFIR, 1996). 107  Díaz Barrado (n 32) 48. 108 The Commission’s regulation was adopted on 6 December 1991, articulating it as a consultative organ in charge of making proposals in order to accompany the progress of ­MERCOSUR and to serve as a link with National Parliaments, developing the necessary actions to facilitate the future establishment of the MERCOSUR Parliament. In addition, the

The Role of MERCOSUR Bodies in the Promotion and Protection  351 For us, the importance of the JPC can be seen especially in the adoption of recommendations. Thus, at its first meeting, two important recommendations relating to human rights were issued. On the one hand, a recommendation was made on the need to adopt an additional protocol to provide that membership of MERCOSUR is subject to the supervision of democratic institutions and compliance with human rights agreements. On the other hand, the second recommendation that was adopted required Member States to report to the Common Market Group the conclusions of the work programme of the Commission and to report on the negotiations.109 In 2006, the MERCOSUR Parliament was established as a successor to the Joint Parliamentary Commission.110 The Parliament could play a major role in the subject matter of study, especially through the formulation of recommendations to provide guidance and incentive in the adoption of binding legal rules within MERCOSUR through which human rights are recognised or the creation of mechanisms to guarantee the rights recognised. Third, it has often been argued that the lack of a Court of Justice in this integration process represents a weakness in the institutional structure of MERCOSUR, since it is lacking a specialised body to play the ‘judicial role’.111 A first step in what could have been the creation of such a body was the adoption of the Protocol for the Settlement of Disputes, an instrument signed in the city of Brasília on 17 December 1991, to resolve disputes arising between Member States also between them and individuals.112 This treaty was amended in February 2002 by the so-called ‘Olivos Protocol for the Solution of Disputes in MERCOSUR’, although both instruments have the status of ‘temporary’ as defined by Annex III of the Treaty of Asunción, establishing the adoption of a ‘permanent’ dispute settlement mechanism.113 Commission was accorded the power to analyse issues through the creation of subcommittees, to issue recommendations on the integration process and to conduct the necessary studies for the harmonisation of the laws of the member states. A Tirado Mejía, Integración y democracia en América Latina y el Caribe (Buenos Aires, BID-INTAL, 1997) 50. See also G Caetano and R Pérez Antón, ‘Hacia un Parlamento del MERCOSUR’ in G Caetano and RM Perina (eds), La encrucijada política del Mercosur; parlamentos y nueva institucionalidad (Montevideo, CLAEH-UPD–OEA, 2003) 305–22, available at: www.oas.org/sap/publications/2003/claeh/ claeh_encruci/oea_claeh_encrucijada.pdf. 109  See MB Olmos Giupponi, ‘Fortalecimiento De Los Aspectos Político-Institucionales Del Mercosur: Parlamento y ciudadanía’ in J Vidal-Beneyto, América Latina hacia su unidad: mod­ elos de integración y procesos integradores (Valencia, Pre-textos, 2008) 123–48. 110  See CM Díaz Barrado and MB Olmos Giupponi, ‘El establecimiento del Parlamento del MERCOSUR: Reflexiones desde la experiencia europea’ (2007), available at: www.cea2.unc. edu.ar/boletin/n-anteriores/009/articulo1.pdf. 111  MB Olmos Giupponi, ‘El Tribunal de Mercosur’ in C Fernández Liesa (ed), Tribunales Internacionales (Madrid, Thompson Reuters, 2009) 135–52. 112  MB Olmos Giupponi, ‘International Law and Sources of Law in MERCOSUR: An Analysis of a 20-Year Relationship’ (2012) 25(3) Leiden Journal of International Law 707–37. 113 See MB Olmos Giupponi, ‘Una visión conjunta del Tribunal de Justicia de la Unión Europea y de los tribunales arbitrales de MERCOSUR’ in E Ulate and A Salazar Chico (eds), Tribunales Internacionales y Mecanismos de Solución de Controversias (San José de Costa

352  The Common Market of the South (MERCOSUR) The relevant question when it comes to the protection of human rights is the dispute settlement mechanism that has been chosen. In general, the different dispute settlement mechanisms in the integration processes range from those created to resolve disputes between states exclusively to mechanisms in which individuals, natural or legal persons are entitled to submit complaints to protect their own rights in cases of non-compliance with the law emanating from the integration process.114 The limited legal standing of private parties is one of the weaknesses of MERCOSUR’s present system. Private parties (individuals and legal persons) have limited access to the arbitration procedure, even after the reforms introduced by the OPP. Private parties can bring a claim to the National Section in question.115 However, they do not possess direct access to the arbitration procedure. For this reason, we concur with Cárdenas and Tempesta’s criticism that: [T]he role played by individuals is quite limited because, although they can start the proceedings and will always be heard, they can do nothing if their claims are dismissed … Member states are the ones who have, at all the times, control of the proceedings and who, at their discretion, decide whether to resort to the Arbitration Tribunal if the controversy persists.116

Rica, ISOLMA, 2012). See also R Díaz Labrano, ‘Problemas procesales en el MERCOSUR’ in M Ciuro Caldani (ed), Del MERCOSUR: aduana, jurisdicción, informática, relaciones inter­ comunitarias (Buenos Aires, Ciudad Argentina, 1996) 279–93, 281–82 and 292 and B Garré Copello, ‘La creación de un tribunal de justicia en el Mercado Común del Sur (Mercosur) Regímenes de derecho comparado’ in M Vázquez et al (eds), Estudios multidisciplinarios sobre el Mercosur (Montevideo, Facultad de Derecho. Universidad de la República, 1995). 114 See EJ Rey Caro, El Protocolo de Olivos para la solución de las controversias en el MERCOSUR (Córdoba-Argentina, Marcos Lerner, 2002). At present, dispute settlement procedures within MERCOSUR comprise preliminary direct negotiations (compulsory); conciliation before the CMG (optional); arbitration procedure and Appellate Review Instance. a. Preliminary direct negotiations (compulsory). Member States involved in a dispute are obliged to attempt to resolve the dispute through direct negotiations and to inform the MERCOSUR Secretariat on the outcome of such negotiations. b. Conciliation before the CMG (optional). If the dispute is not resolved through direct negotiations (or if it is only partly resolved), both member states could reach an agreement and bring the dispute before the CMG.2 The CMG will examine the parties’ arguments and issue non-binding recommendations. c. Arbitration procedure. If the dispute persists, any Member State involved has the right to file a claim before an ad hoc arbitration tribunal. At this stage, provisional measures can be granted by the tribunal following the request of one party based on the presumption of grave and irreparable damages due to the persistence of the initial situation. Olmos Giupponi (n 112) 720–22. 115  Olmos Giupponi (n 112) 730. 116  EJ Cárdenas and G Tempesta, ‘Arbitral Awards under MERCOSUR’s Dispute Settlement Mechanism’ (2001) Journal of International Economic Law 337, at 345. In the same vein, Dreyzin and Perotti underline that ‘lamentablemente no se ha modificado la vía contemplada para el reclamo de los particulares, pese a que Uruguay insistió férreamente en este punto que por lo demás, era mayoritariamente solicitado por todos los sectores’ (unfortunately, the access of private parties to the procedure has not been modified, despite the strong insistence of ­Uruguay on this point, which was asked by all the sectors). See A Dreyzin de Klor and D Perotti, ‘Los particulares en el Protocolo de Olivos’, in El rol de los tribunales nacionales de los Estados del MERCOSUR (Cordoba-Argentina, Advocatus, 2009) 76, 79.

The Role of MERCOSUR Bodies in the Promotion and Protection  353 Notwithstanding, the arbitration tribunals have analysed environmental matters and human rights issues argued by Member States before the ad hoc tribunals in a variety of disputes. In these cases, the arbitration tribunals solved the disputes from a traditional international economic law perspective: the applicable principle was free trade and environmental and human rights issues were considered as exceptions to that principle. The object of various awards117 was the application of the environmental exception. In other words, whether restrictions on free trade can be imposed with the objective of protecting the environment.118 In the Award No 1/2005 of the Permanent Tribunal of Review constituted to hear the appeal made by the Oriental Republic of Uruguay against the 25 October 2005 Arbitration Award of the Ad Hoc Tribunal concerning the dispute ‘Prohibition of the importation of retreated tyres from Uruguay’, the Tribunal made clear that: This tribunal notes that it is wrong to suggest that there are two principles in ­conflict or confrontation in the process of integration, as seems to be stated at paragraph 55 of the award under appeal. There is only one principle (free trade) to which some exceptions can be applied (such as, for example, the above-mentioned environmental exception). Furthermore, this tribunal does not agree with the arguments put forward at paragraph 55 (final part) of the award under appeal, according to which the tribunal should apply the application of the above-mentioned confronted principles (free trade and environmental protection) by defining the precedence of one over the other in accordance with the precepts of international law. For this tribunal, the relevant issue is the possibility of invoking the environmental exception under the Mercosur rules and not under international law.119

Again, in the Award No 1/2008 of the Permanent Tribunal of Review in the Case No 1/2008 ‘Divergence on the implementation of The Award No 1/05 initiated by the Oriental Republic of Uruguay (article 30 Olivos Protocol)’,120 the Tribunal recalled:

117  There were three different awards on the same issue (‘importation of remoulded tires’): Arbitration award 10/2005 (in favour of Argentina, overthrown by the Permanent Court of Review), Award No 1/2005 of the Permanent Court of Review constituted to hear the appeal made by the Oriental Republic of Uruguay against the 25 October 2005 Arbitration Award of the Ad Hoc Tribunal concerning the dispute ‘Prohibition of the importation of retreated tires from Uruguay’ and Award No 1/2008 of the Permanent Court of Review in the Case No 1/2008 ‘Divergence on the implementation of the Award No 1/05 initiated by the Oriental Republic of Uruguay (article 30 Olivos Protocol)’. 118  Art 50 of the Montevideo Treaty, Annex I, received by the Treaty of Asunción. 119  SIEL. Award No 1/2005 ‘Award of the Permanent Tribunal of Review constituted to hear the appeal made by the Oriental Republic of Uruguay against the 25 October 2005 ­Arbitral Award of the Ad Hoc Tribunal concerning the dispute ‘Prohibition of the importation of retreated tires from Uruguay’. 120  The ‘remoulded tires’ dispute between Argentina and Uruguay was the object of three different awards, as noted above. In this case the quotation is from Award No 1/2008 of the Permanent Tribunal of Review in the Case No 1/2008 ‘Divergence on the implementation of

354  The Common Market of the South (MERCOSUR) There are not two principles in conflict or confrontation … There is only one principle (free trade), in which you may be putting some exceptions (such as environmental aforementioned exception).121

On the relationship between environment and trade in Argentina, the Tribunal held that: Argentina’s law (prohibiting the importation of remoulded tires) was not only consistent with the laws of MERCOSUR, but also it meant a step forward to achieve the welfare of the peoples of the region through the protection of the environment and the health of humans, animals and plants that inhabit its territory.122

The law at issue was presented as a preventive measure aimed at preventing potential harm originated by the use of remoulded tires in terms of its hazardous waste disposal difficult and cost. The Permanent Tribunal of Review determined that the exception based upon environmental issues was not applicable in that case: Argentina has presented a long list and reasons related to the problem from the environmental point of view arguing that ‘the importation of re-manufactured tires (including remoulded) to Argentina, increases the risk for life and health of people, animals and plants.’ … However, the view already expressed by the Award 1/2005 does not agree with this assertion by arguing that ‘the alleged injury at the discretion of the TPR is not serious or irreversible.’ … Adopting a rigid criterion on certain points raised by Argentina would allow the prohibition of importing a large amount of materials in which toxicity, compared with the tires, could be much higher, such as batteries, cell phones, MP3, cans, aluminium, tergopor, plastics in general and especially certain species such as the PET material polyethylene (PET), to mention only a few products that are commercially very intense, many of which require between 100 to 1,000 years to degrade naturally, in the meantime constituting to a greater or lesser extent an element that involves potential environmental damage’.123

However, the Tribunal of Review underlined that the environmental exceptions to free trade ‘should be discussed in the future by the relevant bodies of MERCOSUR’.124 In the Award 9/2006 on the dispute between Uruguay and Argentina concerning the interruption of the international bridges communicating both states, the ad hoc arbitration tribunal addressed the conflict between free The Award No 1/05 initiated by the Oriental Republic of Uruguay (article 30 Olivos Protocol)’. Original in Spanish: Laudo No 1/2008. Laudo del Tribunal Permanente de Revisión en el Asunto No 1/2008 ‘Divergencia sobre el cumplimiento del laudo No 1/05 iniciada por la República Oriental del Uruguay (art 30 Protocolo de Olivos)’. 121  Award No 1/2008 of the Permanent Tribunal of Review in the Case No 1/2008 ‘Divergence on the implementation of The Award No 1/05 initiated by the Oriental Republic of Uruguay (article 30 Olivos Protocol)’. Section B, 12. 122  ibid, 3. 123  ibid, point C. 124 ibid.

The Role of MERCOSUR Bodies in the Promotion and Protection  355 trade/free movement of persons and goods and the principle of the protection of human rights.125 In its arguments, Uruguay cited the free movement of persons as a principle to be respected and stated that the roadblocks ignored existing commitments between the parties under international legal instruments. In particular, Uruguay mentioned the International Land Transport Agreement existing between the ‘countries of the Southern Cone’ including other state parties, considered by MERCOSUR instruments to be an important goal to advance integration in the transportation sector. The obstruction of free movement of passengers and loads provoked by the demonstrations against the installation of the pulp mill affected the transport operations under the Convention not only between MERCOSUR Member States but also with regard to movements to or from third-country parties to the Agreement. Uruguay also cited the rules of the WTO that bind the parties, such as those relating to treatment of the most favoured nation, freedom of movement, and access to markets, among others, which were affected by the measures reported. In sum, Uruguay alleged that Argentina failed to adopt effective measures to stop this situation. Argentina focused its arguments on the existence of a conflict between the rights of free expression of thought and assembly, on the one hand, and the right to free movement of goods on the other. In this case, Argentina emphasised that international human rights standards in force in Argentina have constitutional status, while the integration rules are of legal status. In Argentina’s view, human rights concerns may justify a restriction on the exercise of rights under an integration agreement. To support its argument, Argentina cited the precedent of the Schmidberger case126 decided by the Court of Justice of the European Union, in the sense of giving priority to the right to free expression of thought over the right to free movement of goods, which were affected by the court of an international route provided by an environmental movement. The Tribunal pointed out that: In trade facilitation multilateral agreements, with special reference to the WTO, it has been argued that running away from the commitments of multilateral trade 125 MERCOSUR ‘Ad Hoc’ Tribunal constituted to solve the controversy by the Oriental Republic of Uruguay to the Republic of Argentina on the Failure of Argentine State to Adopt Appropriate Measures To Prevent And/Or Eliminate The Impediments To Free Movement Due To Cuts In Argentine Territory of Way For Access To The International Bridge San Martin and Artigas Joining the Republic of Argentina to the Oriental Republic of Uruguay. Laudo Del Tribunal Arbitral ‘Ad Hoc’ de MERCOSUR Constituido para entender de la controversia presentada por la República Oriental del Uruguay a la República Argentina sobre ‘Omisión del Estado Argentino en Adoptar Medidas apropiadas para prevenir y/o hacer cesar los impedimentos a la libre circulación derivados de los cortes en territorio argentino de vías de acceso a los puentes internacionales Gral. San Martín y Gral. Artigas que unen la República Argentina con la República Oriental Del Uruguay’. 126  ECJ Judgement of 12 June 2003, Case C-112/00.

356  The Common Market of the South (MERCOSUR) agreements, provided that they are relied on principles and values accepted by the international community … is extremely difficult or impossible. It is inevitable that safeguarding the interests and values of higher rank should be chosen, because the ‘legal rights’ are more valuable objects and can be classified hierarchically in a preferred position. But the Tribunal considers that … this would enable some degree of restriction but not the absolute cancellation of the value that is considered minor, in the interests of another to be judged more important.127

Furthermore, the Tribunal opined: The traffic restriction … leads to a restriction on the free movement within the integrated economic space. It can be tolerated provided that the necessary precautions were taken to minimize the inconvenience caused by them and to be adopted in short periods that do not interfere or cause serious injury, which has not been given in this case in which the courts have delayed for more than three months in the middle of summer holiday with serious consequences for both countries.128

On analysing the Argentine position, the Tribunal emphasised that the very broad international treaties on human rights with constitutional hierarchy recognise the relativity of the individual rights, before the individual rights of others, and the possibility of limiting them on different grounds, in this case, the general welfare. The Tribunal examined the main human rights instruments that would be applicable as follows: The preamble of the Declaration of the Rights of Man (Bogotá, 1948) specifies that ‘compliance with the duty of each is demanding the right of everyone’ and that ‘the rights and duties are interrelated in every social activity of political man.’ This is reflected in article XXVIII in a statement which expresses that ‘the rights of man are limited by the rights of others, for the safety of all and by the just demands of the general welfare and advancement of democracy.’ … article 29.2 of the Universal Declaration of Human Rights specifies that, ‘in the exercise of their rights and in enjoying their freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for human rights and freedoms of others and of meeting the just requirements of morality, public order and general welfare in a democratic society.’ Finally article 32.2 of the Pact of San José de Costa Rica says that ‘the rights of each person are limited by the rights of others, for the safety of all and by the just demands of the general welfare in a democratic society.’ It can be concluded that, even according to the Argentine law, the right to protest is absolute and must be limited when it affects the rights of others as expressed in article 29 paragraph 2 of the Universal Declaration of Human Rights of 1948, article 32 paragraph 2 of the American Convention on Human Rights (Pact of San José de Costa Rica), and, in particular regarding freedom of expression, article 19 paragraphs 2 and 3 and article 21 of the International Covenant on Civil and Political Rights’ United Nations of 19 December 1966, which are an integral part of the Constitution of

127  128 

Award 9/2006, para. 133. ibid, para. 134.

The Role of MERCOSUR Bodies in the Promotion and Protection  357 Argentina since 1994, having been incorporated into their article 75 paragraph 22.129

For the very first time, a tribunal in the framework of MERCOSUR referred to human rights standards as a limit to free trade and free movement of people and goods. Finally, the Tribunal concluded that Argentina had not respected its obligation to limit the demonstrations by adopting appropriate measures. Another aspect deserving special consideration is the regular meetings established between the Ministers of the different branches belonging to the governments of the Member States, which have joined, from 1996, the respective representatives from the associate States,130 although strictly speaking they could not be considered to be a permanent body, since they consist of flexible and frequent meetings between the Ministries of the MERCOSUR Member States. Among the various meetings, it is worth mentioning the Meeting of Ministers of Labour, the Meeting of Ministers of Interior and the Meeting of Ministers of Education, for its active participation in shaping the social basis of the integration process. These meetings coordinate the actions of ​​the Member States around topics of common interest, often issuing declarations. The fifth feature of note is the Meeting of High-level Authorities in Human Rights of MERCOSUR (formerly known as ‘Ad Hoc Group on Human Rights’). An Ad Hoc Group was established in 2000 under the Forum for Political Consultation and Concertacion (FCCP).131 The FCCP was itself created in 1998, with the aim of consolidating and expanding the political dimension of MERCOSUR.132 The FCCP is composed of officers from Member States’ Foreign Ministries, and can make recommendations for consideration by the Common Market Council (CMC), MERCOSUR’s main legislative body. In the MERCOSUR Work Programme 2004–2006, the work of the Ad Hoc Group on Human Rights was formally ‘institutionalised’, being renamed as the Meeting of High-level Authorities in Human Rights of MERCOSUR. More specifically, the Work Programme states that MERCOSUR should deepen the exchange of information and the protection and promotion of human rights in the region, and promote the debate on the

129 

ibid, paras. 137–39. Common Market Group by Decisions 5/91 and 1/95 established several meetings at ministerial level, to treat matters relating to the Treaty of Asuncion, in the respective areas of competence, including the following: Meetings of Ministers taking place in the field of the Common Market Council, are: Ministers of Economy and Presidents of Central Banks, Ministers of Education, Ministers of Justice, Labour Ministers, Ministers of Agriculture, Ministers of Culture and Ministers Health. 131  Olmos Giupponi (n 109) 129. 132  CMC Decision 18/98. 130  The

358  The Common Market of the South (MERCOSUR) feasibility of the adoption of a MERCOSUR Charter of Human Rights.133 Another relevant trend is that the Meeting has created various specialised working groups in its framework such as the Permanent Commission on Children, the Working Group on Economic, Social and Cultural Rights, the Permanent Commission on Education and Culture and the Permanent Commission on Discrimination, Racism and Xenophobia. Various working groups were constituted to address different crucial topics, whose composition (and denomination) has changed over the years. These are mainly: —— Nin@ sur Initiative: This group drafted various documents concerning the promotion and protection of children’s rights. The group has compiled a legislative database that compares the internal regulations of each Member State regarding human rights standards, the participation of children’s organisations, the protection of indigenous children, and the implementation of the Optional Protocol to the Convention on the Rights of the Child. —— Education and Culture in Human Rights: This group is in charge of coordinating education and research on human rights in MERCOSUR Member States, in order to foster a ‘regional human rights approach’. —— Promotion and Protection of Human Rights of Persons with Disabilities: This group has dealt with campaigns to raise awareness in society in relation to people with disabilities, and the analysis and discussion of models of classification and valuation of disabled people in each country. —— Indicators for Economic, Social and Cultural Rights (ESCR): The development of indicators has been one of the constant items on the agenda. In this context the technical group has developed a conceptual framework for indicators in the areas of economic, social and cultural rights, and created quantitative and qualitative indicators regarding the right to education, work and health. —— Memory, Truth and Justice: The issues of memory and the right to the truth have been on the agenda of the meetings since its inception. The group addresses the development of training materials on memory and human rights in the MERCOSUR and a comparative table on ‘Memory, Reparation, Judgment, Amnesty and Legislation’; the implementation of a virtual forum of discussion on the issue; and the possibility of forming and support, through international financing, of projects and

133 Programme, art 2.7 available at: www.observatoriomercosur.org.uy/es/raddhh.php. Instituto de Políticas Publicas en Derechos Humanos MERCOSUR, Ganar Derechos. Lineamientos para la formulación de políticas públicas basadas en derechos (Buenos Aires, MERCOSUR, 2014). Available at: www.ippdh.mercosur.int/ganar-derechos-lineamientos-parala-formulacion-de-politicas-publicas-basadas-en-derechos/.

The Role of MERCOSUR Bodies in the Promotion and Protection  359

——

—— ——

——

the exchange of information about the dictatorships in the Southern Cone available online (Acervo Condor). Protection of elderly peoples’ rights: This group coordinates the activities for the promotion of specific human rights in the framework of the Meeting of High-level Authorities in Human Rights of MERCOSUR, focusing on the adoption of a specific OAS convention. Protection of women’s rights and gender equality: In particular, the Group has been working on the articulation of gender equality policies in MERCOSUR. It also promotes activities to protect women’s rights. Discrimination, Racism and Xenophobia: This group addresses the protection of African/Caribbean descendants and indigenous groups, in order to contribute to the adoption of public policies against discrimination, racism and xenophobia in the region. Sexual Identity and Gender Diversity: The group has compiled the laws of MERCOSUR, on gender identity and sexual orientation. It deals with sexual and gender identity; and monitoring of the proposal of the Joint United Nations Program on HIV/AIDS for Latin America (UNAIDS).

As a significant step, MERCOSUR Member States submitted the request for an Advisory Opinion to the Inter-American Court of Human Rights (even though it was presented as a joint request and not on behalf of MERCOSUR since the bloc lacks legal standing before the IACtHR). This request led to the adoption of the Advisory Opinion OC-21/14 on the Rights and Guarantees of Children in the context of migration and/or in need of international protection.134 Taking a long view on the future progress of MERCOSUR bodies with regard to the protection of human rights, three different aspects can be regarded as essential: the continuity of the intergovernmental plans or other supranational options; more transparency in its decision-making mechanisms, including more participation by civil society groups; revising the dispute settlement system (discussing the possibility of incorporating a court of justice); and the implementation of MERCOSUR law in the Member States.135 The outstanding challenge is to aspire to move towards a new mechanism for the Meeting of High-level Authorities in Human Rights hat includes the new scenario of UNASUR.

134  Inter-American Court of Human Rights (IACtHR), Advisory Opinion OC-21/14 ‘Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection’, OC-21/14, 19 August 2014, available at: www.refworld.org/docid/54129c854.html. 135 J Grandi and L Bizzozero, ‘Hacia una sociedad civil del Mercosur. Viejos y Nuevos actores en el tejido subregional’ (1997) 40 Colombia Internacional 35.

