International Human Rights Monitoring Mechanisms
The Raoul Wallenberg Institute Human Rights Library Editor
Gudmundur Alfredsson
VOLUME 35
International Human Rights Monitoring Mechanisms Essays in Honour of Jakob Th. Möller, 2nd Revised Edition
Edited by
Gudmundur Alfredsson Jonas Grimheden Bertrand G. Ramcharan Alfred de Zayas
LEIDEN • BOSTON 2009
This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data International human rights monitoring mechanisms : essays in honour of Jakob Th. Moller / edited by Gudmundur Alfredsson ... [et al.]. — 2nd rev. ed. p. cm. — (The Raoul Wallenberg Institute human rights library; v. 35) Includes index. ISBN 978-90-04-16236-5 (hardback : alk. paper) 1. Möller, Jakob Th. 2. United Nations. 3. Human rights monitoring. I. Möller, Jakob Th. II. Alfredsson, Gudmundur. K3240.I58 2009 341.4’8—dc22 2009032222
ISBN 978 90 04 16236 5 Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands
Table of Contents
Preface to the First Edition
xiii
Preface to the Second Edition
xv
Part I: The United Nations
1
1
Human Rights in the 21st Century Bertie G. Ramcharan
3
2
The United Nations’ Human Rights Machinery: Developments and Challenges Petter F. Wille
9
Part II: The Treaty-based System
15
3
State Reports Morten Kjærum
17
4
Follow-Up Activities by UN Human Rights Treaty Bodies and Special Procedures Mechanisms of the Human Rights Council – Recent Developments 25 Markus Schmidt
5
Petitions before the United Nations Treaty Bodies: Focus on the Human Rights Committee’s Optional Protocol Procedure Alfred de Zayas
35
The Human Rights Committee’s Jurisprudence under Article 26 of the ICCPR: The Hidden Revolution Carla Edelenbos
77
6
7
The Petition System under ICERD: An Unfulfilled Promise Theo van Boven
83
vi
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8
CEDAW and the Optional Protocol: First Experiences Cees Flinterman and Ginney Liu
91
9
CAT and Articles 20 and 22 Bent Sørensen
99
10 Monitoring the CRC Lucy Smith
109
11 A Brief Look at The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families M. Arthur Robinson Diakité
117
12 Negotiating the Monitoring Mechanism for the Convention on the Rights of Persons with Disabilities: Two Steps Forward, One Step Back Anna Bruce
133
Part III: The Resolution-based System under the UN Charter
149
13 Five Years of Working in the UN Commission on Human Rights: Some Reflections for the Future Work of the UN Human Rights Council Ulrika Sundberg
151
14 The Establishment of the UN Human Rights Council Jan Eliasson 15 What Effect if Any Will the UN Human Rights Council Have on Special Procedures? Lyal S. Sunga
165
169
16 Institutional Re-engineering for Effective Human Rights Monitoring: Proposals for the Unfinished Business under the “New” Human Rights Council 185 Ibrahim Salama 17 Urgent Action Sir Nigel Rodley
191
Part IV: The UN Secretariat
197
18 The Office of UN High Commissioner for Human Rights Bertie G. Ramcharan
199
19 Human Rights Field Operations Michael O’Flaherty
205
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20 The United Nations Programme of Technical Cooperation in the Field of Human Rights Craig G. Mokhiber
219
21 Mainstreaming Human Rights in the United Nations Zdzisław Kędzia
231
Part V: The Principle Organs and Other UN Agencies
239
22 The Security Council and Human Rights Jan Klabbers
241
23 The International Court of Justice – Monitoring Human Rights Jonas Grimheden
249
24 International Criminal Adjudication Bodies: To What Extent Can They Promote Human Rights Effectively in Post-Conflict Situations? Ilaria Bottigliero
263
25 The International Criminal Tribunals William A. Schabas
275
26 The Normative Impact of Human Rights on Programming in the UNDP Patrick van Weerelt and Zanofer Ismalebbe
285
27 The International Labour Organization and Human Rights: Access to the ILO Lee Swepston
291
28 Role of UNESCO in Human Rights Implementation Bhaswati Mukherjee
301
29 The World Bank Inspection Panel Laurence Boisson de Chazournes
307
30 Monitoring the Human Right to Adequate Food at Country Level Maarten Immink and Margret Vidar
313
31 The Role of UNHCR in the Monitoring and Implementation of Human Rights Standards for Refugees and Other Persons of Concern Christoph Bierwirth
325
Part VI: Selected Issues
347
32 Human Rights Education Anette Faye Jacobsen
349
vii
viii
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33 United Nations Permanent Forum on Indigenous Issues: A Multifaceted Approach to Human Rights Monitoring Elsa Stamatopoulou
355
34 Minorities at the United Nations Asbjørn Eide
369
35 Monitoring the Rights of the Internally Displaced Maria Stavropoulou
375
36 Voluntary Reporting: The Global Compact Radu Mares
385
37 Terrorism and Human Rights Monitoring Iain Cameron
399
38 Monitoring Human Rights Obligations and the Fight against Terrorism: Whose Obligations? And Monitored How? Martin Scheinin 39 Indicators for Monitoring Human Rights Jonas Grimheden
407
421
40 Sexual Orientation Discrimination: A Necessary and Emerging Area of United Nations Concern Timothy Maldoon
429
Part VII: The Council of Europe
439
41 Inter-State Complaints under Treaty Provisions – The Experience under the European Convention on Human Rights Søren C. Prebensen
441
42 Control of Execution of Decisions under the European Convention on Human Rights – A Perspective on Democratic Security, Inter-governmental Cooperation, Unification and Individual Justice in Europe Fredrik G. E. Sundberg 43 The European Court of Human Rights – Past, Present and Future: An Introduction to the Strasbourg Court Elisabet Fura-Sandström 44 The European Convention for the Prevention of Torture Eric Svanidze
465
487
493
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45 The European Social Charter Regis Brillat
503
46 The Council of Europe Commissioner for Human Rights Thomas Hammarberg and John Dalhuisen
515
47 The Monitoring Procedure of the Council of Europe’s Parliamentary Assembly 523 Jan Kleijssen 48 The “Pilot-judgment” Procedure of the European Court of Human Rights David Thór Björgvinsson
529
49 Monitoring against Discrimination and Xenophobia – The European Commission against Racism and Intolerance (ECRI) Lauri Hannikainen
541
Part VIII: The Organization for Co-operation and Security in Europe
547
50 Monitoring the Human Dimension of the OSCE Arie Bloed
549
51 Monitoring by the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) Eric Manton and Bernhard Knoll
561
Part IX: The European Union
569
52 The EU Network of Independent Experts on Fundamental Rights Rhona K. M. Smith
571
53 Fundamental Rights in the EU, with Special Emphasis on the Case-law of the European Court of Justice (Luxembourg) Allan Rosas
579
54 The EU as an External Human Rights Actor Sybilla Fries and Allan Rosas
591
55 The European Parliament as a Human Rights Monitoring Mechanism Ana Gomes
605
56 The Fundamental Rights Agency of the European Union Olivier De Schutter and Valérie Van Goethem
609
ix
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Part X: Other Regional Mechanisms
617
57 Basic Facts of the Individual Complaint Procedure of the Inter-American Human Rights System Diego Rodríguez-Pinzón
619
58 The Commission and the Court under the African Human Rights System Muna Ndulo
635
59 Human Rights Monitoring in the Asia-Pacific Region Vitit Muntarbhorn
641
Part XI: Other Institutions and Organisations
649
60 Parliamentary Human Rights Mechanisms Anders B. Johnsson
651
61 National Human Rights Institutions Brian Burdekin
659
62 The Role of Bar Associations and Law Societies in the Implementation of Human Rights Ragnar Aðalsteinsson
665
63 The Role of NGOs – An Overview Rachel Brett
673
64 Minority Rights Group International Clive Baldwin
681
65 Monitoring Human Rights in Post-war Bosnia and Herzegovina: The Human Rights Chamber and Its Contribution to the Establishment of Rule of Law in Post-war Bosnia and Herzegovina Ekkehard Strauss
687
Part XII: The Future
695
66 Eight Reasons Why We Need a World Court of Human Rights Manfred Nowak
697
67 National Protection Systems Bertie G. Ramcharan
707
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68 Early Warning and Prevention Bertram G. Ramcharan
713
Jakob Th. Möller – Curriculum vitae
719
Index
723
xi
Preface to the First Edition
This book is a Festschrift in honour of Jakob Th. Möller, an Icelandic lawyer, who for 25 years was present at the creation and formulation and for many years in charge of the complaints sector of the United Nations Human Rights Secretariat, first in New York and later in Geneva. Since his retirement from the UN Secretariat, Mr. Möller has been a Judge in the Human Rights Chamber for Bosnia and Herzegovina. In his work he lived up to the goals set for international civil servants: competence, expertise, independence and impartiality. He served with distinction and won the respect and the confidence of his diverse clientele: the individual experts deciding on the complaints, fellow Judges, the persons and groups submitting the complaints, and the States involved, as applicable. Writing in their individual capacities, the authors of the essays in the present book are drawn from this clientele and, as the readers will see, many of them pay special tribute to Mr. Möller. Under preparation for a few years, this collection is intended to serve as a thematic textbook on the institutions and procedures devoted to the national implementation of human rights and to the international monitoring of State performance. Albeit not exhaustive, the coverage extends to most of the monitoring instances available at intergovernmental and non-governmental organizations: complaints, fact-finding and investigative procedures. State reporting obligations, good offices actions, dialogue functions, human rights education, dissemination of human rights information, letter campaigns, and technical co-operation. The target audience of the book is students of international human rights law, but the book can also serve as a guide for both officials and activists involved in the realisation of human rights. The Raoul Wallenberg Institute will use the book extensively in its education and training programs, and the Institute is proud to submit the book for publication to Kluwer Law International in order to reach a still broader readership. Göran Melander
Preface to the Second Edition
This is an unusual Festschrift. It is a thematic one, looking at global and regional institutions and procedures that have been set up by the international community to monitor the compliance of States with international human rights law. It is also a second, revised and updated edition of a book with the same title that was published in 2003 in honour of Jakob Th. Möller. Jakob dedicated most of his working life to the UN Centre for Human Rights in New York and in Geneva and later for the Office of the High Commissioner for Human Rights, where he was in charge of developing the resolution- and treaty-based complaints procedures and dealing with incoming petitions. For several years he also was the Secretary of the UN Commission on Human Rights. After retirement from the UN Secretariat, he served as Judge on and later as President of the Human Rights Chamber of Bosnia-Herzegovina. In all of these positions, Jakob earned the reputation of a true and sincere human rights professional who, time and again, opened new doors and broadened the art of the possible. The book’s theme matches a distinguished career. The success of the first edition has allowed for this second edition. It demonstrates that there is a demand for still more literature with a focus on human rights monitoring and follow-up activities. The publication gives a broad overview of the variety of institutions and procedures, but it does not seek to provide comprehensive or exhaustive coverage of case-law and results. The ongoing reform of the UN human rights programme, still underway when this book goes to the publishers, is only partly reflected here. Gudmundur Alfredsson
