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«Fostering Human Rights among European Policies Large-Scale FP7 Collaborative Project GA No. 320000 1 May 2013-30 April 2017 Report on the EU’s ...»

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B. Legal background for cooperation with the OAS within the EU According to Art. 216(1) TFEU, the EU has powers to conclude international agreements ‘where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope’.

Such agreements bind both, the institutions of the EU and its member states.

In line with Art. 220 TFEU, the EU ‘shall also maintain such relations as are appropriate with other international organisations’, including the OAS. The EU delegations represent the EU at international organisations (Art. 221 TFEU).

With respect to certain areas of the UE’s activities TFEU provides for even more explicit legal ground for concluding international agreements by the EU. With respect to development cooperation, Ar.

208(3) TFEU provides that ‘[t]he Union and the Member States shall comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organisations’. Based on Art. 209(2) TFEU ‘[t]he Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in Article 21 of the Treaty on European Union and in Article 208 of this Treaty’.

Similar provisions apply with respect to economic, financial and technical cooperation (Art. 212(3) TFEU), humanitarian aid (Art. 214(4) TFEU). However, human rights – being ‘one of the objectives referred to in the Treaties’ – do not require such express provisions and the EU has the power to enter into specific agreements in this field.

From the perspective of the OAS, its Charter provides the OAS General Assembly (OAS GA) with the powers to ‘promote collaboration, especially in the economic, social, and cultural fields, with other international organizations whose purposes are similar to those of the Organization of American States’ (Art. 54(d)). In relation to this competence, one of the functions of the OAS General Secretariat is to ‘establish relations of cooperation, in accordance with decisions reached by the General Assembly or the Councils, with the Specialized Organizations as well as other national and international organizations’ (Art. 112(h)).

FRAME Deliverable No. 5.6 The European Community was given the status of a permanent observer at the OAS in 1989, when the OAS adopted General Assembly Resolution AG/RES. 996 (XIX-0/89).21 On 17 December 2009, the European Commission and the General Secretariat of the OAS concluded a Memorandum of Understanding (hereinafter referred to as the ‘Memorandum’).22 Although it does not constitute an agreement containing any legal obligations,23 it establishes the framework for interinstitutional dialogue and cooperation.24 In its preamble, the Memorandum directly refers to ‘the common work in fields such as development, protection and promotion of human rights or democracy strengthening’. In the part related to the areas for dialogue and cooperation the Memorandum specifically refers to human rights: ‘Particular attention should be paid to the priorities established by both sides, such as the following: a) Protection and Promotion of Human Rights (including, i.a., freedom of expression, promoting ethnic and racial equality and rights or protection of most vulnerable groups)’.25 For example the commencement of the ‘EU-OAS Policy Dialogue’ in 2012 was a direct consequences of the signing of the Memorandum.

The first EU-OAS institutional dialogue was held on 22 February 2012 at the EU Headquarters in Brussels. This meeting focused on the promotion of human rights in the American region. Next, a second EU-OAS institutional-political dialogue was held on 21 March 2013 at OAS Headquarters in Washington DC., this meeting focused on enhancing human rights protection in the Americas.

What is notable, the scope of the Memorandum covers neither the United States of America nor Canada. It can be seen at the example of the definition of the ‘purposes’ of the Memorandum, where the European Commission and the General Secretariat of the OAS recognise the intention of mutual benefit and development of ‘their dialogue and cooperation in areas of common concern in the Latin America and Caribbean (LAC) Region’.26 A bi-regional Strategic Partnership was established in 1999.27 As an element of this strategic partnership, during a summit held in January 2013 in Santiago de Chile, the ‘EU-CELAC Action Plan 2013-2015’ was adopted.28 In the context of migration, it defines the main objectives of the cooperation, among others, to ‘promote the full respect of human rights of migrants.’ One of the expected results in this sphere is ‘promoting full respect of human rights for all migrants and enhancing coherence in the fight and prevention of human trafficking and migrant smuggling networks, as well as in assisting victims. Improved fight against xenophobia, racism and all forms of intolerance.’ In addition, in the section dealing with ‘Investments and entrepreneurship for During the plenary session held on 18 November 1989: ‘To accord to the European Communities, in nature internationally and on an exceptional Permanent Observer to the Organization of American view of basis, States’ (n 3).

