The Union of South American Nations, the OAS, and Suramérica THE UNION OF SOUTH AMERICAN NATIONS, THE OAS, AND SURAMÉRICA. - PDF

THE UNION OF SOUTH AMERICAN NATIONS, THE OAS, AND SURAMÉRICA. I. INTRODUCTION Nick Allen 1 Since 1948 when its Charter was promulgated, the Organization of American States (OAS) has been the premier supranational

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THE UNION OF SOUTH AMERICAN NATIONS, THE OAS, AND SURAMÉRICA. I. INTRODUCTION Nick Allen 1 Since 1948 when its Charter was promulgated, the Organization of American States (OAS) has been the premier supranational organization governing the affairs of South America. It has passed numerous comprehensive human rights conventions 2, created a judicial system to adjudicate state abuses 3, established a working General Assembly and Permanent Council, instituted several mechanisms for the promotion of democracy, regional defense, healthcare improvement, and agricultural development 4, and enjoyed some form of participation from almost every country in the Western Hemisphere. 5 In 2008, however, the sway of the OAS in South America was checked by the creation of a new regional organization the Union of South American Nations (UNASUR). The signing of the UNASUR Constitutive Treaty which established UNASUR and created a uniform South American government, presidency, and financial system may usher in a new era of South American development and regional patriotism. But it may also create conflicts between the governance of its own laws and those of the OAS which could set the region in a tailspin. For the sake of understanding how UNASUR might have to interact with the OAS and how states will have to balance their domestic responsibilities with 1 J.D., University of Baltimore School of Law (2010). The author would like to thank Mr. Amged Soliman (J.D., 2011) for his invaluable advice and assistance with the drafting of this comment. The author would also like to thank Ms. Jennifer Stubbs (J.D., 2012) and Ms. Amanda Williams (J.D., 2012) for their timely and professional research assistance. Finally, the author would like to thank Professor Tim Sellers without whose support this article as well as this journal might never have happened. 2 For example, see Organization of American States, American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, Int l Conf. of Am. States, 9 th Conf., OEA/ser.L/V/II.23 doc.21 rev.6 (May 2, 1948), available at docs/libros/basing101.pdf; Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S The Inter-American Commission on Human Rights has original jurisdiction to resolve disputes and the Inter-American Court of Human Rights has appellate and final jurisdiction. For greater detail, see Gerald L. Neuman, Import, Export, and Regional Consent in the Inter-American Court of Human Rights, 19 Eur. J. Int l L. 101, (2008). 4 Some examples include the Inter-American Defense Board (IADB), the Inter-American Committee Against Terrorism (CICTE), the Pan-American Health Organization (PAHO), and the Inter-American Institute for Cooperation on Agriculture (IICA). For a greater list of OAS entities and initiatives, see Organization of American States Our Structure, (follow specialized conferences or specialized organizations or other entities ). 5 The only countries that haven t participated in the past are Cuba, who was suspended in 1962 but reinstated in 2009, and Honduras, who was suspended in 2009 and remains so. See Suspension of the Right of Honduras to Participate in the Organization of American States, OEA/Ser. P, A.G./Res. 2 (XXXVII-E/09)rev. 1 (July 16, 2009). 44 these new regional priorities, this comment will conduct a comparative analysis of the two organizations. It will analyze each bodies respective histories, purposes, political jurisdictions, policies on interactions with third-parties, and conflict resolution mechanisms while analyzing possible consequences for legal friction and overlap. The comment will conclude by stating its position on whether or not, because of the pre-existence of a similarly-situated institution, UNASUR can really benefit the South American people. II. THE ROAD TO UNASUR A. The OAS, Dissent As established by its charter on April 30, 1948, the main purpose of the OAS is to achieve an order of peace and justice in the Americas, to promote the solidarity of its Member States, to strengthen their collaboration, and to defend their sovereignty, territorial integrity, and independence. 6 Headquartered in Washington, D.C., the OAS is composed of nearly every nation in the Western Hemisphere. At the same time, being a regional agency within the United Nations, 7 the organization is also part of a larger political family focused on the global priority of international peace and security. 8 Nonetheless, the OAS has been the most influential and hands-on international organization in South America for decades. Its human rights system, which pre-dates the December 10 th, 1948 Universal Declaration on Human Rights, has helped protect the interests and well-being of South America s people throughout the turmoil of civil strife and coups in the last century. Its trade mechanisms have fostered dozens of free trade agreements and various customs unions which have made the Americas one of the most dynamic commercial environments in the world. 