Part I: The United Nations
1
Human Rights in the 21st Century Bertie G. Ramcharan*
Introduction
This volume is in honour of Judge Jakob Möller, who pioneered and placed his stamp of professionalism, integrity and inventiveness on implementation strategies during the 20th century in the operation of international petitions systems as Secretary of the Commission on Human Rights (CHR), winning rare plaudits upon his departure, and as an international judge of the Bosnia-Herzegovina human rights court. The United Nations and international, human rights jurisprudence of the 20th century bear his indelible imprint, which we witnessed as his colleague and friend in the United Nations human rights programme. He has subsequently rendered advice and assistance to governments on international human rights fact-finding missions and on the Sub-Commission on the Promotion and Protection of Human Rights. We referred our appreciation of him in the earlier edition of this volume. In his service on the Sub-Commission and in the many other capacities in which he is nowadays called upon to serve and to render advice and assistance, he often focuses on: the challenges of our times; evolving global currents; new threats and challenges; emerging problems affecting human rights; new substantive human rights issues; ongoing problems of implementation and of protection; and the development of the international human rights jurisprudence that must underpin the human rights work of the 21st century. In this essay on human rights in the 21st century, we shall consider some of these issues. We shall begin with a brief recapitulation of the 20th century’s bequest to the 21st century. The transition from the 20th to the 21st century The 20th century made human rights a worldwide cause. After the Holocaust of the Second World War, the United Nations resolved to build a new world of peace and jus*
Professor, Geneva Graduate Institute of International Studies; Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law; Former Deputy, Former Acting UN High Commissioner for Human Rights.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 3-8.
Bertie G. Ramcharan
tice grounded on respect for human rights and fundamental freedoms. An international code of human rights was developed. Studies were conducted into problems faced by individuals and groups. Human rights became a rallying cry around the globe in the struggle for self-determination, against apartheid and for political, economic and social justice. Treaties containing binding commitments upon ratifying or acceding States were concluded, providing for reporting, dialogue, petitions or fact-finding procedures. Special procedures were established by the then Commission on Human Rights (as of 2006 abolished and replaced by the Human Rights Council) to do fact-finding into human rights violations. Norms and standards were developed in abundance, promotional activities pursued, some educational activities encouraged and some fledgling implementation and protection activities initiated, including ad hoc international criminal tribunals and the establishment of the permanent International Criminal Court (ICC). But, at the 20th century’s close, human rights were still being “trampled” upon in numerous parts of the world, economic and social rights were largely ignored in most of the countries of the world and protection – national, regional or international – was a scarce commodity, notwithstanding the efforts of the Commission on Human Rights, the special procedures, the High Commissioner for Human Rights and the Security Council. Human rights problems were numerous, stemming from poverty, conflicts, terrorism, inequality, poor governance and atrocities committed by governments on their own subjects. As the century closed, developing countries in colonial and dependent countries, which had fought for implementation and protection procedures in the 1960s to deal with violations of human rights under the apartheid-regime then prevailing in South Africa, were rebelling against the discussion of human rights violations in UN forums and against human rights investigators appointed to look at gross violations of human rights in particular countries. Their slogan was that the United Nations should advance dialogue and not confrontation when dealing with human rights issues. The 20th century, thus, bequeathed to its successor a set of global human rights norms that still attracted global consensus, even if some arguments could be heard about relativity rather than universality, human rights treaty bodies that pursued cooperative approaches, a much traversed Commission on Human Rights, which was soon to be abolished and replaced by an equally traversed Human Rights Council, and contested approaches to protection, fact-finding and responding to situations of gross violations of human rights. In the midst of all this, the international society was throwing up new problems, threats and challenges. On what foundations would the new century be expected to stand in approaching the old and the new problems? The starting point, we believe, is implementation of the international code of human rights developed during the 20th century. These norms and the treaty-based bodies provide the reference and anchor points for the new century, with the understanding that the norms may need to be supplemented in the course of the century to deal with new issues or to take account of new nuances in the evolution of national or international society. The human rights treaty system must be our inevitable starting point.
1 – Human Rights in the 21st Century
The human rights treaties Other chapters in this volume will describe the regime of human rights treaties developed during the 20th century and their implementation arrangements. In sum, the international covenants on human rights, the conventions against racial discrimination and gender discrimination, the convention on the rights of the child, convention against torture, the convention on the rights of migrants and their families and similar conventions contain norms that the States Parties to these treaties have consented to be bound by. Depending on the treaty, they have also agreed to submit reports periodically, to engage in a dialogue with the treaty body established under each treaty, to consider advice and recommendations of the treaty body and generally to make the treaty provisions part of their national orders in law and in practice. Some States have also accepted to be bound by petitions procedures or even by State-to-State complaints procedures. The feature that is special about the regime of human rights treaties is that the adhering or ratifying governments have freely accepted them. They are, therefore, the most solid consensual bases on which to build national, regional and international human rights work in the 21st century. There are ongoing debates about whether the treaties should be consolidated or whether the different human rights treaty bodies should be consolidated; the current High Commissioner for Human Rights, Louise Arbour, has advanced proposals for discussion about possible consolidation. We do not need to discuss this issue here. From the point of view of human rights strategy, the point needs simply to be registered that the human rights treaties represent the broadest consensual ground on which to build the human rights work of the future. This includes the body of human rights jurisprudence emerging from the human rights treaty bodies. There is a practical inference to be drawn from this conclusion, namely that the bulk of the resources of the United Nations and of regional organisations allocated to their human rights programmes should be deployed in support of the implementation of the human rights treaties. To argue otherwise would be to fly in the face of reason. The ultimate rationale of the human rights treaty regime is to provide the basis for the building up of effective national protection systems, a subject we address in another chapter of this volume. The human rights treaty regime often provides a solid basis for dealing with new problems or threats, such as global terrorism, even if they may need to be supplemented to deal with new issues. Evolving problems, new threats and challenges A globalising world presents opportunities as well as difficulties for the universal realisation of human rights. Global terrorism assaults human rights and, at the same time, requires strategies of response grounded in international human rights norms. Societal problems such as HIV/AIDS and the trafficking in human beings present dramatic new challenges. Developments in biomedicine, science and technology raise new issues requiring innovative policies and international norms. Relations between different phi
See Brian Burdekin’s contribution in this volume.
Bertie G. Ramcharan
losophies, cultures, religions or beliefs across the globe often give rise to tensions that need to be addressed. None of these are easy issues, and they all need to be analysed, reasoned and processed in terms of human rights. It is precisely on issues such as these that the newly established Human Rights Council must make reasoned contributions. For it to be able to do so, it would require in-depth research and studies that are grounded in human rights considerations in order to present it with policies and options framed in human rights terms. Historically, the former Sub-Commission on the Prevention of Discrimination and Protection of Minorities did produce such global studies on human rights issues. The terms of reference of the former Commission on Human Rights did give it the competence to call on the aid of experts or expert groups. The Human Rights Council would need to identify ways and means of gaining access to the best thinking available in the international community on these and similar issues brought up by international life so that it might make considered recommendations on desired policy and normative options. The entrenchment of a universal culture of human rights calls for the enthronement of human rights reasoning in dealing with new problems, issues, threats or challenges. Most importantly, we must be able to detect new problems as soon as possible and seek to head them off if possible. This will call for more preventive human rights approaches in the future. Preventive human rights strategies: the case for a comprehensive global watch In a far-sighted document issued in 1987, then UN Secretary-General Javier Perez de Cuellar made the case for the maintenance of a Comprehensive Global Watch and called for the United Nations to give very high priority to monitoring potential causes of conflict and to communicating warning signs to those in a position to alleviate the situation. A crowded world of strained resources, he argued, could not be managed on an ad hoc basis. The United Nations must also be able to meet emergencies that called for collective effort, whether to contain violent political conflicts or to meet natural or manmade disasters. Offering thoughts “Towards Peace and Security in a New Century” he cautioned that a world of limited resources and growing needs could not provide sustainable support for the future enormous costs of regional conflicts. Mindful of this, the United Nations must give very high priority to monitoring potential causes of conflict and to communicating warning signs to those in a position to act. Staking out a position on the future role of the United Nations, the Secretary-General pleaded: I believe it will be even more evident than now, as we approach a new century of unprecedented demands on our habitat, that multilateral cooperation and the rational utilization of multilateral institutions provide the key to common well being. This should be a persuasive factor in bringing Governments to formulate national policies in such a way as to ensure that their commitments under the Charter are fully honoured.