See supra (n 4).

According to point 9, the Memorandum ‘does not contain obligations regarding international law’ (n 4).

ibid, point 6.

ibid, point 5(a).

ibid, point 4.

EEAS/European Commission Directorate General for Development and Cooperation – Europeaid, ‘Development Cooperation Instrument 2014-2020, Multiannual indicative regional programme for Latin America’, http://ec.europa.eu/europeaid/sites/devco/files/dci-multindicativeprogramme-latinamericaen.pdf, p 1.

Council of the European Union, ‘EU-CELAC Action Plan 2013-2015’, Doc No 5748/13, 27 January 2013.

FRAME Deliverable No. 5.6 sustainable development’, the work programme aims to ‘promote public policies which encourage transparency on the part of enterprises as regards social, environmental and human rights matters.’ The expected outcome covers ‘bi-regional meeting on model enterprises applying the concept of corporate social responsibility as regards social, environmental and human rights matters.’ Based on the ‘EU-CELAC Action Plan 2013-2015’ and on the Regulation (EU) No 233/2014 of the European Parliament and of the Council of 11 March 2014 establishing a financing instrument for development cooperation for the period 2014-2020, a ‘Development Cooperation Instrument 2014 Multiannual indicative programme for Latin America’ was adopted.29 Multiannual Indicative Programmes (MIPs) are an important element of EU aid under the Development Cooperation Instrument (DCI). The DCI forms part of the budget of the EU.

On 19 March 2014 an agreement between the European Union and the OAS General Secretariat was signed.30 According to this agreement, the EU has to provide EUR 1,000,000 over two years to the project ‘Supporting and Strengthening the Work of the Inter-American Human Rights System through the Promotion of the Rights of the Most Vulnerable and Excluded Groups and Communities in the Americas’, which is to be implemented by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.31 This financial contribution matches Program 4 of the Inter-American Commission of Human Rights32 and provides support to the strengthen the nine IACHR Rapporteurships and Thematic Units working on the promotion of full enjoyment and respect of the rights of the most vulnerable communities and groups that live in extreme poverty.33 As it was noted, although the above is based on the cooperation between the EU and the OAS, it does not cover all the Americas, but Latin America only. As it was noted, ‘the EU’s relations with Latin EEAS/European Commission Directorate General for Development and Cooperation – Europeaid, ‘Development Cooperation Instrument 2014-2020, Multiannual indicative regional programme for Latin America’ (n 27).

What is striking is that the text of the agreement is available neither in the eur-lex.eu database, nor in any other available source of legal instruments. The authors tried to obtain a copy of the agreement through individual petition to the EU institutions, but without success. They only have access to the Action Fiche of the EIDHR, available at: www.eidhr.eu/files/dmfile/AAP2013.pdf.

OAS Department of International Affairs, ‘European Union – profile’, www.oas.org/en/ser/dia/perm_observers/Countries.asp, p 2.

Program 4 encompasses: rights of indigenous people, rights of women, migratory worker and their families, rights of the child, rights of persons deprived of liberty, rights of afro-descendants and against racial discrimination and human rights defenders. See IACHR, ‘Strategic Plan 2011-2015, https://www.oas.org/en/iachr/docs/pdf/IACHRStrategicPlan20112015.pdf.

See IACHR, ‘Thematic Rapporteurships and Units’, www.oas.org/en/iachr/mandate/rapporteurships.asp.

