SPEECH BY DR. HÉLIO
BICUDO, CHAIRMAN OF THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, AT THE INAUGURAL
SESSION OF ITS 110th REGULAR SESSION Washington, D. C.,
February 21, 2001 Mr.
Chairman of the Permanent Council of the OAS, Amb. Esteban Tomic Errázuriz,
Permanent Representatives, Observers, ladies and gentlemen: It is a great honor to be here at his ceremony to
formally inaugurate the 110th period of sessions of the Inter-American
Commission on Human Rights, in the company of Commissioners Dean Claudio
Grossman, Dr. Juan E. Méndez, Ms. Marta Altolaguirre, Prof. Robert
Goldman, and Dr. Peter Laurie, along with the Executive Secretary of the
IACHR, Amb. Jorge E. Taiana, the Assistant Executive Secretary, Dr. David
J. Padilla, and the professional staff of the Executive Secretariat. I am
pleased to announce that yesterday, the Commission held elections for its
board of officers for this period, which will take effect following this
address. Dean Claudio Grossman will take office as Chairman; Dr. Juan E. Méndez
as First Vice-Chairman; and Ms. Marta Altolaguirre as Second
Vice-Chairman. I wish these esteemed colleagues every success with the
responsibilities they are about to assume, with the preparation and
dedication for which they are renowned. I
am going to describe the main activities undertaken by the Inter-American
Commission in promoting and defending human rights in the hemisphere since
the opening of the previous period of sessions in September 2000. I will
also offer some general thoughts on the human rights situation in the
hemisphere and on my personal experiences as a Commissioner and as the
Chairman of the IACHR.
First of all, I would like to note the easing of the exceptionally
serious crisis in the rule of law in the Republic of Peru and to
congratulate that country’s civil society and the individuals
responsible for its transition to full institutionality. In my capacity as
Rapporteur for Peru, I have had very close exposure to the regrettable
situation to which that country was subjected by a regime that violated
human rights. As the people here will remember, the IACHR duly drew
attention to the judiciary’s lack of independence, the severe
restrictions placed on freedom of expression, the harassment and
intimidation of the opposition, and the serious electoral irregularities
that took place in Peru. In its report on that country’s human rights
situation, presented to the General Assembly in Windsor,
Canada, the Inter-American Commission unequivocally stated that “the
elections that have been held in Peru clearly represent an irregular
rupture in the democratic process such as that referred to in Resolution
1080, adopted in 1991 by the General Assembly of the OAS,” and it
consequently called for “a return to the rule of law in Peru, and to the
convocation, in a reasonable time, of free, sovereign, fair, and genuine
elections that are up to the respective international standards.” As
you will recall, the government of Peru had refused to comply with its
international human rights obligations, most particularly with the claimed
“withdrawal from the contentious jurisdiction of the Inter-American
Court” by means of a unilateral legislative resolution of July 7, 1999.
On January 31, 2001, the Permanent Representative of Peru to the OAS
presented the Secretary General with a document setting forth the
normalization of Peru’s situation vis-à-vis the Inter-American Court
and its acceptance of the Court’s rulings that the aforesaid unilateral
action was inadmissible. In
addition to this, the Permanent Mission of Peru deposited an instrument of
ratification of the Inter-American Convention on Forced Disappearance of
Persons with the OAS General Secretariat on January 8, 2001. The concrete
steps that have been taken towards democratic institutionality in Peru
deserve the IACHR’s full support. During
the past year the IACHR concluded its work on reforming its Rules of
Procedure, which represents the first major modification of that document
since 1980. The rewriting process was marked by its breadth and openness,
with positions and comments received from numerous OAS member states, more
than a hundred nongovernmental organizations and other civil society
bodies, and independent human rights experts. Against that backdrop, the
dialogue that took place in the Committee
on Juridical and Political Affairs was highly fruitful. The aim of
reforming the Rules of Procedure was to update them in light of the
practices adopted in recent years and to increase the procedure’s legal
certainty and transparency. The main amendments and new provisions that
the IACHR has approved and incorporated into its Rules of Procedure are
outlined in the following paragraphs. The text was published on the
Commission’s webpage in early 2001 and will come into effect on May 1 of
this year. The
new Rules of Procedure establish an admissibility procedure as a separate
stage, during which efforts are made to determine whether petitions meet
the requirements set forth therein and to adopt a decision for publication
in a public report. Under the new Rules, the deadlines in the
admissibility and merits phases have been shortened, in an attempt to
reduce the time spent processing petitions and cases. In
recent years, the IACHR has paid particular attention to the procedure for
the friendly settlement of petitions and cases, with full respect for the
human rights enshrined in the American Convention. In the new Rules,
friendly settlement is set forth as a procedural step prior to the
decision on the merits, as well as being available at any stage in
examining a petition or case. In addition, this stage has been included in
the procedure applicable to states that are not parties to the American
Convention. The
new Rules also consolidate the legal framework for overseeing compliance
with the recommendations issued in individual case reports and in reports
on the general human rights situation in OAS member states. The provisions
governing precautionary measures have also been clarified in accordance
with the practice of the Inter-American Commission, in consideration of
the best protection of individuals’ human rights and the legal security
of the parties involved. The