A/42/512, p. 3.
1 – Human Rights in the 21st Century
The document argued for coherent and integrated policies and preventive strategies in the economic and social areas at the national, regional and international levels. Regional co-operation would need to be strengthened. The state of the human condition necessitated such policies and strategies. The document emphasised the role of human rights protection as a preventive strategy. It argued that respect for basic human rights and for the dignity and worth of the human person as called for in the Charter was a fundamental element in the vibrant and productive global society towards which United Nations efforts must continue to be directed. In the future, the main focus of United Nations human rights activities should be on bringing universal respect in fact for the norms that had been agreed upon in practice. The challenge of promoting respect for human rights was global. The goal of United Nations bodies must be to translate the wide commitment to human rights into an increasingly persuasive means to eliminate abuses wherever they occurred. This was a powerful presentation of the role of the United Nations in the operation of a Comprehensive Global Watch. It was based on a view of the role of the United Nations according to which its activities would be marshalled where the objective sought was of a nature susceptible to and requiring multilateral action. There would need to be a capability within the United Nations system to identify compelling global and regional needs susceptible to multilateral alleviation and to concentrate available resources where they could most effectively be used to meet the identifiable need. In a separate chapter in this volume, we argue for the development of preventive human rights strategies and preventive human rights diplomacy within the broader framework of the development and maintenance of a Comprehensive Global Watch. We turn finally to the challenges of protection. The responsibility to protect We are confronted, at the start of the 21st century, with a terrible dilemma when it comes to human rights protection. We have elaborated spectacular human rights norms; we have spelled out the responsibility to protect in magisterial policy documents; and we have proclaimed our commitment to a universal culture of human rights. Yet, still, all around us there are terrible failures of human rights protection. On top of the genocide in Rwanda and the massacres and ethnic cleansing in Bosnia and in Srebrenica, the world has stood by helplessly as human rights violations of epic proportions have taken place in Darfur for over five years now. The Security Council has debated the situation and has had reports before it detailing the atrocities as early as the spring of 2004. The Council has sought to use its influence but to little avail. This is a case where the responsibility to protect has rung hollow. In the newly-established Human Rights Council there are serious differences of view between the developing and the developed countries about whether the Council should continue an item that used to be on the agenda of its predecessor, the Commission on Human Rights, providing for an annual debate about situations of gross violations of human rights. There is a related debate about whether the practice of appointing human rights investigators to look into allegations of gross violations of human rights should continue. This is a time of crisis for human rights protection.
Bertie G. Ramcharan
As a matter of principle, the Human Rights Council should undertake an annual review of situations of concern. Without this it would hardly deserve its name. The Council should also certainly retain the competence to order human rights investigations where called for. The Human Rights Council would need to process these issues carefully. Some subtle human rights diplomacy is called for here. There is need for dialogue and consultation on the basis of three principles: respect, confidence-building and protection. Respect means that even when one is dealing with a government that has given cause for concern, the engagement must be carried out in such a manner that it facilitates communications and dialogue. A particular bone of contention here is the practice of some governments or non-governmental organisations that read out accusations against governments in open debate in the Human Rights Council. There is no reason in principle why consultations on an agreed procedure could not lead to agreement. There is room for diplomacy and negotiation here. Confidence-building means that consensus must be built up around a set of ground rules for identifying situations of concern. The General Assembly, the Economic and Social Council and the former Commission on Human Rights had articulated such ground rules on different occasions. The criteria used have included the following: a situation involving a consistent pattern of gross violations of human rights (Economic and Social Council); a situation of mass and flagrant violations of human rights (General Assembly); a situation of widespread international concern (CHR); a criminal violation of human rights (Statute of the ICC); a prohibited practice such as arbitrary and summary executions, torture, enforced or involuntary disappearances, violence against women, religious persecution. Protection means that when it has been determined that there is a situation of gross violations of human rights, the Human Rights Council is entitled to: discuss it; adopt resolutions or statements about it; order fact-finding into it; make recommendations about it; launch a dialogue with the government about it; if necessary condemn the violations; and if necessary refer the situation to the Prosecutor of the International Criminal Court or to the Security Council. A United Nations Human Rights Council that does not retain the competence to deal with situations of alleged gross violations of human rights would bring discredit to the United Nations. Conclusion In this essay we have sought to provide some pointers to the human rights strategies of the 21st century. There are other approaches discussed in this volume that we subscribe to. We would, in particular, call for more energetic programmes to disseminate human rights norms and jurisprudence in all parts of the world in local languages and to spread human rights education. It is through information and education that we can help entrench a universal culture of human rights.
2
The United Nations’ Human Rights
Machinery: Developments and Challenges
Petter F. Wille*
Introduction The main pillars of the United Nations human rights machinery are: the Secretariat; the human rights treaties and their monitoring bodies; the Human Rights Council; and the General Assembly. When Jakob Möller joined the then Division for Human Rights in New York in 1971, most of these mechanisms were still in their infancy. The Division was an office with approximately 40 professional and 30 general service staff. The small human rights division of the Secretariat was about to be transferred from the UN headquarters in New York to Geneva, a move that the then small non-governmental organisation (NGO) community and the tiny press corps interested in human rights tended to describe as further marginalisation of activities that were already attracting little interest. Today, the situation is fundamentally different from the one described above under all the main pillars of the UN human rights system. I will in the following describe some of the developments that have taken place and discuss some of the challenges that lay ahead. The Secretariat The Secretariat is now headed by the High Commissioner for Human Rights. This position was created in 1993 and has become a highly visible symbol and a catalyst. She/he is the global coordinator of the human rights activities of the United Nations and has played an important role in bringing human rights to the highest levels in governments. The High Commissioner is able to facilitate and support the efforts of other parts of the human rights movement, spearhead activities in areas needing special focus and be the *
The author is employed at the Norwegian Ministry of Foreign Affairs and currently serving as Ambassador and Permanent Representative of Norway to the Council of Europe. He has previously served in the Legal department and the UN department and has also been Ambassador at large for Human Rights. He has a law degree from the University of Oslo.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 9-14.