360  The Common Market of the South (MERCOSUR) IV.  THE SOCIAL DIMENSION IN MERCOSUR AND ITS CONTRIBUTION TO THE PROTECTION OF HUMAN RIGHTS

As previously mentioned, the incorporation of provisions relating to fundamental rights has been closely linked to the development of a ‘social dimension’ in MERCOSUR. This social dimension has been articulated at the institutional level by the activity of the regional integration bodies, and also through the participation of civil society, which has to do with the inclusion of stakeholders channelling their demands into the process.136 With regard to the social development achieved in MERCOSUR, the founding treaties set forth the basis for the development of an important social dimension within the integration process.137 According to Bizozzero this social dimension in MERCOSUR comprises a diversity of issues, showing the articulation between globalization and local level through different channels.138 The social and human rights are closely linked in MERCOSUR and, therefore, consideration and the legal treatment of the latter will depend to a greater extent on developments as they occur in the content of the social aspects of this integration process. To this end, the next section addresses the evolution and content of the social dimension as has been taking place in MERCOSUR. After that, the second section indicates the various stages this integration process has gone through in its development, making specific reference to legal instruments adopted by MERCOSUR institutions. Finally, the third section deals with the participation of civil society within this process of integration. A.  The Evolution of the Social Dimension The founding Treaty did not contain a direct reference to the question of the social dimension. It is only mentioned in the preface, so the social dimension does not appear, at least, explicitly in the Treaty of Asunción.139

136 L Bizzozero, La construcción de la dimensión social en los nuevos regionalismos. El caso del Mercosur (Caracas, SELA, 2000); J Bonet Pérez, ‘El proceso de integración de MERCOSUR y la reglamentación de las relaciones laborales’ in Iberoamérica ante los Procesos de integración, Actas de las XVIII Jornadas de la Asociación Española de Profesores de Derecho Internacional y Relaciones internacionales (Madrid, 2000); H Macedo Ribeiro, ‘O Mercosul Social’ (1993) Boletim de Integraçao Latino-americana 18–21 and MC Zappettini, ‘Aspectos sociales en el Mercosur’ (1995) I(2) Aportes para la Integración latinoamericana 61–89, 63. 137  O Ermida Uriarte, ‘Instituciones y Relaciones Laborales del MERCOSUR’ in R Franco and A Di Filippo (eds), Las dimensiones sociales de la integración regional en América Latina (Santiago-Chile, CEPAL, 1999) 104. 138  Bizzozero (n 135) 105. 139 ibid.

The Social Dimension in MERCOSUR and its Contribution  361 ­ owever, the TA since the beginning emphasised that one of the main goals H in MERCOSUR is to achieve ‘economic development with social justice’. Thus, Member States sought the expansion of the size of domestic markets, through integration, which is a prerequisite for accelerating their processes of economic development with social justice.140 There is very little reference to the social dimension, and in addition to that, only a statement of purpose can be found in this direction, in the form of the objective to ‘improve the lives of its inhabitants’.141 As has been noted consistently regarding this general trend, the institutional structure under that treaty does not incorporate specific provisions on social issues.142 Despite this partial silence in the founding treaties, scholars such as Tirado Mejía argue that some indirect references in the text allowed MERCOSUR to introduce social issues such as employment, combating poverty, and the harmonisation of social policies.143 In short, it can be concluded that, at least from a legal perspective, MERCOSUR was created with a clear purpose of becoming predominantly a process of economic integration. Although the TA reflects some aspects of social content, the drafters of the Treaty of Asunción were markedly biased toward trade.144 The eminently economic integration process did not by any means prevent MERCOSUR institutions from gradually addressing social issues and, therefore, going deeper into the consideration of fundamental rights. Therefore, various elements show that social aspects were not completely absent in the process of creation of MERCOSUR and, above all, that the social dimension of this process grew gradually to be part of the thread of policy and institutional development of this organisation with the incorporation of new areas. It appears that, before ratification of the TA, Member States identified the need to give MERCOSUR a certain social dimension, or at least that they were considering including some social content.145 These social aspects are emerging, therefore, strengthening the integration scheme both from a regulatory perspective (creation of norms) and from an institutional perspective (creation of new organs or bodies). Bearing this in mind, some key aspects can be mentioned briefly. First, a significant step in the design of the MERCOSUR social dimension is, surely, the Declaration of Montevideo, through which the Ministers of

140 ibid.

141  See HH Barbagelata, Exploración preliminar de la proyectada integración en el Merco­ sur desde la perspectiva laboral (Montevideo, Oficina Internacional del Trabajo, 1991). 142  Stahringer (n 18). 143  Tirado Mejía (n 108) 53. 144  Bizzozero (n 135). 145  CM Díaz Barrado, La integración social en América Latina y el Caribe: políticas sociales y participación de la sociedad civil (Madrid, Consejo Económico y Social de España, 2004).

362  The Common Market of the South (MERCOSUR) Labour tried to overcome the initial ‘social deficit’ when establishing the creation of the social MERCOSUR. Member States stressed the need to address labour issues within the purpose of addressing social and labour aspects of this integration process to accompany the tasks of the respective representatives ‘to ensure that the process brings with it an effective improvement in working conditions of the countries that signed the Treaty’.146 During the transition period however, as stated above, MERCOSUR developed two lines of work on social issues in its organisational structure, boosted both by the institutions of the organisation and the Trade Union Coordination of the Southern Cone (known in Spanish as Coordinadora de Centrales Sindicales del Cono Sur-CCSCS),147 which argued for the process of democratisation and greater participation of civil society actors, advising governments in guiding and making decisions.148 The first element to be emphasised is the creation of the Working Subgroup on Labour Relations, Employment and Social Security and the Meeting of Ministers of Education and Culture. Both institutions dealt with aspects of the social dimension in different subject areas and institutional frameworks. Indeed, the Working Subgroup on Labour Relations, Employment and Social Security by its nature submitted proposals and developed a guidance role as part of its functions relating to the protection of social and labour rights.149 In turn, the lack of labour standards and the demands of social sectors have led to the participation of civil society in the process. In the first of the regular meetings of the Ministers of Labour, on 8 May 1991, social organisations indicated the need for their incorporation, and thus, the governments of Member States started discussing the different components of the social integration. At the end, the final declaration issued at that time noted the need to address labour and social aspects to ensure that the integration process is accompanied by the improvement of working conditions in the Member States. In addition, during the Second Meeting, held in

146 

Ciudad Reynaud (n 76). CCSCS was created in 1986 in Buenos Aires and consists of 8 joint trade unions from Argentina (CGT y CTA), Brazil (CGT, CUT, y FS), Chile (CUT), Paraguay (CUT-AyCNT) and Uruguay (PIT-CNT). Apart from the CCSCS, there are other unions such as Central de Trabajadores Argentinos (CTA); three confederations affiliated to the World Confederation of Labour, and its branch in the region, the Central Latinoamericano de Trabajadores (WCL/ CLAT); the Centrales Autónomas de Trabajadores (CAT) of Brazil and Chile; and the Central Nacional de Trabajadores (CNT) of Paraguay. 148  Special consideration deserves to be given to the Trade Union Coordination of the Southern Cone which during the transition period dealt with four main topics: respect for labour legislation; the definition of a regional human rights charter; the development of a multilateral agreement on social security and the adoption of an agreement on labour migration in the region. Subsequently, two other claims were added in the construction process: the broader participation of workers and the adoption of a social charter. See Bizzozero (n 135) 9. 149 ibid. 147  The

The Social Dimension in MERCOSUR and its Contribution  363 Foz de Iguazu, in December 1991, the Ministers recommended the creation of a Subgroup 11 on Labour Affairs.150 As a result of this increased participation of social organisations at the meeting of the Common Market Group, held in Brasília in December 1991, the Working Subgroup No 11 was established, originally called ‘Labour Affairs’. The Subgroup met for the first time in Montevideo, in March 1992, and after was renamed ‘Labour Relations, Employment and Social Security’. The approach adopted was to include the representation of the private sector, having three delegates for employers and workers, although it was agreed to establish a ‘flexible approach’.151 In addition, within the Subgroup, the following thematic working committees were formed to deal with issues relating to the protection of human rights such as: individual labour relations, collective labour relations, employment, vocational training, health and safety at work, social security, labour costs in the area of by land and sea transport, and the ILO conventions on fundamental rights.152 The second line of work was the drafting of the Charter of Fundamental Rights discussed above. The proposed Charter of Fundamental Rights contained a system of norms on social issues, based on ILO conventions and the best principles and rules of each national law.153 The draft Charter sought to establish a regional basis and to have common standards regarding social, political and labour rights.154 During the first period of MERCOSUR, the other factor driving the evolution of the social dimension was the education sector, which went beyond the social and labour areas since it was oriented towards the definition of new educational standards at regional level, in order to meet the demands of a new regional development model, based on the realisation of high levels of competitiveness and social justice in a democratic context.155 150 

MERCOSUR Social. Official Documents.

151 ibid.

152  On the relationship between MERCOSUR and the ILO standards, see M Barroso Kümmel, As convençoes da OIT e o Mercosul (Sao Paulo, LYR, 2001). During the transition phase two outstanding issues of the labour agenda were channelled within the Sub-Working Group: the failure of collective agreements and labour regulations regarding migrations of workers from one member state to another and the decrease of labour standards. Given the existence of cases in which there were workers who performed their duties without respecting collective agreements in the construction industry, a commission to draft a project on the legal conditions of migration of workers was created in the Sub-Working Group. 153  In the evolution of the social dimension, it is worth referring to the creation of the SubWorking Group on Labour Relations, Employment and Social Security which clearly had a favourable impact on the transition. In particular, this Sub-Working Group was working on: knowledge of the different national situations; inclusion of social issues on the regional agenda; creation of a social agenda to be considered in the debates; an agreed list of ILO Conventions to be ratified by the four countries; and development of a Multilateral Agreement on Social Security to facilitate the free movement of workers. See Bizzozero (n 135)10. 154  MERCOSUR Social. Official Documents. 155  Stahringer (n 18).

364  The Common Market of the South (MERCOSUR) The second aspect to be noted is that since the adoption of the Ouro Preto Protocol and during the stage of consolidation of MERCOSUR, several modifications have been introduced, which decisively affected the definition and configuration of the social dimension. Thus, a representative body of economic and social sectors was created, in which employers and workers, who were represented in the SGT, become part of the organisational structure of MERCOSUR, through the Economic and Social Consultative Forum (hereinafter: ESCF), as a body representing the social sectors which replaced the Industrial Council.156 Second, the Joint Parliamentary Commission began to fulfil an active role in the evolution of the social dimension, through the elaboration of proposals on the social integration of MERCOSUR; in particular, on the adoption of a Social Charter for the integration process.157 During this period and in the context of social and labour dimension, MERCOSUR adopted two important legal instruments on social matters that are part of the essence of MERCOSUR in this field. These are the Multilateral Agreement on Social Security158 and the Social and Labour Declaration, signed by the Presidents of MERCOSUR in December 1998 and discussed below.159 The introduction of the social dimension in the regulatory framework of MERCOSUR has been operated primarily through two channels: the formation of the Sub-Working Group ‘Labour Relations, Employment and Social Security’ with a tripartite (government-employers-workers), under the Common Market Group, and also by the adoption of a three-year plan for education by the Ministers of Education. As regards, in particular, the Working Subgroup No 11: after the reform operated by the Protocol of Ouro Preto, it was renamed as ‘Labour Relations, Employment and Social Security’. From the beginning, the trade unions’ confederation raised a concrete demand for the adoption of a Charter of Fundamental Rights, conceived of as ‘a set of minimum standards

156  The FCES determines the themes and methods of operation through its meetings. The issues are diverse, and the importance given to each of them will be reflected in the development of recommendations. The evolution of the functioning of the Forum, as the body representing the social sectors, has been parallel to the introduction of new sectors through the National Sections. It has also begun to discuss issues related to the evolution of the process, determining sectoral and thematic openness that allowed rapid growth and forum participation in different instances of MERCOSUR. See Bizzozero (n 135) 3. 157  The various commissions that were created to develop the various issues on the agenda were: labour relations, employment, migration, qualification and training, health and safety at work, labour inspection, labour inspection and social security. MERCOSUR Social. Official Documents. 158  The Agreement was adopted through Decision 19/97 Ciudad Reynaud (n 76). 159  See, in particular, H Barretto Ghione, ‘Consecuencias de la Declaración Socio-laboral del MERCOSUR en la interpretación y aplicación de las normas laborales en los ordenamientos nacionales’ (2002) 8(3) Gaceta Laboral 355–72.

The Social Dimension in MERCOSUR and its Contribution  365 that would guarantee common grounds for the regional protection of fundamental rights’.160 This proposal became, finally, the Social and Labour Declaration. Despite not being called a ‘Charter’, the text approved constitutes a comprehensive set of principles and rights at work, which led to a regional consensus and progress in the social dimension.161 This instrument provided for the operation of a Social and Labour Commission with the task of promoting the implementation of the principles contained in the Declaration.162 The third point to note is that after the transition period, in the ‘MERCOSUR Action Program to the year 2000’ it was decided to deepen the integration process, focusing on the global dimension of the process and on external relations. In order to build the common market and the free movement of persons, the ‘The Protocol of Montevideo on Trade in Services’ (CMC Decision 13/97) was adopted to guarantee equal treatment for all service providers, whether domestic or foreign in those sectors where liberalisation has been agreed. This constitutes the first step in the recognition of freedoms for certain persons within the regional integration process.163 In the social dimension of the integration, different agreements and initiatives can be emphasised, primarily those related to education (the Triennial Plan, recognition of diplomas and mid-level technical studies, and recognition of university diplomas for graduate and for academic activities) and social security. In addition to these specific sectors, agreements and proposals have been adopted concerning health, public safety and environmental protection, which are linked to the social dimension. More importantly, these areas have an impact on the protection of human rights. Finally, it is worth noting that after the stagnation suffered by the MERCOSUR integration process since 2001, the Joint Communiqué issued at the XXIV Meeting of the Common Market Council emphasised ‘the need to prioritize the social dimension of MERCOSUR to encourage equitable development in the member states and the region as a whole, with emphasis on those measures to promote social and economic inclusion of the most vulnerable population’.164 In fact, this legal instrument emphasised the aspects that affect the social content of the integration because the regulatory and institutional framework neglected these issues.

160 See VE Tokman, ‘The Labour Dimension in MERCOSUR’ in W Momm (ed), The Labour Issues in the Context of Economic Integration and Free Trade (Port of Spain, ILOCaribbean Office, 1999) 139. See Bizzozero (n 135) 3. 161  ibid, 12. 162  Ermida Uriarte (n 54) 190. 163 The Programme of Action of MERCOSUR to the Year 2000 developed the lines of action in this field. E Monsanto, ‘Realismo y abstracción en la normativa del Mercosur’ in O Stahringer (ed), El Mercosur en el siglo XXI (Buenos Aires, Ciudad Argentina, 1998) 185, 189. 164  MERCOSUR Social. Official Documents.

366  The Common Market of the South (MERCOSUR) Overall, the social dimension has opened up the possibility of discussing issues concerning the protection of human rights within the MERCOSUR, at least those which refer to the social content and scope. The various instruments and bodies created have laid down the groundwork for the eventual establishment of mechanisms to guarantee the rights recognised. B. Main Instruments Adopted Within the Framework of the Social Dimension and the Protection of Human Rights One of the most prominent areas of the social dimension of MERCOSUR concerns labour relations, since MERCOSUR has achieved the most significant progress in this regard. Therefore, the consideration of fundamental rights takes place primarily in this field.165 The first formal attempt to develop a systematic instrument for human rights was the adoption of a Social Charter as discussed above which was finally reflected in the Declaration of Montevideo.166 Even before the signature of the Social and Labour Declaration, MERCOSUR had been regulating aspects related to labour, employment and migration that shaped the construction of the social dimension of MERCOSUR. Since the beginning the Working Subgroup 10 has been working on the ratification of international labour conventions by Member States and the drafting of a bill of fundamental rights.167 However, the adoption of the Charter was deferred until later in the integration process, to be parallel to the establishment of the Common Market.168 Most of the instruments that are enacted in MERCOSUR do not set up a mechanism to monitor compliance with social and labour standards. It would be advisable to implement a reporting system or a body of a quasijudicial nature, which would include the possibility for individuals to submit claims regarding the violation of the rights enshrined in MERCOSUR law. Usually, the norms adopted in the social dimension recognise fundamental rights with a programmatic character and without establishing effective mechanisms in order to guarantee the rights recognised therein.169

165 

MERCOSUR Social. Official Documents. O Ermida Uriarte, ‘Características, contenido y eficacia de una eventual Carta Social del MERCOSUR’ in ILO, ¿Una carta social del Mercosur? Trabajos de la Jornada Técnica sobre la Carta de Derechos Fundamentales en Materia Laboral del Mercosur (Montevideo, RELASUR, 1994) 13–27. 167  Sardegna (n 25) 214 and 215. 168  ibid, 228. 169  As Sadurski explains, ‘programmatic constitutional norms’ such as rights to work, housing and health ‘do not authorize individuals to press any claims’. W Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Dordrecth, Springer, 2005) 183. 166 

The Social Dimension in MERCOSUR and its Contribution  367 The most sophisticated instrument is, so far, the Social and Labour Declaration, which presents a catalogue of social rights and establishes a follow-up mechanism.170 C. The Social and Labour Declaration as the Key Instrument of the MERCOSUR Social Dimension In 1997 the Working Subgroup No 10 established an ad hoc tripartite body, with the objective to ‘analyse the various proposals for the approval of an instrument containing a core of fundamental rights and a monitoring mechanism involving social sectors’.171 At first this group studied the possibility of adopting a ‘MERCOSUR Social Protocol’ that ‘should take the form of an additional protocol to the Treaty of Asunción’.172 After intense discussions and negotiations, however, it emerged as a Declaration of the Presidents of the MERCOSUR Member States. The Social and Labour Declaration of MERCOSUR173 was proclaimed, after being adopted by the various organs of MERCOSUR, on 10 December 1998, in Rio de Janeiro (Brazil).174

170 See in general LC Robortella Amorim, ‘Relações de trabalho na integração regional’ (123–33); WA dos Santos, ‘A sociedade civil na integração: movimentos sociais e sindicatos’ (119–22) and JD Cristaldo, ‘Derecho del trabajo en la integración regional’ (83–118) in A Dos Santos (ed), Direito do trabalho na integração regional (São Paulo, Observador Legal Editora, 2002). 171  Act No 2/97, the V Meeting of the SWG 10. 172  Ermida Uriarte (n 54). See also HR Mansueti, Naturaleza jurídica y proyección institu­ cional de la Declaración Sociolaboral del Mercosur (Buenos Aires, Universidad Católica Argentina, 2002), available at http://bibliotecadigital.uca.edu.ar/repositorio/tesis/naturalezajuridica-y-proyeccion-institucional-de-la-declaracion-sociolaboral-del-mercosur.pdfand G Corrés, ‘La declaración socio-laboral del MERCOSUR. Un instrumento para el desarrollo social’ (2001) LXI(6) Rev DT 963. 173  Socio-Labour Declaration consists of four parts: ‘individual rights’, which consists of Arts 1–7; ‘Collective rights’ which includes arts 8–13; ‘other rights’, which runs from Art 14 to 19; and finally ‘implementation and monitoring’ comprising Arts 20 to 25. J Bruni, Los órganos socio-laborales del Mercosur (Lima, ILO, 1999), 6–9. 174  See M Cerrudo, B Chiesa, A Reyes and R Villaverde, Mercosur: ¿flexibilización laboral? (Montevideo, Universidad Católica del Uruguay, 1992); M Cerrudo, B Chiesa, A Reyes and R Villaverde, La flexibilización laboral en el contexto del Mercosur, Boletín Cinterfor (Montevideo, ILO, 1993); J Notaro, ‘El tránsito al Mercosur y sus impactos en las relaciones de trabajo. El escenario regional y las economías pequeñas’, Cuadernos del CLAEH 69 (Montevideo, Centro Latinoamericano de Economía Humana, 1994); ILO, ¿Una carta social del Mercosur? (Montevideo, RELASUR, 1994); J Ross and V Domínguez, Armonización de la legislación social y laboral en el Mercosur (Buenos Aires, INCASUR, 1994); G Campero, La cuestión laboral en el Mercosur: procesos, opciones y posibilidades (Buenos Aires, Friedrich Ebert Stiftung, 1999); A Cárdenas and C Flores, Políticas de empleo e institucionalidad laboral en la Unión Europea y el Mercosur, Documentos de Trabajo nº 101 (Lima, ILO, 1999); O Ermida Uriarte, ‘La cuestión laboral en el Mercosur’ in O Ermida Uriarte and H Barreto Ghione (eds), Formación profesional en la integración regional (Montevideo, Cinterfor, 2000) and H Barbagelata, El derecho laboral del Mercosur ampliado (Montevideo, OIT/Cinterfor/FCU, 2000).

368  The Common Market of the South (MERCOSUR) Overall, the goal of the Declaration is not only to set fundamental standards that should govern the employment relationships (individual and collective rights related to work), but also to provide a broader framework for the protection of fundamental rights within MERCOSUR. In this sense, there is a reaffirmation of the ‘core principles’ of MERCOSUR as a ‘political project’, particularly, the ‘adhesion of the member states to the principles of political democracy, the rule of law and full respect for civil and political rights of the human being’.175 As regards labour relations and workers’ rights, the Declaration reinforced the MERCOSUR social dimension and the protection of human rights.176 On the one hand, the Declaration states that integration is fundamental to accelerate economic development with social justice, involving social aspects that impact on human rights. There is a close relationship between the economic sphere and the impact that the development of MERCOSUR produces on the social rights. Since the beginning, following the TA imperative to ensure economic development with social justice and improving the lives of the citizens, MERCOSUR emphasised the compliance with the ILO conventions177 ratified by the Member States and with the regional instruments for the promotion and protection of human rights signed by them.178 Two important aspects of this Declaration deserve mention. First, the legal standing of the Declaration in order to clarify the obligations that are set. Second, it is relevant to clarify the scope and the content of the Declaration, in terms of the rights granted. i.  Legal Standing of the MERCOSUR Social and Labour Declaration The Social and Labour Declaration was never supposed to be a legally binding instrument. Indeed, it has recommendatory content, laying down principles and rights. The Declaration formally enshrined the principles and rights 175 

MERCOSUR Social. Official Documents. (n 13500). One could argue that this instrument represents the background work for the issuance of a future Charter of Fundamental Rights as an integral rule of Community law. At the same time, it should serve as a guideline for the interpretation and the implementation of domestic legislation in order to comply with the norms of the Declaration. Mansueti (n 171). 177  R Capón Filas, ‘Armonización de la legislación laboral en los países del MERCOSUR’ (1992) XVII(43) Revista Notisur 12. 178  In this regard, the following international human rights treaties are explicitly mentioned: the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the American Declaration Rights and Duties of Man (1948), the Inter-American Charter of Social Guarantees (1948), the Charter of the Organization of American States-OAS (1948), the American Convention on Human Rights on Economic, Social and Cultural Rights (1988). O Ermida Uriarte, ‘La declaración socio-laboral del MERCOSUR y su aplicabilidad judicial’ (2000) 26(99) Revista de Direito do Trabalho 193–206. 176  Bizzozero

The Social Dimension in MERCOSUR and its Contribution  369 already recognised in the ILO Conventions and Member States’ constitutions, and at the same time, provided the foundation for a space to consolidate the protection of social and labour rights.179 The Declaration contains various references to other legally binding instruments that have been ratified by MERCOSUR Member States. Hence, although it has per se a purely recommendatory value, its implementation cannot be separated from those legal instruments upon which its content and scope are based. In a first reading the Declaration can be seen as a mere political declaration of purposes with no binding legal effect. However, taking a closer look at the reception of human rights treaties to which Member States are already parties, one comes to the conclusion that most of the rights and principles contained therein are basic human rights standards belonging to jus cogens, that is, norms of public international law that are binding beyond any act of recognition, ratification or reception by national law.180 Furthermore, the Declaration specifies, quite clearly, different rights in the social sphere, and not in a merely programmatic way. In particular, the Declaration requires Member States to provide in their respective domestic laws for the effective enforcement of the principles recognised in that instrument.181 However, one might conclude that the legal nature of this instrument is complex. It is not an international treaty in a strictly legal sense, and it is not explicitly mentioned among the normative sources of MERCOSUR law, defined in the Ouro Preto Protocol. Nevertheless, domestic courts have been applying the declaration as if it had legal binding effect, as discussed later in this chapter.182 ii.  Content and Scope of this Legal Instrument Regarding its content, following the categorisation proposed by Ermida Uriarte, a distinction should be made between the generic or broad content, on the one hand, and the specific content, on the other hand.183 Thus, the ‘generic or expanded content’ covers all the treaties, pacts and declarations on human rights referred to in the Social and Labour Declaration. The specific content consists of the rights and principles expressly enshrined in the text. In examining the specific content of the Declaration, different elements can be highlighted. The first part of the Declaration regulates fundamental

179 

Díaz Barrado (n 144). Ermida Uriarte (n 54). 181 ibid. 182  Mansueti (n 171). 183  Ermida Uriarte (n 54). 180 

