12 - 16 May 2014Latin America and the Caribbeanregion’s experience in respectof the UPR process

GLOBAL CAMPUSOF HUMAN RIGHTSRESEARCH PROGRAMME2013-2014

Veronica Gomez

The Universal Periodic ReviewFrom reccomendations to implementation

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5. Latin America and the Caribbean region’s experience in respect of the UPR process

5.1 INTRODUCTION

The Latin American and the Caribbean regions span 46 States and territories1 with a combined

population of approximately 588 million inhabitants and a consolidated GDP amounting to $5,655

trillion dollars.2 Although more than 73 million people were lifted out of poverty and 50 million

joined the ranks of the middle class over the past decade, inequality indicators have come down only

slightly, and the region is still amongst the most unequal in the world with consequences for the

enjoyment of social and economic rights.

Although Latin America in particular has remained free from nuclear weapons and major ethnic and

religious conflicts, during the second half of the 20th Century an important number of states

experienced periods of political violence, military governments, and serious human rights violations.

As these states transitioned back to democracy during the 1980’s and 1990’s, they ratified the main

regional and universal human rights treaties.

In the last decade the states of the so-called GRULAC – Group of Latin America and the Caribbean3

— have played a role in the shaping of the Human Rights Council and strengthening of the standards

and mechanisms for the international protection of human rights. Currently, GRULAC members

Argentina, Brazil, Chile, Costa Rica, Cuba, Mexico, Peru, and Venezuela occupy eight of the 47 seats

in the Human Rights Council.

According to UPR Info, the 33 members of GRULAC received a combined 4,827 recommendations

out of a total of 30,256 made during the first 16 sessions of the UPR. In other words, approximately

15% of the recommendations made between 2008 and 2013 were addressed to this group of states.

Seven states – Argentina, Chile, Colombia, Costa Rica, Ecuador, Haiti and Uruguay — have

voluntarily submitted mid-term reports on the status of implementation of recommendations received.

GRULAC include states with a wide range of geographic, ethnic, historic, political, legal and

financial profiles, includes upper middle-income economies as well as low-income economies. It

includes states that have gone through or are still emerging from high intensity internal armed

conflicts as well as others that have been at peace for many decades and in some cases have even

chosen not to have armed forces. Some have developed stable political systems and others still

struggle to live up to the rules of democratic governance.

The countries selected for the current study on compliance with recommendations include Argentina,

Honduras and Haiti. They were selected to represent the sub-regions within the Americas (Southern

Cone, Central America and the Caribbean) as well as a variety of social, economic, political, and

institutional contexts. In each case, compliance with a small number of recommendations made

during the first and – when available — the second cycle were considered in the light of the

information available through the following sources: national reports submitted to the Human Rights

1 The information provided by the United Nations Population Division on the region covers 46 countries and territories

of Latin America and the Caribbean, which make up the sub regions of Central America, South America and the

Caribbean. ECLAC Statistical Yearbook for Latin America and the Caribbean 2012, page 132, available at

http://www.eclac.cl/publicaciones/xml/4/48864/AnuarioEstadistico2012_ing.pdf. 2 Data gathered in 2012 by the World Bank, available at http://data.worldbank.org/region/LAC. 3 The members of GRULAC are Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Uruguay, and Venezuela.

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Council; UPR Info data base reports; treaty body and special procedure reports both from the UN and

the Inter-American System; information made public by state agencies; shadow reports from national,

regional and international NGOs; and contacts with key players.

5.2 ARGENTINA

Argentina has a population of over 40 million inhabitants4 in a surface area of 3,761,277 km2. With

a US$ 611.8 billion GDP and a GNI per capita of US$ 5,090, the World Bank considers Argentina

an upper middle-income country.5 The 2010 census recorded a 2.4% (955,032 inhabitants) of self-

acknowledged indigenous population including members of the Mapuche, Toba, Guarani, Diaguita,

Kolla, Quechua and Wichi peoples. The census also recorded a 0.4% of self-acknowledged afro-

descendant population (149,493 inhabitants).

Argentina is a federal state. Each one of its 23 provinces has its own constitution and branches of

government (executive, legislative and judicial). The Autonomous City of Buenos Aires is the seat

of the executive, legislative and judicial branches of the national government. The Executive of the

national government is in charge of foreign affairs, including the ratification of international treaties

approved by the National Congress. A constitutional amendment adopted in 1994 established that

human rights treaties, in particular, are considered to be part of the National Constitution and have

similar constitutional rank vis-à-vis other legislation.

As from the Coup d’état of 1976 and until the return to democracy in 1983, Argentina was ruled by

a military government that perpetrated forced disappearances, torture, illegal detentions, and

restrictions to freedom of expression, assembly and political rights, among other serious human rights

violations. In many cases, the remains of the more than ten thousand victims of forced disappearance

have not yet been found or identified. An estimated four hundred babies – now adults in their late

thirties — that were separated from their mothers at the moment of detention and their identities

concealed, are yet to be identified. With the return to democracy in the early 80s, successive civilian

governments contributed to establishing the truth about what happened, and providing reparations for

the victims. During the last decade, local criminal courts have moved forward with the prosecution

of state officials responsible for the commission of human rights violations during the dictatorship.

Despite the progress achieved in the area of transitional justice, Argentina still faces many challenges

to overcome weaknesses in the administration of justice; to improve the prison system; to prevent and

prosecute gender violence; to ensure the enjoyment of social, economic and cultural rights; to address

the situation of indigenous peoples; and to ensure the enforcement of human rights in the provincial

jurisdictions, among others.

5.2.1 Introduction

Argentina had its first review on 16 April 2008. It was among the first states to be examined at the

UPR. The troika of rapporteurs for the UPR Working Group included Ukraine, Cuba and Cameroon.

Argentina received 21 recommendations. The recommendations were accepted in their entirety and

the state made five additional pledges.