10
Petter F. Wille
voice of conscience in situations of international concern. A permanent dialogue with NGOs has been established. The High Commissioner can also engage in providing good offices and help spread a universal culture of human rights. The Office of the High Commissioner for Human Rights (OHCHR) is now present in more than 40 countries and has a staff of approximately 800 persons. The country representation is in the form of offices with “full mandates”, technical cooperation offices or projects, regional offices or human rights components in UN peace missions. OHCHR’s regular budget for the biennium 2006–2007, as approved by the General Assembly, amounts to USD 85.6 million. In addition, voluntary contributions amounted to approximately USD 85 million in 2006, compared to 15 million in 1994. The trend towards donors providing a larger portion of funding free of earmarking continued in 2006. Unearmarked funding has risen steadily in recent years, from approximately 12 per cent in 2003 to 37 per cent in 2006. The biggest donors in 2006 were: USA, the European Commission, Norway, The Netherlands and Sweden. The treaty system The 1970s were still early days for human rights institution-building at the United Nations. The Convention on the Elimination of Racial Discrimination had entered into force in 1969, and the first treaty monitoring body was established the year after to monitor the implementation of that Convention. This committee played a pioneering role in developing a procedure to monitor periodic State reports. The 1966 covenants were still waiting for sufficient ratifications to enter into force. At the time of this writing, the human rights treaty system is based on seven core human rights treaties which set legal standards and create legal obligations for State Parties. Compliance with these standards is monitored by seven treaty bodies through several procedures. All treaty bodies consider reports from State Parties; five have the competence to consider individual petitions subject to admissibility criteria being met; four are entitled to consider State-to-State complaints; and two have competence to inquire into allegations of grave or systematic violations. The various procedures of the treaty bodies have become increasingly sophisticated and developed and strengthened over time, and the system has made a significant contribution to promotion and protection of human rights. The reporting process has, for example, stimulated the creation of constituencies at the national level to promote implementation of human rights. The individual complaints procedures have often resulted in individual relief for victims, despite the fact that the views of the committees are not legally binding. The committees have also developed a body of jurisprudence on the interpretation and application of human rights treaties, which is referred to more frequently by national as well as regional courts. In 2006 two new conventions which establish their own treaty monitoring bodies were adopted, namely the Convention on the Rights of Persons with Disabilities and the Convention on Enforced and Involuntary Disappearances. The growth in the number of treaties and treaty bodies has been ad hoc and their provisions and competencies overlap to a certain extent. Despite the challenges and problems facing the system, there is, however, no doubt that the treaty system has a key
2 – The United Nations’ Human Rights Machinery: Developments and Challenges
role to play in the promotion and protection of human rights at the national and international levels. Several efforts have been made with a view to making the system more efficient and streamlined. The most far-reaching proposal is contained in a concept paper from the High Commissioner from 2006 (HRI/MC/2006/CRP.1) with a proposal for a unified standing treaty body. This proposal has, however, not been followed up by intergovernmental bodies. The Commission on Human Rights/the Human Rights Council The Commission on Human Rights (CHR) was established by the Economic and Social Council (ECOSOC) in 1946 and was, in its first years, basically entrusted with standard setting activities. While the Commission in 1947 had declared that it had no power to take action on complaints relating to human rights, resolution 1235 (1967) changed that situation. ECOSOC authorised the CHR and the Sub-Commission to examine information relevant to gross violations of human rights and fundamental freedoms. Resolution 1503, three years later, instituted procedures to enable the CHR and the Sub-Commission to deal with communications relating to violations of human rights. In parallel with this development, the CHR began developing the so-called special procedures. The “no power to take action” doctrine was first undermined with the stance taken toward some pariah States. The apartheid policy of South Africa led to the appointment of a group of five to examine the human rights situation in that country in 1967. Israel’s policy was put on the agenda following its occupation of the Palestinian territory in 1967, and Pinochet’s 1973 coup made Chile the third country to be put on the agenda as a separate item. Other country specific mandates were not created before 1979 (Equatorial Guinea) and 1981 (Bolivia and El Salvador). Mandates on Poland and Guatemala were created in 1982 and on Iran in 1984. The first thematic mechanism, the Working Group on Disappearances, was created in 1980. In 2007 there were more than 40 special procedures reporting to the Human Rights Council (HRC). Many of the mandate holders are high profile human rights defenders who play a crucial role in the promotion and protection of human rights worldwide. The debates on country situations and resolutions at the CHR and now the HRC are characterised by allegations of double standards. It is, however, not enough to point at the undoubted double standards applied by States in their behaviour. The process should, of course, be objective, non-selective and non-political. A body comprised of governments will, nonetheless, by nature act as a political body. The thematic special procedures are one of the most important and perhaps one of the most under rated activities in the UN human rights field. Most of their work is unspectacular, although they do visit individual countries and name countries in their reports where they have questions and concerns. Many of the reports list countries from all regions from which they have sought clarification about allegations, or responses to specific problems. Many of these reports also contain important analysis of the developments, including relevant case law, concerning the theme in question.
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Challenges The past 60 years have seen truly monumental achievements of the international community in the field of human rights. This development has led to more interest and more involvement from States in human rights fora of the UN. Part of this increased involvement is based on genuine interest from States in consolidating and improving the system, while others seem to be driven by a wish to control and reverse some of the achievements. Human rights is no longer a marginalised area that States can ignore or be indifferent. States that want to restrict the system have first and foremost used the CHR (and now the HRC) as an arena for their battles. The last years of the CHR were difficult. The friends of the Commission were driven on the defensive and had to fight to preserve the achievements. The tenor of the debates has been fractious and divisions between and within regional groups evident. It is fair to say that the Commission, as well as the General Assembly, were faced with an increasingly difficult and complex human rights scenario. Part of the strategy from some restrictive countries has been to propose new resolutions and mandates under the special procedures with a weak or doubtful human rights basis. Almost every session of the Commission convened since 1980 resulted in new mandates and appointments of new special rapporteurs or experts to implement them. Because the mandates and procedures have developed on an ad hoc basis and in an uncoordinated manner, covering a wide range of themes as well as country situations, they have developed toward a system of separate procedures rather than a coordinated and harmonised system. There has also been a proliferation of proposals over the last years, often with the purpose of pulling the human rights agenda in one direction. The battle of ideologies and values was very much present during the last sessions of the Commission on Human Rights. (The last regular session of the Commission in 2005 adopted 85 resolutions, 18 decisions and 4 statements of chairpersons, most of which were subject to lengthy and difficult negotiations.) Polarisation of the debates also characterised these sessions. This polarisation has also been clearly present in many negotiations on draft resolutions and proposals, inter alia in proposals on the right to development, globalisation, foreign debt, racism and international solidarity. There has been a tendency to focus on relations between States, rather than States’ obligations. There are also several examples of attacks on the human rights mechanisms and personnel, as well as introduction of inter-State and macro-economic or geo-political issues into the agenda of the CHR. The country mandates have been under particular attack. The rationale for such mandates is that the scope of the human rights issues involved merit a particular focus for a period of time. The contentious nature of the country mandates and resolutions is primarily due to the perceived political manner in which these mandates are created. They are viewed as a hostile act by the government, subject to scrutiny. The developments from a small Division on Human Rights to a high profile Office of the High Commissioner for Human Rights have inevitably resulted in increased interest and concern in the Office, not only from States but also from NGOs and academics. On the one hand, this interest has led to a steep increase in the financial and political sup-
2 – The United Nations’ Human Rights Machinery: Developments and Challenges
port of the Office from its friends and supporters. On the other hand, there have been efforts to try to “control” and curtail the High Commissioner’s activities. This development should come as no surprise given the increased visibility and political importance of the Office. Some countries have also criticised the OHCHR for being “donor-driven” and have proposed that the allocation of voluntary contributions should be decided by States and not by the High Commissioner. Such a system would, of course, lead to a drastic decline in such contributions and severely hurt the High Commissioner’s activities. The CHR has also been used in efforts to “curtail” the High Commissioner. One example of this is the resolution entitled “Composition of the staff of the OHCHR” where Cuba has been the main sponsor. The last resolution was resolution 2005/72 with clear criticism of the High Commissioner’s recruitment policy and requests to recruit more personnel from developing countries. This resolution, which was adopted with 36 votes in favour, 15 against and 2 abstentions, has been strongly criticised for being in violation of Article 101(3) of the UN Charter, but these objections have not made much of an impression on the 61 co-sponsors. These tendencies to “micromanage” can only hurt the Office. Looking ahead The underling conflicts have, of course, not disappeared with the establishment of the Human Rights Council, which replaces the forum where the conflicts in international human rights have been demonstrated most clearly. But is the future only bleak, or is there also room for optimism? One significant positive sign was the Outcome Document agreed at the World Summit in New York in September 2005. It contains a renewed commitment to the universality of human rights and provides the first high-level intergovernmental mandate for mainstreaming human rights throughout the UN system. Furthermore, the Summit called for the doubling of the regular budget of the OHCHR over the next five years. A supplementary budget was thus prepared and approved in December 2005, which resulted in 90 new regular posts for the Office. The Outcome Document also mandated the establishment of the new Human Rights Council, which was established by resolution A/60/251 of 15 March 2006. There is no doubt that this decision was one of historical significance. Its actual impact on people’s lives is still to be determined. The High Commissioner has in this connection stated that “much will rest on the profound culture shift that must accompany this institutional reform”. At the same time she added: “Progress cannot be made in an atmosphere of distrust and disrespect and through the pursuit of narrow self-interest.” As a positive step may be mentioned that the new Council shall meet regularly throughout the year, for a minimum of ten weeks per year, and hold at least three regular sessions. This is a considerable increase from the six-week sessions of the former Commission. The “arrangements” and “practices” observed by the Commission concerning NGO participation shall be maintained. While the Commission’s work in considering situations in individual countries has been the subject of particularly strong attacks, the Council has a mandate to deal with country situations in three different
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contexts, namely: 1) by undertaking a universal periodic review of the fulfilment by each State of its human rights obligations and commitments; 2) addressing situations of gross and systematic violations of human rights; 3) dealing with other situations of human rights violations. At its second session in September/October 2006, the Council conducted an interactive dialogue with its special procedures, which was more substantial than any of the dialogues conducted by the Commission. These are signs that give hope to those who want a strong and effective human rights machinery in the UN. The Council has proved that it can respond timely to an ongoing crisis. The special session of the Council on 2 October 2007 on the dire situation of the Burmese people is a good example. Another special session on Darfur in December 2006 mandated a group of existing special procedures to compile and work with the government on the implementation of the numerous existing recommendations in relation to Sudan. This is an innovative creation that could also serve as a possible model for other serious and continuing situations of human rights violations. Despite the encouraging elements in the Council’s mandate, and the positive signs described above, it would, however, be unrealistic and naive to believe that the Council could avoid becoming a forum which reflects the “political realities” of the world. The Human Rights Council’s first year, which was completed on 18 June 2007, has confirmed that the Council operates in a very demanding political landscape. The resolution that established the Council (60/251) had given it several institution-building assignments to be completed within the first year. The text that was adopted is a compromise in the sense that nobody is completely happy with the whole package. The amount of time and energy taken up by institution-building and procedural discussions has been a source of frustration. The Council’s first year has been characterised by a lack of agreement on the way forward. There are well-established dividing lines between the proponents of human rights and the countries that oppose an active role for the Council. For the sake of human rights, we must, however, hope that the majority of Member States will follow up their commitments and give the Council a chance to represent a new start in the work for promotion and protection of human rights all over the world. As of June 2008 all the thematic special procedures mandates have been renewed and most of them with broad support. One exception is the mandate on freedom of opinion and expression, where the mandate has been considerably weakened. The universal periodic review has started. The success of this mechanism will, however, to a large extent depend on the internal processes in the individual countries in preparing the reports, as well as on the follow up to recommendations. It should also be mentioned that the involvement of NGOs continues on the same level as in the former Commission, including in negotiations on resolutions.
