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Human Rights, the Brazilian Experience and the International Scenario
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Human Rights, the Brazilian experience and the international scenario


The present situation in regard to Human Rights in Brazil


Brazil has advanced on human rights issues since the end of the military dictatorship in 1985 and the subsequent redemocratizing process which has constituted new legal guarantees in the field of civil, political, economic, social and cultural rights. The 1988 Federal Constitution synthesized respect for human dignity as the foundation for the legal framework as well as the prevalence of human rights as the guiding principle for Brazilian international relations.


In this sense, Brazil's position has been consolidated in regard to the inter-dependence and indivisibility of the wider range of human rights, integrating, in a partnership with civil society, government policies of promoting and guaranteeing civil and political rights with priority being placed, particularly in the present Government of President Luiz Inácio Lula da Silva, on developing, promoting and guaranteeing economic, social and cultural rights as exemplified by the efforts made to combat hunger and poverty.


The Country now has advanced Laws like the Children and Adolescents Statute (ECA) which was sanctioned 16 years ago and whose axis rests on viewing the child as subject imbued with rights. More recently the Statute of the Elderly has been approved, which sets out provisions for promoting and guaranteeing rights to the population of the elderly. There are equally positive facts registered in regard to persons with special needs, protection for minorities, combating torture and the degrading treatment of prisoners etc.


Brazil has also ratified the major international treaties on human rights issues which have elevated our country's commitment to this cause up to international levels and standards. At the very beginning of the present government's mandate, in 2003, President Lula set up three Special Secretariats with the status of Ministries: Human Rights, Promoting Racial Equality and Policies for Women.


But even with all these steps forward, Norberto Bobbio's acute observation when, in regard to the glaring contrast between the high intentions proposed in the 1948 Declaration and the concrete situation which surrounds us, he declared in "The Age of Rights": "in spite of the illuminated expectations of the philosophers, of the courageous formulations of the jurists, and the efforts of politicians of goodwill, there is still a long way to go".


Major difficulties facing Human Rights


In spite of the modern legal framework in place, Brazil's greatest challenge in this field is to effectively guarantee the fundamental rights provided for by law. Several centuries of colonial domination and the deep marks inherited from the slavery system (1500 -1888) have made our Country a nation where advanced political-legal institutions live side by side with frequent episodes revealing the persistence of brutal domineering and oligarchic violence. Thus we routinely come across serious violations of human rights in the form of mistreatment and torture of citizens under arrest, sub-human prison conditions in several states, truculence in the administering of social-educative attention to adolescents at odds with the law, extermination groups, massacres and promiscuousness between minority sectors of the police and organized crime.


The Federative structure of the Brazilian State and the very division of the Branches of Power into Executive, Legislative and Justice Branches, are additional factors involved in the challenge of implementing the international regulations and commitments that establish the norms on human rights. The need for progress in the process of integration among the branches of power and the federated units corresponds to a challenge of considerable complexity. 


Decisions that disrespect the rights of indigenous communities for example, frequently involve a sovereign power - the Justice Branch - which hands back recognized indigenous lands to illegitimate proprietors. In such cases the Executive Branch has very limited powers of intervention as, in spite of its recognizing their property rights over an area that has historically belonged to the Indians, it sees its decision suspended by the sovereign authority of the another Branch. A similar context encompasses the question of the Agrarian Reform, the very needful and pressing process of democratizing land tenure. - where the big land holdings continue to dominate the scene - which constantly runs up against serious obstacles and the fierce resistance of the big rural landowners who are strongly represented in the Legislative Branch.


Another example illustrative of the same situation is the difficulty found in getting approval for laws that contribute towards guaranteeing human rights. Brazil has been carrying out work that has received international recognition as an example to be followed in the case of combating slave labor. The only criticism that has been launched in this regard is the lack of specific legal penalties for those landowners that use forced labor in conditions analogous to slavery. Although it is a residual phenomenon, it still victimizes 25,000 Brazilian citizens particularly in the Northeast of the country and in the Amazon region.