9 The OAS has also led several initiatives to improve living conditions for the region s poor by establishing the offices and policies of such agencies as the Department of Human Development and the Department of Social Development and Employment. However, some feel that the OAS cannot engender the kind of unity envisioned for the good of South America. Many detractors of the OAS feel that the OAS has been too slow to react to crises in South America and too politically weak to manage them once a reaction has occurred. The Council on Hemispheric Affairs, a Washington-based think tank which has commented extensively on OAS policies, has echoed these sentiments concerning the OAS lack of response to the 1954 Guatemalan coup d etat 10, the 1989 US incursion in Panama 11, and 6 Organization of American States Charter art. 1 [hereinafter O.A.S. Charter]. 7 Id. 8 See U.N. Charter art. 1, para For a comprehensive list of OAS trade regimes and their legal framework, see Foreign Trade Information System, (last visited Aug. 22, 2010). 10 Alex Sánchez, The South American Defense Council, UNASUR, the Latin American Military and the Region s Political Process, s-political-process/ (last visited Aug. 22, 2010). 11 Id. 45 the inability of the OAS to confront the 2009 Honduran coup d etat without UN involvement. 12 Others rebuff the OAS because of a perceived indulgence in catering to the United States. A favorite argument for decades among staunchly leftist governments in South America is that the United States is an imperial force manipulating South American affairs for diabolical purposes. Recently, Venezuelan president Hugo Chavez, commenting on an on-going rift between his country and its neighbor Colombia which has received political and military support from the United States, characterized the United States as a Yankee empire ready to take bellicose action against Venezuela at any moment. 13 Such sentiments towards the US have overflowed onto the OAS on numerous occasions due to heavy US involvement in the organization, 14 further enervating the legitimacy of the OAS in the eyes of some South Americans. B. UNASUR and its Precursors Alternatively, when UNASUR was formed by its Constitutive Treaty of May 23 rd, 2008, although not created explicitly with anti-oas intentions, it provided a new transnational platform by which South America might govern its affairs. The most recent maneuver by the continent s body politic to accomplish efficient regional unification, to many UNASUR is a step forward in the neverending bid for improved social conditions, greater political autonomy, and assured financial self-reliance. Some leaders, such as Bolivian president Evo Morales, Nicaraguan president Daniel Ortega, and aforementioned Venezuelan president Hugo Chavez, also see it as the completion of the political vision espoused by the continent s renowned 19 th century liberator Simon Bolivar and embodied in the 1826 Congress of Panama. 15 However, UNASUR is hardly South America s first post-bolivarian attempt at unification. The first truly modern ventures into South American 12 Andres Esteban Ochoa, The UN and the OAS: There is a Choice to be Made, (last visited Aug. 22, 2010). It should be noted that as of this writing, the political stand-off in Honduras between the deposing government and the OAS has not been resolved as many South American states still refuse to recognize the new Honduran government. The inability to bring the impasse to a conclusion continues to reinforce the image of weakness with which the OAS contends. Marc Larcey, Latin America Still Divided Over Coup in Honduras, N.Y. TIMES, June 6, 2010 at A Venezuela s Chavez Threatens to Cut Oil Exports to U.S., CHI. TRIB., July 25, 2010, available at news/nationworld/sns-chavez-oil,0, story. 14 For example, see Juan Forero, OAS Rights Report Criticizes Venezuela, WASH. POST, Feb. 25, 2010 (discussing President Chavez s allegations of US corruption of the OAS); Nestor Ikeda, Cuba Readmitted to OAS Without Conditions, HUFFINGTON POST, June 3, 2009 available at (describing Cuban skepticism of the OAS because of US involvement). 15 Leader of a cosmopolitan army of South Americans who cast off their Spanish colonizers, Simon Bolivar liberated six nations and instituted the first of many efforts at South American continental unification. For a good account of Bolivar s life, military campaigns, and political contributions to South America, as well as his role in the Congress of Panama, see JOHN LYNCH, SIMON BOLIVAR: A LIFE (2006). 46 regionalism were in the field of trade, starting with the Latin America Free Trade Association (LAFTA). 16 Created in 1960 by the Treaty of Montevideo, 17 LAFTA sought to eliminate trade restrictions on goods imported from member states and generally to improve economic conditions for the people of the region. 