Part II: The Treaty-based System
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State Reports Morten Kjærum*
Introduction In 1993 the United Nations (UN) World Conference on Human Rights initiated a global focus on the implementation of human rights. Moving from an era of setting standards and establishing international machinery, this new era has been driven by a demand to see norms and standards transformed into domestic realities. As a consequence of this shift in the international agenda, increased emphasis has been placed on State reporting to human rights mechanisms at regional and international levels. When States ratify an international convention, they become accountable not only to the people within their jurisdiction, but also to the international community regarding implementation of the provisions of the convention. State reporting is a tool of accountability to international monitoring mechanisms, but it is also an important element in a State’s requirement to respect, protect and fulfil its commitment under the convention at the national level. There are numerous monitoring mechanisms with different tasks and working methodologies. The most common ways of operating are: (1) analysing the approach adopted by the State Party to implement its obligations under the convention; (2) dealing with individual complaints; and/or (3) issuing general recommendations. Some mechanisms can operate on all three levels, others on only one or two. In the present context of State reporting, it is primarily the State Party approach to implementation (1) which is of relevance. Not all mechanisms analysing the State’s approach to implementation request a report from the State Party. Most significant in this context are the special rapporteurs established by the former UN Human Rights Commission and some regional mechanisms, such as the Council of Europe Committee Against Torture and the European Commission Against Racism and Intolerance (ECRI). These bodies and the special rap*
Morten Kjaerum, Director, EU Fundamental Rights Agency, former member of the UN Committee on the Elimination of Racial Discrimination. M. Kjaerum, ‘The UN Reform Process in an Implementation Perspective’, in S. Lagoutte et al. (eds.), Human Rights in Turmoil (Martinus Nijhoff Publishers, Leiden, 2007) pp. 7–25.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 17-24.
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porteurs gather information on their own initiative regarding the situation in the State concerned, which often includes a visit to the State itself. The fact that the information gathering is done by the monitoring mechanism does not exclude information being received from the relevant ministries and other public institutions. State reports are an integral part of the examination of State Parties under eight of the existing nine UN human rights treaties, including most recently the International Convention on the Rights of Persons with Disabilities (ICRPD) of 2006. The International Labour Organization’s conventions as they have developed since the early 20th century have been an important source of inspiration in the development of State reporting procedures and standards under the human rights treaties. The International Convention for the Protection of All Persons from Forced Disappearance, also of 2006, is somewhat different from the other treaties in this regard since State Parties are not required to submit general reports. The legal framework for State reports The obligation to submit a State report is laid down in each treaty. Following the entry into force of the convention, the State Party has to submit an initial report within a fixed time period, normally one to two years. The initial report must be comprehensive to give the members of the treaty body an in-depth understanding of the situation in the country regarding the specific area or areas covered by the convention. As provided for in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), as a minimum the report should contain information on the legislative, judicial, administrative or other measures which the State Party has adopted to give effect to the provisions of the Convention. The International Covenant on Civil and Political Rights (ICCPR) adds an important dimension that “reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Convention”. This language is repeated in the Convention on the Rights of the Child (CRC). However, in
M. Scheinin, ‘Mechanisms and Procedures for Implementation’, in R. Hanski and M. Suksi (eds.), An Introduction to the International Protection of Human Rights, 2nd rev. ed. (Åbo Akademi University Institute for Human Rights, Åbo, 1999) pp. 429–452. Article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); Article 40 of the International Covenant on Civil and Political Rights (ICCPR); Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); Article 18 of the Convention on the Elimination of Discrimination Against Women (CEDAW); Article 19 of the Convention Against Torture and Other Cruel, Inhuman or Degrading treatment and Punishment (CAT); Article 44 of the Convention on the Rights of the Child (CRC); Article 73 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW); Article 8 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict; Article 12 of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; Article 35 of the International Convention on the Rights of Persons with Disabilities (ICRPD); and Article 29 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICED).
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the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), International Covenant on Economic, Social and Cultural Rights (ICESCR) and ICRPD, “shall” has been changed to “may”. In practical terms the difference may not be all that important, since most reports are anyway closer to the minimum level first laid down in ICERD. Following the initial report, the State Party has to submit periodic reports within the periodicity determined by the convention or the treaty body, which varies from two years under ICERD to five years under ICESCR and CRC. The Committee on the Elimination of Racial Discrimination (CERD) will normally ask the State Party to combine two reports and subsequently report within a four-year period since the two-year timeframe under the Convention is in most cases considered too short. This is particularly the case after the introduction of a follow-up mechanism, which gives the Committee a tool with which it can raise issues of concern in between the formal examinations. It is only ICRPD that addresses the issue of overdue submissions of reports. All other conventions are silent in relation to any steps that treaty bodies may take if reports are not submitted in time, even though such delays constitute violations of the legal obligations of the State Party. Thirty per cent of both initial and subsequent reports are not submitted to the treaty bodies. Some States do not comply with reporting obligations for political reasons, others because of a lack of resources. Also, the increasing number of treaty bodies has made it difficult for some State Parties to fulfil all their reporting obligations on time, and poor countries especially express concern in this regard. According to Article 36 ICRPD, if a State Party is significantly overdue in the submission of a report, the Committee may notify the State Party concerned of the need to examine the implementation of the Convention in that State, on the basis of reliable information available to the Committee, if the report is not submitted within three months following the notification. The Committee can invite the State Party concerned to participate in such an examination. Should the State Party respond by submitting the relevant report, a regular examination will be carried out. This so-called review procedure was originally developed by CERD and later adopted by the other committees. In many cases the notification encourages the State Party to submit the report. It should be recalled that in these and other cases the Office of the High Commissioner for Human Rights offers technical assistance to countries which do not have the capacity to draft the State report. Furthermore, sessions of treaty bodies may be convened in regions with small and poor countries in order to facilitate their presence during the examination. Apart from the Human Rights Committee (HRC) and the Committee on Economic, Social and Cultural Rights (CESCR), treaty bodies will accept combined reports as a way of dealing with reporting backlogs; thus one State Party submitted its combined initial to 14 periodic reports in one document covering a period of 26 years. However, in some cases treaty bodies are themselves adding to
Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, HRI/ MC/2006/2, 22 March 2006, p. 19. See for example CERD/C/GUY/CO/14, 4 April 2006, on Guyana. Ibid., p. 19.
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the problem of delayed examinations due to serious backlogs in dealing with reports already submitted to them. Content of reports To ease the workload on State Parties, in 1991 it was decided that States can submit a core document containing general information relevant for all committees. The document contains information on basic legal and institutional issues such as constitutional provisions, governing structures, penal systems and administrative law, as well as demographic composition and relevant economic structures. The core document is supposed to be updated on a regular basis and submitted to the relevant committee at each examination. Each treaty body issues reporting guidelines regarding the contents of the State report. A certain level of uniformity in reporting makes it more accessible to the committee experts as well as the outside reader. Some committees expect reports to follow the order of the convention article by article, while others ask States to deal with related issues together. Furthermore, it is important for the continuity of the dialogue between the treaty body and the State Party that the report contain information regarding any concerns and recommendations that the committee has expressed in any previous examination. In the early days of the various conventions, it was important for committees to receive detailed information on the legal implementation of the various provisions. This is still relevant, but today many more States in the world are capable of adopting wellstructured constitutions and key legislation in conformity with international human rights standards. Thus, today treaty bodies are much more concerned about the actual implementation of the laws reflecting international norms. Consequently, the experts need more detailed statistical information on socio-economic factors, and other sorts of indicators are being developed; otherwise committees have great difficulties in assessing the de facto situation on the ground. Many State Parties find it difficult to meet these demands either because their domestic statistical apparatus is not geared to providing that sort of information, or because it does not want to provide the information, which is sometimes a problem in acquiring an overview of the ethnic composition of the country. Most State Parties submit reports which are satisfactory in relation to information regarding the legal regime governing the specific area under consideration, but less so when it comes to actual implementation on the ground. Reports are normally weak in discussing any “factors and difficulties” affecting the implementation of the convention. However, every now and then State Parties submit highly self-critical reports, often drawn up by a statutory body working within the particular area of concern, with little if any involvement by the relevant ministries or other competent State organs. This is not the correct approach either since in order to have a real impact the ownership and internalisation of the examination must involve the organs of State that will ultimately have to implement the final observations and recommendations of the treaty body. The
Report of the Chairperson of the Human Rights Treaty Bodies on Their Eighteenth Meeting, A61/385, 25 September 2006.