On 23 September 2010, during the 15th session of the Human Rights Council, Argentina submitted

its mid-term review report on measures taken to follow up on compliance with the recommendations.6

The second review was held on 22 October 2012. The troika of rapporteurs to facilitate the review

included Austria, the Philippines and Uruguay. Argentina received 119 recommendations: 89 were

accepted; 17 were noted; nine were rejected and four were considered to have been complied with

already. The state submitted additional explanations in an addendum. Recommendations addressing

4 INDEC National Census 2010. Available at http://www.censo2010.indec.gov.ar. 5 World Bank Data by Country. Argentina. Available at http://data.worldbank.org/country/argentina 6 Text in Spanish available at http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/AR/Argentina-Interim-report-

sp.pdf

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issues relating to memory, truth and justice; domestic violence; gender; sexual and reproductive

rights; eradication of poverty; or migration, were generally accepted. The state made a point of

remarking on the recommendations acknowledging the status of the implementation of public policies

in a number of areas.7

In both cycles the recommendations received referred to the following areas: all forms of

discrimination; human trafficking; gender violence; victim, witness and human rights defender

protection in the context of human rights related trials; speedy human rights trials; OPCAT national

mechanism implementation and the prosecution of torture cases; prison conditions; administration of

justice in accordance with international standards on the protection of the rights of the child;

realization of the rights of indigenous peoples; treaty ratification; inclusion of the UPR outcome in

the National Human Rights Plan.

5.2.2 Government departments and other persons responsible for the UPR

The Government departments responsible for reporting on compliance with UPR recommendations

are the same as those engaged in reporting before regional and universal human rights treaty bodies.

The Directorate General for Human Rights (DIGHU) of the Ministry of Foreign Affairs of Argentina

is responsible for the coordination and submission of national and mid-term review reports to the

Human Rights Council on the UPR.

The state has indicated that the reports are the result of a consultation process coordinated by DIGHU,

with input from all relevant government agencies with a role in follow up on compliance with

international treaties and standards, including the executive branch, the judicial branch, the legislative

branch, provincial governments (through the Federal Human Rights Council), independent entities,

consultative councils, and the Ombudsman´s Office. The state describes these consultations as a

process involving the direct participation of civil servants from each agency as focal points. A few

months in advance, a timetable for joint meetings is agreed upon as well as the objectives, guidelines

and the sources of information to be consulted. During the meetings the focal points from the agencies

involved report on the measures adopted and provide relevant data. The information is collected by

DIGHU in order to draft the corresponding report.8

The UPR national and mid-term reports submitted so far to the Human Rights Council include the

direct input of specialized agencies with federal competence in thematic areas (administration of

justice, penitentiary system, equality and non-discrimination, children, prevention of gender violence,

etc.). However, participation of provincial governments and agencies in the preparation of the

national reports and in the follow up on compliance with recommendations from both cycles, appear

to have been indirect at best.

The draft report is shared with representatives from the main human rights NGOs for their

observations. Local human rights organizations also submit their own reports to the Human Rights

Council on issues of special interest.9

In its first review, held on 16 April 2008, the delegation of Argentina was headed by the then Human

Rights Secretary of the Ministry of Justice, Security and Human Rights, Mr Eduardo Luis Duhalde.

It also included eleven officials from the Ministry of Justice and the Ministry of Foreign Affairs.

7 Intervention of the Permanent Representative of Argentina, Ambassador D’Alloto, on occasion of the adoption of the

Second UPR Report on Argentina. Available at http://eoirs.mrecic.gob.ar/en/node/10469. 8 See Common Core Document, presented with all reports of the Argentine Republic, as submitted to the Office of the High Commissioner for Human Rights on 27 May 2014, available at http://tbinternet.ohchr.org/Treaties/All-Treaties/Shared%20Documents/ARG/HRI_CORE_ARG_2014_7432_S.doc 9 See, for instance, CELS Examen Periódico Universal – 2do ciclo aporte al examen de argentina Centro de Estudios

Legales y Sociales - CELS 10 de abril de 2012 available at http://www.cels.org.ar/common/documentos/EPU-CELS.pdf

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In its second review, held in 2012, the delegation of Argentina was headed once again by the Secretary

of Human Rights of the Ministry of Justice and Human Rights, with Mr Martin Fresneda then in

charge. On that occasion the delegation also included authorities from specialized agencies such as

the National Director of Management and Institutional Development of the Secretariat for Children,

Adolescents and Families of the Ministry of Social Development; the Director of the Federal

Penitentiary Service; the President of the National Institute of Indigenous Affairs; apart from the

Ambassador in Geneva and other representatives from the Ministry of Foreign Affairs.

5.2.3 Implementation of recommendations

Recommendations relating to the ratification of human rights treaties

Argentina has already ratified all core UN human rights treaties.

In the May 2008 review, Nigeria recommended the ratification of the Second Optional Protocol to

the ICCPR aiming at the abolition of the death penalty. In response, in September 2008 Argentina

ratified this instrument10 as well as the Protocol to the American Convention on Human Rights to

Abolish the Death Penalty.11 It is relevant to note that Argentine legislation does not (nor did at the

time) contemplate capital punishment as a penalty and that the prohibition to introduce it in the future

was already covered by Article 4.3 of the American Convention on Human Rights.

In the same review Nigeria also recommended the ratification of the Convention on the Rights of

Persons with Disabilities. Argentina had already signed it on 30 March 2007, precisely the day in

which this Treaty was opened for signature. On 2 September 2008 Argentina ratified this treaty in

compliance with the recommendation.12

In the 2012 review, Portugal recommended the ratification of the Third Optional Protocol to the

Convention on the Rights of the Child on communications procedures. This treaty had been adopted

and opened for signature only a few months prior to the review, on 28 February 2012.13 Argentina

had signed the protocol prior to the review, on 25 July 2012 and the ratification is still pending

legislative authorization.

Also in 2012, Hungary, Portugal, Iraq and Uruguay recommended the ratification of the following

instruments, not traditionally considered as core human rights treaties: the 1961 Convention on the

Reduction of Statelessness; the OMS Framework Convention on Tobacco Control; and the ILO

Convention189. Argentina ratified the ILO Convention 189 on Domestic Workers on 24 March

2014.14

Recommendations relating to legislative measures

Although during the second cycle Argentina received exponentially more recommendations (119)

than in the first cycle (21), the legislative measures proposed in the recommendations were focused

on many of the same thematic lines: torture prevention, prevention of gender violence, juvenile

justice, etc.