It so happens that ever since the year 2000 a proposal for a constitutional amendment that foresees the expropriation of lands where slave-like labor has been detected, and the redistribution of the land to benefit the victims themselves under the aegis of the agrarian reform, has been sluggishly undergoing due process in the Legislative Branch. The Amendment, which originated in the Senate, was approved in its first instance in the Chamber of Deputies, but the Big Rural Landowners lobbied intensely against it and made the necessary second vote unfeasible so that it has come to a halt there without being concluded.


Legal Framework


It is worthwhile pointing out what the Brazilian government has been doing in terms of executing legal material, particularly, the efforts it has been making to implant international norms that set out directives on human rights.


The process of redemocratizing Brazil has led to its signing and ratifying all the most important human rights treaties of both the UN system and the OAS.


Variations among the interpretations of the Constitution, especially among the Higher Courts, led the Executive Branch to propose, in 2004 and already approved by the Legislative Branch, an Amendment to the text of the Constitution elucidating the mechanisms necessary for a treaty to acquire constitutional status.


Another innovation put forward by the said Amendment, usually referred to as the Reform of the Justice Branch, was creating an institutional federalizing of serious violations of human rights .  The possibility of transferring what now comes before several other divisions of the courts, to the Federal Justice courts, is considered by many to be an important instrument for combating impunity. The possibility of this federalizing process occurring made its weight felt effectively in the Courts of the State of Pará, in the Brazilian Amazon, so that two of the five assassins of the North American religious sister Dorothy Stang, killed on February 12 2005 for defending the preservation of the forest and the rights of the poor population in Anapu, on the Transamazonian highway, were tried and sentenced in record time.


Still in the nineties, Brazil became a reference mark when it created its National Human Rights Program based on the Plan of Action of the Vienna Conference. Produced in two editions, the program is the product of demands and expectations of wide sectors of Brazilian public administration and civil society in proposing governmental actions for protecting and promoting full and indivisible human rights. Following that initiative, many States of the Federation began to elaborate regional plans which have led to a series of  innovative experiences  and opened spaces for public policies directed at this area.


Convinced that respect for human rights comes about through education, two of the present government’s initiatives may be considered as irradiating a new culture of human rights. Firstly in 2004 the National Human Rights Education Plan was launched based on the premise that education is not limited to subject matter learned in the schoolroom. The initiative has been widely discussed in various Brazilian universities and broad segments of civil society with representation on the National Human Rights Education Committee.


Secondly, preparations are being finalized so that the Inter-American Court of Human Rights, in an extraordinary departure from its headquarters in Costa Rica, may hold a session in Brazil at the end of March. I believe that such a visit, in addition to providing an opportunity for observing an international court in action, will correspond to a decisive chapter in the process of publicizing internally, the Inter-American System for the Promotion and Protection of Human Rights. 


Institutional advances, links with other government organizations and relations with NGO's.


The Special Secretariat for Human Rights of the Presidency of the Republic (SEDH/PR), created by Law nº 10.683, dated May 28 2003, is that body of the Presidency of the Republic charged with advocating and implementing public policies directed at promoting and protecting human rights. Its major responsibility is to coordinate National Policy on Human Rights in compliance with the directives of the National Human Rights Program (PNDH).


In this sense, the SEDH acts as much in interaction, advocacy and coordination among government bodies in the federal, state and municipal spheres including the Justice, Legislative and Executive branches, as it does in forming partnerships with civil society organizations.


The executive units of the SEDH are: the Sub-secretariat for the Rights of Children and Adolescents; the Sub-secretariat for Promoting the Defense of Human Rights; the Sub-secretariat for Advocacy of Human Rights Policy; and the National Coordinating Body for the Integration of Persons with Special Needs (Corde).