370  The Common Market of the South (MERCOSUR) human rights. Thus, in Article 1 the effective equality of treatment and opportunity in employment and occupation is guaranteed, regardless of nationality, colour, sex, age, creed, political or trade union ideology, economic status or any other social or familiar status.184 It provides, in general, the principle of non-discrimination, typical and necessary in any instrument in which fundamental rights are recognised. However, in particular, states undertake to ensure the validity of the principle and Article 2 emphasises that people who have special needs or are disadvantaged on the labour market should be treated with dignity and without discrimination, favouring their integration in the society and in the labour market.185 One of the most important areas the Declaration touches upon is the recognition of rights of certain vulnerable groups. Thus, Article 4 is devoted to the regulation of migrant workers, stating that, irrespective of their nationality, they ‘are entitled to the same assistance, information, protection and equality of rights and working conditions as recognized for the nationals of the country in which they are engaging in their activities’.186 Moreover, other provisions for disadvantaged and vulnerable groups are found in the rules relating to child labour and rights of the child, in the form of the protection of compulsory education, compliance with the minimum age for admission to work, the limited working day, and the protection regarding work in unsanitary, dangerous or immoral conditions, which may affect their physical, mental and moral development. The Declaration provides that Member States undertake to adopt policies and actions that lead to the elimination of child labour, and also indicates that child labour will be given special protection by the Member States.187 Finally, the Declaration places the emphasis on rights which have a labour content and, in particular, the fundamental rights of workers. Hence, this legal instrument contains several workers’ rights, including individual and collective rights, as set out in Article 8, the fundamental right of workers to join such organisations. The Social and Labour Declaration regulates the rights of employers to organise and run their businesses in accordance with the laws and practices of each Member State. A novelty is the inclusion of the right to vocational training as one of the fundamental rights of workers. In fact, Article 16 recognises the right

184 

MERCOSUR Social. Official Documents. in order to promote equality, Art 3 of this Declaration states that Member States undertake to ensure equal treatment between men and women. In addition, there is an express provision regarding the elimination of forced labour in Art 5. ibid. 186  See, in particular, MA Castillo, Migraciones en el hemisferio; consecuencias y relación con las políticas sociales (Santiago de Chile, CEPAL, 2003); ‘Migración Internacional en las Américas’, San José, Costa Rica, septiembre 2000; CEPAL, La migración internacional y el desarrollo en las Américas (Santiago de Chile, CEPAL, 2001). 187  Art 6. MERCOSUR Social. Official Documents. 185  Also

The Social Dimension in MERCOSUR and its Contribution  371 of workers to access to career guidance and skills development.188 Thus, the Declaration incorporates the vast range of fundamental human rights already recognised amongst other international law instruments in the Preamble to the Constitution of the ILO, in the International Labour Convention No 142 and Recommendation No 150, in the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, the American Declaration of Human Rights, the 1948 Inter-American Charter of Social Guarantees and the 1988 Protocol of San Salvador.189 In addition, the Declaration contains a panoply of important rights of social and labour content, establishing in this regard a general framework for the recognition of fundamental rights of workers. This recognition is made, on some occasions, through a very general and broad approach and, in other parts of the text, in more detail, indicating the specific obligations of Member States in this regard. As a consequence, the main issues relating to fundamental rights in terms of labour, employment, social security and some aspects of labour administration are addressed in the Declaration. iii.  Mechanisms for Implementation of the Social and Labour Declaration As regards the implementation and monitoring mechanisms, Article 20 of the Declaration provides for the establishment of a Regional Socio-labour Commission. This Commission oversees the compliance with the declaration and it is also in charge of promoting its implementation. The SocioLabour Commission is constituted as a tripartite subsidiary body.190 As explicitly stated in Article 20 of the Declaration, ‘Member states undertake to respect the fundamental rights enshrined in this Declaration and to promote their implementation in accordance with national law and practice, collective accords and collective agreements’.191 To this end, the Declaration recommends the creation of a Labour Commission, a tripartite 188  In Art 12, Member States undertake to promote and develop preventive and alternative resolution of individual and collective labour disputes forms. Equally, Art 13 refers to the commitment of Member States to promote dialogue between representatives of the social sectors in order to ensure social consensus. In this section, the Declaration contains the commitment of states to promote economic growth in order to promote employment. In addition, it is stated that states parties undertake to create mechanisms to protect the unemployed workers. Similarly, the Declaration reflects the commitment of states to promote and maintain labour inspection services in order to monitor compliance with the regulatory provisions that protect workers. MERCOSUR Social. Official Documents. 189  Ermida Uriarte (n 54). 190  To this end, it should be noted that the creation of this Commission is clearly a milestone of the harmonisation process. Mansueti (n 172). 191 It should be advisable in this process of legislative harmonisation that jurisprudence linked to the domestic application of the principles approved by the Labour Declaration of MERCOSUR would be forwarded to the Regional Labour Commission, in order to enable proper control and knowledge of effective national practice. Mansueti (n 171).

372  The Common Market of the South (MERCOSUR) subsidiary body operating in the sphere of the Common Market Group, in order to promote and support the application of the instrument.192 This tripartite configuration is similar to the Subgroup, ‘Labour Relations, Employment and Social Security’ in the Common Market Group, in order to promote and monitor all work-related rights.193 If one takes into account that the purpose was originally to adopt a Social Charter as an Additional Protocol to the Treaty of Asunción, the resulting instrument has definitely a lower rank. It was a compromise solution. However, in a positive assessment of its implementation, the Social and Labour Declaration can expand its scope as its content is open, dynamic and progressive.194 The Social and Labour Declaration represents an outstanding contribution in the field of human rights, more specifically, in the field of rights which have a social and labour content. Therefore, one could argue that the adoption of the Declaration constitutes a step of great significance in the process of the social dimension of MERCOSUR, consolidating a regional vision of a set of principles, rights and issues that are at the heart of the social dimension.195 D. Other Relevant Human Rights Instruments Adopted in the Framework of the MERCOSUR Social Dimension Almost as important as the adoption of the MERCOSUR Social and Labour Declaration is the signature of the 1997 Multilateral Agreement on Social Security.196 Certainly, this is a binding instrument that addresses one of the most important fundamental rights in the social field and shows the close relationship existing within MERCOSUR between human rights and the social dimension of integration. The basic objective of the Agreement is to guarantee equal access to social security benefits for workers and their families in MERCOSUR Member States.197 This document contains the basic principles of international law in the field of social security, namely: application of the law of the place of execution, equality, preservation of acquired rights, aggregation and pro rata of benefits.198

192 

MERCOSUR Social. Official Documents. Bizzozero (n 135). 194  Ermida Uriarte (n 54) 15. 195  Díaz Barrado (144); Bizzozero (n 135). 196 The Agreement was signed, in Montevideo on 14 December 1997. The Multilateral Agreement on Social Security came into force in June 2005. 197  Ciudad Reynaud (n 76). 198  Ermida Uriarte (n 54) 15. 193 

The Social Dimension in MERCOSUR and its Contribution  373 The most important element is that the Agreement provides that social security entitlements are guaranteed to workers employed or formerly employed by any of the Member States, recognising the same rights for them and their families. They are subject to the same obligations as the nationals of those states with regard to the rights and benefits specifically mentioned in that agreement. Furthermore the scope extends also to the workers of any nationality resident in the territory of a state party, provided they have worked in those states parties.199 Pursuant to the Multilateral Agreement on Social Security, only ‘temporary workers’ (hired for less than a year) and other workers that qualify as professional, scientific, technical, managerial, research, transport sector workers and diplomats are excepted from making contributions to local pension funds.200 Social security benefits are contemplated in Article 3 of the Agreement relating to contributory and health benefits in states parties, in form, terms and extent set forth in this instrument. However, each state party is to provide cash benefits and health within their own domestic legislation. The regulation establishes the agencies responsible for the proper implementation of this Agreement, stating the tasks allocated to each of them. Beyond this important agreement, which reflects a social right, there are other instruments adopted within the framework of MERCOSUR which, although not directly focused on labour issues, nonetheless contain norms concerning social rights. Thus, first of all, it should be borne in mind that the Protocol for the Settlement of Disputes of Brasília (1991) and its 2002 version, updated following the signing of the Protocol of Olivos, contain mechanisms for dispute settlement which are also applicable to possible differences concerning labour issues.201 In the same vein, there is the Protocol on Cooperation and Jurisdictional Assistance in Civil, Commercial, Labour and Administrative Issues (1992) which, in order to strengthen the integration process, creates a central authority responsible for receiving and processing requests for judicial assistance in these areas.202 This Protocol aims at avoiding inequalities in access to justice among the citizens of the states parties to the agreement. Also, the Additional Protocol to the Treaty of Asunción on the Institutional Structure of MERCOSUR, better known as the Ouro Preto Protocol, 199 On this topic, we must refer to the Charter of Buenos Aires, in which it was stated that ‘it is a priority to deepen the social dimension of Mercosur considering all aspects of the integration process’. In particular, as regards migrant workers, this Charter represents an effort to seek cooperation and guarantee the enjoyment of human rights and the achievement of decent, fair and non-discriminatory work, encouraging state cooperation on migration. See ‘Libre circulación y migración de trabajadores’ in C Molina Del Pozo (ed), Integración Euro-latinoamericana (Buenos Aires, Ciudad Argentina, 1996) 358. 200 T O‘Keefe, Latin American and Caribbean Trade Agreements: Keys to a Prosperous Community of the Americas (The Hague, Martinus Nijhoff Publishers, 2009) 199. 201  Rey Caro (n 114). 202  The Protocol was signed in Las Leñas on 27 May 1992.

374  The Common Market of the South (MERCOSUR) instituted an ex-novo body, the Economic and Social Consultative Forum. In this regard, it is worth quoting Article 29 which defines the Forum as an advisory body which can issue recommendations to the Common Market Group. Moreover, Article 38 introduces an important innovation with respect to the obligation of compliance for the states parties with regard to the rules issued by the organs of MERCOSUR, providing that ‘member states undertake to adopt all necessary measures to ensure, within their respective territories, compliance with rules issued by the MERCOSUR institutions’.203 E. Social Dimension, Sustainable Development and Environmental Protection in MERCOSUR Another field closely related to human rights because of its connection to sustainable development concerns environmental protection. In its preamble, the Treaty of Asunción (1991) states that MERCOSUR Member States seek the achievement of a common market: ‘believing that this objective must be achieved by making optimum use of available resources, preserving the environment…’, even if no specific provisions on environmental issues were embodied in the treaty. Despite this absence of environmental clauses, shortly after the adoption of the Treaty of Asunción, MERCOSUR Member States issued the Canela Declaration (1992) which enshrined basic international environmental principles further recognised by the Rio Declaration. Furthermore, in 1992, a specialised meeting called REMA (Reunión Especializada de Medio Ambiente) was created, constituting the first institutional structure for addressing environmental issues in MERCOSUR. Among its achievements, we can mention the establishment of the ‘Basic Guidelines for Environmental Policy’ which defined a set of guiding principles, minimum objectives and lines of action to be followed by MERCOSUR Member States when drawing up their environmental policies. Later on, in 1995, Member States adopted the Taranco Declaration on environmental issues. At the same time, environmental authorities asked the GMC to upgrade the institutional status of the REMA in order to create the Working Sub-Group No 6 (WSG No 6) Environment. In the 2000s the main innovation was the signature in 2001 of the MERCOSUR Framework Agreement on the Environment, which constitutes the main legal instrument in MERCOSUR.204 Among its provisions, 203  A Padrón, ‘Foro consultivo económico-social del Mercosur’ in CLAEH/CEFIR/ALOP, Participación de la sociedad civil en los procesos de integración (Montevideo, CEFIR, 1998) 245–54. 204 The Agreement entered into force in June 2004. For more details on the Framework Agreement, see A Macedo Franca, ‘MERCOSUR and Environmental Law’, in Toscano Franca Filho, Lixinski and Olmos Giupponi (n 1) 225.

The Social Dimension in MERCOSUR and its Contribution  375 the ­Framework Agreement underlines the commitment of Member States to cooperate in the implementation of international environmental agreements to which they are party, including the possibility of filing reports when appropriate and the obligation of Member States to apply the principles of the 1992 Rio Declaration not covered by international agreements. At sub-regional level, the Framework Agreement emphasises the commitment of Member States to address environmental problems in the sub-region with an emphasis on cooperation in environmental protection and natural resources. Furthermore, the Framework Agreement devotes Chapter III to Cooperation, proposing a list of activities to be performed by Member States in order to enhance the application of environmental norms.205 Despite all these provisions, the MERCOSUR Framework Agreement on the Environment does not impose specific obligations on the Member States, and the above-mentioned Canela and Taranco Declarations are merely soft law.206 Additionally, however, MERCOSUR has been adopting other environmental regulations such as: the 1994 Agreement on the Carriage of Dangerous Goods in MERCOSUR; the 1996 Technical regulation of maximum pollutant emission of heavy vehicles; the 2000 Code of Conduct for the Import and Release of Exotic Biological Control Agents; the 2000 Complementation of the General Plan of Mutual Cooperation and Coordination on Regional Security and Environmental Matters; the 2004 Additional Protocol to the Framework Agreement on the Environment of the MERCOSUR on Cooperation and Assistance in Environmental Emergencies; the 2006 Guidelines for environmental management and cleaner production; and the 2007 Promotion and Cooperation Policy on Sustainable Consumption and Production in MERCOSUR. At present, there has been no comprehensive study on how Member States are applying and enforcing the environmental norms adopted within the framework of MERCOSUR. The evidence provided by the different reports on the application of MERCOSUR law shows that Member States are applying the norms in different ways.207

205  See art 6 on the commitment of Member States to: a) increase the exchange of information on laws, regulations, procedures, policies and practices as well as its social, cultural, economic and health services, particularly those that affect trade or competitive conditions in MERCOSUR; … c) Seek to harmonise environmental legislation, considering the different realities of environmental, social and economic of the countries of MERCOSUR; … f) contribute to other forums and agencies deemed appropriate to timely and relevant environmental aspects of MERCOSUR; g) promote the adoption of policies, production processes and services which are not degrading the environment; … and i) promote the use of economic instruments to support the implementation of policies to promote sustainable development and environmental protection. 206  MERCOSUR Secretariat, Medio ambiente en el MERCOSUR (Montevideo, Secretaría del MERCOSUR, 2006). 207  Olmos Giupponi, ‘Sources of Law’ in Toscano Franca Filho, Lixinski and Olmos Giupponi (n 1) 57–71.

376  The Common Market of the South (MERCOSUR) V.  AN APPRAISAL OF THE IMPLEMENTATION OF MERCOSUR LEGAL INSTRUMENTS

As in other FTAs, MERCOSUR provisions on human rights are narrower in scope and broader in terms of implementation and enforcement when compared with the internal legal orders. The analysis above revealed however that within MERCOSUR these are under special consideration and have been the object of regulation. The development and consolidation of the social dimension leads to the field of recognition, promotion and protection of human rights, sometimes with a more general approach focusing on social and labour aspects and, sometimes, in a more scattered way, concerning matters related to the social dimension. In MERCOSUR there has been an evolution towards a more protective scheme for labour and environmental rights articulated on the basis of the adoption of specific norms (mainly soft law instruments). The Social and Labour Declaration represents a successful experience in this trend: internal courts have applied the Declaration recognising, in certain cases, a supralegal hierarchy in order to protect workers’ rights. Furthermore, MERCOSUR environmental standards are also applied to resolve internal disputes in order to safeguard public health. On the other hand, MERCOSUR arbitration awards seem to suggest that human rights are penetrating commercial areas. The Ad Hoc Arbitration Tribunal in the Award 9/2006 left open the possibility in the future that human rights protection could represent a limit to free trade with regard to proportionality. Nonetheless, there are still many challenges that MERCOSUR must face. The main one is admitting that all labour and environmental provisions reflect human rights principles and that therefore, it is necessary to adopt clearer and precise norms at sub-regional level. VI.  THE ACTORS OF THE SOCIAL DIMENSION IN MERCOSUR AND HUMAN RIGHTS ISSUES

Noticeably, the participation of civil society in the framework of MERCOSUR as a specific manifestation of the social dimension has had also an impact on issues concerning human rights. It has been argued that the participation of civil society in the context of the sub-regional integration process represents one of the key aspects in the development of the social dimension in Latin America and the Caribbean.208 208 LA Compa, ‘Works in Progress: Constructing the Social Dimension of Trade in the Americas’ in The Social Dimension of Economic Integration (Washington, United States Bureau of International Affairs, 2003) 27–55 available at: http://digitalcommons.ilr.cornell. edu/cgi/viewcontent.cgi?article=1381&context=articles.

The Actors of the Social Dimension in MERCOSUR 377 The governing institution of the process, the Common Market Council, has underlined on several occasions the need to incorporate civil society sectors. Thus, in the Joint Communique issued at the XVIII Meeting of MERCOSUR Member States, the presidents reaffirmed the full commitment to strengthen representative democracy, reiterating its willingness to improve the quality of democratic institutions, with greater social integration and effective participation in the democratic process within a framework of equity and justice.209 There are some key elements defining the participation of civil society in the development and integration of MERCOSUR. First, after the signature of the Protocol of Ouro Preto, three bodies in the institutional structure of MERCOSUR can be considered representative of citizens: the Joint Parliamentary Commission (hereinafter JPC, replaced by the MERCOSUR Parliament in 2007), the Economic and Social Consultative Forum (hereinafter ESCF) and the Parliament of MERCOSUR. The Parliamentary Commission was already established by the founding treaty with the purpose of incorporating the representation of parliaments of the Member States. The main critiques were of the intergovernmental character of this ‘parliamentary institution’ and its subordination to MERCOSUR ministerial bodies. ESCF is the only institution of the structure of MERCOSUR which represents civil society. As highlighted in relation to the participation of civil society, its institutionalisation represented the formalisation of the participation of the social sector in regional integration.210 The ‘Program of Action MERCOSUR to the Year 2000’, approved by Decision No 9/95 of the Common Market Council, implied the recognition of the social dimension of MERCOSUR and the consequent need to build a social space, which is expressed in the following terms: the deepening of the integration process requires increased involvement of the whole society’.211

209  W Hummer, ‘El “Diálogo Político” y el Compromiso Democrático en las zonas de integración económica en América Latina’ in Z Drnas and E Rey Caro (eds), Libro Homenaje al Profesor Ernesto Rey Caro (Córdoba, Lerner, 2002) 1272. 210  Ermida Uriarte (n 136) 111. 211  Ermida Uriarte (n 136) 106. In the text of the Protocol of Ouro Preto, there is little reference to the work and the intended functions of the FCES. It has certainly been the regulation and the operation of this body which has enabled the participation of other actors in the integration process. Thus the regulation, which was the result of negotiations of trade unions and chambers of employers, determines the objectives and scope of competence and performance of its functions. In its internal structure, the Forum consists of national sections with autonomy to define, according to their own internal characteristics, the various social and economic sectors that compose them. The regulation requires organisations acting on behalf of various private sectors that are the most representative and national level (s 3.1), ensuring that they can have their representation and suggest the inclusion of items on the social agenda. See MERCOSUR Social. Official Documents. The greatest difficulty is that the FCES is a purely advisory

378  The Common Market of the South (MERCOSUR) The Social Consultative Forum was tasked with the function to ensure ‘adequate participation of the sectors involved’.212 The creation of the MERCOSUR Parliament has opened up the possibility for MERCOSUR citizens to vote for the representatives to the regional parliament.213 In the case of MERCOSUR, in accordance with Article 19 of the Protocol, the Parliament of MERCOSUR is entitled to issue the following instruments: 1. Opinions; 2. Draft standards; 3. Proposed Draft Standards; 4. Statements; 5. Recommendations; 6. Reports; and 7. Provisions. In terms of regulatory functions, the wording includes the possibility that the Parliament could issue opinions on prescriptive decisions, resolutions and directives issued by the Council of the Common Market Group Common Market or MERCOSUR Trade Commission, respectively. Second is the Subgroup 10 on Labour, Employment and Social Security, until 1994, the Sub Working Group No 11 Industrial Relations, Employment and Social Security.214 As concluded above, the Sub Working Group No 11 conducted an outstanding job during the transition period, highlighting in particular the division of commissions that favoured the inclusion of specific areas of the social dimension. Likewise, the tripartite cooperation is an important aspect to highlight, because in the meetings, it involves government delegates belonging to the ministries of labour and representatives of organisations of employers and workers while the sectoral representation is in charge of the main trade unions and business in each Member State, adopting the recommendations by the consensus rule. Within the Common Market Group, the Subgroup 11 was restructured based on Resolution 20/95 of the CMG, which introduced changes in the composition and in the name, while maintaining the tripartite composition.215 As previously indicated, the creation of this Working Subgroup No 11, was relevant because it developed from the beginning issues relating to international labour standards. The internal division of labour committees favoured also the development of social rights. The Working Subgroup was structured as follows: a) Individual labour relations; b) Collective labour relations; c) Employment; d) Training; e) Health and Safety at Work; f) Social Security; g) Specific sectors and h) Principles.216 Third, as regards the participation of sectors involved and affected by the integration process, the business sector participation in MERCOSUR was envisaged in the preparatory phase of the agreements; however, the

body lacking decision-making powers. In addition, until now it has proven difficult to monitor agreements between one and plenary meeting and the next. 212 

MERCOSUR Social. Official Documents. Olmos Giupponi (n 109). 214  Decision No 20/95 of the Common Market Group. 215 ibid. 216  MERCOSUR Social. Official Documents. 213 

The Actors of the Social Dimension in MERCOSUR 379 a­ greements did not foresee the stage at which this should be made effective. Thus, in its initial formulation, the Treaty of Asunción did not include specific areas for the involvement of trade unions or provisions on social and labour issues. However, as noted earlier, during the first stage different sectors of the civil society started discussing changes brought about by the integration process. The participation of social sectors in the various areas of action of the organisation is reflected with more emphasis on MERCOSUR after the consolidation phase of the process, where some players could channel their demands through the institutional bodies or in other institutional frameworks to be built as part of the regional integration.217 Moreover, trade unions played an important role, particularly through the Trade Union Coordination of the Southern Cone. Since the beginning of the process, the Central Southern Cone Union has called for the participation of social actors and the inclusion of a social and political dimension in MERCOSUR. These demands were partly covered by the creation of the Sub-Working Group in the Common Market Group framework (above mentioned) of tripartite nature—government, employers, workers—which enabled the inclusion of certain ‘sensitive’ issues, such as professional training, employment and movement of workers. The unions also proposed the adoption of a Social Charter of MERCOSUR, which was echoed by the Meeting of Ministers of labour and culminated in the adoption of the Social and Labour Declaration in 1998.218 Fourth, as regards the participation of civil society organisations, there are two levels as distinguished by Tirado Mejía: (i) the relations between public and private sectors within each Member State, and (ii) the relationship between actors of different Member States.219 On both levels participation is already institutionalised, such as the Sectoral Commission for MERCOSUR (COMISEC) created in Uruguay, and the Economic and Social Consultative Forum of MERCOSUR. The first level has registered higher activity, possibly due to the weakness of the second level as a supranational entity. Indeed, the actions of trade unions and employers advanced through COMISEC involve research and dissemination of information, while with

217  Among the subjects that have been addressed by this subgroup are labour costs implications of the integration process on employment, free movement of workers, vocational training, social security, a list of ILO Conventions that could be ratified, a possible Charter of Fundamental Rights of workers, collective rights and the right to social security. Ciudad ­Reynaud (n 76) 22. 218  In particular, there are two levels of consultation and participation of the business sector. On the one hand, the ‘business elite’ can address both general and sectoral policy issues (agriculture, industry, services, trade). On the other hand, representatives from government, business and labour sectors in Member States participate in the same way as the national delegations attending meetings of the International Labour Organization, pertaining to consider various aspects of labour relations, employment and social security, and the WSG No 11. 219  Bizzozero (n 135).