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process of elaborating the report is often a learning process for the officials involved with regard to what the general language in the conventions actually means in terms of domestic realities. Thus, a strong report is a report compiled and written by the key ministries in collaboration with others and containing information on relevant legal developments, socio-economic situations and discussions of key concerns. Only the Committee on the Elimination of Discrimination Against Women and the Committee on the Rights of the Child provide any guidance to State Parties regarding the length of reports. According to former’s guidelines, initial reports should be no longer than 100 pages and periodic reports 70 pages. The latter has placed a limit of 120 pages on reports. None of the other committees have laid down such rules, but simply stress that reports should be as concise and focused as possible. Lengthy reports pose a challenge to actors throughout the system, from experts and interpreters to non-governmental organisations (NGOs) and other interested parties. The examination In order to optimise the few hours available for the formal examination, as a working method, all committees prepare lists of issues and questions for the State Party, which are submitted to the State Party well in advance of the examination. This is in order for the committee to receive additional information on issues of particular concern, and at the same time to indicate to the State Party the issues that will be raised during the formal examination. Different committees have adopted different approaches in drawing up lists of issues and questions. In CERD this is done by the country rapporteur, who is an expert appointed to take the lead in the examination. In other committees, such as HRC, CEDAW Committee, CESCR and CRC Committee, the lists are drawn up in pre-session working groups. The CEDAW Committee, CESCR, CRC Committee and Committee on the Rights of All Migrant Workers and Members of Their Families (CMW) require the State Party to submit written responses to the list of issues prior to the examination. This is not formally required by other committees but State Parties often do submit written replies, even when this is not required. The list of issues forms the basis of the constructive dialogue, which normally takes place in Geneva or New York. The formal examination of the report is conducted between the experts of the committee and a delegation from the State Party, most often from the country’s capital. Delegations can vary from a few individuals to up to 20 headed by ministers or high-ranking officials. The aim is to carry out a constructive dialogue in a non-judgemental atmosphere. The purpose of the examination is not to blame and shame, but rather to offer assistance to the State Party on how to improve implementation of the convention.
C. Heyns and F. Viljoen, ‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’, 23:3 Human Rights Quarterly (2001) pp. 483–581. Report on the Working Methods of the Human Rights Treaty Bodies Relating to the State Party Reporting Process, HRI/MC/2006/4, 17 May 2006, p. 19.
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The examination is normally conducted by the head of the State Party delegation being invited to present an opening statement highlighting the most recent developments in their country. Then the country rapporteur or members of the country task force will commence the actual examination by presenting their own analysis and asking further questions, followed by other members of the committee addressing issues that they find of particular relevance. Then there will normally be a dialogue between the delegation and the experts, which will unfold in different ways, depending on the specific dynamics of the dialogue. Finally, the country rapporteur or another member will make some concluding comments. Based on the dialogue, the State report and other sources of information made available to the experts, the committee will elaborate a set of concluding observations and recommendations addressed to the State Party. These are made public shortly after the examination. In the light of the implementation agenda, the issue of following up the concluding observations and recommendations has been discussed in treaty bodies. Since 2001 follow-up procedures have been elaborated by the HRC, the Committee Against Torture (CAT), CERD and CESCR. HRC and CERD will identify a number of recommendations that need particular attention because of their urgency and/or importance and will request the State Party to submit a follow-up report on these issues within a timeframe of one year. In the case of CERD, if the follow-up report is not satisfactory, the Committee will submit additional recommendations or request the State Party to provide further information. Thus, a more continuous dialogue is developing between treaty bodies and State Parties through the follow-up procedures, which should be harmonised throughout the treaty body system. The involvement of national human rights institutions and NGOs The entire State report examination procedure is at the outset based on a dialogue between State Parties and the relevant committee’s experts. However, it is difficult to envisage such dialogues happening today without the involvement of NGOs and national human rights institutions10 (NHRIs), which interact with treaty bodies during all phases of the examination. NGOs and NHRIs are important providers of supplementary information on the situation in the country regarding the issues being addressed by the relevant committee. They often possess knowledge about specific issues that governments may not be sufficiently aware of or for various reasons do not want to include in the official report.11
10 M. Kjaerum, ‘National Human Rights Institutions: Implementing Human Rights’, in M. Bergsmo (ed.), Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide (Martinus Nijhoff Publishers, Boston/Leiden, 2003) pp. 646–651; F. Viljoen, ‘Fact-finding by UN Human Rights Complaints Bodies – Analysis and Suggested Reforms’, 8:1 Max Planck Yearbook of United Nations Law (2004) pp. 59 and 60. 11 V. Dimitrijevic, ‘State Reports’, in G. Alfredsson et. al (eds.), International Human Rights Monitoring Mechanisms (Martinus Nijhoff Publishers, The Hague, 2001) pp. 196 and 197.
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With the emergence of NHRIs at the beginning of the 1990s, a perception arose that NHRIs should draft or at least be seriously involved in drafting the State reports. However, it is clear that this is an obligation placed on the relevant ministries and other institutions of the State. In General Comment No. 2, for example, the CRC Committee stressed this point by stating that “it is not appropriate to delegate to NHRIs the drafting of reports or to include them in the government delegation when reports are examined by the Committee”.12 A similar approach was taken by NHRIs in the Berlin Declaration of 2006.13 An increasing number of NGOs and NHRIs follow country examinations and brief committee experts on issues of particular concern, either in informal lunchtime meetings or in official meetings of the committee. CERD is so far the only committee to permit NHRIs to address the committee formally during examinations, with the agreement of the State Party. This has been well received by the institutions, who, in the Berlin Declaration, recommended that “treaty bodies should adopt a harmonised procedure ensuring formal interaction with NHRIs during the examination of the State Party report”.14 Finally, NGOs and NHRIs play a role in ensuring the implementation of the recommendations of the treaty bodies. Since if there is no pressure from NGOs and/or NHRIs recommendations are often forgotten until the next examination, it is important to keep the recommendations alive and provide encouragement in implementing them. With the development of follow-up procedures in most treaty bodies, a more continuous dialogue can be envisaged between treaty bodies, State Parties, NGOs and NHRIs on some of the key concerns. The reform process As noted above, a number of States do not meet the reporting requirements, and 30 per cent of reports are overdue. Many States find it difficult to meet the complex and overlapping reporting requirements.15 Thus, the treaty body system could have a greater impact on the development of human rights in more States if some of the procedures and reporting obligations were harmonised and simplified. The Office of the United Nations High Commissioner for Human Rights and the various committees have initiated a process to strengthen the overall system. Important work is being undertaken to develop harmonised guidelines on reporting to the treaty bodies, which aim at “strengthening the capacity of States to fulfil their reporting obligations in a timely and effective manner, including the avoidance of unnecessary duplica-
12 General Comment No. 2, CRC/GC/2002/2, 15 November 2002, para. 21. See also CERD General Recommendations 17 (1993) and 28 (2002), as well as CESCR General Comment No. 10 (1998). 13 <www.nhri.net>. 14 Ibid. 15 Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, HRI/ MC/2006/2, 22 March 2006, pp. 6 and 7.
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tion of information”.16 The approach adopted here is that State Parties should expand the common core document to provide more information that is relevant for all or most treaty bodies. In this way, the State report to a specific committee may be shorter and more focused. It can be foreseen that committee-specific reports mainly build on the list of issues and questions, as well as providing information on the progress made regarding concerns raised previously. Furthermore, work is being done to integrate the reporting obligation into the daily routines of civil servants in relevant ministries and other institutions. This may be done by linking various national strategies and plans of action on human rights, gender, race, poverty, etc. to the concluding observations of the various treaty bodies, which may easily be turned into benchmarks and indicators for these strategies and plans. Reporting to international mechanisms then ceases to be a burden carried out mainly to satisfy a group of experts in Geneva and New York and becomes of direct relevance to the work of those institutions that are mandated to protect, respect and fulfil human rights in the domestic context.17 In this way, State reporting becomes an important and integrated part of the overall strategy to implement human rights at the domestic level.
16 Harmonized Guidelines on Reporting Under the International Human Rights Treaties, Including Guidelines on a Common Core Document and Treaty Specific Documents, HRI/MC/2006/3, 10 May 2006, p. 4. 17 See for example State Union Ministry of Human and Minority Rights Support Initiative, in collaboration with the European Centre for Minority Issues and the Danish Institute for Human Rights, Monitoring and Reporting Manual – Implementing International Human and Minority Rights Obligations in Serbia and Montenegro, May 2006.
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Follow-up Activities by UN Human Rights Treaty Bodies and Special Procedures Mechanisms of the Human Rights Council – Recent Developments Markus Schmidt*
Some years ago, this author contributed an article to the first edition of the Essays in Honour of Jakob Th. Möller, on follow-up procedures to individual complaints procedures and to concluding observations. Many developments in this area have since occurred, especially in relation to follow-up to State reporting mechanisms. In many respects, many of the recommendations formulated then have now become reality, which is much in line and in the spirit with which Jakob Möller contributed to the development of treaty body activities. It is therefore timely to evaluate the effectiveness of the revised follow-up procedures and draw some conclusions. Follow-up to decisions on individual communications The departure point for establishment of follow-up procedures for decisions under the treaty-based individual complaints procedures was that decisions under these procedures are not stricto sensu legally binding and do not constitute an enforceable legal title. Until 1990, the Human Rights Committee (hereafter HRCttee) was seldom informed of what governments had done or failed to do to implement its recommendations in Views adopted under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Positive examples would include the Committee’s Views in the cases of Lovelace v. Canada and Aumeeruddy-Cziffra v. Mauritius, where the governments concerned took effective remedial action and where the Committee was informed accordingly. Recognising that the absence of a follow-up mechanism was a serious lacuna of the Optional Protocol procedure, and that it should be endowed with some authority to monitor the effect and implementation of its Views, the HRCttee established a procedure *
The author is senior Human Rights Officer and chief of the Petitions Unit in the Office of the UN High Commissioner for Human Rights. The views expressed in the present chapter are entirely personal and do not reflect the opinion of the United Nations. Communication No. 24/1977, Views adopted on 30 July 1981. Communication No. 35/1978, Views adopted on 9 April 1981.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 25-34.