10 Instrument of ratification deposited on 2 September 2008. Second Optional Protocol to the ICCPR aiming at the

abolition of the death https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-

12&chapter=4&lang=en 11 Instrument of ratification deposited on 5 September 2008. Protocol to the American Convention on Human Rights to

Abolish the Death Penalty. Available at http://www.oas.org/juridico/english/sigs/a-53.html 12 Convention on the Rights of Persons with Disabilities, ratifications available at

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=iv-15&chapter=4&lang=en 13 Third Optional Protocol to the Convention on the Rights of the Child on communications procedure

https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-11-d&chapter=4&lang=en 14 http://www.ilo.org/global/standards/information-resources-and-publications/news/WCMS_239518/lang--

en/index.htm

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In its first cycle review in 2008, Argentina received one recommendation –made by the Netherlands—

relating to the implementation of the Optional Protocol to the Convention Against Torture through

the establishment of a national mechanism. The Mid Term Review Report, presented in 2010,

explains that given the federal structure of the Argentine state, the National Torture Prevention

Mechanism had to be established by an act of Congress. The report indicated that by August 2010

the congressional commissions on human rights, legislation and budged had studied the

corresponding bill with a view to submitting it to the Houses of Congress for a preliminary vote. It

remarked that the bill already reflected the consensus of legislators regarding the nature of the

mechanism, the role of the legislative power, its articulation with the authorities in the provinces, and

its inclusion in the national budget.

In the second cycle, five recommendations (numbers 12 to 15) made by Brazil, Honduras, Tunisia,

the United Kingdom and the United States,15 called for the adoption of legislation to implement a

national mechanism for torture prevention, as provided for in the Optional Protocol to the Convention

against Torture. This recommendation had already been made during the first cycle and Argentina

referred to a number of measures tending to its implementation, in its mid-term review report.

On 29 November 2012 the Argentine Congress passed Act No. 26827 on the National Mechanism

for the Prevention of Torture, which entered into force on 7 January 2013.16 This law creates a

National Committee for the Prevention of Torture composed of 13 members including six

parliamentarians, the National Ombudsman for Prisons, two representatives of the Federal Council

for the Prevention of Torture, three representatives from NGOs working in the area of persons

deprived of their liberty, and one representative from the Ministry of Justice (Article 11). The

Committee has the power to visit and inspect any detention centre in the country; gather all relevant

information; create and coordinate a national registry of torture cases and related judicial actions;

draft and promote guidelines for local authorities; and liaise with a Federal Council on Torture

Prevention (Article 7). The corresponding implementing legislation, the Executive Decree 465/2014,

was adopted on 9 April 2014.17

Recommendations relating to public policies

One of the main themes in both of Argentina’s reviews is the situation of persons deprived of their

liberty and prison condition. Although the second review includes eleven recommendations oriented

towards the improvement of prison conditions (recommendations No. 35 to 45), they tend to reference

international standards with a general language and fail to articulate specific public policy

recommendations.

In its 2010 mid-term review report, the state failed to provide clear information on the articulation of

much needed public policies in the area of the situation of persons deprived of their liberty. In its

2012 shadow report leading to the second review, a leading local human rights non-governmental

organization stated that most detainees in Argentina still suffered conditions of detention involving

the violation of fundamental rights due to violence and overcrowding. The report states that any

reduction in the number of individuals in police custody is at the expense of an overload of detention

centres in the Province of Buenos Aires that –for years— has shown alarming rates of overcrowding

(up to 50%) and structural deficiencies. Many of these units lack adequate sanitation and medical

facilities as well as adequate food. The units in the Federal Penitentiary Service also show structural

15 The United States have not ratified the Optional Protocol to the UN Convention against Torture.

https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-9-b&chapter=4&lang=en 16 Act No. 26827 Mecanismo Nacional de Prevención de la Tortura y otros Tratos o Penas Crueles, Inhumanos y

Degradantes. Adopted by Congress on 29 November 2012 and sanctioned by the Executive Power on 7 January 2013.

Text available at http://www.infoleg.gob.ar/infolegInternet/anexos/205000-209999/207202/norma.htm 17 Executive Decree 465/2014 for the implementation of Act No. 26827, adopted on 9 April 2014. Text available at

http://www.legis.com.ar/BancoConocimiento/N/noticia_09042014_derechos_humanos_prevencion_de_la_tortura/notici

a_09042014_derechos_humanos_prevencion_de_la_tortura.asp?Miga=1&CodSeccion=25

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deficiencies in the housing infrastructure, as well as inadequacies in the access to food and medical

care.18

These concerns were shared by the Inter-American Rapporteur on the Rights of Persons Deprived of

Liberty who –after an on-site visit— urged Argentina to design and implement a policy in line with

international standards and address the serious situation faced by the individuals deprived of liberty.19

5.2.4 Civil society

During the last three decades, Argentina has developed a wealth of civil society organizations devoted

to the promotion, advocacy and litigation in the area of human rights at the local and national level.

Some of these organizations have are recognised for their expertise in the area of international

protection of human rights, both at regional and universal level, and have long achieved consultative

status with ECOSOC.

Some of them –CELS20 for instance— have developed detailed international work programmes partly

focussed on the Human Rights Council calendar. Also, due to the long distances, time constraints and

logistical costs involved in appearing in Geneva, many Argentine human rights NGOs partake in

regional networks with a coordinated agenda in order to increase the efficiency, effectiveness and

impact of their reports and interventions.

In the case of Argentina’s UPR, the outcome of the review very much reflects the main concerns of

the local human rights organizations. These organizations –having worked for a long time with the

tools available through international litigation in the Inter-American system, and through interaction

with the UN Special Procedures— tend to have lower expectations in the results achievable through

a peer review system. Consequently, modest results tend to be viewed positively.