380  The Common Market of the South (MERCOSUR) the exception of Sub Working Group No 11 (see above), the participation in negotiations and consultations instances on the part of union and the business sector related to the subgroups (Technical Committees) of MERCOSUR Trade Commission has a reduced institutionalisation.220 Fifth, as regards the involvement of other civil society groups different from those in the economic and labour sectors, such as consumer associations, professionals, environmental organisations, social media, students, cultural media, universities and academics, each of the national sections of the Economic and Social Consultative Forum determine which of the organisations representing economic and social sectors will participate in the Plenary Meetings of the Forum.221 Sixth, as to the role played by non-governmental organisations (herein­ after NGOs) in MERCOSUR sub-regional integration, it must be said that it was, in principle, scarce. The reasons for this absence is in part due to the NGOs that have not incorporated the existing regional dimension in their activities, and is also because they have not been guaranteed a space for action in the process.222 Two new institutions were added to reinforce the participation of civil society in the process and to discuss human rights issues. Thus, the Social Institute was created in 2007 with the main objective of strengthening the social dimension of MERCOSUR, in particular, acting to reduce asymmetries through cooperation, with the elaboration of regional social policies, systematisation and updating of the regional social indicators, exchange of good practices, promotion of horizontal cooperation mechanisms, and providing access to funding.223 The creation of the Observatory of Public Policies on Human Rights in 2004 constitutes another significant step for the consolidation of the MERCOSUR human rights system.224

220  As already noted, the Common Market Group also foresaw the functioning of meetings of ministers, among which are the Ministers of Labour. These meetings have been important in the transition because they have channelled the claims and the intervention of industrial sectors, promoting the expansion of social space within the scheme with the adoption of specific legislation. 221 The legal and institutional mechanism of action of the Forum is conducting plenary sessions, in which the participation of the above-mentioned sections is channelled and recommendations are issued. The content of the recommendations adopted on the matters under consideration would include: the need to create jobs, the application of educational and pedagogical methods that encourage creativity and prepare young people for new working conditions, and development of training courses. 222  Stahringer (n 18) 101. 223  Declaration of Asunción, art 2. 224 The Institute comprises 12 organisations from the civil society: Centro de Estudios Legales y Sociales (CELS), Servicio Argentino de Derechos Humanos (SADH), Centro de Derechos Humanos y Ambiente (CEDHA), from Argentina; Instituto Sou da Paz, Themis-Assessoria Jurídica e Estudos de Gênero, Conectas Direitos Humanos, from Brasil; Instituto Paraguayo de Derechos Humanos (IPDH), Comité de Iglesias Para Ayuda de Emergencia (CIPAE), Raíces para el Fortalecimiento y el desarrollo, from Paraguay; Servicio Paz y Justicia (SERPAJ), Instituto

The Actors of the Social Dimension in MERCOSUR 381 Thus, an alternative influence has arisen within MERCOSUR through the different tasks performed by the NGOs in advising, doing research, social analysis and making legislative proposals. Organisations of the civil society could still actively join the process according to their ‘ability to understand the process and related phenomena’, especially through networks on themes formed through contacts between NGOs from the region that developed similar activities.225 Finally, with regard to the involvement of other levels of government rather than the state, MERCOSUR exhibits a clear example of sub-national participation in the integration process. The need for citizens who had been kept away from the decision-making process, determined the creation of a network that brings together a cluster of cities of the Member and associated States. Hence, the Mercocities Network emerged during the ‘Seminar on MERCOSUR’ held on 7 March 1995, in Asunción, which was attended by several heads of municipal governments who signed the Declaration of Asunción.226 Through this instrument, the heads of local governments decided to implement a network, linking the main cities of the MERCOSUR countries to enable them to participate in the decision-making process and in the implementation of measures concerning the integration process. The Mercocities network has, as one of its main objectives, ‘to promote the strengthening of local administrations and natural logical counterparts in the context of globalization’, as it is understood that ‘cities are growing areas of human interconnection and local authorities and organizations representing entities with active political participation cannot be unrelated to the phenomenon of globalization’.227 The Article 2 of the Social Statute provides that the purposes of this network, in terms of regional integration, is seeking recognition as part of the structure of MERCOSUR, pursuing co-decision in the areas of responsibility; encouraging networking of cities across the countries to develop common actions, programs and projects, appropriate to the integration process; the inventory of the cultural and historical heritage of MERCOSUR necessary to adopt common measures to ensure their preservation; and dissemination of policies to encourage local projects that fit the new regional space, promoting the creation of inter-municipal technical units with integrated representation, planning and development of joint projects and the regional spread of a culture of democracy and democratisation at regional and national level, establishing

Solidaridad y Desarrollo (ISODE), Instituto de Estudios Legales y Sociales from Uruguay (IELSUR). Available at: www.observatoriomercosur.org.uy/es/observatorio.php. 225 

Tirado Mejía (n 108) 53. MERCOSUR Social. Official Documents. See Mercocities official website. 227 ibid. 226 

382  The Common Market of the South (MERCOSUR) a closer relationship of cooperation across municipalities to define social policies.228 One of the issues on which the network has focused its priorities is the pursuit of a ‘MERCOSUR social agenda’, from a global-local perspective of the consequences of the integration on the cities. Thus, the network was complementary to other instances of participation and other sectoral demands.229 However, what must be underlined is that the increasing participation of civil society in the integration is reflected in areas which, in one way or another, are linked to human rights. This manifestation of the social dimension of MERCOSUR, in the case of a future development, would mean that the areas of social content are progressing towards the inclusion and recognition of rights. VII.  NEW PERSPECTIVES OF THE SOCIAL DIMENSION OF MERCOSUR: THE CONSOLIDATION OF A ‘MERCOSUR CITIZENSHIP’

In the initial phase of MERCOSUR there was a clear ‘social deficit’, ie social rights and citizenship were not regulated in the MERCOSUR founding treaties, despite recognising the existence of an important social dimension of integration.230 As previously discussed, MERCOSUR at the time of its establishment, focused almost exclusively on economic integration. Thus, it comes as no surprise that MERCOSUR lacked rules that referred to a regional citizenship for nationals of the Member States. In order to address this gap and progress to a certain regional citizenship, Ermida Uriarte proposed the term ‘labour citizenship’ defined by the participation of workers in the industrial relations system generated from the agreement.231 Furthermore, economic integration should facilitate the movement of people between the Member States.232 However, as seen before, the f­ounding

228  It is divided into thematic units which are responsible for the development of specific areas of the network, of which the participating cities of this operate. An example is the city of Montevideo, which corresponded to develop the Social Development and the proposal was submitted to develop a Social Agenda. ibid. 229 Onsite Network filed with the Administrative Secretariat of MERCOSUR a publication entitled ‘Towards a social agenda of MERCOSUR, Local Strategies, Challenges Regional’ which finalised the rapprochement between the Mercocities Network and the political integration, in regard to what Bizzozero calls ‘differentiated social dimension’, which is perceived from the cities at local level. Bizzozero (n 135). 230 Ermida Uriarte (n 54) 2. See also A Lattuca, ‘Identidad, ciudadanía, nacionalidad. Desafíos de la integración’ in M Ciuro Caldani (ed), Del MERCOSUR: aduana, jurisdicción, informática, relaciones intercomunitarias (Buenos Aires, Ciudad Argentina, 1996) 77. 231  Ermida Uriarte (n 54) 3. 232  As a significant precedent, we should mention that in the 1970s the Andean Community adopted norms concerning the free movement of people and granting a permanent status. Never­theless these norms were not enforced.

New Perspectives of the Social Dimension of MERCOSUR 383 treaty (1991 Treaty of Asunción) did not regulate the free movement of individuals in its provisions.233 In fact, among MERCOSUR goals, the treaty only contained references to ‘the free movement of goods, services and factors of production between countries through, inter alia, the elimination of customs duties and non-tariff restrictions on the movement of goods, and any other equivalent measures’.234 Some scholars have argued that in this wording, individuals are included in the formula, not as human beings but rather as ‘productive factors’.235 According to this interpretation, labour was considered to be a productive factor in the achievement of the common market.236 This conception implies the elimination of any kind of restrictions upon migrant workers who are nationals of MERCOSUR Member States within their territories.237 Despite these limitations, the evolution of MERCOSUR in the 1990s and 2000s brought significant modifications in terms of freedom of movement, migrant workers’ rights and regional migration. This evolution can be seen as the outcome of two related processes. On the one hand, the subsequent developments which occurred in MERCOSUR introduced the recognition of migrant workers’ rights. On the other hand, the discussion of migratory issues within MERCOSUR and the debates on the MERCOSUR citizenship fostered the adoption of specific agreements at regional level. Concerning the protection of migrant workers, we must mention the signature of various binding instruments related to free movement of MERCOSUR citizens.238 It is worth emphasising, for instance, the protocols on educational integration, with mutual recognition of certificates and elementary school and secondary school non-technical degrees;239 recognition of secondary school and technical degrees;240 recognition of university degrees in order to attend post-graduate studies in the universities of the MERCOSUR Member States,241 and also to teach at university level242 and at the postgraduate human resources level.243 233  H Mansuetti, ‘Circulation of Workers in MERCOSUR’ in Filho, Lixinski and Olmos Giupponi (n 1) 241. 234  Treaty Establishing a Common Market between the Argentinean Republic, the Federal Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay. See Art 1, first part. 235  See the discussion on this question in Mansuetti (n 232). 236 ibid. 237  O Ermida Uriarte, ‘Derecho a migrar y derecho al trabajo’ in Las migraciones humanas en el Mercosur. Una mirada desde los derechos humanos (Observatorio de Políticas Públicas de Derechos Humanos en el Mercosur 2009) 27. 238  See AM Santestevan, ‘Free Movement Regimes in South America: The Experience of the MERCOSUR and the Andean Community’ in R Cholewinski, R Perruchoud and E Mac Donald (eds), International Migration Law (The Hague, Asser Press, 2007) 363. 239  Signed in Buenos Aires, 5 August 1994. 240  Signed in Asunción, 5 August 1995. 241  Signed in Fortaleza, Brazil, 16 December 1996. 242  Signed in Asunción, 14 June 1999. 243  Signed in Fortaleza, Brazil, 16 December 1996.

384  The Common Market of the South (MERCOSUR) In this process of recognition of migrant workers’ rights, in the mid 1990s the adoption of a sub-regional human rights charter was included in the agenda of MERCOSUR, becoming a crucial topic.244 Apart from the inclusion of migratory issues in the agenda, and likewise the EU’s concepts of citizenry,245 scholars have been arguing about the MERCOSUR citizenship.246 In this vein, there has been a discussion of the idea of a MERCOSUR citizenship based on the recognition of human rights including those related to migrant workers.247 From a different theoretical perspective, some commentators emphasise that even if the core of MERCOSUR is economic integration and it is a top-down process, there would be the space for nongovernmental actors and social movements to participate and to build up citizenship rights through a bottom-up process.248 Additionally, on a rhetorical level, official authorities and also scholars have reaffirmed ideas such as ‘regional identity’, ‘common identity and destiny’ or ‘brotherhood’.249 Over the years, the Treaty of Asunción has accommodated the issue of a labour citizenship where the text explicitly refers to the free movement of factors of production, although not containing specific details.250 Hence, the

244  The debates on the adoption of a Social Charter in MERCOSUR could be perceived as a mirroring trend, following the European Union’s experience with the European Social Charter. 245 In Europe, intra-European migration and the establishment of an EU citizenship for nationals of the Member States have contributed to the debate on citizenship. There are a multitude of studies on European Union’s citizenship. For the relevance to this study, we would like to underline Bauböck’s work on the EU’s citizenship and the access to citizenship for migrants in Europe. See, for instance, R Bauböck, ‘Why European Citizenship? Normative Approaches to Supranational Union’ (2007) 8(2) Theoretical Inquiries in Law www.bepress. com/til/default/vol8/iss2/art5; R Bauböck (ed), Migration and Citizenship. Legal Status, Rights and Political Participation (Amsterdam University Press, IMISCOE Report Series, 2006) and R Bauböck ‘Three citizenship regimes in the European Union’ in EU Citizenship and the ­Market (UCL/EUI, London, 2011) available at: www.ucl.ac.uk/european-institute/comment_analysis/ publications/Final.pdf. 246 In our previous article on MERCOSUR citizenship we explained the question in the light of the implementation of MERCOSUR Parliament, Olmos Giupponi (n 109). See as well J Grugel, ‘Citizenship and governance in MERCOSUR: Arguments for a Social Agenda’ (2005) 26(7) Third World Quarterly 1061. 247  See Ermida Uriarte (n 54) 321. See as well K Schaffer, ‘Mercosur and Labour Rights: The Comparative Strengths of Sub-Regional Trade Agreements in Developing and Enforcing Labour Standards in Latin American States’ (2006–2007) 45 Columbia Journal of Transna­ tional Law 829. 248  E Jelin, ‘Los movimientos sociales y los actores culturales en el escenario regional: el caso del Mercosur in G De Sierra, Los rostros del Mercosur (Buenos Aires, CLACSO, 2001) 257, 274. 249  In the wording of different instruments, treaties and declarations emerge the notion of a regional identity. E Jelin, ‘Dialogues, understandings and misunderstanding: social movements in MERCOSUR’ (1999) 51(159) International Social Science Journal 37. See as well A Grimson, ‘El debate de la identidad en la bibliografía sobre MERCOSUR’, paper presented at the Second Meeting on ‘MERCOSUR: A space for interaction, a space for integration’ (ANPOCS, Brazil, 1997). A Grimson, ‘Fronteras, estados e identificaciones en el Cono Sur’ in D Mato (ed), Cultura, política y sociedad Perspectivas latinoamericanas (Buenos Aires, CLACSO, 2005) 127, 142 available at: http://bibliotecavirtual.clacso.org.ar/ar/libros/grupos/mato/Grimson.rtf. 250  Sardegna (n 25) 48.

New Perspectives of the Social Dimension of MERCOSUR 385 integration agreement has moved forward, embracing the challenge to achieve equity for citizens belonging to the member states.251 From consideration of the objective of attaining ‘development with social justice’ contained in the Treaty, the different elements that define the social dimension of MERCOSUR began to take shape. In particular, with regard to the free movement of workers, commentators underlined the need for regulations to address the elimination of unnecessary immigration procedures, removal of citizenship requirements or quotas for the provision of certain or all jobs in another country other than the country of origin, and to facilitate access to temporary residence permits.252 The Declaration of Montevideo, adopted shortly after the signing of the TA, provided the essential guidelines for the future regulatory framework in this field within MERCOSUR, highlighting the need to address labour relations and looking in particular to improve working conditions, with an emphasis on the development of a Social Charter for MERCOSUR, besides contributing to the institutional face of the initiative to create a Sub-­Working Group devoted to these issues.253 In this vein, the right to free movement of workers within MERCOSUR implies the elimination of all types of restrictions upon their mobility as well as equal treatment and guarantees of ­non-discrimination on grounds of nationality.254 Another major development in this area was the reaffirmation of the principle of non-discrimination, to guarantee equal treatment to all workers carrying out their activities in MERCOSUR, which is essential to ensure and guarantee the right to free movement. Therefore, the Social and Labour Declaration is crucial in this regard since it ratified the treaty principles in the workplace emphasising that the integration process should be accompanied by an improvement in working conditions for all workers, prohibiting discrimination.255 As expressed in the TA, to achieve these objectives, Member States undertake to harmonise their legislation in the relevant areas in order to strengthen the integration process.256 In this regard it is worth noting that

251 

González Cravino, Globalización, integración (1999) n 168, 57. 49. See C Echegaray De Maussion, ‘Libre circulación de trabajadores y profesionales’ in C Molina Del Pozo (ed), Integración Euro-latinoamericana (Buenos Aires, Ciudad Argentina, 1996) 369and A Dreyzin de Klor, ‘Hacia la quinta libertad fundamental del MERCOSUR,’ in LO Pimentel (ed), Mercosul: Direito e sociedade v 1 (Curitiba, Juruá Editora, 1998) 17–29. 253  G Von Potobosky, ‘Naturaleza, contenido y eficacia de una eventual Carta Social del MERCOSUR’ in ILO, ¿Una carta social del Mercosur? Trabajos de la Jornada Técnica sobre la Carta de Derechos Fundamentales en Materia Laboral del Mercosur (Montevideo, RELASUR, 1994) 29. 254  Jaeger (n 51) 52. 255 ibid. 256 MERCOSUR. Official Documents. 252  ibid,

386  The Common Market of the South (MERCOSUR) MERCOSUR Member States should adapt their laws to enforce the principle of non-discrimination, particularly regarding workers.257 As regards the right to social security, this is recognised and protected in all the constitutions of the four Member States. There is also harmonisation regarding the protection of other social rights such as education, health, work, safety, and welfare, protection of motherhood and childhood, and assistance to disadvantaged groups.258 Furthermore, regarding the elimination of the requirements concerning migration in the sub-region, there has been progress to facilitate the achievement of residence and work permits for nationals of the Member States who move from one to another country.259 Among the various norms on free movement of workers is the declaration of the Las Leñas Summit in 1992, in which, within the achievement of the objectives the Treaty of Asunción, it was underlined that proposals on the free movement of workers would be brought forward in May 1993.260 Another treaty that should be mentioned is the Recife Agreement for the Implementation of the Integrated Border Controls by States of the MERCOSUR, signed in 1996 between the Ministries of Interior of Argentina, Paraguay and Uruguay and the Brazilian Justice Ministry on security in border areas, in order to facilitate the movement of people and effective control of documentation and identity of those who live and travel in the integrated area.261 MERCOSUR has adopted other instruments that may be mentioned in this regard such as the Resolution 44/94 Common Market Group, which aims to recognise the validity of personal identification documents used by nationals of the Member States to facilitate the free movement, and Decision No 7/95 Common Market Council, which contains provisions on the revalidation of diplomas, certificates, diplomas and recognises mid-level technical studies carried out in any of the four Member States. The principle of free movement and the process leading to MERCOSUR citizenship are closely linked to the recognition of fundamental rights. Therefore, both the Social and Labour Declaration and the draft Charter of Fundamental Rights of MERCOSUR contain provisions to guarantee the free movement of Member States’ workers within the integrated space. The Social and Labour Declaration explicitly states that migrant workers are entitled to the ‘right to assistance, information, protection and equal rights and working conditions accorded to nationals of the country where 257 

Jaeger (n 51) 51. (n 25) 148 see the analysis on social security in MERCOSUR Member States’ constitutions. 259  Olmos Giupponi (n 109). 260  Among other provisions facilitating the freedom of circulation of workers, one can mention the draft Charter of fundamental rights and the ratification of the ILO conventions. MERCOSUR. Official Documents. 261  Jaeger (n 51) 60. 258  Sardegna

New Perspectives of the Social Dimension of MERCOSUR 387 they were exercising their activities’ (Article 4).262 Likewise the draft Charter of Fundamental Rights, Article 6, provides that ‘every worker of the member states has the right to free movement throughout the territory within the scope of the Treaty’, defining free movement as meaning that all workers, whatever their country of origin, are to enjoy at all times equal treatment, rights and working conditions to those of national workers.263 Notwithstanding the legal instruments referred to, there is no consistent and accurate implementation of these social aspects, especially concerning migrant workers. The integration process has several flaws in this respect. The MERCOSUR legal system does not clearly include among its provisions a migration approach, adaptable to the current circumstances of the integration process. For this reason, there are distinctions among workers similar to those made in other sub-processes: undocumented migrants, cross-border workers, professional employees and professionals. In particular, the status of cross-border workers is quite complex and scarcely regulated. Indeed, it should be necessary to define the category of persons or class of workers for whom freedom of movement will be made possible. As a next step, it is necessary to establish rules allowing the entry and stay of these workers in the host country and the conditions under which the work should be carried out.264 The highest political body of the agreement seems to have understood this circumstance: in section 4 of the Joint Communiqué 2003, it has underlined ‘the need for measures to eradicate child labour, facilitate the movement of workers and include the issue of employment as a goal in the integration agenda’.265 Moreover, integration in education should contribute to the affirmation of citizenship, by simplifying the mechanisms of transfer students and university education and also the recognition of qualifications to enable professionals to enjoy free movement.266 There is also the ARCU-SUL System for full equivalence of higher education degrees and the Marca student mobility program. Another relevant development is the signature at regional level of the 2002 agreements to regularise undocumented migrants from MERCOSUR Member and associated States.267 Consequently, some Member States have

262 MERCOSUR.

Official Documents. Official Documents. 264  Jaeger (n 51) 52. 265 The Joint Communique was issued after the XXIV Meeting of the Common Market Council on 18 June, MERCOSUR. Official Documents. 266  Jaeger (n 51) 59. 267 MB Olmos Giupponi, ‘Citizenship, Migration and Regional Integration: Re-shaping citizenship conceptions in the Southern Cone’ 2011 4(2) European Journal of Legal Studies 104–36. 263 MERCOSUR.

388  The Common Market of the South (MERCOSUR) introduced specific provisions in their immigration legislation to grant a special status based on nationality to citizens from MERCOSUR Member and associated States and implemented a regularisation programme for undocumented regional migrants present in their territory.268 This agreement has represented a shift in the migration paradigm and the legislation was the adoption of agreements at MERCOSUR level on the legal status of regional migrants. Indeed, one recent feature of regional migrations in South America concerns the relationship between the politics of regional integration and the intensification of migration flows among countries. In general, and from a push-pull perspective, regional integration could impact upon migration flows in different ways.269 First of all, if regional integration successfully contributes to give citizens similar opportunities it might reduce the push-pull differential between the countries in the region.270 On the other hand, regional integration can create or strengthen previous structures of uneven development within a region, so as a consequence, there may be an increase in migration occurring predominantly between regions with different levels of economic development.271 But in contrast to this, regional integration might generate other migration dynamics, such as the horizontal migration referred to above.272 The creation of an intergovernmental integration project273 such as MERCOSUR274 suggests an increase in migration between the countries which are involved in the integration process (mainly Argentina, Brazil, Paraguay, Uruguay and Venezuela as Member States and Chile and Bolivia as ­associated countries).275 268  See R Benencia and A Gazzotti, ‘Migración Limítrofe y Empleo’ (1995) 10(31) Estudios Migratorios Latinoamericanos 373. 269 See W Hein, ‘International Migration and Regional Integration: The Case of Central America’ in H Kleinschmidt, Migration, Regional Integration and Human Security: the For­ mation and Maintenance of Transnational Spaces (Aldershot, England, Burlington, Ashgate, 2006) 153, 157. See also A Di Filippo, ‘Globalización, Integración Regional y Migraciones’ 2000, available at: http://red.pucp.edu.pe/ridei/wp-content/uploads/biblioteca/130210.pdf 270  Di Filippo ibid. 271 ibid. 272 ibid. 273  The 1991 Asunción Treaty provided for an intergovernmental structure with different decision-making bodies. The main MERCOSUR bodies are: the Common Market Council; the Common Market Group and its various Working Sub-groups; the MERCOSUR Trade Commission; the Parliament of MERCOSUR (created in 2005 and in operation since 2007); the Economic-Social Consultative Forum and the Secretariat. 274 MERCOSUR belongs to the so-called sub-regional integration agreement or, in other words, an integration process in which states have a shared history, cultural links, and sense of interdependency. Under this category, we include MERCOSUR, the Andean Community (CAN), the Central American Integration System (SICA) and the Community of the Caribbean (CARICOM). 275  A Pellegrino, ‘Las migraciones entre los países del Mercosur: tendencias y características’ in Las migraciones humanas en el Mercosur. Una mirada desde los derechos humanos (Observatorio de Políticas Públicas de Derechos Humanos en el Mercosur 2009) 17.

New Perspectives of the Social Dimension of MERCOSUR 389 The evolution described above contributed to including regional migrations in the MERCOSUR agenda and to the recognition in formal agreements of a legal status for citizens from MERCOSUR Member and associated States. Thus, more than 10 years after the signature of the Asunción Treaty, the MERCOSUR Regularization and Residence Agreements (Acuerdos de Regularización y Libre Residencia de MERCOSUR) were approved at the end of 2002.276 These agreements represent a step forward in the direction of guaranteeing a legal status to MERCOSUR citizens and, at the same time, addressing the situation of undocumented regional migrants. In terms of guaranteeing a specific legal status to MERCOSUR citizens, the agreements contain a series of fundamental rights to be respected. The main principle included is non-discrimination or, in other words, ‘equal enjoyment of rights’: nationals of MERCOSUR States who have been granted residence will enjoy the same rights as the nationals of the receiving country. The agreements also comprise the right to family reunification, the right to receive an equal treatment, the right to transfer remittances and the right to access social security benefits. A relevant provision ensures the rights of the children of regional migrants to have a name and a nationality, to be registered and to have access to basic education.277 With regard to the situation of undocumented regional migrants, the agreements provided the basis for a regularisation programme to be applied by each state. This regularisation programme designed for migrants from MERCOSUR member and associated countries was undoubtedly a measure which had been expected and demanded over many years. However, the MERCOSUR Regularization and Residence Agreements only entered into force in 2009 and not all states that have signed them launched regularisation programmes.278 This lack of enforcement undoubtedly affects the recognition and enjoyment of migrants’ rights and hampers the efforts to ensure free movement and residence for MERCOSUR citizens in the region. 276 Agreement approved by the Council of the Common Market (MERCOSUR/CMC/ DECNo28/02). The agreements adopted on 5 and 6 December 2002, are: 1. Agreement No 11/02, International Migratory Regularization of MERCOSUR Citizens, 2. Agreement No 12/02, International Migratory Regularization Citizens of MERCOSUR, Bolivia and Chile, 3. Agreement No 13/02, Residence for Nationals of the Member States of MERCOSUR, and 4. Agreement No 14/02, Residence for Nationals of the Member States of MERCOSUR, Bolivia and Chile, implemented by Argentina through Resolution 345/2003 of the Ministry of Interior. 277  According to the agreements, the access of children of migrants to basic education c ­ annot be denied or limited because of the irregular status of their parents. 278  The agreements entered into force on 4 December 2009. Argentina ratified the agreements on 19 July 2004; Bolivia on 11 April 2005; Brazil on 18 October 2005; Chile on 18 November 2005; Uruguay on 8 March 2006 and Paraguay on 28 July 2009. Source: MERCOSUR available at: www.mre.gov.py/dependencias/tratados/mercosur/registro%20mercosur/ mercosurprincipal.htm. On the implementation of the agreements, see T Muñoz Bravo, ‘El proceso de internalización del Acuerdo sobre Residencia en el Mercosur: Una evaluación del compromiso de seis Estados de crear un área de libre residencia y trabajo’ (Red Internacional de Migración y Desarrollo, 2011) available at: http://rimd.reduaz.mx/ponencias_flacso/Ponencia TomasMunoz.pdf.