appointment of rapporteurs and working groups as a mechanism for better
discharging the IACHR’s functions has also been regulated. Of particular
importance is the creation of the working group on admissibility, which
will convene in advance of Commission sessions and draw up pertinent
recommendations for the plenary. Another
very important innovation is the rule under which cases involving member
states that have accepted the contentious jurisdiction of the
Inter-American Court and have failed to comply with recommendations
contained in a report issued under Article 50 of the American Convention
will be referred to the Court, unless there is a reasoned decision by an
absolute majority of the members of the Commission to the contrary. The
new Rules of Procedure stipulate that in doing so, the Commission shall
give consideration to obtaining justice in the particular case, based on a
series of factors including the position of the petitioner, the nature and
seriousness of the violation, the need to develop or clarify the case-law
of the system, the future effect of the decision within the legal systems
of the member States, and the quality of the evidence available. The
new Rules allow the petitioner and the victim to participate in the
proceedings prior to the decision to refer the case to the Court. Once
that decision has been made, it stipulates that those same persons shall
have access to all relevant information for preparing their case. In
addition, petitioners, victims, and their representatives can appear as
delegates in a case before the Inter-American Court and can submit their
briefs autonomously. The
Inter-American Court also adopted new Rules of Procedure in December 2000,
due to come into force on June 1, 2001. That instrument and the IACHR’s
Rules of Procedure complement each other harmoniously, particularly as
regards expanding victims’ rights of representation, within the legal
framework permitted by the American Convention. In
this context, mention should be made of the optional protocol to the
American Convention presented recently by the State of Costa Rica for
consideration by the General Assembly to be held in that country in June
of this year. Article 44(2)(a) of the IACHR’s new Rules of Procedure
provides that the Commission will refer all the cases it receives to the
Inter-American Court upon completion of the procedure set forth in the
American Convention “unless there is a reasoned decision by an absolute
majority of the members of the Commission to the contrary.” To this end,
the IACHR’s Rules stipulate that the Commission will give fundamental
consideration to obtaining justice in the particular case and will bear in
mind, inter alia, the position
of the petitioner. In addition, Article 69(1) of the Rules enables a
petitioner to serve as a delegate of the Inter-American Commission in a
case before the Court. In turn, the Court’s Rules of Procedure provide
for the autonomous participation of victims in the application (Article
23) and in the admission of evidence (Articles 34 and 43). I
believe that attention must first be given to the practical application of
the provisions contained in the new Rules of the IACHR and the Court. I am
certain that were we to adopt the proposed optional protocol before
accumulating that practical experience, we would be going much further
than we can predict. Moreover, adoption of the protocol would go against
the clear and express proposals made by leading human rights experts at
the conference on strengthening the inter-American system held on December
6, 2000. That
conference was attended by representatives of member states, different
sectors of civil society, the OAS General Secretariat, and human rights
promotion and protection agencies. Among the issues the conference studied
were the proposals made for strengthening the inter-American human rights
system. In particular, the question of whether a future amendment of the
American Convention would weaken or strengthen the system was analyzed.
The speakers agreed that the basis for the success of any strengthening
process lay in the application of fundamental parameters of gradualism,
progressiveness, and most particularly, the need for consensus among all
the sectors involved in that process, including the states, civil society,
and the system’s organs. It was stressed that the promised amendments to
the Rules of Procedure of the system’s organs were based on the notion
that the inter-American human rights processes had to be characterized by
agility, transparency, predictability, and ease of access by victims to
the agencies of the inter-American system. Because
of their importance, I would like to recall the general consensus among
the event’s participants regarding the following matters that require
attention: Providing
the organs of the inter-American human rights system with the human and
financial resources required for their proper functioning. Making the system universal; that
is, all the countries of the hemisphere should ratify all the
inter-American system’s human rights treaties and accept the contentious
jurisdiction of the Inter-American Court of Human Rights. Giving
due priority, within the political organs of the OAS, to monitoring
implementation of the recommendations and judgments of the organs of the
inter-American system. To that end, specific proposals were made. Also noteworthy was the Commission’s adoption, in
October 2000, of the “Declaration of Principles on Freedom of
Expression,” intended to provide more effective protection for that
fundamental right. The Declaration, which consists of thirteen principles,
was prepared by the office of the IACHR’s Special Rapporteur on Freedom
of Expression and was submitted to a broad process of consultation with
specialized sectors of civil society. The Declaration defines freedom of
expression as “an indispensable requirement for the very existence of a
democratic society.” Both the Commission and the Court have developed
jurisprudence about the importance of this right in and of itself and,
additionally, as a guarantee for the protection of other rights. On
February 1-2, 2001, the IACHR held its First Seminar on the Inter-American
System for the Protection of Human Rights in the Caribbean Region in St.