5.2.5 Conclusions

Thanks to three decades of consistent support for the underpinnings of international protection of

human rights (legal instruments, institutions and mandates) Argentina seems to have developed a

healthy procedure for interaction with the UN Human Rights Council through its national institutions

and civil society organisations. It has also managed to move forward in areas relating to past serious

human rights violations. However, after its second review and despite the reiteration of

recommendations, it seems to face the same challenges still, in terms of designing and enforcing

public policies to address the situation of persons deprived of their liberty, gender violence, and

indigenous peoples.

5.3 HAITI

Haiti is located in the 27,750 km2 Eastern portion of the island of Hispaniola of the Greater Antillean

Archipelago in the Caribbean. It has a population of approximately 10 million inhabitants and a US$

8.459 billion GDP with a GINI per capita of US$ 810. The World Bank considers Haiti a low-income

country.21

Haiti is frequently affected by natural disasters, including hurricanes, cyclones, tropical storms and

earthquakes, with dramatic humanitarian consequences. Some of the worst episodes in recent history 18 CELS, Centro de Estudios Legales y Sociales. See for instance EXAMEN PERIÓDICO UNIVERSAL – 2o CICLO

APORTE AL EXAMEN DE ARGENTINA CENTRO DE ESTUDIOS LEGALES Y SOCIALES - CELS 10 de abril de 2012

available at http://www.cels.org.ar/common/documentos/EPU-CELS.pdf 19 IACHR Press Release N° 64/10 IACHR Rapporteur Confirms Grave Detention Conditions In Buenos Aires Province http://www.cidh.oas.org/Comunicados/English/2010/64-10eng.htm 20 CELS, Centro de Estudios Legales y Sociales. See for instance EXAMEN PERIÓDICO UNIVERSAL – 2o CICLO

APORTE AL EXAMEN DE ARGENTINA CENTRO DE ESTUDIOS LEGALES Y SOCIALES - CELS 10 de abril de 2012

available at http://www.cels.org.ar/common/documentos/EPU-CELS.pdf 21 World Bank Data by Country. Haiti. Available at http://data.worldbank.org/country/haiti .

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took place during 2010. On 12 January 2010, a magnitude 7.0 earthquake with its epicentre located

25 km from the capital Port-au-Prince, killed an estimated 220,000 people. On 20 January 2010, a

second magnitude 6.1 earthquake occurred. On 20 October 2010, a cholera epidemic killed more

than three thousand people and affected over 340,000. On 5 November 2010, hurricane Thomas

worsened the cholera epidemic.

From the social and political perspective, Haiti has historically experienced fragility and upheaval.

Political power has been routinely seized and maintained through violence and political repression.22

Corruption and political instability have undermined the economic foundation of the country and its

infrastructure and public institutions have failed to develop. The Inter-American Commission on

Human Rights has highlighted that through these cycles of violence and instability, the people of

Haiti have endured the worst standards of living in the Americas in terms of nutrition, medical care,

employment and education, as well as access to justice and the protection of the police and the

authorities. In this context, the state has failed to ensure public security for its inhabitants, creating a

vacuum and leading to the acute rise in criminality, the proliferation of armed gangs, the uncontrolled

drug and arms trade and the corruption of state institutions. Such conditions have contributed to the

increase in violence in the country and persistent impunity for human rights abuses and crimes.23

Repeatedly, these circumstances have led the international and regional organisations to provide

assistance through the deployment of multinational forces, civilian experts and aid workers.24 The

most influential multinational mission has been the United Nations Stabilization Mission in Haiti

(MINUSTAH), authorized by UN Security Council Resolution 1542 and established in Haiti in June

2004. It involves the participation of 7,980 uniformed personnel, 546 international civilian staff and

1,239 local civilian staff. Its mandate involves assisting with the restoration of the rule of law, public

safety and public order, including the restructuring the Haitian National Police; supporting the

constitutional and political process; supporting the promotion and protection of human rights; and in

the last four years, supporting the immediate recovery, reconstruction and stability efforts after the

Earthquake 2010.25

5.3.1 Introduction

Haiti had its first review on 13 October 2011. The original date of the review, set for January 2010,

was reprogrammed due to the earthquake that took place during that same month. The troika in charge

of the examination included Belgium, Burkina Faso and Mexico. Haiti received 136

22 In September 1957 doctor François Duvalier was elected President of Haiti and he remained in power until his death in 1971 by enlisting the so-called Tontons Macoutes to terrorize political opponents. He was succeeded by his son, Jean-Claude Duvalier, who led the country until 1986 when he sought exile in France. General Namphy led the new National Governing Council and after violent episodes and contested elections, in June 1988 President Leslie Manigat was overthrown by a coup led by General Prosper Avril who led a military regime until March 1990. In December 1990 Jean-Bertrand Aristide was elected President and overthrown in September 1991. He returned to government in 1994 after the entry of US forces under Operation Uphold Democracy. In the 1995 election René Préval was elected president for a five-year term. In November 2000 Aristide was once again elected president. In 2004 Aristide was forced into exile. After the interim government of Boniface Alexandre, René Préval was elected President in February 2006. On 28 November 2010 the musician Michel Martelly was elected president. 23 IACHR Haiti: Failed Justice or the Rule of Law. Challenges ahead for Haiti and the International Community

OEA/Ser/L/V/II.123 doc.6 rev 1, 26 October 2005, paras. 4 and 5. Available at

http://www.cidh.org/countryrep/HAITI%20ENGLISH7X10%20FINAL.pdf. 24 Between 1993 and 2000, four United Nations operations were deployed in Haiti: the United Nations Mission in Haiti

(UNMIH) from September 1993 to June 1996; the United Nations Support Mission in Haiti (UNSMIH) from July 1996

to July 1997; the United Nations Transition Mission in Haiti (UNTMIH) from August to November 1997; and the United

Nations Civilian Police Mission in Haiti (MIPONUH) from December 1997 to March 2000. A Multinational Interim

Force was deployed in Haiti from February to May 2004, followed by the United Nations Stabilization Mission in Haiti

(MINUSTAH). 25 See United Nations Stabilization Mission in Haiti (MINUSTAH) at

http://www.un.org/en/peacekeeping/missions/minustah/

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recommendations in total of which 122 were accepted and 14 were rejected. The Human Rights

Council adopted the UPR outcome on 16 March 2012. Haiti´s second review is scheduled for 2016.