390  The Common Market of the South (MERCOSUR) As we remarked in the introduction, these provisions on migration at regional level have driven modifications at the internal level in Argentina. This is reflected in the inclusion of a specific status for MERCOSUR citizens in the migration law and in the adoption of a specific programme to regularise undocumented migrants from MERCOSUR Member and associated States. The current legislative changes on migration being implemented in Argentina also represent a good opportunity to test how these MERCOSUR regulations are being implemented. At present, MERCOSUR citizens living in Argentina are mainly from Uruguay, Bolivia, Paraguay and Peru. Traditionally, citizens from Uruguay represented the first group, but this situation has changed over recent decades: although they continued to migrate to Argentina, they preferred to go to developed countries such as the United States and Spain.279 In these changes in the migration patterns, three migrant groups (Bolivians, Paraguayans and Peruvian) have shown dynamism in recent times and, therefore, their numbers have increased significantly. According to the last census, Paraguayan and Bolivian immigrants represent the main groups. In the period 1980–2001, immigration from Bolivia has increased steadily. Although the increase in its stock was relatively moderate in the early eighties (up to 21.5 per cent), the unfavourable economic conditions in Bolivia joined the job placement opportunities in Argentina and a favourable exchange rate, impacting on immigration, and the migration flows intensified in the nineties.280 These new flows were also promoted by the existence of extensive social migratory networks.281 The new migration law included a new category to access migratory regularisation and obtain residence in the country, based on the citizenship of MERCOSUR countries. While the traditional criteria are maintained, such as work, family ties or because of studies, a new category has been added

279  W Cabella and A Pellegrino, ‘Una estimación de la emigración internacional uruguaya entre 1963 y 2004’ (2005) Programa de Población de la Unidad Multidisciplinaria—Facultad Ciencias Sociales, Working Paper 70/2005. 280  See R Benencia, ‘Apéndice. La inmigración limítrofe’ in F Devoto, Historia de la inmi­ gración en la Argentina (Buenos Aires, Sudamericana, 2003). 281  In these years the stock increased by 62.3%, so over the past two decades the number of Bolivians living in Argentina has almost doubled. From a transnational perspective, various studies on the migrant associations have been conducted. In the case of Bolivians in Argentina, for instance, CEMLA and IOM developed a diagnostic study in 2004 on the associations of the Bolivian community in Argentina. The study found the existence of 161 associations of this community settled in the following cities: Buenos Aires, Buenos Aires, La Plata, Partido de la Costa, Bahia Blanca, Mendoza, San Luis, Salta, Jujuy, Santa Fe, Cordoba, Tucuman and in several towns in Patagonia. These immigrant associations focus their attention on current problems of immigrant communities such as health and social care, fighting discrimination and legal advice for immigrants. The federations are a form of collective organisation and represent the set of organisations, like social clubs, sports and cultural associations. See M Santillo, ‘Las organizaciones de inmigrantes y sus redes en la Argentina’, Simposio sobre Migración Internac­ ional en las Américas (San José de Costa Rica, 2000).

New Perspectives of the Social Dimension of MERCOSUR 391 directly linked to the vast majority of migrants living in Argentina: access to a residence permit on the basis of holding the nationality of a MERCOSUR Member or associated State. In fact, Article 23.d of the Act provides that It shall be considered as temporary residents those foreigners who enter the country, under the conditions prescribed by regulation, in the following subcategories: … l Nationality: Native Citizens of MERCOSUR States, Chile and Bolivia have authorization to remain in the country for two (2) years, renewable with multiple entries and exits.282

The implementation of this criterion of nationality as a ground for access to a residence permit is regulated in the ‘Patria Grande’ Programme, launched in April 2006.283 This initiative envisaged the regularisation of all migrants living in the Argentinean territory prior to 17 April 2006 who are nationals of Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Uruguay and Venezuela and who could obtain a residence within two years.284 For immigrants who enter the country since April 2006, the criterion of nationality (of the countries mentioned) begins to take effect according to Article 23.d of the new Migration Act. A significant achievement was the establishment of the Parliament of MERCOSUR. The relevant Protocol introduces two rights for MERCOSUR citizens: the right to participate in the elections of the members of the Parliament and the right of citizens of Member States, whether natural or legal persons, to submit requests concerning acts or omissions of the organs of MERCOSUR. In addition, this parliamentary body has to ensure the existence of channels of communication with the citizens of MERCOSUR, through various means. First, there is the relationship with the body of participation of civil society, the Consultative Economic and Social Forum, through semi-annual meetings to exchange information and opinions; and, secondly, organising public meetings with civil society and the productive sectors on issues concerning the evolution of the integration process.285 In order to boost the effective implementation of the norms adopted and guarantee the protection of human rights to MERCOSUR citizens, the

282  This criterion was applied by order of the National Directorate of Migration in 2004, affecting first citizens from Bolivia, Brazil, Chile, Paraguay and Uruguay, then it was extended to nationals of other MERCOSUR associated countries. This DNM second resolution does not expressly mention the countries, but includes a generic reference to the States of the regional bloc. Therefore, its scope will be extended automatically to all people from countries that are part of (or subsequently join) MERCOSUR. 283  M Cerrutti, ‘Diagnóstico de las poblaciones de inmigrantes en la Argentina’ (Serie de Documentos de la Dirección Nacional de Población 2009) available at: www.mininterior.gov. ar/poblacion/pdf/Diagnostico_de_las_poblaciones_de_inmigrantes_en_Argentina.pdf. 284  For a critical appraisal of the programme see E Domenech, ‘La “nueva política migratoria” en la Argentina: las paradojas del programa “Patria Grande”’ in C Pizarro (ed) Migra­ ciones internacionales contemporáneas: Estudios para el debate (CICCUS 2011). 285  Olmos Giupponi (n 109).

392  The Common Market of the South (MERCOSUR) Decision of the Common Market Council (CMC Dec.64/10) approved the Action Plan for a MERCOSUR Citizenship Statute. This Statute, as stipulated in Article 2, ‘shall include fundamental rights and benefits to MERCOSUR member-states, free movement of peoples, equality their civil, social, cultural and economic rights and freedoms, equality in the access to work, health and education’. Essentially, this Decision draws on the previous norms adopted in MERCOSUR, since most of the references are to social rights (Article 3). In addition, the statute includes references to the rule of law including the establishment of a system of consumer protection in MERCOSUR. The Action Plan is structured around three general objectives: (i) implementation of a free movement policy for citizens in the region; (iii) equal civil, social, cultural and economic rights and liberties for nationals of MERCOSUR Member States; and (iii) equal access to work, health and education. A few noteworthy elements of the Citizenship Statute that have seen recent progress in their implementation include: —— Creation of the Integrated MERCOSUR Mobility System (SIMERCOSUL): this system should unify and extend the programs that award exchange scholarships to students, faculty and researchers from higher education institutions in the region. It prioritises degrees and courses accredited by the ARCU-SUL System and initiatives that encourage the learning of Spanish and Portuguese within MERCOSUR. —— Creation of a MERCOSUR common vehicle license plate, which will facilitate both the movement of people and the control of vehicles traveling within the bloc.286 —— Review of the integrated border control rules of the States Parties and facilitation of migration flows between countries. —— Review of the MERCOSUR Social and Labour Declaration and harmonization of the labour and social security legislation, with the approval in 2013 of the Plan to Facilitate the Movement of Workers within MERCOSUR.287 In sum, MERCOSUR citizenship may have direct links to socio-labour issues. The Social and Labour Declaration and sub-regional arrangements provide a legal basis to deal with various aspects including social security.

286  The model for the unified plate has been approved and will become mandatory for all new vehicles in the States Parties beginning in 2016. 287  XLVIII Summit of Heads of State of MERCOSUR and Associated States, 17 July 2015. Secretariat of Social Communication—International Department of the Presidency of the Federative Republic of Brazil, available at: www.itamaraty.gov.br/images/documents/Documentos/ Fact_Sheet_Mercosur_English.pdf.

UNASUR and the Protection of Human Rights 393 The rules governing these issues have only declaratory nature so far and its implementation is partial. These norms are, strictly speaking, international law in the traditional sense, ie they do not have the character of community law. To conclude, progress in this area will depend on the effective enforcement of the rights granted in the various instruments such as the Multilateral Agreement on Social Security and the degree of application of the Social and Labour Declaration.288 VII.  UNASUR AND THE PROTECTION OF HUMAN RIGHTS

The developments which occurred in the field of human rights and the consolidation of a ‘regional citizenship’ in UNASUR deserve special attention. Hence, the analysis of the protection of human rights in South America would be incomplete without referring to tasks performed by UNASUR in this area. In order to provide a detailed account of the progress made, the main features and areas of regulation are explained below. The section then turns to the analysis of provisions on human rights and democracy adopted in UNASUR. UNASUR functions are carried out by three committees that, along with the secretary-general, conduct the integration process: the Council of Heads of State, the most senior committee in UNASUR’s structure, which establishes political links, action plans, and programs required for South American integration;289 the Council of Foreign Affairs Ministers, composed of foreign ministers from UNASUR Member States and responsible for implementing decisions made by the Council of Heads of State;290 and the Council of Delegates which implements and adopts the resolutions reached by the other two councils. The latter, the Council of Delegates, is in charge of promoting public dialogue to increase citizen participation in the process of South American integration. UNASUR also oversees the South American Defence Council, a group that includes the defence ministers from the bloc’s member countries. The council, which was established in December 2008, holds meetings on an annual basis, discussing regional defence policies and coordinating strategies. The country holding UNASUR’s pro-tempore presidency appoints the president of the Defence Council.

288 

Ermida Uriarte (n 54)19. The executives of each Member State in UNASUR serve together on the Council. Collectively they make decisions about the proposals submitted by UNASUR’s minister-level councils. 290  The ministers who serve on the Council work together to coordinate policies on the key areas of South American integration. They also create task groups to focus on specific policy areas. 289 

394  The Common Market of the South (MERCOSUR) In addition to the Defence Council, UNASUR has also appointed a group of minister-level committees that deal with issues including health, social development, infrastructure, education, drugs, economics and energy. In June 2012 UNASUR created an Electoral Council that is composed of four representatives from each member country. The council is tasked with visiting countries before elections, communicating with candidates, parties, and monitoring the election process. By way of illustration in October 2012, UNASUR sent the Electoral Council to monitor the presidential election in Venezuela. South American leaders signed an agreement in 2009 to create the Bank of the South, a development bank advocated by Venezuelan President Hugo Chávez. The bank, which would be based in Caracas, could eventually finance economic development projects in UNASUR Member States. In April 2012, Argentina, Bolivia, Ecuador, Uruguay, and Venezuela ratified the bank’s creation. In June 2012, UNASUR’s secretary general said the institution would move forward with a regional program of industrialisation and infrastructure construction projects. A 2010 Americas Quarterly article reported that Argentina, Brazil and Venezuela pledged to donate $6 billion dollars, making up the bulk of the bank’s total initial proposed budget of $7 billion. Some observers have however expressed doubts about the bank’s long-term prospects. In terms of protection of human rights issues, UNASUR is probably the regional initiative that encompasses more concerns directly related to the safeguard of fundamental rights. One of the objectives of UNASUR is specifically to promote the development of a unified South American economic market on the basis of MERCOSUR and CAN which translates essentially into the movement of goods across borders, but also the mobility of persons. Therefore its main achievement consists in the discussion of migration issues and the right to health. However, it has also raised contentious issues due to the IIRSA and the possible negative impact on the environment. Consequently, in UNASUR the most relevant development for the purpose of this discussion is the articulation of a South American Free Migration Area. The first step in this regard is the abolishment of the requirement of visas on the part of each Member State. The members of MERCOSUR (Argentina, Bolivia, Brazil, Paraguay, Uruguay and Venezuela) have already introduced a simplified temporary resident visa process. This shows the potential for UNASUR to further deregulate requirements for the movement of South Americans across borders leading to a sort of ‘South-American’ citizenship. However, UNASUR’s powers to regulate on immigration are purely inter-governmental and not truly supranational. It follows that the constituent countries retain the prerogative in regulating migration issues. As an example, a recent policy introduced by Brazil set the precedent that states decide on the

Challenges for the Protection of Human Rights in MERCOSUR 395 e­ligibility requirements and quotas of citizens from other nations that want to immigrate to Brazil. In terms of political participation, in 2008 UNASUR members proposed the creation of a South American parliament with headquarters in Bolivia. UNASUR’s Member States have not yet acted to institutionalise the parliament as a formal organ in the group’s structure. Nor have the headquarters for the proposed parliament been built. Assessing the work put forward by UNASUR in the field of human rights, it has served as a political forum in which member states have made a series of ambitious proposals for regional integration, including the foreseen UNASUR citizenship. Nevertheless, so far the norms which have emanated from the bloc in this field lack efficacy. It remains to be seen if, in future, all these laudable objectives are incorporated into the Member States’ national law and implemented.

IX.  CHALLENGES FOR THE PROTECTION OF HUMAN RIGHTS IN MERCOSUR

After overcoming the initial silence of the founding treaties which did not regulate the protection of human rights, within the evolution of MERCOSUR the safeguarding of fundamental rights (in particular social and environmental rights) has been included in the sub-regional integration process. In MERCOSUR, this new model of regionalism was shaped in the 2000s by the developments and obstacles found within MERCOSUR itself. Assessing the achievements and the various challenges MERCOSUR is confronted with, one can underline the following: A.  MERCOSUR’s Institutions At institutional level, the Working Sub-Group No 10 and the Economic and Social Consultative Forum have decisively contributed to the evolution of MERCOSUR human rights provisions. The participation of trade unions in the social and labour institutions of WSG No 10 has been crucial in terms of introducing new elements for the protection of workers and for the enforcement of labour standards at sub-regional level. The establishment of the MERCOSUR Parliament has further contributed to the consolidation of human rights. Undoubtedly, the creation of the Observatory for Public Policies on Human Rights is a step forward in the adoption of harmonised policies on the protection of fundamental rights. Arbitral tribunals have included general references to human rights. Nevertheless, these institutional developments need to be reflected in the dispute settlement

396  The Common Market of the South (MERCOSUR) mechanism. Individuals need to have direct access to a judicial or, at least, a quasi-judicial body in the event of a violation of human rights that may arise under MERCOSUR law. B. The Enforcement of MERCOSUR Legal Instruments on the Protection of Human Rights According to the different reports issued on compliance with MERCOSUR Law, the Social and Labour Declaration was the main MERCOSUR instrument invoked by different internal courts when resolving job related disputes. The Declaration was applied to grant protection to workers in the following matters: right to work and decent conditions of work; interpretation of internal norms in the light of the International Bill of Human Rights, the Pact of San José de Costa Rica and the Social and Labour Declaration; job security and dignity, as highlighted and protected in the MERCOSUR Social and Labour Declaration, since the affected workers were separated from the rest of the workers and marginalised from the social security system; and freedom of association in its various positive and negative aspects as reflected in various ILO conventions and protected in the region by the Declaration. With regard to the application of MERCOSUR law on the protection of the environment and public health, the rulings of different courts at national level show how these judicial bodies have been dealing with environmental protection in different ways. Therefore, there have been cases in which internal courts applied MERCOSUR law on the protection of the environment and public health, such as the case of Kraft Food Argentina.291 There have also been cases on the application of the Agreement on the Carriage of Dangerous Goods,292 for instance, the ruling of the Brazilian Federal Court of the 5th Region (2004).293 In this case, the internal court decided that member states can establish restrictions on the circulation of goods on the basis of the right to protect the environment. In Brazil, the application of MERCOSUR regulations on the importation of retreated tires has led to various judgements both at regional and federal level d ­ ealing

291  See Kraft Food Argentina s/Recurso de Apelación c/disposición N`016/03 DSA, expte. N` 19.364-K-2003, sentencia N. 6/04. See Secretaría del MERCOSUR/Fundación Konrad Adenauer/Foro Permanente de Cortes Supremas del MERCOSUR y asociados, Segundo informe sobre la aplicación del derecho del MERCOSUR por los tribunales nacionales 2004, (Montevideo, Konrad Adenauer Foundation, 2006). 292 Acuerdo (de Alcance Parcial) sobre Transporte de Mercancías Peligrosas. See Second Report on the application of MERCOSUR Law by national courts (2004): Segundo informe sobre la aplicación del derecho del MERCOSUR por los tribunales nacionales (2004) cit. 293  Tribunal Federal de la 5ta Región, Sala 2 de 31 de agosto de 2004. Second Report on the application of MERCOSUR Law by national courts (2004): Segundo informe sobre la aplicación del derecho del MERCOSUR por los tribunales nacionales (2004).

Challenges for the Protection of Human Rights in MERCOSUR 397 with the protection of the environment.294 In such cases, internal courts applied MERCOSUR regulations, MERCOSUR awards and international norms concerning the protection of the environment. C.  Supranationality versus Inter-governmentalism MERCOSUR norms are applied by Member States which have different constitutional approaches.295 The recognition of the legislation emanating from MERCOSUR as community law has given rise to a vast academic literature. Despite the attempts to include MERCOSUR law as ‘community law’, MERCOSUR legal system is still intergovernmental because Member States have not yet given up sovereign powers. In the case of the law emanating from MERCOSUR bodies, recognition of the typical features of community law in European terms (direct effect and supremacy) is very controversial.296 Legal scholars agree that, at the current stage, the MERCOSUR legal system should be considered to be a law of integration which is a specialised category within public international law.297 D.  MERCOSUR Citizenship Despite its initial limitations, MERCOSUR has evolved towards the recognition of a ‘regional citizenship’ in particular in what concerns freedom of movement and the protection of labour rights.298 This evolution was driven by both governmental and non-governmental initiatives. As regards the participation of civil society, the main actors have increasingly begun to address

294 See, for instance: Tribunal Regional del 2 Región, 2 Sala, Agravo de instrumento N 111.929/RJ, 1 sala del Tribunal Federal Regional de la 2 Región. First Report on the application of MERCOSUR Law by national courts (2003): Primer informe sobre la aplicación del derecho del MERCOSUR por los tribunales nacionales (2003). 295  As mentioned before, MERCOSUR legal order consists of primary law (1991 Treaty of Asunción and 1994 Ouro Preto Protocol) and secondary law. 296 According to the doctrine of the Court of Justice of the European Union established through its case law in Van Gend en Loos (1963) and Costa v ENEL (1964). By direct effect we understand that citizens have rights under community law and they can invoke before the national courts and, therefore, they can apply community law. Supremacy means that the norms belonging to community law take prevalence over national norms. Some scholars also distinguish direct applicability as another feature related to self-executing norms. 297 See M Klumpp, ‘La efectividad del Sistema Jurídico del Mercosur’ in M Basso (ed), MERCOSUR-Mercosul, Estudos em homenagem a Fernando Enrique Cardoso (Sao Paulo, Atlas, 2007) 91. 298 K Schaeffer, ‘MERCOSUR and Labour Rights: The Comparative Strengths of SubRegional Trade Agreements in Developing and Enforcing Labour Standards in Latin American States’ (2007) 45 Columbia Journal of Transnational Law 829.

398  The Common Market of the South (MERCOSUR) the relationship between trade and human rights, pushing for the recognition of common human rights standards at sub-regional level. Unions have played a very important role, notably, the Trade Union Coordination of the Southern Cone which represents a successful example of empowerment and has proposed several initiatives at sub-regional level to improve labour standards.

7 Conclusions I.  REGIONAL INTEGRATION AND HUMAN RIGHTS IN THE AMERICAS: ACCOMPLISHMENTS AND CHALLENGES

T

HROUGH A DETAILED analysis of the different legal instruments, one can identity key features that define the shape of regional integration in the Americas and trends that, opportunely harnessed, could lead to the development of complete human rights systems. A. The Construction of a Social Dimension Within the Integration Processes

The construction of a social dimension has led as well to the creation and the establishment of certain mechanisms to protect human rights of various nature, scope and content. In fact, the development of this dimension has been gradual and closely linked to the impact of economic integration on labour rights, with a trend towards the adoption of common labour standards. It is important to consider the protection of migrant workers as a salient case. Thus, such standards provide a stepping stone upon which provisions related to human rights issues were included. B. The Adoption of Legal and Political Instruments to Protect Human Rights The most decisive changes have often occurred through the adoption of legal and political instruments that grant economic and social rights. Indeed, once civil and political rights were guaranteed through other systems, such as the inter-American system, these Latin American-Caribbean integration processes were in the position to adopt legal instruments which recognise economic, social and cultural rights. This can be observed, clearly, in the Andean Charter of Human Rights which includes the protection of indigenous people.

400  Conclusions C. The Gradual Development of Common Policies and the Improvement of the Institutional Mechanisms Related to Human Right Issues To different degrees a movement can be discerned within the processes towards the creation of supranational law characterised by the notes of ­primacy and direct effect would give rise to a human rights system endowed by the nature of the legal autonomy. Any violation of fundamental rights deriving from an infraction of the rules governing the integration process in question should be settled within the sub-regional framework in question. In addition, the adoption of common policies will necessarily lead to the inclusion of human rights issues. Hence, it is possible to envision a ‘subregional system of recognition and protection of fundamental rights’, different from the ‘systems’ already existent in the Member States. D. The Creation of a Common Legal Status for the Citizens of the Member States (an Emerging Sub-regional Citizenship) As in the EU, a process oriented towards the recognition of rights to any person holding the nationality of the Member States is taking place. The rights initially included are mainly mobility rights and labour rights. This may lead to the creation of a new specific status, the sub-regional citizenship, as discussed in each respective chapter. E. The Role of Judicial Courts and Arbitral Tribunals in the Economic Integration Vis-à-vis the Protection of Human Rights Their function can be summarised as follows: a) to ensure that the Community institutions’ involvement in respect of treaties and the correct hierarchy in the formation of Community rules; b) to control the fulfilment by ­Member States of obligations under the treaties; c) to interpret and fill the gaps of Community law, through the establishment of general principles. F.  The Emergence of New Integration Processes Moreover, beyond the subregional integration processes, the new initiatives on the creation of areas or unions in Latin America (such as the Community South American Nations or UNASUR), have focused more on political cooperation aspects and excluding up to the present, the adoption of a dispute settlement body strictu sensu.

Regional Integration and Human Rights Americas 401 The restrictions and obstacles to the implementation and even less effective mechanisms of protection of the rights established. Despite recent developments, economic integration are still lagging behind, even though these measures have undoubtedly helped reduce the gap between the objectives set out and the praxis of the integration. Much still needs to be done. Regional integration in the Americas is now at a crucial stage. So far, the existing human rights standards have contributed to implementing legal mechanisms which provide a certain level of protection to individuals. The adoption of complete human rights system in the future will depend on the peculiar dynamics of each integration process. One thing is for sure, despite the alleged influence of the European Union, integration processes in the Americas are taking their own path. Any attempts to draw ‘picture-perfect’ parallels are clearly misleading.

