By: Professor David P. Stewart, Visiting Professor of Transnational and International Law, Georgetown University Law Center and Counselor in International Law at the International Judicial Academy

The increasingly important role of the Organization of American States in the development, harmonization and codification of international law is often overlooked.  The main locus of these efforts is the Inter-American Juridical Committee, one of the principal organs of the Organization.  The Committee is headquartered in Rio de Janeiro but often holds its meetings elsewhere by invitation of Member States.  The Committee consists of eleven members nominated by OAS member states, elected by the General Assembly, and broadly representative of the legal systems, traditions and interests of all Member States in the hemisphere. 

The Committee functions as the Organization’s main advisory body on international legal  matters, with a special mandate to promote the progressive development and codification of international law, to study the  legal problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation. Its work is supported by a small but remarkably able secretariat in Rio as well as by the Department of International Law at OAS Headquarters in Washington.

The Committee’s antecedents extend as far back as the beginning of the last century, to the International Board of Jurists established in 1906.  The Committee itself has been an integral part of the OAS since the OAS Charter was adopted in 1948.  Article 100 of the Charter expressly gives it two separate but closely related functions.  On the one hand, it may be tasked directly by the OAS General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, or the Councils of the Organization to work on specific “studies and preparatory work.”  On the other hand, the Committee may, on its own initiative, undertake “such studies and preparatory work as it considers advisable” and to “suggest the holding of specialized judicial conferences.” 

While older and smaller than the International Law Commission, the Committee thus bears some clear similarities to its UN cousin, in that both work towards the progressive development and codification of international law.  The ILC’s focus, however, is on public international law, while the Committee also devotes significant attention to private international law topics.  In addition, the Committee’s consultative responsibilities have often drawn it into a more operational role with regard to on-going negotiations and developments within the hemisphere.

The following brief survey of matters currently on the Committee’s agenda, while not all-inclusive, indicates the breadth and diversity of the substantive topics it has under consideration.  

Promoting and Strengthening Democracy.  For several years, the Committee has been working on issues related to the application and implementation of the Inter-American Democratic Charter adopted in Lima on September 11, 2001.  Few efforts could be more important, from a hemispheric perspective, than supporting OAS member states in their efforts to modernize and strengthen democratic institutions and to promote democratic values and practices.  As Art. 1(1) of the Democratic Charter affirms, “[t]he peoples of the Americas have a right to democracy and their government have an obligation to promote and defend it.”  In August 2009, the Committee adopted a resolution on the essential and fundamental elements of representative democracy and their relationship to collective actions within the framework of the Democratic Charter (CJI/Doc.332/09 rev. 1).  At the direction of the OAS General Assembly at its 39th Regular Session in San Pedro Sula (June 2010), this work will continue, and in addition the Committee has been asked to undertake a study of the “the mechanisms of participatory democracy and citizen participation contained in the legislation of some countries in the region.”  

Access to Justice.  Article 2 of the Democratic Charter provides that “[t]he effective exercise of representative democracy is the basis for the rule of law ….”  Since 2005, the Committee has been considering obstacles to, and the need to adopt innovative forms of, access to justice in the Americas. Initially focused on questions of the qualifications, ethics and independence of judges, this effort has more recently an examination of alternative to formal mechanisms of judicial adjudication (such as complementary dispute settlement procedures) as a means of ensuring and promoting the rule of law. 

Racial Discrimination and Intolerance.  Equality of treatment and non-discrimination are core human rights principles in the Americas.  The Committee has assisted in the drafting of an Inter-American Convention against Racism and All Forms of Discrimination and Intolerance, submitting a series of detailed reports on relevant legal instruments, issues and developments as well as specific proposed revisions to the draft which continues to be elaborated under the auspices of the OAS Permanent Council and its Committee on Juridical and Political Affairs.    –

Freedom of Thought and Expression.  In 2009, the General Assembly requested the Committee to conduct a study on “the importance of guaranteeing the right of freedom of thought and expression of citizens, in light of the fact that free and independent media carry out their activities guided by ethical standards, which in no case can be imposed by the state, consistent with applicable principles of international law.”  In addressing this new mandate, the Committee will work closely with the Secretariat for Legal Affairs, which had previously been asked to prepare a model law on the subject.