The recommendations made to Haiti referred to the following areas: ratification of human rights

treaties; creation and strengthening of national human rights institutions; strengthening of the

administration of justice; situation of persons deprived of their liberty; enjoyment of economic, social

and cultural rights; situation of vulnerable groups, in particular women and children. In view of the

devastating consequences of the 2010 earthquake, the recommendations also focused on internally

displaced persons, reconstruction and the cooperation with the UN system.

In its national report, the Haitian government indicated that in order to meet its international human

rights obligations, it would welcome the support of the international community in the areas of

national capacity-building in the preparation of periodic reports for treaty bodies and in the

implementation of concluding observations and recommendations made by special procedures

mandate holders and other United Nations mechanisms; training in human rights and international

humanitarian law for the security forces; and support for the refurbishment and construction of

women’s prison facilities and for the establishment of juvenile correctional facilities.26

The international community continues to be very much engaged in capacity building in Haiti and

MINUSTAH reports explicitly refer to compliance with UPR recommendations. According to

MINUSTAH by 30 June 2013, of the 122 UPR recommendations accepted by Haiti 12 had been

implemented, 91 were partially implemented, and no action had been taken regarding 19

recommendations.

5.3.2 Government departments and other persons responsible for the UPR

During the review in Geneva, Haiti was represented by a small delegation including three diplomatic

officials and the Director of the Penitentiary System.27 The national report and its addendum and the

mid-term review were prepared by an Inter-ministerial Committee comprised of representatives from

Prime Minister´s Office and from the Ministries of Justice and Public Security, Foreign Affairs,

Social Affairs and Labour, Gender and Women's Rights, and the Prison Service.

Following the 2011 review, the Haitian government, in conjunction with the Office of the High

Commissioner for Human Rights and MINUSTAH, organized a national consultation for 14 February

2012. The consultation involved key human rights agencies, civil society organisations and

representatives of diplomatic missions and international organizations operating in Haiti. The Inter-

ministerial Committee working group that prepared the national report was convened to prepare an

addendum. The draft addendum was also submitted to the Parliament and the Court of Cassation for

observations before being submitted to the President of the Republic, and validated by the Council of

Ministers.

It was after completing this process that the Haitian government accepted 122 UPR recommendations,

three with reservations, and rejected 14. The government also made the Commitment to formalize the

Inter-ministerial Committee mechanism as a standing committee responsible for preparing national

reports not only for the Universal Periodic Review, but also for the United Nations treaty bodies.28

26 See Human Rights Council, National report submitted in accordance with paragraph 15 (a) of the annex to Human

Rights Council resolution 5/1, Haiti, A/HRC/WG.6/12/HTI/1, page 18. Available at: http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G11/150/85/PDF/G1115085.pdf?OpenElement 27 See Human Rights Council, Report of the Working Group on the Universal Periodic Review, Haiti, A/HRC/19/19, page

22. Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/172/71/PDF/G1117271.pdf?OpenElement 28 See Human Rights Council, Report of the Working Group on the Universal Periodic Review, Haiti, Addendum, Views

on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review,

A/HRC/19/19/Add.1, 29 February 2012.

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In 2014 Haiti submitted its mid-term review report29 where it highlighted the progress achieved in

some areas and the challenges in the implementation of the recommendations. The report underscores

both the political will of the government to cooperate with the UPR process and the budgetary

constraints linked to reconstruction after the 2010 earthquake as obstacles for the effective

implementation of some recommendations.

5.3.3 Implementation of recommendations

Recommendations relating to the ratification of human rights treaties

Recommendations 1 to 14 referred to the ratification of the following international instruments:

International Covenant on Economic, Social and Cultural Rights; both Optional Protocols to the

International Covenant on Civil and Political Rights; Convention against Torture and other Cruel,

Inhuman or Degrading Treatments or Punishments; Convention on the Rights of Migrant Workers

and their Families; International Convention for the Protection of All Persons from Enforced

Disappearance; Optional Protocol to the Convention on the Rights of the Child on the Sale of

Children, Child Prostitution and Child Pornography; The Hague Convention on Protection of

Children and Cooperation in respect of Inter-country Adoption of 29 May 1993.

Haiti ratified the International Covenant on Economic, Social and Cultural Rights on 10 October 2013

and the treaty entered into force on 11 January 2014. In December 2013 it ratified The Hague

Convention on Protection of Children and Cooperation in respect of Inter-country Adoption that

entered into force for Haiti on 1 April 2014. 30 Haiti ratified the Optional Protocol to the Convention

on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography on 9

September 2014.31

During 2013 Haiti signed the Convention against Torture and other Cruel, Inhuman or Degrading

Treatments or Punishments and the Convention on the Rights of Migrant Workers and their Families

but it has not ratified them yet. It has not ratified the International Convention for the Protection of

All Persons from Enforced Disappearance.

Recommendations relating to legislative measures

Recommendations 98, 99 and 100 refer to legislative reform in the area of administration of justice,

the appointment of the Chief Justice and the filling of other vacancies in the Supreme Court (Cour de

Cassation).

The state indicated in its mid-term review report that the Chief Justice was appointed and in turn,

eleven vacancies were filled in at the Supreme Court by January 2012 making it fully operational.

By 2 July 2012, the Supreme Council of the Judiciary –the body in charge of administration, control

and discipline within the judiciary— was also operational.