402 

Index Note: please see under the main headings for Andean Community of Nations (CAN); CARICOM (Caribbean Community); Mercosur (Southern Common Market); NAFTA (North American Free Trade Agreement); SICA (Central American Integration System) for entries relating to those bodies agreements see also clauses in instruments; free trade agreements and protection of human rights; regional integration agreements economic integration  87, 96–107, 109, 123 development, right to  70 dispute resolution  11 diversification of contents  95 historical overview  12–14 open regionalism  21 progressive inclusion of social issues  88–93 treaties and conventions  76, 400 ALADI (Latin American Integration Association)  17, 19–20 ALCSA (South American Free Trade Area)  22 Alliance for the Sustainable Development of Central America (ALIDES)  66, 73, 232–3 Alston, P  83 Alvarez, Jose  129 American Convention on Human Rights (ACHR) death penalty  153 democracy  51, 53 free trade agreements  27 Inter-American Court of Human Rights (IACtHR)  27 inter-systemic relations in human rights  43 Trinidad and Tobago, withdrawal from  153 Venezuela, denunciation by  348 American Declaration of the Rights and Duties of Man  53, 72, 221, 347, 371 Andean Charter of Human Rights  7, 25, 32, 277, 301–17 advocates  315 civil society  306, 315 content  305–14 Court of Justice  316, 322–3 democracy  304, 306 development, right to  72

indigenous people  293, 399 international protection mechanisms  315 interpretation  322–3 legal status  305 mechanisms for protection  315–17 migration  260, 313 national protection mechanisms  315 nature and scope  305 other spheres of protection  314 preamble  46 Project of the Andean Charter  119 protection soft law  26 universality, indivisibility and interdependence  306 Andean Community of Nations (CAN)  259–323 see also Andean Charter of Human Rights ad extra protections  7 ad intra protections  7 advanced integration  6 American Convention on Human Rights  46, 308 American Declaration of the Rights and Duties of Man  72 Andean Business Advisory Council (CCEA)  110, 112, 276 Andean Commission of Vocational Training  104 Andean Commitment to Peace, Security and Cooperation  59 Andean Community Commitment to Democracy  57–8, 269–70 Andean Council of Foreign Affairs Ministers  50, 58, 80, 275, 278–9, 316–18 Andean Immigration Card  319 Andean Integration System (SAI)  58, 261–9, 274–80, 284–5, 304, 316–18 Andean Parliament  38–9 Agreement establishing the  40, 110 Andean Charter of Human Rights  316 Andean Social Charter  294–5 Central American Parliament, relations with  39

404  Index elections  306 Mercosur Parliament, relations with  39 migrants  323 Parliamentary Assembly of the Caribbean  39 UNASUR Parliament, substitution by  275 vote, right to  119 Andean Social Charter  260, 275, 294–301, 309 adoption  294 Andean Parliament  294 enforcement and compliance  300 implementation  300 legal status  295 monitoring  294–5 Andean Strategic Agenda  274 asylum seekers  307 autonomy principle  9 binding human rights instruments  2, 19 border populations  32 Carabobo Act  59–60, 112, 259, 270, 319 Caracas Declaration  268 Cartagena Agreement  7, 57–9, 80, 85, 263–72, 300 Additional Protocol  58–9 civil society  276 human rights  259, 276, 289, 318 social security  289 Cartagena Declaration  49–50, 268, 283 Cartagena Manifesto  72, 107, 301 Charter of Human Rights  26, 73, 113 children Andean Social Charter  297, 311–12 child labour  93 identity  312 UN Convention on the Rights of the Child  297, 312 World Summit for Children  297 Chile  264 citizenship  99, 119, 121, 317–21, 323 civil and political rights  60, 271, 306–8 civil society  50, 107, 109–14 democracy  270–1 health  298 human rights  115, 274, 276–81, 306–8, 315–16 Cochabamba Protocol  85 collective bargaining  93 Common Foreign Policy  32–3 common legal heritage  85 common policies  102–3 Community Policy on Border Integration and Development  318 Confederation of Private Andean Business Owners  278

cooperation  7, 58–9, 90, 283, 304 core of the integration, as  19–20 Court of Justice  45, 83, 85–6, 322 Andean Charter of Human Rights  316, 322–3 enforcement and compliance  86 individuals, access by  85 Special Commission, creation of  316 crimes against humanity  114, 308, 316 cultural dimension  30–1, 273–4, 281, 283, 303 Andean Social Charter  299 diversity  59 indigenous people  279, 310 Decisions of the Andean Council of Foreign Ministers  80 Declaration of the Andean Presidential Council on Democracy and Integration  57 declarations  300–3 democracy  40, 49–50, 57–9, 73, 85, 110, 112 Andean Community Commitment to Democracy  57–8, 269–70 Andean Social Charter  296 civil society  270–1 design of a democratic framework  267–71 human rights  261–2, 264–71, 304, 306 legitimacy  275 Machu Picchu Declaration  267, 270, 278, 301–4 Presidential Council Declaration  268–9 Riobamba Code of Conduct  267–8 detention, persons in  314 developing countries  263 development, right to  308–10 disabilities, persons with  299, 312–13 economic development  69, 89 economic integration  11, 259–71, 301, 322 economic, social and cultural rights  58, 60, 270–300, 306–8 education and training  96, 102, 282–3, 286 Andean Commission of Vocational Training  104 Andean Social Charter  298–9 Andrés Bello Agreement  272 indigenous people  303–4, 310 meetings of Ministers  282 migrants  290 minorities  307 professional training  103–5, 285, 299

Index 405 Quito Declaration  282 refugees and stateless persons  314 social integration  273 elderly adults, rights of  311–12 elections  306 enforced disappearances  114 environment  292–3, 309–11 Rio de Janeiro Summit  293 Tlatelolco Platform on Environment and Development  293 equality and non-discrimination  92, 121, 264, 273, 290, 307, 312–13 ethnic groups  297, 303, 310 EU model  2 external action  59 external trade policy  23 extrajudicial executions  114, 308 families  290, 292, 297 forced disappearances  308 forced or compulsory labour  92 free movement of persons/workers  210–1, 29––2, 283, 300, 317–18, 320 free trade agreements (FTAs)  262 freedom of association  92 freedom of expression  307 General Secretariat  275, 282–3, 304, 316, 322 globalisation  11, 308 harmonisation  273, 277, 283, 286, 298, 323 health  96, 102, 264, 272–3, 286 citizenship  319 civil society  298 disabilities, persons with  312–13 Hipólito Unánue Agreement  272, 280–1, 284, 298 migrants  290 monitoring  284 refugees and stateless persons  314 health and safety  299 human rights  7, 9, 259–323 Andean Charter of Human Rights  7, 25–6, 32, 46, 72, 119, 277, 293, 301–17 challenges  321–3 civil society  115, 274, 276–80 Common Foreign Policy  32–3 courts, establishment of  45 democracy  59–60 economic development  72 economic integration  259–71 freedom of association  92 freedom of expression  307 inhuman or degrading treatment  308 migrants  260, 285–6 progressive incorporation  263–7 regulations  286–317 social agreements  280–6

social dimension  111–14, 119–21, 270–300 status of elements of recognition and protection  300–17 trade unions  277 treaties  85 identification documents  121, 318–20, 323 identity  312 ILO  92, 277, 289, 294, 309–10 indigenous people  40, 270, 278–9, 293, 297–8 African descent, people of  310 Andean Charter of Human Rights  293, 399 culture  279, 303 education and training  303–4, 310 Machu Picchu Declaration  267, 270, 278, 301–4 Working Group  278–9, 304 industrial complementation agreements  80 inhuman or degrading treatment  308 institutions  261, 322 civil society  109–10 human rights  263–4, 266–7, 276 Trinidad and Tobago  269 Integrated Plan of Social Development (PIDS)  274 Inter-American Human Rights Commission (IACommHR)  302, 315 Inter-American Human Rights Court (IACtHR)  302, 306, 315 inter-governmentalism  322–3 internally displaced people  26, 313–14 International Covenant on Civil and Political Rights (ICCPR)  308 International Covenant on Economic, Social and Cultural Rights (ICESCR)  308 International Criminal Court (ICC)  315–16 labour rights  92, 102, 264, 285–6, 309 Advisory Council of Labour Ministers  111, 274 Andean Labour Advisory Council (CCLA)  110, 112, 269–70, 276–7, 286, 289–95, 320 Andean Labour Observatory  285 Andean Social Charter  299 child labour  93 citizenship  119, 121, 319–20 disabled children  299 education and training  104 free movement of persons/ workers  120–1, 290–2, 317 living standards  287 migration  104–5, 272, 290–300, 320

406  Index refugees and stateless persons  314 remuneration  299–300 unemployment  286 working conditions  292, 308 Latin-American Institute for Social Research (ILDIS)  294 legal systems  80 legitimacy  275, 277 life, right to  314 living standards  103, 271–2, 284, 287, 292 Machu Picchu Declaration  267, 270, 278, 301–4 Manifesto of Cartagena de Indias  59, 72 Mercosur  59, 75, 321–2 migrants Andean Charter of Human Rights  260, 313 Andean Labour Migration Instrument  272, 290–300 Andean Parliament  323 border workers  290 citizenship  317, 320–1, 323 company workers  290 education and training  290 equality and non-discrimination  290 families  290, 292 free movement of persons/ workers  290–2 health  290 human rights  260, 285–6 information system  121 seasonal workers  290 social security  290 South American Summits on Migration  301 Special Mission on Migration Issues  292 trade unions  290 undocumented workers  290 working conditions  292 national treatment principle  291 ombudsman  119, 307–8, 315–16, 321 participation of citizens  40, 104 passports  121, 292, 318–20, 323 political dimension  262, 301–2, 307, 319, 321–2 civil society  107, 276 human rights, adoption of instruments to protect  399 Trujillo Protocol  36 poverty  267, 270, 277–8, 296, 301–4 Presidential Council  112, 272, 278, 283, 287, 290, 293, 317–19 Presidential meetings/summits  260, 265–7, 273, 287–8 primary law  80, 86 professional training  103–5, 285, 299

Quito Protocol  265 reform  262 refugees and stateless persons  26, 314 regional citizenship  323 Riobamba Code of Conduct  265 rule of law  57, 59–60, 86, 110, 269 sanctions  58–9 science and technology  272–3, 280–3 Andean Social Charter  298–9 Andrés Bello Agreement  272, 280–1 secondary law  80, 86 security  314, 323 sexual orientation  290, 311, 313 Simón Rodríguez Convention  104–5, 111, 121, 272, 280, 284–6, 294 social agreements  280–6, 300 social development  72–3, 96 Andean Declaration on Social Development  273 economic, social and cultural rights  73 human rights  73, 303 right to development  72–3 UN Declaration on the Right to Development  72 social dimension  90, 102–3, 260–2, 270–302, 309 social justice  110, 268, 270, 273–4, 287, 303 social security  104, 121, 285–9 Andean Social Charter  300 Andean Social Security Regulation  272, 287–9 elderly people  312 Ibero-American Social Security Organization (OISS)  288–9 migrants  290 Sucre Protocol  266, 283 supranationalism  44, 322 sustainable development  273, 278 system of recognition and protection of human rights  9–11, 19, 22, 25–7 torture and other cruel, inhuman or degrading treatment  114, 308 tourists  319 trade unions  277, 290, 308 travel documents  121, 292, 318–20 Trujillo Protocol  7, 36, 49, 59, 80, 85, 261, 266 UNASUR  24–5, 275, 322–3 unemployment  286 Universal Declaration of Human Rights  72, 307 Venezuela, withdrawal of  23, 262, 322 Vienna Declaration  296, 306, 315 visas  121, 323 vocational training  104–5 vote, right to  119

Index 407 vulnerable groups  297–9, 311–13 women’s rights Agreement on the Elimination of All Forms of Discrimination Against Women in the Andean Sub-region  297 treaties and conventions  311 working conditions  292, 308 Working Group on the Rights of Indigenous People  40 Andean Council of Foreign Ministers on the Protection and Recovery of Cultural Heritage of the Archaeological, Historical, Ethnological, Paleontological and Art of the Andean Community  30–1 Andean Group  12, 15, 17 arbitral tribunals  400 Argentina ALADI  81 Bank of the South, creation of  394 Bolivia  390 environment  396 free movement of persons/workers  386 Mercosur  49, 86–7, 324–5, 386, 388–91, 396 migrants  390–1 nationality  391 Paraguay  390 Peru  390 primacy  86–7 residence permits  391 Trade Unions of the Southern Cone (CCSCS)  114 UNASUR  394 Uruguay  354–7, 390 armed conflicts  12, 18, 37, 54, 65–6 Association of Caribbean States (ACS)  22 asylum seekers and refugees  26, 122, 307 autocratic regimes  12, 55–6 autonomy principle  3, 46–8, 76, 79–87, 400 Bahamas, death penalty in  193 balancing trade and human rights  27–46 cultural dimension  29–30 democracy  27–8 economic, social and cultural rights  28–9 education and training  28, 30 geographical proximity  31–2 health  28 human dimension  29, 32 inter-systemic relations in human rights  41–6 labour and industrial relations  28–9 legal instruments on human rights  32 non-trade issues, human rights as  33–41 political dimension  29

Bank of the South, creation of  394 Barbados, death penalty in  193 Belize, death penalty in  193 bills of rights in constitutions  148 Bizozzero, L  360 Bolivarian Alliance for the Peoples of Our America (ALBA)  12, 22–3, 199 Bolivia Argentina  390 Bank of the South, creation of  394 Buenos Aires Charter on Social Commitment  345 democracy  61–3 economic conditions  390 Forum for Consultation and Political Coordination (FCCP) Mercosur  74, 332–3, 336, 343, 345–6, 388, 390–1 migrants  390 peace, zones of  63, 332–3, 336 UNASUR  394–5 border areas  31–2 Boutros-Ghali, B  50 Brazil environment  396–7 free movement of persons/workers  386 Mercosur  386, 396–7 migration quotas  394–5 primacy  86–7 South American Free Trade Area (ALCSA)  22 UNASUR  394–5 Bush, George W  129 CAFTA-DR (Central America-Dominican Republic Free Trade Agreement)  22, 258 CAN see Andean Community of Nations (CAN) Canada see NAFTA (North American Free Trade Agreement) capital punishment see death penalty Cárdenas, EJ  352 Caribbean Free Trade Association (CARIFTA)  12, 15 CARICOM (Caribbean Community)  143–201 ad extra protections  7 ad intra protections  7 Additional Protocols  80, 183–4 advanced integration  6 affirmative action  155–6 ALBA  199 American Convention on Human Rights  146, 194 Antigua Treaty  144 autonomy principle  9 awareness and responsibilities of people  166–7

408  Index binding human rights instruments  2, 19 Caribbean Cooperation in Health Initiative  102 Caribbean Court of Justice (CCJ)  45, 80, 84, 152–3, 187–8 Agreement  190 appellate jurisdiction  190, 192–3 Conference of Heads of Government  191 death penalty  152–3, 192–4 human rights  190–5, 199 judiciary  191 jurisdiction  84, 190, 192–4, 199–200 locus standi  191 Privy Council  166, 193–4, 199 sources of international law  191 Caribbean Policy Development Centre  111 Caribbean Single Economic Market (CSEM)  183 Caribbean Single Market and Economy (CSME)  145, 198 CARIFTA  144 Chaguaramas, Treaty of  16, 144–5, 186, 190–1, 196 Conference of Heads of Government  188 free movement of persons/ workers  159, 181 labour and industrial relations  169 NGOs  180 Charter of Civil Society  32, 45, 148–73, 179 Caribbean Court of Justice  190, 192–3, 199 characteristics  149 contents  148–9, 152–7 declaration of principles and rights  151 economic, social and cultural rights  160–7 enforcement and compliance  198 free movement of persons/ workers  182–3, 186 hard core rights  150–1 human rights mechanisms, establishment of  157–8 implementation  200 information to the public, provision of  151 key features  149–51, 168–72 legal standing  148–9, 151–2, 168–72 monitoring  157–8, 200 National Committee  157–8 nature  149–51 political dimension  178 Preamble  164, 173 recommendatory, as  151

reporting  187, 189 scope  150 social partners  150 children, rights of  102, 163 Belize Commitment  163 child labour  171 consulted, right to be  163 education and training  165–6 health  163 ministers, meetings of  163 views of child  163 citizenship  99, 118, 170, 172, 181–6, 199–200 civil and political rights  150, 152–7, 160, 162 civil society  40, 107, 113, 174, 177–81, 187, 198 Caribbean Labour Market Information System  106 Caribbean Policy Development Centre  111 Liliendaal Declaration  200 Task Force  200 collective bargaining  170–1 colonialism  143–4, 162 Committee on Social Development  75 common law  191, 193–4 common policies  102, 169–70, 174–5, 185 Commonwealth Caribbean  144–5 Conference of Heads of Government  157–8, 176–9, 186–91 Bureau of the Conference  188–9 civil society  177–9, 200 education and training  176 health  176 human rights  186–90 Parliamentary Assembly  195 reporting  157–8 Consensus of Chaguaramas  178 constitutional provisions, limitations in  172 cooperation  102–3, 174–6, 197 functional  174–5 international organisations  175 core of the integration, as  19–20 Council for Human and Social Development (COHSOD)  75, 195, 197–8 Court of Justice of EU (CJEU)  84 death penalty  152–4, 192–3 American Convention on Human Rights  153 defence, rights of the  153 inhuman or degrading treatment  153–4, 193 life, right to  152–4

Index 409 decision-making, participation in  111 Declaration of Philadelphia  169 democracy  67–8, 166–7, 177, 200 deficit  179–81 interruption of democracy  67–8 Joint Declaration of SICA and CARICOM  68 support mechanisms  68 detention, persons in  154 direct applicability  82 direct effect  82 disabled people  164, 166 domestic violence  154, 162 economic development  69, 75 economic integration  36, 143–6, 158–61, 180–90, 196 civil and political rights  152, 160 continuity and development  198 economic, social and cultural rights  164, 167–70, 173–7 institutional reform  201 economic, social and cultural rights  150, 158–81 economy, right to participate in the  166 education and training  103, 159, 165, 174–5 cooperation  175–6 professional training  103, 167 standardisation in professional and vocational training  103 vocational and technical training  103, 106 elderly persons  167 elections  156, 167 freedom of expression  156 political parties, right to form or join  156 environment  174 equality and non-discrimination  155–6, 166, 169–70, 182–3, 194 affirmative action  155–6 nationality  182 EU model  2, 145 fair hearings, right to  153, 155 forced or compulsory labour  171 free movement of persons/workers  120, 145, 159, 181–6, 189, 194–5, 198 free movement of services  183–4 freedom of assembly  156 freedom of association  164, 170 freedom of establishment  183–4 freedom of expression  156 general principles of law  199 General Secretariat  157–8, 163, 168, 187 globalisation  11, 75 good governance  167, 177–8 Grand Anse Declaration  183

Greater Caribbean Civil Society Forum  111 harmonisation  174, 180, 184 health  102, 159, 163, 166, 174–6, 187 Caribbean Charter for Health Promotion  176 Pan-American Partnership against HIV  176 health and safety  171 historical developments  15 human dignity  150, 193 human rights  2, 9, 19, 22, 113, 143–201 assessment of implementation of provisions  198–201 Caribbean Court of Justice  45, 80, 84 Charter of Civil Society  32, 45 democracy  68 economic development  69 evolution and instruments  146–58 social dimension  113 ILO  162, 168, 173 independence after colonialism  16, 144 independent and impartial tribunals  166–7 indigenous people, rights of  161–2 industrial relations  168–72 institutions  178–81, 186–99, 201 Inter-American Commission on Human Rights (IACommHR)  146–7 Inter-American Court of Human Rights (IACtHR)  194 International Covenant on Civil and Political Rights (ICCPR)  194 international organisations  175 jus cogens  151–2 labour rights  102, 111, 168–73, 187 Caribbean Labour Market Information System  106 citizenship  172 constitutional provisions, limitations in  172 Declaration of CARICOM  168–72 dismissal, protection against  165, 171 equality and non-discrimination  169–70 free movement of persons/ workers  120, 159, 182 freedom of association  164 maternity and pregnancy rights  165 migrants  173, 189 Regional Working Group  168 remuneration  164–5 social sectors  176–7 Standing Committee of Ministers of Labour  159, 168

410  Index technical personnel management and supervision  183–4 work permits  182–4 working conditions  164–5, 170–1, 197 Legal Affairs Committee  192 legal systems  80 liberty and security, right to  154 life, right to  152–3 limitations on human rights  156 maternity and pregnancy rights  165 migrants  173, 189 nationality discrimination  182 NGOs  163, 177, 180 non-autonomous territories  143–4 OAS  146–7, 168 objectives  175, 187 Observatory of Caribbean Regional Integration  106 Organization of Eastern Caribbean States (OECS)  146, 147–8 constitutions  147–8 Court of Justice of the Eastern Caribbean  147–8 death penalty and right to life  148 rule of law, separation of powers and judicial independence  148 types of rights recognised  148 Parliamentary Assembly of the Caribbean (ACCP)  187–8, 195–7 Additional Protocols  80, 200–1 Andean Parliament, relations with  39 Central American Parliament, relations with  39 civil society  200 Conference of Heads of Government  195 human rights  195–7 meetings  195–6 Mercosur Parliament, relations with  39 social dimension  196 participation in other blocs  198–9 passports  183, 189 political dimension  35–6, 177, 188 primary law  200–1 Privy Council  166, 193–4, 199 professional accreditation, mutual recognition of  174, 18405 proportionality  156 public interest  167 reduced integration  146 Regional Strategy  103 reporting mechanisms  157–8 Revised Treaty of Chaguaramas  80, 84, 145, 182, 197–201 rule of law  167, 190 San Pedro Sula Summit  218

secondary legislation  199 SICA  219 Social Charter  102, 149 social dimension  103–4, 158–81, 189, 196 Social Partners  166 social security  159–60, 165–6, 171–4, 183–4 Agreement on Social Security  160, 172–4 compulsory insurance  172–3 harmonisation  173 voluntary insurance  172–3 stare decisis  191 state sovereignty  144 supranationalism  198 suspension or expulsion  189 sustainable development  162, 166 system of recognition and protection of human rights  9–11, 19, 22, 25–7 technical personnel management and supervision  183–4 trade unions  170–1 transport  175 UNSASUR  199 Universal Declaration of Human Rights  169, 194 university graduates, free movement of  184 visas  182 vocational and technical training  103, 106 vulnerable persons  160–6, 200 women’s rights  102, 149, 162–3, 165, 197 Beijing Conference  162–3 Committee on the Elimination of All Forms of Discrimination against Women  162–3 working conditions  164–5, 170–1, 197 CELAC (Community of Latin American and Caribbean States)  12, 23–4 Central America-Dominican Republic Free Trade Agreement (CAFTA-DR)  22, 258 Central American Common Market (CACM)  15 Central American Integration System see SICA (Central American Integration System) Charter of Fundamental Rights of the EU  25, 42 Chávez, Hugo  394 children child labour  91–2 civil society  115 UN Convention on the Rights of the Child  342, 358

Index 411 Chile Andean Community  264 Buenos Aires Charter on Social Commitment  114, 345 democracy  61–3 Forum for Consultation and Political Coordination (FCCP)  74, 357 Pacific Alliance  24 peace, zones of  63, 332–3 China  24 citizenship see also labour citizenship; regional citizenship EU  400 participation  17 social dimension  88, 94, 99 social spaces, creation of  90 UNASUR  118, 393–4 civil and political rights  51, 69–70, 71–2, 399 civil society participation bottom-up integration  109 children, rights of  115 circles of influence  108 cooperation  94–5, 109 decision-making  110–11, 116 democracy  107, 108, 115 deficit  108 legitimacy  40, 107, 108 dispute settlement  108 EU  258 human rights  114–16 indigenous people  115 institutions  109–10 labour rights  116 new wave of integration  107 NGOs  108, 116 non-institutional participation  110 non-trade issues  40–1 social dialogue  107–16 social dimension  41, 88, 90, 97, 99, 107–16 social security  113 third sector  108 transnationalisation  107–8 vulnerable groups, protection of  115 women, rights of  115 clauses in instruments cooperation  56 democracy  49, 56, 59–61, 63–4 expulsion  56 legitimacy  17 social clauses  1, 17, 87–8 social dimension  88 UNASUR  63–4 Clinton, Bill  129 Colombia Argentina, migrants to  391 democracy  57

Ecuadorian territory, attack on FARC on  64 Pacific Alliance  24 UNASUR  64 colonialism  16, 144 common policies  39–41, 97–107 community law  13, 77–80, 115 absence of community law  3, 5, 44, 77 direct applicability  82 EU  44, 79–80, 83 interpretation  78, 84 norms  42 Community of Latin American and Caribbean States (CELAC)  12, 23–4 compliance see enforcement and compliance conflicts  12, 18, 37, 54, 65–6 constitutions, bills of rights in  148 cooperation  23–5, 55–6, 69, 93–5, 99, 109 Correa, Rafael  63 Costa Rica  246, 257 Council of Europe (CoE)  4–5 courts see judicial courts Cuba  16 cultural dimension  8–9, 29–30, 71, 88, 90, 94 see also economic, social and cultural rights Cunha Rodriguez, JN  42–3, 83 death penalty American Convention on Human Rights  153 life, right to  148, 152–4 deeper integration  14, 16–17, 33, 41, 46, 55 democracy/democratisation  12–13 American Convention on Human Rights  51, 53 American Declaration of the Rights and Duties of Man  53 autocratic regimes  12, 55 balancing trade and human rights  27–8 civil and political rights  51 civil society  40, 107, 198, 115 clauses in instruments  49, 56, 59–61, 63–4 cooperation  55–6 deeper integration  55 deficit  108 diplomatic solutions  64 dispute resolution  55 economic integration  20, 27, 49, 97 economic, social and cultural rights  51 expulsion  49, 56 free trade and protection of human rights  12 FTAA  47 human rights, as principle governing  46–8, 49–68