In addition to the executive units, the SEDH has other collegiate bodies within its structure: Council for the Defense of the Human Individual (CDDPH) set up in 1964, National Council for the Rights of Children and Adolescents (Conanda), the National Council for Combating Discrimination (CNCD), the National Council for the Rights of Persons with Special Needs (Conade), and the National Council for the Rights of the Elderly (CNDI). Recently, additional committees were set up, the  National Committee for the Eradication of Slave Labor, a National Coordinating Body for the Program of Protection for Defenders of Human Rights, a Permanent Committee for Combating Torture and other bodies with functions of coordinating and exercising democratic control through the participation of representations of civil society.


Brazilian participation in international bodies that deal with human rights issues.


Brazil is a signatory to the main international treaties that deal with human rights issues and enjoys just recognition for its stances in the special bodies of the UNO and OAS (Human Rights Council, Geneva; Inter-American Commission on Human Rights in Washington, Inter-American Court of Human Rights in Costa Rica).


Over the years, Brazilian foreign policy in the field of human rights has been marked by the country's active participation in the various multilateral forums dedicated to the theme.  Brazil's presence is expressive in both the United Nations system and the Inter-American system, above all in regard to cooperation with international control mechanisms. It should be remembered that Brazil's positions at the forums have been articulated and implemented in cooperation with the government bodies concerned, especially with the Ministry of Foreign Affairs and the Special Secretariat for Human Rights and in a transparent and constructive dialogue with civil society.


In the 1988 Constitution, human rights are the touchstone for the entire legal framework created by the constituent legislative assembly in response to the wishes of Brazilian society. The Brazilian Government's stand in regard to Human Rights violations has changed diametrically compared to the stance taken at the time of the military regime. National and international human rights entities freely register and publicize cases of violations and communicate with the authorities in all spheres of government, as a matter of routine.


In the interaction between the national and international planes, ever since the Lula government began its mandate, Brazil has elected the fight against hunger and poverty as its outstanding priority in the direction of promoting economic, social and cultural human rights. In September of 2004, Brazil, in a partnership with the governments of France, Chile and Spain and with the support of the Secretary General of the UN launched its "Action against Hunger and Poverty". 58 Heads of State and Heads of Government were present at the launching and the declaration issued on that occasion was able to count on the support of 111 countries.


During 2003 and 2004, the Brazilian State further participated in the activities of the Working Group responsible for elaborating the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food approved within the sphere of the Food and Agriculture Organization - FAO


Brazil has participated almost uninterruptedly in the United Nations Human Rights Commission since 1978 and in the last few years has been one of its most active members. An outstanding example of such activity was the presentation of the following resolution projects:  "The Incompatibility of Racism and Democracy", "Access to Medicines in the Context of Pandemias like HIV/Aids" and "the Right to Enjoy High Standards of Physical and Mental Health", all of which have been adopted by consensus or approved by an expressive majority of the Commission members.


Furthermore, since 2001, Brazil has extended an open invitation to all the Commissions Special Mechanisms to visit the country, considering how important such mechanisms are in the sense of contributing towards a more precise diagnosis and offering pertinent recommendations on some of our main challenges in the field of Human Rights. We are the country that has received the highest number of visits from the Special Rapporteurs of the Human Rights Commission (who work with various themes) which goes to show, above all, how open the country is to the UN human rights system.


Another noteworthy initiative during the period Brazil held the pro-tempore Presidency of the Mercosul in 2004, was the creation of the Meetings of High Authorities on Human Rights and Chancelleries of the Mercosul and Associated States (RAADH) with the aim of constituting a sphere for aligning policies and diplomacy in the field  of human rights, such as the Right to Truth and Memory (in regard to crimes committed by those military dictatorships that spread throughout the region from the nineteen sixties to the nineteen eighties), the Rights of Children and Adolescents, Education on Human Rights, etc. These were important initiatives for perfecting and mutually strengthening our individual experiences in situations of protecting and promoting human rights at the regional level as well as in coordinating actions in multi-lateral organizations.


