Argentina: The Committee recognises arge-scale reforms undertaken but fears weakening of human rights institutions
The Human Rights Committee has reviewed the 5th report of Argentina during its 117th session, on the 29th and 30th of June. The Committee faced the classical problem of the implementation of the ICCPR in Federal States such as Argentina, related to the relationship between international law, the Federal State and the Federated States. Furthermore, the Committee tried to push Argentina forward on the issue of abortion and expressed its concerns regarding an alleged “dismantlement” of national human rights institutions.
"A State party may not invoke the provisions of its internal law as justification for its failure to comply with an international treaty"
Implementation of the ICCPR
The issue related to the implementation of the ICCPR in Federal States reads as follows: whereas the Federal State is the responsible entity under international law, the Federated States are the competent authorities to implement international treaties at a local level. The Committee therefore questioned Argentina on the constitutional framework allowing for the effective implementation of the Committee’s recommendations at a local level: from a normative perspective, the Constitutional norms are “very clear” and “updated”, but the framework lacks an efficient “articulation between the various echelons”, said the Committee. The same problem occurs with the Committee’s views on individual communications as well, because the provinces can implement them with some degree of independence. The Committee then stressed that the local level largely lacks resources when compared to the national level. The delegation of Argentina – exclusively composed of officials of the Federal State – acknowledged that even though some local decisions can be totally independent from the Federal State, there were some clear means of articulation. For instance, the Supreme Court’s decisions shall be implemented by local authorities.
Laws on abortion
Although the domestic laws on abortion are very strict in Argentina, a Supreme Court’s decision encouraged the Committee to push the State forward on this issue. In Argentina, the practice of abortion is illegal and punishable except in two cases: when it is performed to avoid endangering the mother’s life or health and if the pregnancy results from rape of a woman with a mental disability. In this context, a 2012 Supreme Court’s decision is to be seen as game changer: this decision not merely authorises the practice of abortion in cases of rape, regardless of the mental health of the person, but also prohibits the punishment of those acts. Furthermore, physicians do not have to request judicial authorisation in such cases. Still, this new case-law does not reach the standard of protection established by the Committee, according to which abortion must be authorised if the pregnancy is the result of rape, incest, when pregnancy endangers the mother’s life or when the fetus suffers from fatal abnormalities. The Committee therefore requested that Argentina reconsider its legislation on abortion by undertaking studies to determine the number of illegal abortions and their dramatic consequences on women’s right to life. In any case, the Committee stressed that there were de facto obstacles to abortion, since some physicians can use their right to contentious objection.
'Dismantlement' of NHRIs
Finally, the Committee expressed concerns about what member of the Committee called “the dismantlement of national human rights institutions”, mainly regarding institutions that were supposed to shed a light on the crimes committed under the dictatorship: some activities have been interrupted; there have been funds cut-off and a slowing down in the judicial proceedings. The Committee asked for a “strong engagement” from the State, if possible with figures, and not merely declaration of intent. The Government answered that there is no “dismantlement” and that they “do not forget [their] duty vis-à-vis victims of the crimes against humanity”. There is a reform, however, said the delegation, but the purpose is to have a “global vision” on national institutions.
It’s worth noting that Argentina engaged itself to invite all Special Rapporteurs as a commitment for Human Rights.
Recommendations of the Committee
The Concluding Observations for which the State should provide information on the implementation within one year, concern:
- Abortion: The State should introduce, inter alia, additional exceptions to the prohibition of abortion, including when the pregnancy is the result of rape, without condition. Argentina should also consider decriminalising abortion and ensure that every women and girl can access reproductive health services in every region of the country.
- Torture and ill-treatment: Argentina should take measures to continue the fight against torture and ill-treatment, including by ensuring that: cases of torture or ill-treatment are investigated quickly, exhaustively, and independently; victims are provided with redress; and the national mechanism for prevention of torture is set up in every region of the country.
- Conditions of detention: Argentina should adopt efficient means to improve the material conditions in the detention centres, decrease overcrowding and adequately meet the fundamental needs of every individual deprived of liberty, at the federal level as well as in the provinces, in conformity with the Mandela Rules.
The next (sixth) periodic report of Argentina should be submitted by 15 July 2022.