412  Index institutions  55–6 integration processes  46–8, 49–68 Inter-American Court of Human Rights  51–2 Inter-American Democratic Charter  53, 71–2 inter-American system  51–3 international order, link with human rights in  50–4 interruptions of democracy  64 legitimacy  40, 54–5, 107, 108 mechanisms for action  52 monitoring  147 new era of regional integration in 1990s  54 open regionalism  20 parliaments  38 political dimension  33, 35, 37–40 regional conflicts  12 regional integration agreements  54–68 representative democracy  35 rule of law  56 security  37 social dimension  20, 89, 93–4, 97–8, 100 social exclusion  100 suspension of states  49, 62–4 transparency  33 UNASUR  63–4 development, right to  46–8, 71–5, 309 see also economic development; social development principle direct applicability  3, 80–2 direct effect  3, 76, 79–87, 400 discrimination see equality and non-discrimination dispute settlement  55, 108, 400 see also judicial courts Dominican Republic  16, 22, 240, 258 ECLAC (UN Economic Commission for Latin America and the Caribbean)  8, 293 economic crises  12 economic development  48, 68–70, 72–5 ALADI  22 civil and political rights  69–70 cooperation  69 Declaration and Programme of Action of the World Conference on Human Rights  70 economic, social and cultural rights  70 globalisation  69–70 human rights  48, 68–70, 72–5 international law  70 social development principle  72 UN  70

economic integration  1–2 agreements  87, 96–107, 109, 123 development, right to  70 dispute resolution  11 diversification of contents  95 historical overview  12–14 open regionalism  21 progressive inclusion of social issues  88–93 arbitral tribunals  400 Association of Caribbean States (ACS)  22 common policies  97–107 cooperation  94–5 deepening integration  20 democracy  20, 27, 49, 97 dispute resolution  11 historical overview  12–14 human rights, protection of  70, 83, 87, 93–7 judicial courts  400 labour rights  399 law-making  11 mechanisms of protection  95–6 migrants  20 open regionalism  21, 94 participation  109–10 political dimension  36, 97 progressive inclusion of social issues  88–93 Rio Group  34 social agenda, components of  96–7 social cohesion  94 social development  54, 75, 96 social dimension  13, 16–20, 34, 88–93, 98–101, 122–3, 399 social security  20, 99 trade unions  114 economic, social and cultural rights balancing trade and human rights  28–9 democracy  51 economic development  70 free movement of persons/workers  20 legal and political instruments, adoption of  399 social development principle  71–2 social dimension  18 Ecuador Andean Community  57, 277 Bank of the South, creation of  394 Colombian attacks on FARC in Ecuador  64 coup attempts  63 Mercosur  391 UNASUR  394 education and training balancing trade and human rights  28, 30

Index 413 social development principle  71 social dimension  18, 88, 90, 95 El Salvador  218, 257 elderly persons  167, 311–12, 359 employment see free movement of persons/ workers; labour rights enforcement and compliance clauses in instruments  56 economic development  70 economic, social and cultural rights  53 free movement of persons/workers  82 judicial courts  78, 84 mechanisms  1, 401 environment  1, 18, 95–6, 293 equality and non-discrimination EU  84 ILO  92 migrants  118 social dimension  18, 93, 101–2 social inequality  71–2 Ermida Uriarte, O  117–18, 282, 379, 382 European Convention on Human Rights (ECHR)  42–3 Council of Europe  43 establishment  43 EU, accession of  42 exhaustion of domestic remedies  133 retroactivity  133–4 European Trade Union Confederation (ETUC)  277 European Union (EU) CELAC  23–4 Charter of Fundamental Rights of the EU  25, 42 citizenship  116–17, 400 civil society  258 Court of Justice (CJEU)  6, 42, 45, 79–80, 82 direct effect  83 directives, transposition of  84 disadvantaged regions  94 effective judicial protection, principle of  84 equality and non-discrimination  84 European Convention on Human Rights, accession to  42 freedom of expression, priority of free movement of goods over  355 general principles of Community legislation  84 good faith  84 human rights  6, 25, 41–5, 79–80, 82–4, 355 interpretation  83 inter-systemic relations in human rights  41–5 legitimate expectations  133 Lisbon Treaty  42

nationality  400 primacy principle  83 Privy Council  193–4 proportionality  84 social development principle  100 social dimension  13, 94 Social Funds  94 social policies  10 Structural Funds  94 subregional integration processes  13, 401 subsidiarity  83 supranationalism  5, 44, 94, 116–17 TFEU  94 expulsion from processes  49, 56, 189 external relations  3–4, 23–4, 55 food security  23 forced or compulsory labour  91–2, 120 Francis, A  161–2 free movement of goods  394 free movement of persons/workers economic, social and cultural rights  20 labour citizenship  119–21 migrants  122–3 regional citizenship  13, 117–18 social dimension  89, 91, 97–9, 101–2 UNASUR  120 WTO  355 free trade agreements and protection of human rights  12–123 balancing trade and human rights  27–46 bottom-down processes  17 common features of provisions  25–6 current scenario  21–5 democratisation  12 historical overview of integration  13–21 human rights-friendly, making FTAs more  18, 25–7 inter-systemic relations in human rights  41–6 new era of regional integration in 1990s 12, 15 new wave of regional integration in 1980s 12, 17, 29, 33 principles governing human rights protection  46–87 revitalisation of integration  17 social dimension  87–123 top-up processes  17 Free Trade Area of the Americas (FTAA)  19, 21–2 democracy  47 economic crisis  12 hemispheric free trade area, creation of  21

414  Index social dimension  21 system of recognition and protection of human rights  21 freedom of association  91–2, 355 freedom of expression  355 free movement of goods  355 FTAA see Free Trade Area of the Americas (FTAA) Garcia, F  43 genocide  162 geographical proximity  31–2 Gil, JC  177, 181 globalisation  16, 18, 69–70, 91, 94–5 González Cravino, S  94 good faith  84 Grenada, US military intervention in  146 Guatemala  218, 251, 257 Guayaquil Consensus on Integration, Security and Infrastructure for Development  72 Guyana, death penalty in  193 Haiti CARICOM  147 democracy, monitoring  147 independence, processes of  16 institutional crisis  67–8 harmonisation  21, 38–9, 147–8 heads of state  41 health balancing trade and human rights  28 hygiene  99 Pan-American Partnership against HIV  176 sanitation  99 social dimension  18, 88, 90, 95, 99 UNASUR  304 hemispheric free trade area, creation of  21 historical overview of integration  13–21 deep integration  16–17 expansive effect on human rights  13–14 globalisation  15 independence, processes of  16 institutional frameworks  15 shallow integration  16 social dimension  16, 18 subregional initiatives  13–21 HIV/AIDS  176, 359 Honduras coup 2009 64, 67, 257 Central American Parliament (PARLACEN)  218 SICA  67, 257 human dimension  29, 32

human rights see also balancing trade and human rights; free trade and protection of human rights; principles governing human rights protection; under specific main entries development of human rights systems  4–7, 21 economic integration  70, 83, 87, 93–7 EU model  6, 25 free trade agreements more user-rights friendly, making  18, 25–7 inter-systemic relations in human rights  41–6 incorporation model  43 judicial courts  26, 400 leverage model  43 monitoring bodies, creation of  26 non-trade issue, human rights as a  33–41 political dimension  36–7, 39, 41, 399 Presidential Summits, role of  26 principles governing human rights protection  46–87 recommendatory nature of provisions  26 regional governance  26 regional policy  25 rule of law  33, 93 social agenda, components of the  96–7 soft law  26 World Conference on Human Rights  70 Human Rights Council (UN)  309 human rights-friendly, making FTAs more  18, 25–7 hunger  23 ICSID (International Centre for Settlement of Investment Disputes)  129 identity  2, 32, 35, 39 ILO see International Labour Organisation (ILO) immigration see migrants incorporation model  43 independence, processes of  16 indigenous persons  115 institutions autonomy principle  77 civil society  109–10 cooperation  55 democracy  55–6 frameworks  15 political dimension  34, 38–9, 41 social development principle  100 social dimension  100 UNASUR  24–5 integration see Andean Community of Nations; CARICOM (Caribbean Community); economic integration; MERCOSUR (Southern Common Market); SICA (Central American Integration System); subregional integration

Index 415 Inter-American system democracy  51–3 Inter-American Commission on Human Rights (IACommHR)  27, 122, 146–7 Inter-American Court of Human Rights (IACtHR)  27, 51–2, 146–7, 194 Inter-American Democratic Charter  53, 71–2 inter-systemic relations in human rights  43–6 inter-governmentalism  3, 24–5, 44, 76, 78–9, 115 internally displaced persons  26, 122 International Centre for Settlement of Investment Disputes (ICSID)  128 International Covenant on Civil and Political Rights (ICCPR)  18, 154 International Covenant on Economic, Social and Cultural Rights (ICESCR)  18 International Labour Organisation (ILO) child labour  91–2 equality and non-discrimination  92 forced or compulsory labour  91–2 freedom of association  91–2 labour citizenship  122 social dimension  91–2 international law  1–3, 10–11 CELAC  23 democracy  50–1 development, right to  70 dualism  77 legal standing  5 OAS  52 international organisations  7, 77 inter-systemic relations in human rights  41–6 American Convention on Human Rights  43 balancing trade and human rights  41–6 EU  41–5 courts, development of  45 European Convention on Human Rights  42–3 free trade agreements  41–6 incorporation model  43 Inter-American system  43–6 legal instruments  45 leverage model  43 OAS  43–6 international trade see balancing trade and human rights; free trade and protection of human rights Jácome, F  180 Jamaica death penalty  193 fair hearings, right to  155

judicial courts Court of Justice of the EU (CJEU)  6, 42, 45, 79–80, 82 dialogue  26 direct effect  81 domestic law, relationship with  83–4 economic integration  400 effective judicial protection, principle of  84 enforcement and compliance  78, 84 gap-filling  400 hierarchy of rules  400 human rights  84, 400 individual courts  81 interaction between domestic courts and judicial bodies  26 Inter-American Court of Human Rights (IACtHR)  27, 51–2, 146–7, 194 inter-systemic relations in human rights  45 political dimension  34 supranationalism  77–8 treaties, respect for  400 Kay, T  140 labour rights see also free movement of persons/workers; International Labour Organisation (ILO); labour citizenship; Mercosur (Southern Common Market) and labour rights; migrants balancing trade and human rights  29 child labour  91–2 civil society  116 economic integration  399 forced or compulsory labour  91–2, 120 Inter-American Democratic Charter  53 Labour Observatories  106 social development principle  71 social dimension  18, 88, 91, 99, 101–2 subregional integration processes  1 unemployment  96 working conditions  87–8 labour citizenship  116, 119–22 Andean Community  119, 121 forced and compulsory labour  120 free movement of persons/ workers  119–21 human rights  120 ILO  122 immigration policy  119–20 Mercosur  120–1 migrants  119–22 regional citizenship  116, 119–22 slavery  120 social development  119 social spaces  121–2

416  Index LAFTA (Latin American Free Trade Association)  15–17, 22 free trade zone, establishment of  16–17 human rights  263 Latin American Integration Association (ALADI)  17, 19–20, 81 objectives  19–20 Latin America and Caribbean Economic System (SELA)  8, 17, 272 Latin American Free Trade Association see LAFTA (Latin American Free Trade Association) Latin American Fund Arts  30 Latin American Fund for the Development of Culture  30 Latin American Integration Association (ALADI)  17, 19–20 legal standing of regulations issued by integration agreements  77–9 legal systems, features of subregional  75–7 autonomy principle  46–8, 76, 79–87 system of recognition and protection of human rights  75–7 legitimacy  17, 54–5, 88, 97, 107, 108 leverage model  43 libraries  30 life, right to  148, 152–4 living conditions  72, 74, 97–8 Lugo, F  63–4 Mercosur (Southern Common Market)  324–98 see also Mercosur (Southern Common Market) and labour rights acquis communitaire  86 ad extra protections  7 ad intra protections  7 Administrative Secretariat  350 advanced integration  6 Agenda to the Year 2000  121 American Convention on Human Rights  346–7, 356 American Declaration of the Rights and Duties of the Man  346–7, 356, 371 Andean Community  75 arbitral tribunals  81, 85–6 human rights  325, 352–7, 395–6 legal standing of private parties  352 Asuncion Treaty  325, 327–32, 336 autonomy principle  80 citizenship  384, 389 dispute settlement  351 economic development  69, 95 free movement  123, 383–4 harmonisation  385–6 implementation  349 institutions  350 legal personality of Mercosur  7

Protocol of Human Rights  346–8 Social and Labour Declaration  74 Social Charter as Additional Protocol  372 social dimension  360–1, 367–8, 372–4, 379, 381 asylum seekers and refugees  335 autonomy principle  9, 80 Belém do Pará Convention (OAS)  335 binding human rights instruments  2, 19 Brasília Protocol  85, 328, 351 Buenos Aires Charter on Social Commitment  32, 63, 74–5, 114, 343–6 Canela Declaration  374 Central American Parliament (PARLACEN)  39 Central Southern Cone Union  379 Charter of Conduct Riobamba  60 Charter of Fundamental Rights (draft)  74–5, 337–43, 357–8 children  341–2 civil and political rights  338, 341 content  337–40 economic integration  337–8 economic, social and cultural rights  337, 339–41, 344–5 education and training  340–1 free movement of persons/ workers  386–7 freedom of association  339–40 identity  341 life, right to  341 Preamble  338 privacy  341 social dimension  338–43, 364–5 supranationalism  338 trade unions  337–8 children Charter of Fundamental Rights (draft)  341–2, 344–5 ICtHR, advisory opinion of  359 Nin@ sur Initiative  358 Permanent Commission on Children  358 UN Convention on the Rights of the Child  342, 358 citizenship  99, 117–20, 326–7, 382–93 challenges  397–8 civil society  397–8 regional citizenship  117–18, 120, 382, 393, 397–8 Statute, Action Plan for  392–3 UNASUR  393 civil and political rights  63, 338, 341, 343, 369

Index 417 civil society  107–8, 114–15 citizenship  397–8 institutions  110 refugees  335 Social and Labour Declaration  112 social dimension  359–60, 362, 376–81, 391 Committee on Experts  342 Common Market Council (CMC)  61, 349, 357, 365, 377, 392 Common Market Group (CMG)  334–5, 349, 363–4, 372, 378, 386 common policies  103, 106–7, 345 consolidation of integration  328 Consultative Forum  110, 391 cooperation  332, 343, 347, 380–2 core of the integration, as  19–20 courts, development of  45, 84–5, 351–2 creation of human rights system  327–48 cultural dimension  30, 103, 327, 333–4, 339, 341–2, 362, 381 declarations  330–2, 357 deepening integration  110, 328–9, 365 democracy  49, 54, 60–1, 114 American Democratic Charter  346 clauses  60–1, 63–4, 336–7, 347 Declaration on Democratic Commitment  36, 332, 346 human rights  330–1, 335–7, 362–3, 393 institutions  62, 346–7, 377 interruption of democracy  60–4 Joint Statement of the Presidents of Member States  61 Presidential Summits  61–2 regional identity  61 sanctions for interruption of democracy  60–1, 63 social dimension  368, 377, 381–2 direct effect  9, 81–2 disabilities, persons with  358 dispute settlement  85, 325, 351–4, 395–6 domestic violence  335 Economic and Social Advisory Forum  112 Economic and Social Commission  110 Economic and Social Consultative Forum (ESCF)  40, 110, 112, 350, 364, 377, 379–80, 395 economic development  69, 74–5, 88–9, 95, 361, 368, 388 economic integration  43, 69, 324–31, 334–8, 344, 349, 352, 361, 382–3 economic, social and cultural rights  337, 339–41, 344–5, 358, 392

education and training  96, 103, 112 ARCU-SUL System  387–8, 392 Charter of Fundamental Rights (draft)  340–1, 345 citizenship  387, 392 harmonisation  386 Integrated MERCOSUR Mobility System (SIMERCOSUL)  392 Memorandum of Understanding  30 migrants  389, 392 ministers, meetings of  357, 362 mutual recognition of certificates and degrees  30 Permanent Commission on Education and Culture  358 social dimension  334–5, 358, 362–3, 370 university degrees, mutual recognition of  383, 387 vocational education  345, 370–1 working groups  358, 362 elderly persons  359 environment  332, 341, 344, 353–4, 365, 374–6 Basic Guidelines for Environmental Policy  374 Canela Declaration  374–5 enforcement and compliance  396–7 Framework Agreement  374–5 international agreements  374–5 polluter pays principle  341 REMA meeting  374 Rio Declaration  374–5 Taranco Declaration  374–5 equality and non-discrimination  358–9, 370, 385–7 disabilities, persons with  342, 345 indigenous people  359 migrants  389 working group  358–9 EU  2, 384 Forum for Consultation and Political Coordination (FCCP)  74, 357 free movement of goods  123, 354–7, 383–4 free movement of persons/workers  118–19, 120, 123, 383–6 Charter of Fundamental Rights (draft)  386–7 citizenship  386, 392, 397–8 economic development  69 free trade  354–7 human rights  354–7 Las Leñas Summit  386 migrants  383, 386–9, 392 professionals  387 Recife Agreement  386

418  Index technical and professional workers  119 university degrees, mutual recognition of  383, 387 freedom of association  339–40 globalisation  11, 360, 381 GMC (Grupo Mercado Común)  106, 374 harmonisation  69, 86, 331, 361, 385–6, 392 health  96, 365, 376, 386, 392, 396 historical context  15 human rights  9, 25, 324–98 adoption of provisions  329–37 challenges for the protection  395–8 Charter of Fundamental Rights  74–5 Charter on Social Commitment  63, 74, 114 citizenship  382–93, 397–8 creation of human rights system  327–48 economic integration  43, 324–31, 334–5, 344, 349 enforcement and compliance  348, 350, 396–7 implementation  376 institutions, challenges for  395–6 instruments relating to human rights  332–5 inter-governmentalism versus supernationality  397 Meeting of High-level Authorities (Ad Hoc Group)  357–9 role of Mercosur bodies in promotion and protection  348–59 Social and Labour Declaration  26, 32, 74–5, 91, 105, 112, 119 social dimension  45–6, 107, 360–93 supranationality versus inter-governmentalism  397 transitional period  328 treaties, ratification of  369 UNASUR  393–5 working groups  358 identity  341, 384 identification documents  386 ILO conventions  91–2, 329–30, 363, 368–9, 371, 396 implementation of legal instruments  376 indigenous people  359 institutions  74–5 challenges  395–6 civil society  110 human rights  326, 328–32, 345–52, 362, 365, 377–80, 395–6 Mechanism of Political Consultation and Coordination  36

Integrated MERCOSUR Mobility System (SIMERCOSUL)  392 Inter-American Human Rights Commission (IACommHR)  348 Inter-American Court of Human Rights (IACtHR)  348, 359 inter-governmentalism  7, 107, 325, 397 International Covenant on Civil and Political Rights (ICCPR)  356–7 International Covenant on Economic, Social and Cultural Rights (ICESCR)  371 International Land Transport Agreements  355 international organisation, as  7 Joint Parliamentary Commission (JPC)  377 jus cogens  369 Las Leñas Declaration  331 legal certainty  81 legal personality  7 legal standing of regulations  78–9 legal status  328 legal system  80–1 legitimacy  112 life, right to  341 local governments, links between  114 Meeting of High-level Authorities on Human Rights (Ad Hoc Group)  357–9 Memory, Truth and Justice working group  358–9 Mercocities Network  381–2 Mercociudades  114 Mercosur Parliament Andean Parliament, relations with  39 Central American Parliament, relations with  39 citizenship  391 civil society  110 communication channels  391 elections  391 human rights  395 Joint Parliamentary Commission (JPC)  350, 377 Parliamentary Assembly of the Caribbean  39 ministers, meetings of  357, 362, 379 Montevideo Protocol on Trade in Services  118–19, 365 Montevideo Protocol (Ushuaia II)  335–7 multidimensional process, integration as  326, 344 NGOs  330, 380–1 Nin@ sur Initiative  358 Observatory of Public Policies on Human Rights  380, 395 Olivos Protocol  45, 85, 351–2

Index 419 Ouro Preto Protocol (OPP)  7, 82, 112, 349–54, 364, 369, 377 peace, zones of  63, 332–3, 337 Permanent Tribunal of Review  325 political dimension  36, 63, 326, 331–3, 336, 342, 368–9, 379, 381 Potrero de los Funes Declaration  331 poverty  344–5, 361 Presidential Declaration of Leñas  346 Presidential Summits  61–2, 330–2, 331 primacy  9, 86–7 privacy  341 professional training  105 Program of Action MERCOSUR to the Year 2000  377 public international law  369, 397 qualifications  105–6 refugees  335 regional citizenship  117–18, 120, 382, 393, 397–8 Regional Socio-Labour Commission  371 Regularization and Residence Agreements  389 relaunching of Mercosur  328 reporting  366 rule of law  368, 392 San Salvador Protocol  339 Sectoral Commission for MERCOSUR (COMISEC)  379–80 sexual identity and gender diversity working group  359 sexual orientation  359 simultaneous effect, principle of  82 Social and Labour Commission  26 Social and Labour Declaration  32, 74–5, 91, 364–72, 376 Asuncion Treaty  74 citizenship  112 content and scope  369–71 education and training  105 enforcement and compliance  396 free movement of persons/ workers  386–7 legal standing  368–9 mechanisms for implementation  371–2 migrants, rights of  119 review  392 Social Charter  379 social dialogue  112 soft law  26 Social Charter, proposal for  89, 364, 366, 372, 379, 385 social clauses  325 Social Consultative Forum  378 social deficit  382 social development  74–5, 112, 345 social dimension  26, 32, 45–6, 89, 96, 103

Charter of Fundamental Rights (draft)  338–43, 364–5 civil society  360 evolution  360–6 human rights  325–9, 334, 360–93 Joint Parliamentary Commission  364 main instruments  366–7 new perspectives  382–93 other legal instruments adopted  372–4 social integration  364–5, 376–84, 387–8 Social Institute  380 social justice  95, 368 Social Rights Commission  342 social security  106, 121, 362, 371, 378, 396 harmonisation  386, 392 migrants  389 Multilateral Agreement on Social Security  364, 393 social spaces  114–15, 377 soft law  332, 334 supranationalism  44, 338, 379, 397 Summit of Presidents  61–2, 331, 334–6 system of recognition and protection of human rights  9–11, 19, 22, 25–7 tariff barriers  36 Trade Commission  380 Trade Union Coordination of the Southern Cone  362, 379, 398 trade unions  337–8, 362, 378–80, 395 transparency  259 transport  355, 363, 392 treaties  7, 9 UNASUR  24–5, 326–7, 329, 359, 393–5 unemployment  106 Universal Declaration of Human Rights (UDHR)  356, 371 Ushuaia Protocol on Democratic Commitment  49, 61–3, 332–7, 346 vehicle plates  392 vocational training  106 vulnerable persons  335, 344–5, 358–9, 365, 370 women’s rights  335, 359 Work Programme  2004–2006 257–8 World Conference on Human Rights  346 Mercosur (Southern Common Market) and labour rights Asuncion Treaty  74 border controls  392 Charter of Fundamental Rights (draft)  338–40, 363–5 child labour  370, 387 citizenship  112, 120–1, 382–92, 397–8 classes of workers  387 company workers  118

420  Index Coordinating Committee of Southern Cone Trade Unions (CCSCS)  114 dispute resolution  396 education and training  105–6, 389, 392 enforcement and compliance  389, 396 equality and non-discrimination  370, 385–7, 389 EU  384 family ties  389, 391 free movement of persons/workers  89, 118–19, 120, 123, 383–6 citizenship  386, 392, 397–8 free trade  354–7 human rights  354–7 Las Leñas Summit  386 migrants  383, 386–9, 392 professionals  119, 387 Recife Agreement  386 Social and Labour Declaration  386–7 university degrees, mutual recognition of  383, 387 frontier workers  118 harmonisation  386, 393 Labour Commission  105–6 Las Leñas Summit  386 migrants  105–6, 326–7, 331–2, 366, 371 border controls  392 citizenship  383–92 classes of workers  387 company workers  118 education and training  389, 392 enforcement and compliance  389 equality and non-discrimination  389 EU  384 family ties  389, 391 free movement of persons/ workers  383, 386–9, 392 frontier workers  118 increase in migration  388 individuals  118 nationality  388, 391 Patria Grande Programme  391 Regularization and Residence Agreements  389 residence  389, 391 Social and Labour Declaration  119 social integration  388 social security  389 typologies  118–19 undocumented migrants  387–9 ministers, meetings of  357, 379 monitoring  366 Montevideo Declaration  361–2, 385 nationality  388, 391 observatory  106 Patria Grande Programme  391 productive factor, labour as a  383

professionals  119, 387 Recife Agreement  386 Regularization and Residence Agreements  389 residence  389, 391 Social and Labour Declaration  32, 74–5, 91, 119, 364–72, 376, 386–7 Asuncion Treaty  74 citizenship  112 content and scope  369–71 education and training  105 enforcement and compliance  396 free movement of persons/ workers  386–7 legal standing  368–9 mechanisms for implementation  371–2 migrants, rights of  119 review  392 Social Charter  379 social dialogue  112 soft law  26 Social Charter  379, 385 social dialogue  112 social dimension  361–72, 376 social integration  388 social security  389, 396 soft law  26 standards  329–31 technical workers  119, 387 trade unions  362, 378–80, 395, 398 university degrees, mutual recognition of  383, 387 vocational training  345, 370–1 working conditions  88, 362–3, 370, 385–7, 397 working groups  110, 362–6, 372, 378–80, 385, 395 Mexico  24, 239 see also NAFTA (North American Free Trade Agreement) migrants definition  122 degrees, recognition of  123 equal treatment and non-discrimination  118 free movement of persons/ workers  122–3 geographical proximity  31–2 Inter-American Commission on Human Rights (IACommHR)  122 internally displaced persons  123 labour citizenship  119–22 policies  119–20 professional associations  123 regional citizenship  118, 122–3 South American Free Migration Area  394–5 stateless persons and refugees  122 UNASUR  394–6