It is also worthwhile stressing the approval and the signature of the "Mercosul Human Rights Clause" by Heads of State meeting at the Mercosul Summit in Assunción in June 2005. The said clause not only provides for regional cooperation in promoting and protecting human rights but also consultations among Mercosul countries should serious  and systematic violations of human rights and fundamental liberties be noted in any one of the Member States in situations of institutional crises or during periods of exceptional regimes foreseen under the respective constitutional provisions.


The 6th RAADH is about to be held in Brasília on the coming 5th and 6th of December and under its aegis the 1st South American Human Rights Film Exhibition will be held showing around 30 productions from the ten Mercosul member countries and associated countries. The intention is to impart greater visibility to the theme of human rights as well as to the reality and diversity of South American countries.


The Brazilian stand on the reform of international bodies like UNO in regard to human rights issues.


The UN's recently created Human Rights Council to which Brazil and China were elected with an expressive number of votes on the 9th of last May, certainly represents a significant advance for the international human rights system.


Brazil has played an active part in the discussions and negotiations concerning the reform of the United Nations Organization in general and the human rights system in particular. In this sense, the Brazilian Government recognizes the importance of revitalizing the United Nation's human rights system with a view to endowing it with an institutional and budgeting level worthy of the theme's priority in the organization’s principles and proposals. It is equally necessary to preserve positive aspects of the system such as the activities in regard to the establishment of international standards in human rights, the active and constructive participation of non-governmental organizations and the Special Mechanisms System (Special Reporters and Independent Experts), important instruments for monitoring the effective observance of human rights on the part of the international community.


However we would insist on the need to overcome deficiencies and weaknesses still apparent in the UNO system as for example, the selectiveness and unilateral politicizing in the approach to human rights situations in specific countries. It is to be hoped that in this sense, the setting up of the Human Rights Council within the sphere of the United Nations will contribute towards increasing respect for human rights throughout the world.


In continuing to play the active role in the UN's human rights system that Brazil has kept up over many years, we intend to maintain a relevant participation in the Human Rights Council and during the negotiations that led to its creation, we were in favor of establishing a Human Rights Council whose size and composition would conciliate the imperative aspects of efficiency, legitimacy and regional representativity.


In this sense, I welcome the creation of the Human Rights Council which is the successor to the Human Rights Commission - a body that was subservient to the United Nations Economic and Social Council - and confers a higher status on the treatment of the theme and a priority more compatible with present-day reality, accompanying the evolution of the international human rights system over the last few years.


It is worth highlighting the success of the negotiations for setting up the Human Rights Council, contributing as they did, towards creating the widest possible support for Resolution 60/251 approved by the General Assembly on last March 15th. 170 countries voted in favor and only 4 against (the United States, Marshall Islands, Israel and Palau) and 3 abstained (Byelorussia, Iran and Venezuela).


Made up of 47 countries elected by a majority vote of the United Nations General Assembly, the Human Rights Council enjoys great representativity and a high political-diplomatic status. Another important innovation is that the frequency of its meetings will be greater than that of the former Human Rights Commission which will enable more timely responses to be made to serious or systematic violations of Human Rights. An equally significant advance is represented by the system of scrutiny to which all countries should submit and the Council's commitment to promoting cooperation and dialogue as important instruments for dealing with human rights violations.


The great potential of the Human Rights Council for contributing towards the effective promotion and protection of human rights and adequately reflecting the priority attributed to them by the United Nations must be recognized, as well as its potential for guaranteeing, in an effective and universal manner, respect for human rights all over the world.


Also worthy of mention are, on the one hand, and as a result of the opening session of the recently-created United Nations Human Rights Council in June of this year, the approval of the Declaration of the Rights of Indigenous peoples and the Convention on Forced Disappearance; and on the other, the recent signs of opposition to the new council stemming from  North American diplomacy, one more proof of the unilateralism that marks the belligerent Bush administration, and corresponds to a serious obstacle that must be removed by means of  a wide movement of coordinated solidarity among those nations that are aware of the need to advance further along the road of human rights as an indispensable  prerequisite for constructing a lasting and sustainable era of peace in the world.



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