George's, Grenada, at the invitation of that country’s government. The
seminar was held with assistance from the Inter-American Institute of
Human Rights of San José, Costa Rica, the Commonwealth Secretariat of
London, United Kingdom, the Caribbean Human Rights Network (Caribbean
Rights) of Barbados, and the government of the United Kingdom. The event
was attended by members of the IACHR and the Executive Secretariat, as
well as by two former Commission Chairmen, Dr. Patrick Robinson and
Ambassador John S. Donaldson, and Dr. Jean Joseph Exumé, a former
Commissioner. Also present were Hon. Keith C. Mitchell, the Prime Minister
of Grenada; Hon. Elvin Nimrod, the Minister of Foreign Affairs; Senator
Lawrence Joseph, Attorney General and Minister of Labor; Judge Monica
Joseph, Chair of the Grenada Public Service Commission; and other
distinguished figures. The
seminar’s opening session was attended by Grenada’s highest
authorities, members of the diplomatic corps in the country, and other
regional dignitaries. The seminar’s venue has a special meaning within
the inter-American human rights system, since it was Grenada’s
depositing its instrument of ratification on July 18, 1978, that brought
the American Convention into force. Grenada was the eleventh state in the
Americas and the first country in the English-speaking Caribbean to ratify
the American Convention. The
aim of the seminar was to promote awareness of the inter-American treaties
and of procedures for protecting human rights in OAS member states. The
participants included attorneys general, ombudsmen, public prosecutors and
public defenders, judges, lawyers, law professors and law students, law
enforcement officers, prison staff, psychiatrists, and intergovernmental
and nongovernmental organizations. On behalf of the Commission I would
like to thank the government of Grenada for hosting this event and helping
organize it, and my gratitude also goes to the Inter-American Institute of
Human Rights, the Commonwealth Secretariat, and Caribbean Rights for their
help in funding and organizing the seminar. The
rights of indigenous peoples received special attention from the
Inter-American Commission, which was represented at seminars on the
operation of the inter-American system intended for indigenous and
Caribbean leaders from Central America. The Commission has provided the
Working Group on the future Declaration with technical assistance, and it
was represented at the Indigenous Hemispheric Conclave organized by the
government of Guatemala in January 2001. It has also brought out two
publications: “The Human Rights Situation of the Indigenous People in
the Americas,” and “International and National Legal Sources for the
Proposed Declaration.” Both publications have been incorporated into the
IACHR webpage’s newly created section on indigenous rights.
In recent days, the IACHR has been pleased to receive the
Inter-American Court’s judgments in the following cases: The Last
Temptation of Christ (Chile), Baena et
al. (Panama), and Constitutional Court and Baruch Ivcher Bronstein
(Peru). Essentially, the Inter-American Court upheld the applications made
by the IACHR in these cases, which represent an important step in the
development of its jurisprudence in major cases. Thus, among other issues,
in these cases the IACHR and the Court reaffirm vital matters relating to
freedom of expression, economic, social, and cultural rights, and the
strengthening and independence of the judiciary. Ladies
and gentlemen:
The period of sessions that is about to begin will address the wide
range of activities that the IACHR carries out in accordance with its
mandate. In particular, a joint meeting will be held between the IACHR and
the Inter-American Court of Human Rights, following a practice that has
been current for several years. That meeting’s agenda includes
procedural issues related to the coming into force of the new Rules of
Procedure of the two organs, which will mark the start of a new and
dynamic phase within the inter-American human rights system.
The Commission will spend a large part of its meeting time studying
and considering reports and decisions on individual cases and on the human
rights situation prevailing in several states around the hemisphere. As is
customary at regular sessions, during the second week the Commission will
hold hearings with petitioners, state representatives, alleged individual
victims, and other persons who can provide information on matters that
come under its jurisdiction. The organs of the inter-American
system have increased their responsibility in the protection of human
rights, with the involvement of the member states and the work of civil
society. I think it is correct to insist that the key element in
strengthening the system must be an increase in its material and human
resources. Otherwise, it will not be possible to fully discharge the task
of promoting and protecting human rights in the region. At the General
Assembly in Windsor, Canada, the states expressed their will regarding
compliance with international commitments, which must translate into full
compliance with the recommendations, judgments, and other decisions of the
system’s supervisory organs. It
is important that the member states give the highest political priority to
ratifying the American Convention, its additional protocols, and the
system’s other treaties, and to recognizing the jurisdiction of the
Inter-American Court. With that in mind, we must embark on a high-level
dialogue with those states that are not yet parties to those instruments.