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for follow-up to its Views under the Optional Protocol to the ICCPR in July 1990, and created the mandate of a Special Rapporteur for Follow-Up on Views. The Committee derived its authority to establish such a procedure from the doctrine of implied powers, pursuant to which any international instance must enjoy certain implied powers. States Parties that ratify the Optional Protocol do so in good faith, intending to respect the Committee’s Views. Even if the Optional Protocol is silent on the Committee’s powers after adoption and transmittal of its Views, the Committee would not act ultra vires by monitoring their implementation. It is noteworthy that not once since the inception of the follow-up procedure and the mandate of the Special Rapporteur has a State Party challenged the Committee’s authority to engage in follow-up activities. Mechanism of the follow-up procedures for individual complaints: The HRCttee has discussed the modus operandi of the follow-up procedure on several occasions since 1990, and the procedure has been fine-tuned as a result. Rule 101 of the Committee’s revised Rules of Procedure spells out the modalities of the procedure; Rule 103 stipulates that unless the Committee decides otherwise, all follow-up information and documentation is in the public domain. In all decisions under the Optional Protocol in which findings of a violation of the Covenant are made, the Committee gives 90 days to the State Party concerned to provide information on measures taken to comply with the Committee’s recommendation(s). The experience of the past ten years has shown that 90 days is generally insufficient for States Parties to provide thorough follow-up information, especially countries with a federal structure, and the 90 day deadline has not been strictly enforced. Precisely for that reason, the Committee decided to extend the deadline for submission of follow-up information to 180 days in the autumn of 2007. If no follow-up information is forthcoming within a reasonable time after expiry of the deadline, the Special Rapporteur for Follow-up on Views will address, through the Secretariat, a reminder to the State party, again requesting provision of follow-up information. If no information is forthcoming, the Special Rapporteur may decide to organise direct follow-up consultations with State Party representatives (usually the Permanent Representative of the country concerned in Geneva or New York) to discuss possible avenues through which implementation of the Views may be facilitated. Since the inception of the procedure, such direct consultations have been held with representatives of 35 States Parties to the Optional Protocol – in some cases, these consultations have yielded pertinent follow-up information, in others not.
For history of the follow-up procedure and legal analysis of the mandate, see A. de Zayas, ‘The Follow-up Procedure of the UN Human Rights Committee’, 47 International Commissions of Jurists (1991) pp. 28 et seq. Document CCPR/C/3/Rev.8, 22 September 2005. Since 1995, follow-up meetings have taken place with a total of 35 States Parties, and several States Parties have had several follow-up meetings: 53rd session (1995): Jamaica, Colombia, Suriname (3); 55th session (1995): Jamaica, France (4); 56th session (1996): Equatorial Guinea, Jamaica, Colombia, Republic of Korea, Suriname, Trinidad and Tobago (7);
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Finally, the Committee can organise a follow-up mission to a State Party that experiences particular difficulties with the implementation of the Committee’s recommendations: to date, the only follow-up mission remains that to Jamaica, conducted in the summer of 1995 by the Rapporteur Anread Morrommatis and the then Chief of Petition Alfred de Zayas. The mission enjoyed considerable cooperation from the Governor General of Jamaica, from the President of the Court of Appeals and all relevant ministries. Five prisons were visited, including the death row section of St. Catherine’s prison. The government granted commutation of sentence in all cases presented by the Rapporteur. Other missions have been planned but could not be carried out because of lack of financial means despite repeated requests to the UN budget authorities. If States parties do submit follow-up information, this is routinely sent to the victim and/or his/her representative, and where appropriate for comments. A summary will be included in the Committee’s Annual Report to the General Assembly or in an Annex to the Annual Report. The Special Rapporteur submits sessional “follow-up progress reports” to the Committee plenary. Since 1994, follow-up activities under the Optional Protocol have been reflected in a separate chapter of the Annual Report. The practice of shaming noncompliant States Parties into compliance by highlighting them in a special and highlighted “blacklist” in the follow-up chapter was, however, discontinued.
57th session (1996): Dominican Republic, Peru, Bolivia (10); 58th session (1996): Cameroon, Ecuador, Madagascar, Nicaragua, Zambia (15); 59th session (1997): Dominican Republic, Equatorial Guinea, Madagascar, Nicaragua, Suriname, Bolivia, Colombia, Trinidad and Tobago; 60th session (1997): Jamaica, Cameroon, Panama, Republic of Korea, Uruguay (17); 61st session (1997): Czech Republic, Ecuador, Trinidad and Tobago (18); 62nd session (1998): Togo (19); 66th session (1999): Czech Republic; 67th session (1999): Colombia; 68th session (2000): Suriname, Australia (20); 70th session (2000): Netherlands, Peru (21); 72nd session (2001): Australia, Austria, Canada (23); 73rd session (2001): DRC, Zambia, Peru (24); 74th session (2002): Peru, Philippines, Angola, Namibia, Nicaragua, Sierra Leone, Togo (28); 75th session (2002): Colombia, Spain (29); 76th session (2002): Zambia; 79th session (2003): Colombia, DRC, Ireland, Russian Federation (31); 80th session (2004): Peru; 81st session (2004): Canada, Philippines; 82nd session (2004): Angola, Madagascar; 83rd session (2005): Guyana, Tajikistan (33); 84th session (2005): Angola, Libyan Arab Jamahiriya, Philippines (34); 86th session (2006): Suriname, Equatorial Guinea; 87th session (2006): Russian Federation, Belarus (35). This is generally chapter 6 of the Committee’s Annual Report.
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Overview of follow-up replies It is inherently difficult to divide follow-up replies into neat categories and statistics – but some generalisations are permitted. A good percentage of States Parties provide followup information indicating that they will implement the Committee’s Views and provide remedial action, either by providing compensation, amending legislation or by releasing the detained victim. Another category of follow-up replies constitute very belated submissions on the merits of the case – in these replies the State Party tends to challenge the decision on the basis of perceived factual errors. Yet another category of follow-up replies challenges the Committee’s findings and legal argumentation. Finally, there are a number of States Parties that do not provide any follow-up information whatsoever, in spite of a plethora of reminders and direct contacts with government representatives (e.g. Equatorial Guinea or the Democratic Republic of the Congo (DRC)). In the case of the DRC, the Human Rights Committee, in its recent concluding observations on the combined third to sixth periodic reports of the DRC, deplored the DRC’s consistent failure to provide follow-up information on Views adopted against the country, and urged the government to accept a follow-up mission of the Special Rapporteur for follow-up on Views. This follow-up mission has yet to materialise. Where there is no or patently insufficient follow-up information, the Committee will regularly seek information from the State Party concerned in the context of examination of the State Party’s next periodic report under Article 40 of the ICCPR. It should be noted that since early 2002 the Committee against Torture also implements a follow-up procedure, and it now reviews follow-up activities in relation to Views adopted under Article 22 of the Convention against Torture during every session. In August 2005, the Committee on the Elimination of Racial Discrimination in turn adopted a mechanism for follow-up to its Opinions, and a first comprehensive followup progress report was examined at the 69th session.10 In addition, Article 7(4) and (5) of the Convention on the Elimination of Discrimination Against Women (CEDAW) reflect the experience of the HRCttee with follow-up activities by explicitly providing for follow-up to Views adopted under the Optional Protocol to CEDAW; so do the rules of procedure for consideration of complaints under the Optional Protocol to CEDAW. Follow-up to concluding observations of treaty bodies The treaty bodies have long recognised that if no mechanism for follow-up to concluding observations (hereafter COBs) is in place, States Parties have potentially unlimited Communication No. 884/1999, Ignatane v. Latvia, Views adopted 25 July 2001. In this case, a Latvian language proficiency requirement as a pre-condition for access to municipal office, including for members of the Russian minority, was found to violate Article 25 of the Covenant. See for example Communication No. 560/1993, A. v. Australia, or Communication No. 779/1997, Gridin v. Russian Federation. See Concluding Observations of 24 March 2006, CCPR/C/COD/CO, para. 9. 10 See Annual Report 2006, A/61/18, chapter VII, paras. 485–489.
