TESTIMONY OF MARGARET SATTERTHWAITE
NYU SCHOOL OF LAW

Good afternoon. I would like to begin by thanking the Commissioners for giving us the opportunity to be here today. We are honored to have this time to speak with you, and we look forward to a fruitful discussion.

I will be giving an overview of the legal framework supporting our intervention. We have prepared, and are submitting, a legal brief. I will not attempt to set out all of our arguments now, but will instead focus on our three main points.
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Human rights—and economic and social rights in particular—are linked inextricably to democracy, the rule of law, and development. In recent years, the Organization of American States (“The OAS”) has repeatedly stressed the importance of protecting and promoting economic and social rights in the hemisphere. The OAS General Assembly has consistently recognized and reaffirmed that universal protection and promotion of all human rights—including civil, cultural, economic, political, and social rights—is fundamental to the functioning of democratic society.

These connections have been observed and amplified in relation to Haiti. Following its visit to Haiti in 2004, the Inter-American Commission on Human Rights (“The Commission”) declared thatfundamental problems such as extreme poverty, high illiteracy and malnutrition continu[e] to deprive Haitians of fundamental economic, social and cultural rights and at the same time exacerbate the consequences resulting from denials of basic civil and political rights.

The Commission called upon the international community to provide Haiti with the support and assistance necessary to overcome the significant challenges that it faced in fully realizing respect for the rule of law, democracy and human rights.

We have three main points today. First, we must recognize that the deprivation of economic and social rights in Haiti remains persistent and widespread. Second, OAS Member States have concrete and specific obligations under international law with respect to the economic and social rights of the people of Haiti. Finally, we believe the Inter-American Commission has a crucial role to play in bringing an end to the human rights violations that the Haitian people are suffering.

It must be noted here that our legal argument does not focus on the most important actor in upholding human rights in Haiti: the government of Haiti itself. Recognizing that the territorial State has primary responsibility for fulfilling the rights of its own population, our focus is on developing norms which until now have been underemphasized. In States like Haiti, where the international community has chosen to intervene both directly and indirectly, human rights obligations apply to regulate those interventions and should be clarified.

As you have already heard, Haitians are suffering gross deprivations of basic survival rights. Certainly, these deprivations violate the right to health, food, and housing. They also amount to violations of the Right to Life, the Right to Personal Liberty and Security, and the Rights of the Child. As the Commission has recognized many times, Economic and Social Rights are Inextricably Linked to Civil and Political Rights. There is widespread agreement that rights are universal, indivisible and interdependent.

Under Inter-American and international jurisprudence, the right to life, the right to personal liberty and security, and the rights of the child have been recognized as sharing certain core economic and social rights elements. These entail basic subsistence needs and survival rights such as food, clean water, warmth, shelter and basic health care. For children and adults who live in extreme poverty, the identification and fulfillment of these minimum core economic and social rights is particularly urgent. The minimum core content of these rights might be summarized as the rights to basic survival and a dignified existence.

In addition to violating what have traditionally been considered civil and political rights, ongoing deprivations of these rights violate the economic and social rights set forth in the OAS Charter, interpreted in light of the Declaration, the Convention, and the Protocol of San Salvador. The OAS Charter Sets Forth Important Principles of Economic and Social Rights. American Convention Article 26 confirms that the OAS Charter implies economic and social rights beyond those specified in its text.

As the Court has recognized, the American Declaration defines the fundamental economic and social rights referred to in the Charter. The Protocol of San Salvador may be considered the most current and specific articulation of economic and social rights implicit in the OAS Charter. Please see our brief for a fuller elaboration of these arguments.
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With these crucial rights protections in mind, I will turn now to the fundamental legal issue: the obligations of OAS Member States with respect to economic and social rights in Haiti. All OAS Member States have a duty to work cooperatively and effectively to ensure that Haitians enjoy basic survival rights. The OAS Charter and the Democratic Charter call on Member States to work together to fulfill economic and social rights. First, The OAS Charter recognizes the shared responsibility of Member States to eliminate extreme poverty in the region. Additionally, the Inter-American Democratic Charter emphasizes the shared responsibility of OAS Member States for fulfilling basic economic and social Rights, and it recognizes the close relationship between democracy and human rights.

In the Haitian context, these duties mean that States should maintain their financial and structural support for the government of Haiti. International and regional financial institutions have a key role to play in contributing to the capacity of the State to fulfill economic and social rights. The resources allocated should be used to undertake actions needed to protect core rights. At the same time, OAS Member States acting within MINUSTAH should strive to ensure that the mission achieves its mandate through human-rights based actions, tackling security and economic and social rights with the same weight.
Finally, Article 26’s obligation of progressive realization means that States must take cooperative steps that are aimed at fulfilling economic and social rights within the Hemisphere. Since Haiti is the poorest country in the Americas, the duty to cooperate internationally means that Member States should join together to ameliorate the suffering of its people.

