Opening of 110º regular sessions

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.