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On September 26, 2009, the Inter-American Commission on Human Rights (IACHR) strongly condemned Executive Decree PCM-M-016-2009 issued by Roberto Micheletti, Honduras’s de facto head of state, following the June 2009 coup d’état that deposed the democratically elected President José Manuel Zelaya.

The decree, in effect for 45 days, suspends constitutional guarantees related to personal liberty, freedom of association and assembly, freedom of movement, and freedom of expression — rights largely guaranteed in Articles 7 (Right to Personal Liberty) and 13 (Right to Thought and Expression) of the American Convention on Human Rights (ACHR). Specifically, the decree prohibits all public gatherings not previously authorized by competent authorities; permits the National Telecommunications Commission (CONATEL) and security forces to suspend transmission of any written, spoken, or televised statement that “offends the human dignity of any public official”; allows state officials to detain all persons that place “their lives and the lives of others at risk”; and orders evictions of all physical buildings that have been “illegally occupied by groups of people.”

The IACHR warned that the decree arbitrarily restricts fundamental freedoms and contains vague regulations that grant unfettered discretion to state officials. In particular, the IACHR found that the suspension violated international law because “it was adopted to sustain the illegitimate government that arose from the rupture of the democratic institutional order.”

The ACHR allows States Parties to temporarily derogate from some of the Convention’s provisions under exceptional circumstances. Specifically, Article 27.1 of the ACHR provides that “in time of war, public danger, or other emergency that threatens the independence or security of a State, [the State] may take measures derogating from its obligations under the Convention to the extent and for the period of time strictly required by the exigencies of the situation.” States Parties may not, however, derogate from some articles including Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), and Article 23 (Right to Participate in Government), among others.

Although the ACHR does not specifically list the articles directly implicated by the decree (Articles 7 and Article 13) as those which may never be derogated, the IACHR’s condemnation may nevertheless have been proper under the doctrine of the Inter-American human rights system. In the Inter-American system, the ability of states to derogate from human rights instruments is strictly governed by the principles of proportionality, necessity, and nondiscrimination. In its 2002 Report on Terrorism and Human Rights, the IACHR states that the suspension of rights may only be for the period of time that is strictly required by the exigencies of the situation.  Moreover, the proportionality and necessity requirements “preclude[] the unnecessary suspension of rights, the imposition of restrictions more severe than necessary, or the unnecessary extension of suspension to regions or areas not affected by the emergency.”

It is unlikely, however, that the Honduran decree meets these exigencies. The IACHR previously found that the suspension of certain rights for three days in other nations (Nicaragua in 1980) was unacceptable. Here, the Honduran regime seeks to suspend rights for 45 days, far beyond the three days found unacceptable in Nicaragua.  Moreover, the decree’s restrictions are too broad to be necessary and proportional. The requirement that citizens seeking to assemble must obtain permission from public authorities will certainly chill speech far beyond what is needed to protect public order. In addition, for there to be an emergency justifying suspension of rights, there must be an extremely grave situation such that there is a real threat to the life of the nation or the security of the state.  The IACHR rightly stated these conditions were not met.

Paradoxically, Micheletti may seek to legitimize his regime through the decree. Honduras is scheduled to hold general elections in November and some analysts believe that the decree will help to intimidate the opposition during the campaign, thus helping to consolidate his power. If Micheletti’s true intentions were to intimidate the opposition for the upcoming general elections, he may violate the oppositions parties’ rights under Article 23 (Right to Participate in Government), one of the articles which may never be derogated under Article 27. Far from legitimizing the regime, Micheletti’s decree is likely to further increase international condemnation, and stir additional opposition and civil unrest.