On 30 April 2013 the nine members of Transient College of the Permanent Electoral Council

(CTCEP) were installed in order to organize free, fair and democratic elections.32 In its report to the

Security Council on MINUSTAH the UN Secretary General indicated that later an agreement was

reached to convert the CTCEP into a new provisional electoral council to organize the overdue

29 Republique d´Haiti, Examen Periodique Universel des Nations Unies Conseil des Droits de l’Homme, Rapport

National de Mi-parcours, (Remis en forme par UPR Info, aucun changement réalisé sur la substance). Available at

http://www.upr-info.org/sites/default/files/document/haiti/session_12_-_october_2011/haiti_mid-term_report_2014.pdf 30 Republique d´Haiti, Examen Periodique Universel des Nations Unies Conseil des Droits de l’Homme, Rapport

National de Mi-parcours, (Remis en forme par UPR Info, aucun changement réalisé sur la substance). Available at

http://www.upr-info.org/sites/default/files/document/haiti/session_12_-_october_2011/haiti_mid-term_report_2014.pdf.

See also http://www.hcch.net/index_en.php?act=conventions.status&cid=69 31See ratification status at UN Treaty Collection https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-11-

c&chapter=4&lang=en 32 See http://www.haitinews509.net/en/2013/04/haiti-elections-installation-of-the-nine-members-of-ctcep/#sthash.xERlE1D7.dpuf

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elections. As part of the agreement a new electoral law was be adopted by the Legislative Power. By

mid-2014 an agreement had not yet been reached regarding the new electoral law and the prospect of

holding elections by October 2014 was uncertain.33

Recommendations relating to public policies

Recommendations 124, 130 and 132 refer to the situation of displaced persons. They call for the

development, with the support of relevant UN agencies, of a comprehensive plan for the provision of

adequate housing with basic services and the implementation of policies to provide durable solutions

for return, integration and/or resettlement of displaced persons.

By 1 January 2014 it was estimated that 146,573 people in 39,464 households remained in 271 IDP

camps in the metropolitan area of Port-au-Prince and four municipalities of the department of the

West.34

As a response, the government has implemented a programme –in partnership with the international

community — to provide long-term housing for displaced persons and it has removed a number of

shelters (30 between January and March 2014) from the list of IDP sites, in order to have them

recognised as new neighbourhoods requiring long-term urban planning. Grants have been given to

some beneficiaries affected by the earthquake. The government is also implementing a programme

of bank loans for housing, financed by the Inter-American Development Bank. The government

claims that the number of displaced persons has decreased in 90% due to the success of the return

programs.35

The conditions in the remaining camps are poor, with unequal access to water and toilets. There are

acute malnutrition rates, reaching 12.5%. Despite the decline in forced evictions, the state has not

really found durable solutions for approximately 70,000 people who remain displaced. During his

visit to Haiti in July 2014, the Special Rapporteur on Displaced Persons urged the government to find

solutions for IDPs based on development.36

Recommendation 65 referred to establishing a fast track system for reviewing cases of prolonged

preventive detention in order to reduce as soon as possible the prison population. On 30 October

2013 the government established an ad hoc committee to oversee and assess cases of prolonged pre-

trial detention. The committee has referred reports on a number case to the prosecutor for further

action. With the financial support of MINUSTAH and the participation of 55 lawyers, between

January and October 2013, the government provided legal assistance to 5,076 detainees in Port-au-

Prince prison, 2,497 of whom were released.

5.3.4 Civil society

One of the main civil society participants in the reports is the Platform of Haitian Human Rights

Organizations (POHDH). This platform is a coalition, founded in 1991, including a dozen of Haiti's

33 Report of the Secretary General on the UN Stabilization Mission in Haiti, 29 August 2014, S/2014/617 Available at

http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/617 34 Republique d´Haiti, Examen Periodique Universel des Nations Unies Conseil des Droits de l’Homme, Rapport National de Mi-parcours, (Remis en forme par UPR Info, aucun changement réalisé sur la substance). Available at http://www.upr-info.org/sites/default/files/document/haiti/session_12_-_october_2011/haiti_mid-term_report_2014.pdf 35 Republique d´Haiti, Examen Periodique Universel des Nations Unies Conseil des Droits de l’Homme, Rapport National de Mi-parcours, (Remis en forme par UPR Info, aucun changement réalisé sur la substance). Available at http://www.upr-info.org/sites/default/files/document/haiti/session_12_-_october_2011/haiti_mid-term_report_2014.pdf 36 Report of the Secretary General on the UN Stabilization Mission in Haiti, 29 August 2014, S/2014/617 Available at

http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/617

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foremost human rights organizations.37 The coalition trains people at the grassroots level around the

country to work within their communities and document human rights offenses. It also promotes the

rights of women and children and it has the strategic aim to improve human rights monitoring for

policy change. There is still no clear indication on the participation of this or other grassroots

platforms or organization in the inter-institutional process devised by the government to follow up on

compliance with the recommendations.

An unusually large number of NGOs and high education institutions based abroad also made both

individual and joint submissions for Haiti´s UPR Exam.38

It is important to note that on 18 March 2011 the Inter-American Commission on Human Rights of

the OAS –as a regional inter-governmental organization — made an independent submission to the

UPR on Haiti that was included in the Summary of Stakeholders´ Reports prepared by the UN High

Commissioner for Human Rights.39

5.3.5 Conclusions

As a fragile state recently facing extraordinary circumstances, Haiti still has plenty of structural

challenges to overcome in order to reach some of the basic standards of protection enshrined in the

core human rights treaties. The Haitian government acknowledges that more efforts are needed in

areas such as conditions of detention and prolonged pre-trial detention, which require additional

infrastructure and trained personnel and therefore addition resources and assistance. Although the

government continues to welcome the assistance of the international community in a relationship that

has lasted now for many years, the underlying challenges continue to be those of fostering political

stability, good governance and the development of legislative and public policy action according to

international standards for the protection of human rights.