18 The result, though, was that with an unbalanced application of standards and an absent impetus within the framework of LAFTA for installing and enforcing measures against trade barriers, the organization instead proved insufficient. 19 Thus, in 1980, another treaty signed in Montevideo replaced LAFTA with the Latin American Integration Association (ALADI). 20 ALADI, which still exists today, functions with the understanding that the region s less-developed nations must, if the region is to be financially co-productive, receive support from the region s bigger economies. It also allows for the employment of regional trade preferences and scope agreements. 21 However, the first modern efforts at one common South American market did not started until 1969 with the founding of the Andean Group (also known as the Andean Pact). Created by the Cartagena Agreement, 22 the Group sought to improve economic conditions and galvanize development efforts primarily by forming a common market by It also sought to reduce national tariffs, create a uniform external tariff simultaneously with the common market, employ an immediate minimum common external tariff, and permit preferential treatment for less-developed member states similar to what ALADI would later invoke. 23 The Group experienced early success, lending towards its continued operation today, and in 1996 the Group changed to the Andean Community by means of the Trujillo Protocol to reflect its growing role in the region. 24 In 1991, the common market that the Andean Community ultimately sought materialized with the formation of the Common Market of the South (MERCOSUR). Instituted by the signing of the Treaty of Asuncion, 25 MERCOSUR sought to exist within the measures created by ALADI as well as take advantage of the fact that six years earlier, Argentina and Brazil had successfully integrated their markets by means of the Iguazu Declaration of 16 Jackson Bennett, The Union of South American Nations: The New(est) Regionalism in Latin America, 32 SUFFOLK TRANSNAT L L. REV. 103, (2008). 17 Treaty Establishing a Free Trade Area and Instituting the Latin American Free Trade Association, Feb. 18, 1960, available at 18 Bennett, The Union of South American Nations, supra note 15, at Id. at Treaty of Montevideo Establishing the Latin American Integration Association, Aug. 12, 1980, 20 I.L.M Bennett, The Union of South American Nations, supra note 15, at Agreement on Andean Subregional Integration, Bol.-Chile-Colom.-Ecuador-Peru, May 26, 1969, 8 I.L.M See Laurence Helfer & Karen Alter, The Andean Tribunal of Justice and its Interlocutors: Understanding Preliminary Reference Patterns in the Andean Community, 41 N.Y.U. J. INT L. L. & POL. 871, 878 (2009). 24 Protocol of Trujillo, Mar. 10, 1996, Bol.-Colom.-Ecuador-Peru-Venez, protocolotrujillo.pdf. 25 Treaty Establishing a Common Market, Arg.-Braz.-Para.-Uru., Mar. 26, 1991, 30 I.L.M MERCOSUR enjoyed early success as the similarities of its signatory states bolstered the results of its transnational cooperation, led to effective freetrade agreements with non-member states, and even spoked rumors of plans for a common currency. 27 Finally, in 2004, with the signing of the Cusco Declaration 28, South America made its first move for comprehensive continental unity by announcing the creation of the South American Community of Nations (SACN), the precursor to UNASUR. Purporting the goal of completing Simon Bolivar s vision as well as that of others who built the great American Nation without borders, 29 the SACN was deliberately organized in a similar fashion to the European Union in the hope that South America could replicate the relative success of their trans- Atlantic counterpart. 30 The SACN intended to merge the Andean Community and MERCOSUR trade blocs primarily through free trade zones while still maintaining the ideals of ALADI, 31 promoting regional agricultural development, 32 and fostering technological, scientific, and educational advances. 33 Every nation in South America, with the exception of French Guyana, was a signatory. III. UNION AND PURPOSE With the signing of the 2008 Union of South American Nations Constitutive Treaty in Brasilia, Brazil, 34 the presidents of the 12 signatory states to the Cusco Declaration moved to create UNASUR. 35 Essentially the SACN by 26 Bennett, The Union of South American Nations, supra note 15, at (citing Agreement on Argentine-Brazilian Integration, Arg.-Braz., July 29, 1986, 27 I.L.M. 901). 27 Id. Problems have hit MERCOSUR, however, mostly due to the lack of any institutional enforcement mechanism. It has found itself subject to waves of protectionism, with member states refusing to adhere to certain policies for the sake of stimulating domestic growth as seen most glaringly during the 1998 recession that hit Brazil which ended up cascading throughout the continent. 28 Cusco Declaration on the South American Community of Nations, Dec. 8, 2004, documents/cusco htm [hereinafter Cusco Declaration]. 