Other legal instrument currently binding or recently concluded between the EU and OAS are, for example:

Working Arrangement between the EEAS and the OAS General Secretariat on Cooperation in the Field of Conflict Analysis, Early Warning and Crisis Response (signed 23 September 2014); Agreement between the European Union and the OAS General Secretariat, signed on 22 April 2013 for an amount of USD 1,500,000 to support the action entitled: Confidence building and risk mitigation in the process of Land Restitution in Colombia within the Program Mission to support the Peace Process in Colombia (MAPP); Contribution Agreement between the OAS

General Secretariat and the European Union on December 3, 2012 for the implementation of the Action entitled:

Guatemala-Belize, support to the peaceful resolution of the long-standing territorial dispute; Development of the Americas Digital Media with the technical support and knowledge transfer of the Joint Research Center of the European Union Commission.

FRAME Deliverable No. 5.6 American countries have developed at the bi-regional level (European Union - Latin America), and a number of specialised dialogues within this broader relationship are ongoing with specific sub-regions (MERCOSUR, the Andean Community and Central America), and between the EU and specific countries (Mexico and Chile).’34 Apart from the relationship with Latin America, the relationship between the EU and Canada and the United States of America cannot be forgotten. Both, Canada and the United States of America are member states of the OAS. In this context, bilateral relations are of crucial importance.

The EU relations with MERCOSUR are based on ‘Interregional Framework Cooperation Agreement between the European Community and its Member States, of the one part, and the Southern Common Market and its Party States, of the other part – Joint Declaration on political dialogue between the European Union and Mercosur’.35 Article 1 describes the basis for cooperation in the following manner: ‘[r]espect for the democratic principles and fundamental human rights established by the Universal Declaration of Human Rights inspires the domestic and external policies of the Parties and constitutes an essential element of this Agreement.’ European Commission, ‘EU’s external assistance to Latin America, 2000-2003’, press release, MEMO/04/120, 25 May 2004, http://europa.eu/rapid/press-release_MEMO-04-120_en.htm?locale=en. See also: European Commission, ‘Commission approves co-operation actions for EUR 246 million in Latin America’, press release, IP/04/63, 16 January 2004, http://europa.eu/rapid/press-release_IP-04-63_en.htm?locale=FR; and: Michael Krakowski, ‘The Relations between the European Union and Latin America and the Caribbean: Current State and Perspectives’ (2008) 43 Intereconomics 112.

Interregional Framework Cooperation Agreement between the European Community and its Member States, of the one part, and the Southern Common Market and its Party States, of the other part – Joint Declaration on political dialogue between the European Union and Mercosur [1996] OJ L69/4, [1999] OJ L112/66.

FRAME Deliverable No. 5.6 III. Institutional framework of the EU-OAS relations A. Mapping the OAS: Bodies entrusted with human rights protection The OAS protects and reinforces human rights in the American continent through a range of different institutions. The OAS’ specialised human rights institutions are the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR), both part of the InterAmerican Human Rights System (IASHR).36 The relationship between both institutions is characterized by complementarity and independence. On the one hand the IACHR works as a preliminary, quasijudicial body that selects the most serious and important cases concerning human rights in order to present them to the IACtHR, which is the judicial organ of the IASHR (complementarity).37 On the other hand both institutions act in an independent way because (i) not all cases processed and resolved with reports by the IACHR reach the IACtHR, and (ii) because the IACtHR has two functions not related to the work of the IACHR: it directly receives cases from the member states and performs an advisory function.

Besides the IACHR and the IACtHR, which are the main organs of the IASHR, there is a variety of subsidiary OAS institutions dealing with human rights issues. They will be analysed in the second part of this chapter.

1. The Inter-American Human Rights System According to the Charter of the Organization of the American States (OAS Charter),38 the institutions in charge of protecting and enforcing human rights are the IACHR and the IACtHR.39

a) The Inter-American Commission on Human Rights According to Art. 106 of the OAS Charter, it is the IACHR’s role ‘to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters’.

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