Monday, March 27, 2017
by Rick Wilson, Prof. Emeritus, American University, Washington College of Law
I directed the International Human Rights Law Clinic at American University’s Washington College of Law from 1990 until my retirement in 2015. We filed several cases against the United States at the Inter-American Commission on Human Rights in the early years of the clinic, and started appearing at the Commission for hearings in those cases and others as early as 1992 or 1993. Proceedings then were much less formal and hearings were generally easy to get in all cases, sometimes more than once. Written decisions of the Commission were also less formal and rigorous than today. In our cases against the United States, it was routine for the State Department’s Office of the Legal Advisor to send interns as observers without formal presentation from the government. That policy changed over time, particularly when Bill Clinton was in the White House, and later when Harold Koh was in the Legal Advisor's office under President Obama. It should be noted, however, that the government consistently engaged with our pleadings in writing, submitting thorough and complete written arguments in every case. It was on the compliance end, in adverse decisions, that the U.S. really has balked, then and now.
There were at least two responses we developed if the U.S. government, like some Latin American governments still do, decided not to show up for a hearing.
First, on any occasion when there was no formal representative from the government, either we or the Commission would ask if there was anyone present in the room from the government, usually from the State Department. Often, a sheepish law intern would identify him/herself and respond that their role was simply to observe and take notes. The Commission always offered a seat at the table, and the look of terror in the student's eyes was always worth the price of asking. They always declined.
Out of curiosity, I went back to take a look at some of those early cases to find whether the Commission had documented U.S. non-appearance. I did find some evidence. The first case I could find is William Andrews v. United States, Case 11.139 (1997) (curiously, not available on the Commission’s Merits Decisions website, but available at the Minnesota Human Rights Library.) There, in February of 1994, a hearing was held where the Commission’s merits decision notes that the government “observed the hearing, but did not participate in the same.” ¶ 12. In another case, Gary Graham v. United States, Case 11.193 (2000), (the petitioner formally changed his name to Shaka Sankofa during the pendency of the petition) the Commission noted in a decision on admissibility that “a representative would attend the Commission's October 4, 1993 hearing for the purposes of observing.” ¶ 13. These were both death penalty cases in which the states involved (Utah and Texas, respectively) ignored requests of the Commission for precautionary measures to protect the lives of the petitioners during the pendency of the case in international proceedings, and both men were executed prior to the favorable decisions by the Commission discussed here. In some cases, the government at least advised the Commission that it would not participate formally.
I also checked a few other U.S. cases from that era, and found that in both the Haitian Interdiction Case, Case 10.675, Merits (1996), and Mary and Cary Dann v. United States, Case 11.140, Admissibility (1999), (involving two Native American women who lost land to which they claimed aboriginal title), the government appeared in hearings held in 1993 and 1996, respectively. Thus, it appears that even then, the U.S. government’s decision to participate was selective, not an absolute policy.
Second, there is a provision in the Commission's Rules of Procedure, Article 38, which applies a presumption in favor of the petitioners when a state fails to respond. The text reads as follows:
The facts alleged in the petition, the pertinent parts of which have been transmitted to the State in question, shall be presumed to be true if the State has not provided responsive information during the period set by the Commission under the provisions of Article 37 of these Rules of Procedure, as long as other evidence does not lead to a different conclusion.
This seems directed at written responses, so if the U.S has submitted a pleading on paper, which they regularly do, they might be assumed to have "provided responsive information," but I always liked to ask the Commission to invoke that presumption if the government failed to appear for a hearing, either orally or in writing after the hearing was over. In any event, the U.S. government’s failure to appear for a hearing is hardly a best practice, and I always felt that it demeaned the Commission and the opposing party to do so, especially when the government’s offices are just down the street and not thousands of miles away, as is the case with some countries in the Americas.
[Editors' Note: This blog is the part of our symposium series on the U.S. Government's failure to participate in the IACHR hearing on March 21. The other postings, by Deborah Weissman, Sarah Paoletti, and JoAnn Kamuf Ward, respectively, are here, here and here. Lauren Carasik and Margaret Drew comment here. Tara Melish's analysis is here.]