Institute for Justice and Democracy in Haiti

Law and Politics: The OAS and Haiti

Law and Politics: The OAS and Haiti

In early June, the General Assembly of the Organization of American States (OAS) discussed Haiti. Haiti’s neighbors in the Caribbean Community, CARICOM, were concerned about the interruption of democratic government in Haiti, and asked the OAS to take action. CARICOM had called for impartial investigations into February’s coup d’etat at both the OAS and the United Nations, without success. It hoped the General Assembly would encourage the OAS, which had never condemned the coup itself, into action.

The OAS has 34 members, every country in the Americas except Cuba. The OAS has high purposes: to achieve peace and justice in the region, promote solidarity, strengthen collaboration, and defend the sovereignty and independence of its members. The organization has one foot in the world of politics, and another in the world of law. Many of its functions are political, with the compromises, dealmaking and power relations of that world. These include negotiating treaties and agreeing to joint policies. Some of the OAS functions are legal, making sure that members comply with the rules once they are agreed upon. These include the Inter-American Commission on Human Rights, and several legally binding treaties. The General Assembly, which meets at least once a year, decides the OAS’ basic policy, while the Permanent Council, with a representative from each country, handles many issues in between these annual meetings.

Someone learning about the OAS back in mid-February would have thought it tailor-made to respond to Haiti’s unrest. The OAS Charter, the organization’s “Constitution,” declares in its third phrase that “representative democracy is an indispensable condition for the stability, peace and development of the region.” The organization’s essential purposes, listed in Article 2, include “to promote and consolidate representative democracy,” and “to provide for common action on the part of [Member] States in the event of aggression.” Article 3 declares that “[a]n act of aggression against one American State is an act of aggression against all the other American States.”

The OAS did not, in fact, come to the rescue of Haiti’s embattled representative democracy in February. Some member states, especially the CARICOM countries, insisted on a peaceful and democratic solution to the crisis. Jamaica and Trinidad and Tobago tried to send supplies to Haiti’s beleaguered police. But the OAS itself did not treat the aggression against Haiti’s elected government as an “aggression against all the other American States,” nor did it attempt any “common action.”

The OAS did issue a statement on February 28, the eve of the coup, condemning violence, but did not mention the threat against democracy. The next day, the OAS issued a press release to support what it called the “new constitutional government of Haiti,” while the elected President was still captive in a U.S. plane, unable to inform the world that he had resigned. Some OAS members even helped the attack on Haiti’s elected government. The Dominican Republic allowed Haiti’s insurgents to train and launch their offensive from its territory. The U.S. provided, at the very least, diplomatic support to Haiti’s insurgents, probably much more, and forcibly removed the elected President from the country.

CARICOM’s initiative gave the General Assembly a chance to make up for its lack of action to prevent the coup. The OAS’ Inter-American Democratic Charter contains the mechanisms for responding after a democratic government has been overthrown. Article 19 of the Charter calls “an unconstitutional alteration of the constitutional regime” an “insurmountable obstacle” to a country’s participation in OAS activities. In the event of such an unconstitutional alteration, Article 20 allows members to ask the Permanent Council to take measures “to foster the restoration of democracy.” Article 21 allows for a vote to suspend a member if these measures fail.

These mechanisms involve both law and politics. The rules are clear: a government coming to power through unconstitutional means cannot participate in the organization’s activities. But the remedies for a violation of the clear rules are political and imprecise. They are “diplomatic initiatives,” which depend on how much power those behind the measures have at the diplomatic level, and how much they want to exercise this power.

The resolution from the June meeting is an uneasy mix of law and politics. In part, the resolution followed the law: it corrected the error of the February 29 press release by calling the de facto government the “transitional government,” not the “constitutional” one. It recognized that there were “subsequent questions surrounding” the reported resignation. The resolution invoked Article 20, and asked the Permanent Council to “take all necessary diplomatic initiatives, including good offices, to foster full restoration of democracy in Haiti,” which could be a step towards Haiti’s suspension from the organization.

But much of the resolution favored politics, at the law’s expense. It called for elections “as soon as possible, in keeping with the Inter-American Democratic Charter,” ignoring that Haiti’s Constitution says there are almost two years left in the elected President’s term. The U.S., the OAS and the de facto government had already agreed that “as soon as possible” meant elections in eighteen months, despite the Constitution’s mandate that a transitional government hold elections within three months, despite the example of 1995, when “as soon as possible” meant elections eight months after the arrival of foreign troops. The resolution repeated the claim that there had been a “resignation,” despite the fact that the purported author of the resignation and the U.S. State Department’s own expert said it was not one.

The resolution omitted CARICOM’s call for an investigation, making it unlikely that the full truth about the events of February 29 will ever be known. That omission may point to the future course of the balance between law and politics on this matter: a fair implementation of the law requires knowing the facts, while a political solution does not. In a political decision based on what the powerful countries want to do, the facts just get in the way.

If the OAS does decide to stick with its principles, CARICOM is showing the way. On June 25, Baldwin Spencer, the Prime Minister of Antigua and Chairman of CARICOM declared: “….the return to constitutional and democratic processes that underpin Haiti’s development are prerequisites for participation in the councils of the regional grouping by its newest member state.”

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