Index 421 monitoring  26, 50, 74, 105–6 Montserrat  144–5 most favoured nation (MFN) treatment  355 multidimensionality of integration  19, 33 NAFTA (North American Free Trade Agreement)  12, 124–42 accountability  129 ADR  125, 135 amicus curiae briefs  134–5 arbitration  124, 129–35, 138, 140, 142 asymmetrical agreement, as  2, 125–8 Bilateral Investment Treaties (BITs)  131 Chapter  11 125, 127–33, 138 civil society  108, 136, 142 Commission for Environmental Cooperation (CEC)  127, 137–8 Council  127, 137 financial support  137–8 Joint Public Advisory Committee (JPAC)  127, 137 Secretariat  127, 137 Commission for Labour Cooperation (CLC)  138–9 Arbitral Panels  138–9 Council of Ministers  127, 138 National Administrative Offices (NAOs)  138–40 Secretariat  127, 138 trade unions  139 Coordinators  126 criticism  130–2 customary international law  141 developing nation, inclusion of  2, 125–8 dispute resolution  124–5, 127–40, 142 due process  128 economic development  124–5 economic integration  22, 141–2 environmental protection  127, 128–32 CITES  136 Commission for Environmental Cooperation (CEC)  127, 137–8 dispute resolution  136–8, 142 dumping  142 enforcement and compliance  136–7 Hazardous Waste Convention  136 maquiladoras  139 North American Agreement on Environmental Cooperation  128 Ozone Layer Convention  136 predictable commercial frameworks, ensuring  128 public health  132 side agreement  127–30, 135–8 equality and non-discrimination  128, 134, 141 equality before the law  135 exhaustion of domestic remedies  133

expropriation  127–8, 130–1 fair and equitable treatment  126, 131 fair hearings, right to  135 free movement of persons/workers  142 Free Trade Commission (FTC)  126 FTAA  125 globalization  130 historical context  15 human rights  9, 124–42 case law of arbitration tribunals  131–5 customary international law  141 international investment law  131–5 main achievements  130–1 migration  140–1 perspectives of NAFTA  141–2 public health  132 ICSID  128 inter-governmentalism  124–8 international investment model  129 investment arbitration model  124 Joint Public Advisory Committee  127 labour rights  128–30 arbitral panels  140 Commission for Labour Cooperation (CLC)  127, 138–9 free movement  142 maquiladoras  139 migration  135, 140–1, 142 North American Agreement on Labour Cooperation (NAALC)  127–9, 138–40, 142 side agreements  127–9, 135 transnational networks  139 legitimacy  129 legitimate expectations  133 liberalization  137 maquiladoras  139 migration  135, 140–1, 142 national treatment requirement  127–8 NGOs  129 North American Agreement on Environmental Cooperation (NAAEC)  127–30, 135–8 North American Agreement on Labour Cooperation (NAALC)  127–9, 138–40, 142 objectives  126–8 performance requirements  127–8 Preamble  128–9 public hearings  135 public interest  129–30 reciprocity  128, 142 regional citizenship  142 retroactivity  133–4 Secretariat  127 social agenda  125 social dimension  22 state sovereignty  124–5, 132, 140, 142

422  Index sustainable development  131 trade unions  139 transnational networks  139 transparency  129–31, 134–5 UNCITRAL Rules  128 Working Groups and Committees  126–7 nationality  400 neoliberalism  16, 22 new regionalism  1, 15 New Zealand, domestic violence model of  154 Nicaragua  246, 257 non-governmental organisations (NGOs)  17, 40, 108, 116 non-trade issue, human rights as  4, 20, 33–41 North American Free Trade Agreement see NAFTA (North American Free Trade Agreement) Noto, G  29, 174–5 open regionalism  19–21, 94 Organisation of American States (OAS)  5–6, 12 Charter  27, 52–3 democracy  51–3 inter-systemic relations in human rights  43–6 Managua Declaration  52 political dimension  34 Santiago Commitment  52 Washington Protocol  52 Pacific Alliance  12, 24 Pact of San José see American Convention on Human Rights (ACHR) Panama  257 Pan-American Health Organization (PAHO)  99 Paraguay Andean Community  59 Argentina  391 border controls  386 democracy  62–3, 329 free movement of persons/workers  386 impeachment of President  64 Mercosur  59, 62–4, 86, 386, 388–91, 394 impeachment of President  64 suspension  63 migrants  390–1, 394 primacy  86 trade unions  114 UNASUR  64, 329, 394 parliaments democracy  38 harmonisation of laws  38 inter-parliamentary relations  39

participation  17 see also civil society participation peace, zones of  23, 37–8, 332–3, 336 peacekeeping  37–8 Perotti, AD  80–1 Peru Andean Community  57 Argentina  390 Mercosur  390 migrants  390 Pacific Alliance  24 policies see common policies political dimension  20–1, 33–40 Andean Community  36 balancing trade and human rights  29 CARICOM  35–6 CELAC  23 civil and political rights  51, 69–70, 71–2, 399 cohesion  35 common policies  39–41 cooperation  25 courts, development of  34 deepening integration  41 delegation of sovereignty  41 democracy  33, 35, 37–40 economic integration  36, 97 harmonisation  39 heads of state  41 human rights  33–41, 39, 41, 399 identity, creation of a subregional  39 institutions  34, 38–9, 41 instruments, adoption of political  399 integration as a political project  19 non-trade issue, human rights as a  33–41 OAS  34 parliaments  38–9 peace, zones of  37–8 peacekeeping  37–8 policy agendas  39–40 regional citizenship  116–17 rule of law  33 security  37 social dimension  94, 97 social policies  39–40 South American Summit  35 stages  33–4 subregional parliamentary institutions  38–9 sub-state entities  34 UNASUR  395 political project, integration as a  19 Popular Library of Latin America and the Caribbean  30 poverty  23, 71–2, 96 Presidential summits  26 primacy principle  46–8, 76, 79–87, 400 primary law  3, 62, 83, 89

Index 423 principles governing human rights protection  46–87 autonomy principle  46–8, 76, 79–87 deep integration  46 democratic principle  46–8, 49–68 direct effect  76, 79–87 economic development  48, 68–70, 72–5 EU model  79, 82–4 features of subregional legal systems  75–7 judiciary, role of  84 legal standing of regulations issued by integration agreements  77–9 primacy principle  46–8, 79–87 primary law  83 secondary legislation  80 social development principle  46–8, 71–5 soft law  87 Privy Council Caribbean Court of Justice  166, 193–4, 199 EU  193–4 independent and impartial tribunals  166 professionals associations  112–13, 123 civil society  112–13 education and training  101 qualifications  123 proportionality  84 public international law see international law Puerto Rico  16 refugees  26, 122, 307 regional citizenship  2, 116–23 see also labour citizenship common legal status, creation of  400 development and consolidation  116–23 emergence  10, 118–19 EU  116–17, 400 free movement of persons/workers  13, 117–18 human rights  116 migrants  118, 122–3 nationality  400 political dimension  116–17 social dimension  116–23 social rights to be citizens  13 supranationalism  116–17 regional conflicts  12, 18, 54, 65–6 regional identities  2, 39, 61 regional integration agreements  87, 96–107, 109, 123 development, right to  70 dispute resolution  11 diversification of contents  95

historical overview  12–14 open regionalism  21 progressive inclusion of social issues  88–93 regional integration organisations  2–3, 5–6 regionalism  15, 19–21, 94 Rio Group  30, 34–5, 64 Rosenthal, G  15, 33, 98 rule of law autocracy, end of  12, 56 democracy  49, 56 human rights  33, 93 Inter-American Court of Human Rights  51 political dimension  33 restoration of rule of law  12, 17 secondary legislation  48, 80, 83, 86, 89 security  28, 37, 67–8, 72 SELA (Latin America and Caribbean Economic System)  8, 17, 272 self-determination  23, 65 Serbín, A  111 SICA (Central American Integration System)  202–58 ad extra protections  7, 214 ad intra protections  7, 214 advanced integration  6 Advisory Committee Social Integration (CCIS)  110 ALIDES  66, 73, 220, 230–4, 241–4, 255 American Convention on Human Rights  250 American Declaration of the Rights and Duties of Man  221–2 Antigua Declaration  66, 111, 209 arbitration  248 armed conflicts  206–7 arms control  67 autonomy principle  9 binding human rights instruments  2, 19 CA4 agreement  245 CARICOM  218 Central American Common Market (MCCA)  205 Central American Court for the Central American Peace Conference  248 Central American Court of Justice  45, 83, 85, 247–51 arbitration  248 Constitutional Court, as  248 Guatemala  251 human rights  248–51 jurisdiction  84, 248–51 Tegucigalpa Protocol  85, 242, 248–50 Central American Democratic Security Model  67

424  Index Central American Ecological Summit for Sustainable Development  230, 238 Central American Economic and Social Council  254 Central American Parliament (PARLACEN)  38–9, 218, 224–5 Andean Parliament, relations with  39 Constitutive Treaty  247, 251–2 democracy  252 elections  218, 247, 253 external powers  252 Guatemala Declaration  218 human rights  247, 251–3 Mercosur Parliament, relations with  39 Parliamentary Assembly of the Caribbean  39 Tegucigalpa Protocol  251 UNESCO  252 working committees  252 Central American Social Observatory  106 Charter of OAS  64–5 Charter of San Salvador  206 children, rights of  240, 241–2 education and training  242 migrants  246 street children  241 citizenship  99, 118–19, 244–7 civil and political rights  239 Civil Initiative for Central American Integration (ICIC)  108 civil society  107–8, 228, 246, 255, 258 CC-SICA  40, 225, 253–4 democracy  215–16 Greater Caribbean Civil Society Forum  111 Commission for the Defence of Human Rights in Central America (CODEHUCA)  255 common policies  102, 240 Consultative Committee of the Central American Integration System (CC-SICA) civil society  40, 225, 253–4 human rights  247, 253–6, 258 Tegucigalpa Protocol  253 Consultative Council  40 cooperation  111, 238, 247, 256 core of the integration, as  19–20 Council of Social Integration, framework agreement with  256 court, establishment of  45, 83–4 cultural dimension  31 cultural heritage  238

democracy/democratisation  8, 64–7, 203, 209–15, 219, 226 ALIDES  66, 232–3 Central American Parliament (PARLACEN)  252 Central American Security Commission as early warning system  67 clauses  214 Democratic Security Framework Treaty  239 Framework Treaty on Democratic Security in Central America  66, 216–17, 220, 241 Guácimo Declaration  66 institutions  67, 213–14 interruptions to democracy  67 legitimacy  216 New Democratic Security Model  216 peace processes following conflicts  65 presidential statements  66 security  67 Social Integration Treaty  66 standard of living  66 threats  257 transitions  207–8 direct effect  9 dispute settlement  213 drug trafficking  241, 257 economic development  69, 207, 219, 239 economic integration General Treaty of Central American Economic Integration  205, 219 human rights  202–42, 245–57 institutions  247–56 main features of process  204–21 Secretariat for Central American Economic Integration (SIECA)  257 slow progress  257 economic, social and cultural rights  217–18, 227, 233–6, 239, 246 education and training  218, 223–4, 242 Central American Agreement on the Unification of Basic Education  221–2 migrants  246 vocational training  246 elections  208, 216, 234, 247, 253 environment  231–2, 235–9 equality and non-discrimination  213, 230, 234–6, 240, 242 Esquipulas II Accords  65, 207–8 Esquipulas III  224, 254 Esquipulas Declaration  65, 207, 251 ethnic minority groups  241 EU  2, 209, 253, 257–8 external relations  208–9, 214, 252, 256–7

Index 425 food and food security  240 Framework Treaty on Democratic Security in Central America  66, 216–17 free movement of persons/workers  120, 138, 245–6 General Secretariat (SG-SICA)  242, 253, 255–6 General Treaty of Central American Economic Integration  205, 219, 237–8 globalisation  11, 211 Guácimo Declaration  66, 111, 230 Guatemala Agenda  219 Guatemala Declaration  214, 218–19 Guatemala Protocol  85, 104, 223, 245, 257 harmonisation  231, 245, 249 Heads of Government, meetings of  207 human dignity  217 human rights  40, 202–58 Central American Court of Justice  248–51 Central American Parliament (PARLACEN)  247, 251–3 challenges for protection  256–8 Consultative Committee of the Central American Integration System (CC-SICA)  247, 253–6, 258 economic integration  202–41, 245–56 enforcement and compliance  242 gradual adoption of legal instruments  221–2 hierarchy of legal instruments  242–4 other instruments adopted  234–8 primacy  242 priority issues  257 regional policy, adoption of a  238–42 social dimension  45–6, 223–42 Social Integration Treaty  26, 32, 66, 73–4, 102, 103–4 validity  242 identity  244 ILO conventions  240, 254 indigenous groups  108, 240 institutions  8, 203, 205, 210–16, 225–8, 242 economic integration  247–56 human rights  247–56 labour rights  237 reform  212, 221, 224, 256 social dimension  237 Inter-American Court of Human Rights (IACtHR)  249 inter-governmentalism  257 labour rights  104, 237 decent and fair remuneration  104 free movement of persons/ workers  120, 238 ILO conventions  240, 254

migrants  118, 222, 239, 244–6 observatory  106 social rights  239–40 women, disabled and older workers  254 legal systems  80 life, right to  232 Managua Agenda  111 Managua Declaration  218, 230 migrants Central American Commission of Migration Directors (OCAM)  246 Costa Rica and Nicaragua, bilateral relations between  246 education and training  246 International Organization for Migration (IOM)  246 migration information system  118 Regional Conference  239, 244–6 social security  222 NGOs  108, 254–5 Nicaragua Declaration  31, 256 objectives  64–5, 205, 243 ombudsman, creation of  253 Organization of Central American States (ODECA)  204–5, 208, 242 Panama Declaration  214, 236, 247 participation  74 peace  207, 209–13, 217, 223–6, 232, 252 political dimension  218–21, 224, 247, 252, 256 political parties  208 poverty  104, 217, 228, 239, 255 Presidents, Meetings of  240, 244, 256 primacy  9, 242 primary law  8, 9, 89 professions education and training  103–4 exercise of professions, legislation on  245 public safety as a fundamental right, protection of  241 Puntarenas Declaration  65, 211 regional policy, adoption of a  238–42 regulatory framework  8 rule of law  66–7, 218 San Salvador Declaration  111, 210–11 San Salvador Declaration II  223, 237 secondary legislation  80 security  216–17, 220, 239, 241, 257 self-determination  65 social development  73–4, 106, 229 social dimension  8, 26, 32, 45–6, 89, 220–45 social exclusion  230 Social Integration Treaty (SIT)  26, 32, 66, 73–4, 102, 103–4, 223, 225–30

426  Index social rights  239–40 social security  236–7, 239 free movement of persons/workers  246 Multilateral Agreement on Social Security  221–2 social spaces  213, 228 soft law  208, 211, 213, 222, 242 Special Meeting of Central American Presidents  206 standard of living  66 Strengthening of Peace and Security in Central America Declaration  223 Summits of Central American Presidents  207, 210, 218–21, 224, 236, 244–5 supranationalism  44, 85, 257 sustainable development  217–18, 225, 229–34, 252, 256 ALIDES  66, 73, 220, 230–4, 241–4, 255 Central American Ecological Summit for Sustainable Development  230, 238 system of recognition and protection of human rights  9–11, 19, 22, 25–7 Tegucigalpa Declaration  210–11 Tegucigalpa Protocol  64–5, 208, 213, 219–21, 226–7 ALIDES  242–4 Central American Court of Justice  85, 242, 248–50 Central American Parliament (PARLACEN)  251 human rights  8, 248 institutions  212 interpretation  248–9 legal status  242–4 New Democratic Security Model  216 primary law, as  80 relationship with other legal instruments  243 trade unions  254 Tuxtla Process  235, 244–5 uniform laws  249 Universal Declaration of Human Rights  221 visas  245 vulnerable persons  234, 240–1, 246 women’s rights  234, 236, 240, 246, 254, 257 slavery  120 social agendas  98–100 social development principle  46–8, 71–5 citizenship  119 civil and political rights  71–2 culture  71 economic development  72 economic integration  54, 75, 96

economic, social and cultural rights  71–2 education and training  71 EU  100 Guayaquil Consensus on Integration, Security and Infrastructure for Development  72 human rights  46–8, 71–5 institutions  100 Inter-American Democratic Charter  71–2 labour rights  71, 119 poverty  71–2 social inequality  71–2 Vienna Declaration  71 social dimension  4, 8–9, 87–123 see also economic, social and cultural rights ALBA  22 Andean Community  89–90 charters, adoption of  98 citizenship  88, 94, 99, 122 civil society  41, 88, 90, 97, 99, 107–16 clauses in instruments  1, 17, 87–8 common social policies, adoption of  97–107 components of the social agenda  96–7 cooperation  93–5, 99 culture  18, 88, 90, 94 deepening integration  94 democracy/democratisation  20, 89, 93–4, 97–8, 100 ECLAC  8 economic and social cohesion  101 economic integration  13, 16–20, 34, 88–93, 98–107, 122–3, 399 common social policies, adoption of  97–107 components of the social agenda  96–7 cooperation  94–5 human rights, protection of  93–7 mechanisms of protection  95–6 open regionalism  94 progressive inclusion of social issues  88–93 economic, social and cultural rights  18 education and training  18, 88, 90, 95 environment  18, 95–6 equality and non-discrimination  18, 93, 101–2 EU  94 free movement of persons/workers  89, 91, 97–9, 101 free trade and human rights  25, 87–123 globalisation  91, 94–5 gradual progress  99 health  18, 88, 90, 95, 99 human rights  25, 87–123, 399 common social policies, adoption of  97–107 components of the social agenda  96–7

Index 427 free trade  87–123 rule of law  93 ILO  91–2 institutions  100 integration  16, 18 intra-regional cooperation  93 labour rights  18, 88, 91, 99, 101–2 legitimacy  88, 97 living conditions  97–8 Mercosur  89 political dimension  39–40, 94, 97 poverty  96 primary law  89 progressive inclusion of social issues  88–93 regional citizenship  116–23 secondary law  89 SELA  8, 17 social agendas  98–100 social dialogue  107–16 social exclusion  96, 100 social policies  88, 97–107 social spaces, creation of  90, 93–4, 114, 118, 121–2 social vulnerability  98–9 societal processes  99 supranationalism  94 unemployment  96 working conditions  87 social dialogue  107–16 social exclusion  96, 100 social security civil society  113 common policies  101 economic integration  20, 99 equality and non-discrimination  71 poverty  71 social spaces, creation of  90, 93–4, 114, 118, 121–2 soft law  26, 87 South American Community of Nations, establishment of  22–3 South American Free Trade Area (ALCSA)  22 Southern Common Market see Mercosur (Southern Common Market) state sovereignty  23, 41, 77 stateless persons  122 subregional integration see also Andean Community of Nations; CARICOM (Caribbean Community); economic integration; MERCOSUR (Southern Common Market); SICA (Central American Integration System); Union of South American Nations (USAN/ UNASUR) binding standards  1 bottom-up integration  17, 109

CELAC  12, 23–4 community law, absence of  3 consolidation  6 cultural objectives  8–9 deeper integration  14, 16–17, 33, 41, 46, 55 democracy  13, 46–8, 49–68 differences between processes  26 dispute settlement bodies  400 economic integration agreements  88–107 economic objectives  2–3, 20 enforcement and compliance  1, 401 EU model  6, 13, 401 expulsion from processes  49, 56, 189 FTAA  19, 21–2, 47 globalisation  15 Guayaquil Consensus on Integration, Security and Infrastructure for Development  72 historical overview  13–21 human rights systems development of  4–7, 21 expansive effect  13–14 incorporation model  43 independence, processes of  16 institutions  15 international organisations, establishment of  7 legal standing of regulations issued by integration agreements  77–9 leverage model  43 multidimensionality of integration  19, 33 new processes, emergence of  400–1 non-trade issues  4, 20 objectives  19–20 political dimensions  34, 400 progressive integration, principle of  20–1 proliferation of processes  1–2 revitalisation of integration  17 shallow integration  16 social dimension  4, 8–9, 16, 18 supranationalism  5 suspension of states  49, 62–4 top-up processes  17 UN Economic Commission for Latin America and the Caribbean (ECLAC)  8, 293 subsidiarity  83 supranationalism autonomy  77, 400 direct applicability  3 direct effect  400 EU  5, 44, 94, 116–17 legal standing of regulations  77–8 legal transplants  5 primacy principle  79, 400 regional citizenship  116–17

428  Index regional integration organisations  3 social dimension  90, 94 UNASUR  44 Suriname CARICOM  146–7 democratic elections  269 Inter-American Commission on Human Rights  146–7 Inter-American Court of Human Rights, compulsory jurisdiction of  146–7 suspension of states  49, 62–4 sustainable development  23, 61, 66, 73, 112–13 Tempesta, G  352 Tirado Mejia, A  28, 361, 379 trade see balancing trade and human rights; free trade and protection of human rights trade unions citizenship  117 European Trade Union Confederation (ETUC)  277 participation  109 Trade Unions of the Southern Cone (CCSCS)  114 training see education and training transnationalism  1, 107–8 treaties and conventions  76, 400 Trinidad and Tobago, death penalty in  153, 193 UN Economic Commission for Latin America and the Caribbean (ECLAC)  8, 293 UNASUR see Union of South American Nations (USAN/UNASUR) Union of South American Nations (USAN/ UNASUR)  12, 393–5 Andean Community  24–5 Argentina  394 Bank of the South, creation of  394 citizenship  118, 393–4 committees  393–4 Council of Delegates  393 Council of Foreign Affairs Ministers  393 Council of Heads of State  393 democracy  63–4 Electoral Council  394 free movement of goods  394 free movement of persons/workers  120 health  394 human rights  25, 394–5 institutions  24–5 inter-governmental cooperation  24–5 MERCOSUR  24–5, 26–7, 329, 359, 393–5 migrants  394–6 objectives  25

parliament, proposal for a  395 political cooperation  25 political participation  395 President, term of office of  25 South American Community of Nations, establishment of  22–3 South American Defence Council  393–4 South American Free Migration Area  394–5 South American Summit  35 supranationalism  44 visas  394–5 United Nations (UN) Convention on the Rights of the Child  342, 358 development, right to economic development  70 General Assembly Declaration  309 UN Human Rights Council  309 Economic Commission for Latin America and the Caribbean (ECLAC) Human Rights Council (UN)  309 United States see also NAFTA (North American Free Trade Agreement) bilateral agreements  22 CAFTA-DR  22 Grenada, military intervention in  146 Universal Declaration of Human Rights (UDHR)  18, 307 university degrees, mutual recognition of  123 Uruguay Argentina  354–7, 390 Bank of the South, creation of  394 free movement of persons/workers  386 Mercosur  86, 353–7, 379, 386, 388, 390–1 primacy  86 Sectoral Commission for MERCOSUR (COMISEC)  379 UNASUR  394 USAN see Union of South American Nations (USAN/UNASUR) Venezuela ALBA  23 Andean Community  23, 57, 262 Bank of the South, creation of  394 Colombia  64 democracy  63 Mercosur  23, 63, 329, 348, 388, 391 presidential elections, monitoring  394 UNASUR  23, 64, 322, 394 vulnerable persons  20, 98, 100, 115 Washington Consensus  4 Weiler, JHH  83 welfare benefits see social security

Index 429 women’s rights  110, 114–15 workers’ rights see labour rights working conditions  87–8 World Bank  128 World Commission on the Social Dimension of Globalisation, report of  18

World Conference on Human Rights (WCHR)  70, 315, 346 World Health Organization (WHO)  99 World Trade Organization (WTO)  355 zones of peace  23, 37–8, 332–3, 336

430