Access to Information.  Transparency in government activities and processes is essential to effective democratic governance.  The Committee has worked closely with the OAS Department of International Law in the efforts of a working group of the Committee on Juridical and Political Affairs to elaborate a Model Inter-American Law on Access to Information (see CP/CAJP-2840/10 Corr.1 of April 29, 2010).

Private International Law.  Since the adoption of the 1927 Bustamante Code by the Committee’s predecessor, private international law has been a central feature of hemispheric efforts to modernize and codify international legal principles.  Over the years, the Committee has organized a series of specialized international conferences in this area (known by their Spanish acronyms as CIDIPs), beginning with CIDIP I in 1975 at which six multilateral conventions were approved, covering such topics as conflicts of laws, international commercial arbitration, letters rogatory and the taking of evidence abroad.  In 2002, CIDIP VI adopted a Model Inter-American Law on Secured Transactions, which will significantly contribute to infrastructure development.  Last year, in the current and still on-going CIDIP VII, Member States approved model registry regulations (with accompanying commentary) to give effect to that Model Law.  Work continues on the formulation of instruments promoting effective methods of cross-border consumer redress mechanisms, for example through agreed principles of choice of law, jurisdiction, and electronic dispute resolution trechniques. 

International Humanitarian Law.  Another recent tasking by the General Assembly instructed the Committee to prepare model laws to implement the obligations of Member States under international humanitarian law.  The Committee has given significant attention to this project in conjunction with the International Committee of the Red Cross and other experts in the field, most recently addressing the scope and definition of war crimes. 

International Criminal Court.   The Committee was initially tasked by the General Assembly in 2005 to investigate and report on how the domestic laws of those Member States which are parties to the Rome Statute in fact permit cooperation with the International Criminal Court.  More recently, the General Assembly requested the Committee to promote the adoption of national legislation on the subject, based in part on the OAS Guide to Principles Pertaining to Cooperation with that Court. 

Cultural Diversity.  Among the topics which the Committee has itself decided to consider is the protection and promotion of cultural diversity in domestic and international law, including through national constitutions as well as multilateral instruments such as international human rights treaties and UNESCO Conventions.  The General Assembly has asked the Committee to report on its progress in studying this topic.

Migrants.  Beginning with the adoption of several reports in 2007 on the legal status of migrant workers and their families, the Committee has continued to consider questions related to the human rights of migrants, adopting in 2008 an important opinion criticizing the European Union’s Directive on the Return of Illegal Migrants (Directive 2008/115/EC).  Ensuring the non-discriminatory treatment of all migrants, legal or otherwise, remains a matter of continuing concern for the Committee, and in this connection the Committee continues it consultations with other organizations including for example the Office of the UN High Commissioner for Refugees.

Refugees and Asylum Seekers.  In a separate but related effort, the Committee continues to study legal issues arising from the treatment of refugees and asylum seekers in the Americas.  As a matter of international law, questions regarding the former are of course primarily governed by the 1951 Geneva Convention on the Status of Refugees and Stateless Persons (and its 1967 Protocol) while the latter subject is governed within the hemisphere by several more specialized  conventions (Havana 1928, Uruguay 1933 and Caracas 1954).   

Peace, Security and Cooperation.  Most recently, in 2010, the General Assembly asked for the Committee’s views on the modernization of collective security mechanisms in the hemisphere, in particular through a comparative analysis of the principal legal instruments of the Inter-American system related to peace security and cooperation.  Work on this project has begun.

This is a broad and challenging agenda, especially in light of the diversity of legal systems (common law and civil law), histories and constitutional orientations among the various Member States.  The Committee provides an essential forum in which different perspectives and approaches can be explored at a high level of sophistication and in the common interest of all countries.  Over the years, the United States has provided strong support for the Committee, especially through the distinguished service of two U.S. members as chairs:  Seymour Rubin (1990) and Keith Highet (1998-2000).

 

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