Troop-Contributing Member States are bound to respect and ensure the basic survival rights of the Haitian population. During peacekeeping operations, the capacity of the host state is often severely diminished, and the military and civilian forces of multiple States take on important governmental functions. In this context, the continued application of human rights norms to States acting beyond their territory is particularly important.
Within the Inter-American system, the Commission has affirmed that human rights norms apply regardless of national borders. This principle should guide the application of jurisdictional rules to the specific situation where a multinational force exercises control over the population of a Member State like that of Haiti. With the active leadership of several OAS Member States, United Nations troops are currently seeking to reestablish peace and security in Haiti. At the same time, severe deprivations of economic and social rights continue on a widespread basis. Under these circumstances, it cannot be the case that OAS Member States may evade their human rights obligations by acting in concert.
The Commission has developed and applied a jurisdictional test in the cases of Coard and Alejandre. Under this test, Member States must abide by their human rights obligations in relation to those under their authority and control. Please refer to our brief for an extensive discussion of this point. The same test should be applied to economic and social rights.
Using that test, troop-contributing Member States exercise jurisdiction over the Haitian population and therefore must respect and ensure human rights in all of their actions in Haiti. Once the jurisdictional basis for imposing human rights obligations on troop-contributing Member States has been recognized, the specific level of those obligations must be made clear. Under Article 1 of the Convention, and under the Declaration, troop-contributing Member States must respect and ensure the human rights of the Haitian population under their jurisdiction. Please see our brief for an elaboration of the duties to respect and ensure.

The duty to respect is easily administered in an extraterritorial context and should apply to States’ actions in the social and economic realm. The duty respect means that MINUSTAH should not create obstacles for Haitians’ access to crops, wells, hospitals and schools. It should not, for example, commandeer school or hospital buildings as sites for its offices or command posts. It must not appropriate sources of water for its employees’ own consumption when doing so would diminish the capacity of the local Haitian population to meet their needs.

The duty to ensure encompasses the duty to prevent violations, and the duty to ensure a minimum core of protected rights are enjoyed by all.

Let me step away from legal abstractions now to ask how this analysis relates to what Member States are already doing in Haiti. OAS Member States have taken major steps to ameliorate conditions in Haiti. What is needed now is diligent progress and implementation using a rights-based approach. As widespread violations of the economic and social rights of the Haitian population continue, OAS Member States have come together to take concrete steps aimed at fulfilling those rights. Through participation in the U.N. mission in Haiti and the Interim Cooperation Framework, States have joined forces to address the most dire needs of the Haitian population.

Despite these efforts, severe deprivations continue. The MINUSTAH mandate, while including human rights, does not explicitly include economic and social rights. MINUSTAH reports that it has been unable to carry out many of its human rights activities, and some of its most important economic and social projects. For example, a January 2006 budget performance report explains that while “full access to drinking water and medical services” was to be an indicator of achievement for the mission, at the end of the reporting period, “71 per cent of the population remains without access to potable water and 40 per cent of the population remains without access to health services.”

These shortcomings indicate that MINUSTAH and the ICF are not living up to their human rights potential. What is the role of the Commission in addressing the gap between aspiration and reality?
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We believe the Commission has a specific and defined role in ameliorating the suffering of the Haitian people. It should continue to insist that economic and social deprivations in Haiti are human rights issues. It should engage actively with States concerning their multilateral and bilateral efforts in Haiti. In many instances, the Commission’s standard approaches to monitoring and promoting human rights can be applied smoothly to the problems addressed here. In other instances, the Commission may find that it needs new tools to assess States’ efforts to fulfill their duties concerning economic and social rights.

We recommend three specific actions with these roles in mind.

First, we request that the Commission conduct an on-site visit to Haiti focusing on economic and social rights. The Commission has yet to focus on the role of the international community in fulfilling economic and social rights in Haiti. An on-site visit would place the international community’s efforts in Haiti in a human rights framework. It would also allow the Commission to determine, the extent and nature of ongoing deprivations of the economic and social rights. Inquiries could be undertaken into the activities of the various OAS Member States present in Haiti that are aimed at fulfilling the basic survival rights of the population of Haiti. We request that the Commission make public its report from this on-site investigation.

Second, we recommend that the Commission request an Advisory Opinion from the Inter-American Court of Human Rights on the obligations of Member States for economic and social rights outside their territory. Despite the urgency of the economic and social rights situation in Haiti and the clear need for individual and collective action to rectify the violations, the existence of Member States’ obligations in such settings is rarely recognized. We therefore request that the Commission refer this matter to the Inter-American Court of Human Rights, so that the Court might issue an Advisory Opinion articulating the content of Member States’ human rights obligations when they act internationally.

Finally, we request that the Commission appoint a Special Rapporteur on Economic and Social Rights in the Hemisphere. The appointment of a Special Rapporteur on Economic and Social Rights would allow the Commission to access tools developed by courts, commissions, and scholars to measure economic and social rights.
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In closing, we are not here today to impugn specific States. Instead, we seek to advance cooperative efforts within the Americas to fulfill economic and social rights by placing them on an equal footing with civil and political rights, and to insist on their protection whenever States act internationally.

Thank you.