5.4 HONDURAS

Honduras has population of 8.098 million inhabitants in a surface area of 112,492 km2 in Central

America. With a US$ 18.55 billion GDP and a GNI per capita of US$ 2,180, the World Bank

considers Honduras a lower middle-income country.40

According to the Global Study on Homicide prepared by UNODC, Honduras’ homicide rate is 90.4

per 100,000 inhabitants, the highest in the world.41 From 2010 to 2013 at least 458 children under 14

years of age died in violent circumstances in Honduras (National Ombudsperson). Also for many

37 Centre de Recherches Sociales et de Formation pour le Développement (CRESFED), Réseau National de Défense des

Droits Humains (RNDDH), Commission Episcopale Nationale Justice et Paix (JILAP), l’Institut Culturel Karl Levêque

(ICKL), Programme pour une Alternative de Justice (PAJ), Centre Karl Levèque (SKL), Groupe d’Assistance Juridique

(GAJ) et Commission de Réflexion et d’Assistance Légale – de la Conférence Haïtienne des Religieux (CORAL-CHR);

conjointement avec Solidarité Femmes Haïtiennes (SOFA), Antèn Ouvriye, Fondation Œcuménique pour la paix et la

justice (FOPJ), Coalition Contre la Traite et le Trafic des Femmes et Filles en Amérique Latine et dans la Caraïbes

(CATW-LAC), Organisation des Femmes Thomonde (OFAT), Groupe d’Intervention en Droits Humains (GIDH), Sant

Edikasyon Popilè Jacques Stephen Alexis (SEPJA) et la Fondation Zanmi Timoun. 38 Apart from Amnesty International and Human Rights Watch, these organizations – among many others — participated

of the process: MADRE, New York, United States; Women’s Link Worldwide; The International Women’s Human

Rights (IWHR) Clinic at the City University of New York (CUNY) School of Law; Best Practices Policy Project (BPPP);

Human Rights Clinic (University of Miami School of Law); International Human Rights Law Clinic (University of

Virginia School of Law); Center for Constitutional Rights (CCR); Canada Haiti Action Network; TransAfrica Forum;

Louisiana Justice Institute; Other Worlds are Possible; Paloma Institute; UC Davis Immigration Law Clinic. 39 Human Rights Council, Summary prepared by the Office of the High Commissioner for Human Rights in accordance

with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1, Haiti, A/HRC/WG.6/12/HTI/3. Available at

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/153/23/PDF/G1115323.pdf?OpenElement 40 World Bank Data by Country. Honduras. Available at http://data.worldbank.org/country/honduras. 41 United Nations Office on Drug and Crime (UNODC) Global Study on Homicide 2013, available at

http://www.unodc.org/documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_web.pdf

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decades Honduras has been affected by structural weaknesses in the areas of administration of justice,

security, discrimination, and social inequality.

The continuing fragility of democratic institutions in Honduras was exposed by events taking place

in 2009 and their consequences. On 28 June 2009, Honduran Army troopers, acting on orders from

the Head of the Joint Chiefs of Staff, entered the presidential residence, took President José Manuel

Zelaya Rosales into custody and sent him to Costa Rica aboard a military aircraft. As a result, a

democratically elected President was ousted. Many states of the international community refused to

acknowledge the de facto government.

In the following days, the IACHR received hundreds of complaints on alleged violations of the rights

to life and humane treatment. Along with the loss of institutional legitimacy brought about by the

coup d’état, the IACHR later verified the killing of at least seven people, the arbitrary declaration of

a state of emergency, the militarization of the Honduran territory, the disproportionate use of force

against public demonstrations, the criminalization of public protest, the arbitrary detention of

thousands of persons in inhuman conditions, an increase in incidents of racial discrimination, the

violations of women’s rights, and the severe and arbitrary restrictions on the right to freedom of

expression.42 On 4 July 2009, the OAS General Assembly decided to suspend the Honduran state

from the exercise of its right to participate in the OAS.43

On 29 November 2009, elections were held and on 27 January 2010, Mr Porfirio Lobo Sosa was

sworn in as the new President of Honduras. On the eve of the inauguration, 26 January 2010, the

National Congress of Honduras had issued an Amnesty Decree in ambiguous terms vis-à-vis the duty

of the state to clarify alleged human rights violations perpetrated during the coup d’état.44

On 4 May 2010 a National Truth and Reconciliation Commission was established, with a mandate to

clarify the events occurring before and after the constitutional crisis and identify actions that led to

the crisis. On 7 July 2011, the Truth and Reconciliation Commission released its report45 where it

found the events of 28 June 2009 to be a coup d’état. It also confirmed the disproportionate use of

force by the military and the police during the coup d’état and the de facto government and the

resulting violent deaths, deprivation of liberty, torture, rape and political persecution.

The human rights NGOs and universal and regional mechanisms for the protection of human rights

have continued to demand the judicial clarification of the kidnappings, arbitrary detentions, rapes and

illegal searches perpetrated against those who resisted the coup d’état. They have also denounced

more recent killings and acts of violence and intimidation perpetrated against human rights defenders

and journalists.46

5.4.1 Introduction

Honduras had its first cycle on 4 November 2010. The troika included the United Kingdom, Russia

and Thailand. The final outcome was adopted on 4 January 2011. The second cycle is scheduled for

May 2015.

42 IACHR Honduras: Human Rights and the Coup d’état, January 20, 2010, available at

http://www.cidh.org/countryrep/Honduras09eng/Toc.htm See also IACHR Preliminary Observations of the Inter-

American Commission on Human Rights on its Visit to Honduras, May 15 to 18, 2010 OEA/Ser.L/V/II. Doc. 68, 3 June

2010 http://www.cidh.org/countryrep/Honduras10eng/Honduras10.Background.htm. 43 OAS, General Assembly, Special Session, Resolution AG/RES 2 (XXXVII-E/09) of July 4, 2009, operative paragraphs

1 and 2. Available at: http://www.oas.org/consejo/GENERAL%20ASSEMBLY/Resolucionesextraordinarias.asp . 44 IACHR, Press Release 14/10: IACHR Expresses Concern about Amnesty Decree in Honduras, February 3,

2010. Available at: http://www.cidh.oas.org/prensa.eng.htm 45 Comisión para la Verdad y la Reconciliación, Para que los hechos no se repitan available at: http://www.cvr.hn/assets/Documentos-PDF/Informes-Finales/TOMO-I-FINAL.pdf 46 See for instance IACHR Annual Report 2013, Chapter IV, Honduras, para. 253 Available at

http://www.oas.org/en/iachr/docs/annual/2013/docs-en/AnnualReport-Chap4-Honduras.pdf

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Honduras submitted a mid-term review report indicating that out of 136 recommendations 38 were

not implemented, 75 recommendations were partially implemented, and 18 recommendations were

fully implemented. Five recommendations are not accounted for and there is no clarity regarding the

methodology used to consider a recommendation as implemented.