In this respect, I would like to recall that the State Department of the
United States of America, in analyzing the Vienna Convention on the Law of
Treaties, determined that the provisions of that instrument constituted a
declaration of international customary law. In accordance with the Vienna
Convention, therefore, recognition must be given to the progressive
importance of treaties as a source of international law and as a means for
peaceful and cooperative coexistence among nations, irrespective of their
constitutions or social systems. Another
challenge involves adapting states’ domestic laws to the international
rules, in addition to establishing mechanisms for compliance with the
decisions and recommendations of the system’s organs. In this regard, it
would not be inappropriate to point out that the repeal of the desacato contempt laws still in force in most of the OAS member
states is still an uncompleted task. Similarly, cooperation should
emphasize the training of officers from the judiciary and from the
security forces, as well as civil society. On
a personal level, I would like to note that the start of this period of
sessions marks the end of my time in office as Chairman of the
Inter-American Commission on Human Rights. I would therefore like to offer
my special thanks to my fellow Commissioners for the trust they placed in
me. Similarly, I would like to pay tribute to the helpful and active
collaboration of the hemisphere’s human rights defenders and of the
representatives of the member states.
I would like to thank Amb. Jorge E. Taiana and Dr. David J.
Padilla, whose dedication to the success of the Inter-American
Commission’s work is a kind of touchstone for our activities. My
gratitude also goes to all the attorneys at the IACHR’s Executive
Secretariat, whose spirit is well represented by their senior member,
Osvaldo Kreimer, and to the fellows and interns, who are another important
part of the Commission. Finally, I would like to offer special thanks to
the officers of the Executive Secretariat, whose dedication makes them as
essential as the blood that flows through our veins, because they enable
the IACHR’s infrastructure to operate and because the success of the
Commission’s activities so often depends on them.
After my third year as a Commissioner and at the conclusion of my
chairmanship of the IACHR, I would like to announce that my time with this
body will end on December 31. For me it has been a rich experience that
has benefited me greatly, particularly the work carried out in conjunction
with my fellow Commissioners. Some of them are no longer with the
Commission, such as Alvaro Tirado Mejía, Carlos Ayala Corao, and Jean
Joseph Exumé, while the others are with us here today. They are all
worthy of mention for their vital contributions to the human rights cause.
As you can see, people come and go but the spirit of the Commission
remains unchanging in its permanent quest, within which no sacrifice is
spared, for a more just society. Through it, women, men, and children,
without distinction or discrimination of any kind, can consider themselves
citizens, under the rule of law.
If you could recall what was said by the colleagues who preceded me
in the chairmanship of the IACHR, you would see that the Commissioners
have changed, but not the ideal that keeps the Commission alive:
protecting the inherent rights of people, with no exceptions whatsoever.
I am certain that the starting point for defending human rights is
the defense of life. During my chairmanship, albeit on a personal basis, I
was able to submit to the Inter-American Commission – and, through it,
to the member states and competent organs of the OAS – a study on the
problems relating to the death penalty in cases submitted to the IACHR in
light of how international law has evolved. The legal basis for that study
was that upon ratifying the American Convention and other instruments that
establish human rights obligations, those rights become a part of a member
state’s positive law. Consequently, those instruments constitute
subsequent legislation, repealing any provision that enforces capital
punishment, pursuant to the terms of Article 4(2) of the American
Convention. I believe that the question of the death penalty warrants
thorough and direct contemplation and that we can no longer continue to
avoid or ignore it as is the case at present.
If you would allow me a final, very personal comment, I would like
to thank my wife Dea and my children, who have always supported me through
the many difficult times we have had to endure. I thank Dea for her
dedication and patience during this stage in our lives, when my duties and
responsibilities have taken me away from home, frequently for extended
periods. I have to say that it has been hard to forego her company, which
is even more important to me today than it was at the start of our
half-century-long journey together. I
do not want to conclude my address without expressing the IACHR’s
gratitude to the Secretary General, Dr. César Gaviria Trujillo, for his
constant support of the Commission’s work and the strengthening of the
inter-American human rights system. The IACHR will continue to promote
collaboration with the member states in pursuit of the common goal of
ensuring respect for the human rights of all the region’s inhabitants. Thank
you very much.
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