29 Id. at pmbl. 30 Indeed, the European Union has reacted positively and even cooperatively to such posturing. See e.g. Communication from the European Commission, A Stronger Partnership Between the European Union and Latin America (2006), external_relations/la/docs/com05_636_en.pdf. 31 Cusco Declaration, supra note 27, at art. II. 32 Id. 33 Id. 34 Union of South American Nations Constitutive Treaty, May 23, 2008, [hereinafter Constitutive Treaty]. 35 It is important to note here that this did not actually create UNASUR. As will be discussed below, the Constitutive Treaty requires the ratification of the treaty by at least nine States Party before it can enter into force. As of the writing of this article, the Constitutive Treaty has not obtained the ninth ratification. 48 another name, 36 the Constitutive Treaty nonetheless purposes UNASUR to a further extent than the SACN had previously expressed. The treaty espouses the determination of UNASUR to build a South American identity and citizenship while at the same time [integrating] regional space in the political, economic, social, cultural, environmental, energy, and infrastructure dimensions. 37 It speaks of the strengthening of multilateralism and the rule of law in international relations and the need to promote a culture of peace... in a world free of nuclear weapons. 38 The treaty even extends the purpose of UNASUR geographically, making numerous references not only to the unification of South America but also to the strengthening of Latin America and [the] Caribbean unity. 39 Importantly, for the sake of understanding the diplomatic dynamics a State Party must balance when participating with both UNASUR and the OAS, the Treaty also recognizes the guiding principles of unlimited respect for sovereignty... [the] inviolability of States, selfdetermination of the peoples, solidarity,... reduction of asymmetries. 40 Although these principles are necessary to espouse in order to assuage concerns about more sinking-ship scenarios which have pulled the continent s collective economy into fiscal doldrums in the past, because they give State Parties the ability to champion their own causes over the organization s, these and other declared concepts could nonetheless open again the revolving door of protectionism a proven destroyer of cohesion in South America. 41 IV. JURISDICTION AND ORGANIZATION Another vital matter that a State Party will have to contend with is the jurisdiction that UNASUR employs and how its political structures interact with its jurisdiction. An apt understanding of UNASUR s jurisdiction will allow a potential State Party to appreciate the extent of UNASUR s political and legal influence. At the same time, understanding the organization s governmental structure and how it differs from the OAS will allow a State Party to understand how much influence the state might have within the organization. A. Geographic Limits 36 This is not to say that UNASUR has officially replaced the SACN. The Constitutive Treaty does not make any such move explicitly and nothing has come forward since disbanding the SACN. 37 Constitutive Treaty, supra note 33, at pmbl. 38 Id. 39 Id. 40 Id. 41 For an intricate analysis of the various problems that South America has faced due to economic downturns, the protectionist policies the downturns provoked, and the resultant damage, see DEMOGRAPHIC RESPONSES TO ECONOMIC ADJUSTMENT IN LATIN AMERICA (Georges Tapinos, Andrew Mason, & Jorge Bravo, eds., 1998); DEVELOPMENT CHALLENGES IN THE 1990S: LEADING POLICYMAKERS SPEAK FROM EXPERIENCE 17-24, (Timothy Besley & Roberto Zagha, eds., 2005). 49 As stated supra, the OAS reaches all countries in the Western Hemisphere with the present exception of Honduras. 42 With its organizational headquarters in Washington, D.C., its itinerate General Assembly holding sessions throughout the Americas from Santiago, Chile to Windsor, Canada 43, its Inter-American Court of Human Rights being seated in San José, Costa Rica 44, and all in addition to the fact that the OAS currently has 64 Permanent Observers from Algeria to the European Union and even the Holy See 45, the OAS wingspan births a wide sphere of influence. The sphere of influence that UNASUR can potentially wield, however, will never be as large as that exercised by the OAS. The reason is due conceptually to the limitations that the Constitutive Treaty places on UNASUR as a force for South American unification. As a practical consideration, UNASUR actually does not enjoy any juridical jurisdiction at this time because per Article 26 of the Constitutive Treaty, the treaty does not enter into force until it receives at least nine ratifications. 46 As of the time of this writing, only six countries have ratified Bolivia, Ecuador, Venezuela, Guyana, and most recently Peru on May 7, 2010 and Argentina by unanimous consent of its Congress in June. 47 However, proceeding as if the ninth ratification has occurred, although Article 1 declares UNASUR to have international juridical character, 48 a
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