5.4.2 Government departments and other persons responsible for the UPR

The state claims that the national report is the product of discussion within an inter-

institutional commission with full participation by all sectors. Initially various agencies and

branches of government were involved in the process through the submission of inputs. A

first draft was circulated to civil society for comment within a specified time and later the

report was launched in Tegucigalpa and San Pedro Sula.

5.4.3 Implementation of recommendations

Recommendations relating to the ratification of human rights treaties

Recommendations 83.1, 2 and 3 refer to the ratification of the Optional Protocol to the International

Covenant on Economic, Social and Cultural Rights, the Hague Convention on Protection of Children

and Cooperation in respect of Inter-country Adoption; the Optional Protocol to the Convention on the

Elimination of All Forms of Discrimination against Women; the Optional Protocol to the Convention

on the Rights of Persons with Disabilities; and the Optional Protocol to the International Covenant

on Economic, Social and Cultural Rights.

Honduras ratified the Optional Protocol to the Convention on the Rights of Persons with Disabilities

on 16 August 2010.47 The rest of the recommendations on ratification have not been complied with.

Additionally, states recommended Honduras to ensure effective compliance with precautionary

measures granted by the Inter-American Commission on Human Rights and to ensure compliance

with the 1998 General Assembly Declaration on Human Rights Defenders.

Recommendations relating to legislative measures

Recommendation 82.4 refers to the incorporation into national legislation of the prohibition of all

forms of corporal punishment against children. Honduras has partially complied with this

recommendation by sending a bill to the National Congress on the Rights of Children, the Youth and

the Family, with the participation of civil society organizations and technical assistance from the

United Nations Fund for Children (UNICEF). The bill establishes an express prohibition for parents

and for anyone responsible for the personal care, upbringing, education, treatment and monitoring of

children to use physical punishment or any other humiliating, degrading, cruel and inhuman

treatment, as a way of correcting or disciplining children or adolescents.

Recommendations relating to public policy

Recommendations 82.12 and 82.111 refer to the development and adoption of a national plan on

human rights.

The government considers this recommendation implemented with the adoption of Executive Decree

PCM-003-2013 of 22 January 2013 on the First Public Policy and National Plan of Action on Human

Rights. The plan includes technical and financial assistance from the United Nations System and the

Office of the High Commissioner for Human Rights. According to the government, the ten year plan

was designed during a two-year process with the participation of civil society following four strategic

guidelines: human security (right to education, health, sexual and reproductive health, food, work,

adequate housing, water and a healthy environment); justice system (rights to life, security, integrity

47 https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15-a&chapter=4&lang=en

14

and personal freedom, justice and right to the truth); democracy (freedom of expression, access to

information, public participation, political participation and democratic governance). The population

groups considered are: children and adolescents, youths, the elderly, indigenous peoples, Afro-

Hondurans, women, migrants, LGBTTI community, people with disabilities, detainees, human rights

defenders. The Plan provides for a particular approach for each population group. In total, the Plan

contains 1,200 strategic actions grouped by law, and component population group.

5.4.4 Civil society

The civil society organisations involved in the UPR process included some local NGOs such as

Centro de Investigación y Promoción de los Derechos Humanos de Honduras (CIPRODEH),

Coordinadora de Instituciones Privadas por la niñez, and Red Lesbica Cattrachas. A number of

regional and international NGOs also participated in the process, including Article 19, Center for

Justice and International Law (CEJIL), Cultural Survival, Global Initiative to End All Corporal

Punishment of Children (GIEACPC) and Reporters sans Frontières (RSF).

5.4.5 Conclusions

Honduras has shown good disposition towards the recommendations made in the context of UPR.

Although it has implemented initiatives to comply with some of the recommendations, it has failed

to address the main issue relating to the right to life and judicial protection: the incidence of violent

crime over citizen security, and especially the acts of violence against human rights defenders and

journalists.

Honduras is also an interesting case to observe the interaction between the recommendations issued

in the context of the Human Rights Council and the decisions on the Inter-American Commission and

Court of Human Rights, at the level of compliance.

5.5 CONCLUSION: LATIN AMERICA

The human rights agenda for the region includes the prevention and serious human rights violations

linked to internal armed conflict; reaching truth, justice, reparations and memory vis-à-vis past serious

human rights violations; addressing human rights violations relating to failures in citizen security; the

strengthening of democracy and the rule of law; indigenous peoples and ancestral lands.

There are a number of areas where UPR recommendations coincide with the national and regional

agenda of human rights NGOs. These areas include the protection of human rights defenders; the

strengthening of national human rights institutions; the situation of persons deprived of their liberty;

human mobility; human trafficking; gender violence; indigenous rights and freedom of expression.

There are a number of areas where UPR recommendations have failed to fully reflect the full

dimension of the human rights agenda pursued by local and regional NGOs. These areas include

transitional justice; indigenous peoples and the protection of their ancestral land vis-à-vis mega

development ventures; reproductive rights; and LGTBI.

The present study on compliance with recommendations reveals a number of challenges at the

regional level. In the first place, at the institutional level, the difficulties faced when undertaking

legislative reform in a weakened institutional context, with endemic inefficacy in the administration

of justice, as is the case with many of the States of this region.

A second regional challenge, now at the economic level, is that of complying with recommendations

demanding the creation or upgrading of large infrastructure to provide services such as health care,

clean water, adequate housing, etc.

Lastly, in the case of the large federal states of the region (Argentina, Brazil, Mexico), an addition

challenge is that of achieving consensus and/or finding formulas to arrive at a truly ‘national’ report

on compliance and follow up.