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time to implement treaty body recommendations or are left to their own devices. At best, they can be expected to provide follow-up information in their next periodic report, some four to five years after the adoption of the COBs. At worst, they do not provide any follow-up information at all, especially if they do not comply with their reporting obligations. The following observation underlines the importance of establishing and effectively implementing procedures for follow-up to COBs: by early 2006, over 1,450 initial or periodic reports were cumulatively overdue under the seven major human rights instruments then in force – and with the expected entry into force of the new disappearances and disability conventions, this figure is likely to rise further. In addition, experience has shown that the majority of periodic reports of States Parties to the principal UN human rights instruments do not provide adequate information on what follow-up they have given to the recommendations in the COBs of the relevant treaty body. As always, there are examples of “best practices” (e.g. the second periodic report of Switzerland under the ICCPR, examined in 2001, or the fourth periodic report of New Zealand under the ICCPR, examined in 2002) and examples of bad practices (e.g. fifth periodic report of the Russian Federation under the ICCPR, examined in 2003). During a seminar held in July 1996, members of the HRCttee and other treaty body experts first sought to conceptualise a procedure for follow-up to COBs. A number of subsequent academic workshops yielded additional proposals in this respect. After extensive discussions in 2000 and the spring of 2001, the HRCttee amended its rules of procedure and introduced new rules which lay down a new procedure for follow-up to COBs. The Committee against Torture followed suit in May 2002 and established its own procedure for following up on COBs. The Committee on the Elimination of Racial Discrimination and other treaty bodies did so subsequently, and with the exception of the Migrant Workers Committee, all treaty bodies now have procedures in place for following up their COBs. In so doing, they took into account recommendations of the first Inter-Committee meeting, held in June 2002, which had acknowledged the crucial importance of effective follow-up to COBs and suggested that the other treaty bodies should establish their own follow-up procedures in the near future. The Plan of Action of the High Commissioner for Human Rights of May 2005 strikes a similar chord. Modus operandi of procedures for follow-up to concluding observations Pursuant to Rule 71, paragraph 5, of its Rules of Procedure, the HRCttee will in its COBs identify a number of “priority concerns” on which the State Party whose report has been examined is expected to provide follow-up information within one year, and not in the next periodic report. Pursuant to Rule 72, the Committee then establishes a procedure by which it analyses such follow-up information as has been received. To this end, the Committee adopted a decision on working methods related to follow-up to COBs at its 74th session in March 200211 and appointed a Special Rapporteur for Follow-Up on COBs in July 2002. The Committee against Torture has also appointed a rapporteur for 11
See Annual Report 2002, Document A/57/40, Annex III.A.
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follow-up activities, and the Committee on the Elimination of Racial Discrimination recently designated a member who will be a focal point to deal with follow-up activities. If no follow-up information is received from a State Party within the one-year deadline, the Special Rapporteur on Follow-Up to COBs will, with the assistance of the Secretariat, address a reminder to the State Party concerned. If this yields no results, the Special Rapporteur may, again with Secretariat assistance, solicit direct consultations with a State Party representative. Such direct consultations have been organised with ten States Parties since the inception of the new procedure in 2001, and several times with a number of these – in many cases, these consultations have yielded follow-up information from the State Party concerned, even if the information supplied has in many cases not been fully satisfactory. Overview of the effectiveness of the new follow-up procedure The effectiveness of the procedure is premised on recommendations that are both precise, practical and above-all “implementable” – it is quite simply unrealistic to expect timely follow-up information in respect of recommendations that are couched in abstract terms or require long-term policy or legislative measures and changes. From an analysis of the initial COBs adopted pursuant to the new procedure, it becomes obvious that at the outset both the HRCttee and the Committee Against Torture were exploring new ground. Thus, many HRCttee COBs adopted in the course of 2001 identified too many “priority concerns” to enable the States Parties concerned to submit timely follow-up replies. Mutatis mutandis the same was true for the COBs of the Committee against Torture. The COB’s adopted by the HRCttee since mid-2002 have been more circumspect with the identification of “priority concerns”, and the recommendations are now generally couched in more precise terms and are formulated with a view to making them more “implementable”. By the end of July 2006, the statistical information for countries to which the principles of Rule 71, paragraph 5, had been applied, and where the one-year deadline had expired, is as follows:12 – 46 were under an obligation to provide information pursuant to rule 71, paragraph 5, since March 2001;13 – 13 countries did not reply at all to the Committee’s request;14 – 17 countries had provided partial or partially satisfactory replies to the Committee’s request;15 12 For another ten states, the one-year deadline had not yet expired. 13 See also Annual Report 2006, A/61/40, chapter 7. 14 Moldova, Mali, Israel, Suriname, Namibia, Uzbekistan, Slovenia, Thailand, The Gambia, Equatorial Guinea, Venezuela, Iceland, Greece (follow-up reply promised for November 2006). 15 Dominican Republic, Togo, Sri Lanka, Uganda, Albania, Hungary, Azerbaijan, Georgia, Croatia, Syria, Sweden, Russian Federation, Ukraine, Morocco, Slovakia, Philippines, Tajikistan.
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–
16 countries replied in full to the Committee’s request for follow-up information;16 out of these, two replied in full and on time.17
Not all follow-up replies were deemed satisfactory by the Special Rapporteur on FollowUp to COBs and both the HRCttee and the Committee against Torture have, in several cases, requested supplementary follow-up information from States Parties. The Special Rapporteur for Follow-up on COBs analyses the follow-up information submitted by States Parties pursuant to Rule 71, paragraph 5, and, in cooperation with the Secretariat, presents follow-up progress reports to the Committee plenary at each session. On the basis of his recommendations, the Committee plenary determines whether any further action is required and in particular whether, pursuant to Rule 72, the deadline for the submission of the next periodic report of the State Party set provisionally in the COBs is to be maintained, shortened or extended. In some instances, the Committee has decided to instruct the Special Rapporteur to take other particular steps. Further to a decision on follow-up working methods of March 2002, the Annual Report for 2003 includes for the first time a separate chapter on follow-up to concluding observations, which provides a comprehensive overview of the Special Rapporteur’s activities over the reporting period.18 Since then, the format of the follow-up chapter has become more detailed and been supplemented by a detailed Annex of the Annual Report.19 In addition, all follow-up replies from States Parties are translated into the Committee’s working languages and posted on the website of the Office of the High Commissioner for Human Rights (OHCHR). So as to strengthen follow-up to COBs in particular and follow-up activities in general, the HRCttee has set up an inter-sessional working group which has made a number of proposals designed to enhance the visibility of follow-up activities: these includes the issuance of press releases which highlight both positive and negative experiences with follow-up, and better use of the bi-annual meeting of the States Parties to the ICCPR. A regular newsletter issued by the Human Rights Treaties Branch of the Office of the UN High Commissioner for Human Rights also highlights instances of good follow-up practices. In the spring of 2002, a Treaty Body Recommendation Unit was created in the OHCHR. This Unit provides substantive and logistical assistance to treaty bodies in the implementation of the procedure for following up COBs. It prepares follow-up progress reports for each treaty body session, organises direct contacts with States Parties whose follow-up replies are overdue and prepares the relevant follow-up chapter(s) for the annual report(s). As for follow-up to individual complaints, this Unit also is compiling best practices in the area of follow-up to COBs. 16 Belgium, El Salvador, Netherlands, (former) Serbia and Montenegro, Benin, Poland, Mauritius, Kenya, United Kingdom, Switzerland, Lithuania, Latvia, Estonia, Liechtenstein, Finland, Colombia. 17 (former) Serbia and Montenegro and Poland. 18 See Annual Report 2003, Document A/58/40, chapter 7. 19 See e.g. Annual Report 2006, A/61/40, chapter 7.
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Equally if not more important has been the Office’s contribution to sensitise States Parties to the importance of follow-up mechanisms, and to disseminate information about them. In August 2002, the First Regional Workshop on Follow-up to Concluding Observations of the Human Rights Committee was convened in Quito, Ecuador. This Workshop produced a document with conclusions and recommendations,20 which was welcomed by other treaty bodies and by the second Inter-Committee in June 2003. On the strength of the Quito precedent, other governments and organisations have offered to host similar workshops on follow-up to COBs of treaty bodies. Thus, regional workshops on follow-up to the COBs of the Committee on the Rights of the Child were held in Buenos Aires in November 2005 and in San José, Costa Rica, in October 2006, and a workshop on follow-up to COBs of the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination Against Women was convened in Cairo in December 2005. Another area in which treaty body recommendations have become increasingly relevant is their increased promotion as a programming tool for UN country teams in the development of CCA/UNDAF (common country assessment/UN development assistance framework) activities. To date, the OHCHR has assisted several countries in the identification of priority development issues on the basis of treaty body recommendations. Finally, the OHCHR has put considerable efforts into raising awareness of treaty body activities. To this end, the creation of an electronic list serve, through which treaty body COBs, decisions and General Comments are rapidly distributed after the close of each treaty body session, has helped promote knowledge of treaty body recommendations. Follow-up activities by special procedures of the Human Rights Council Until now, comparatively little attention has been devoted to the follow-up mechanisms of the special procedures mandates of the Human Rights Council. Many special procedures mandate holders have long been mindful of the fact that the effectiveness of their urgent appeals and recommendations requires some form of follow-up activities. In the second half of the 1990s, a number of mandate holders of the former Commission on Human Rights instituted what could be characterised as follow-up procedures in statu nascendi. The former Special Rapporteur on the Right to Freedom of Thought and Religion, for instance, created a matrix which sought to evaluate, on a country-by-country basis, the extent to which these countries had taken measures to implement his recommendations, or failed to do so. In 1999, the Working Group on Arbitrary Detention instituted a mechanism pursuant to which it may follow-up its country visits and Opinions it has adopted under its own complaints procedure. The Working Group now regularly addresses to the governments of the countries it has visited, in due course, a follow-up letter with a copy of the recommendations adopted by the Group and contained in the reports on its country visits. In this letter, the Working Group requests the government to inform it of initiatives they have taken pursuant to the Group’s recommendations. If a government 20 See Document HRI/TB/FU/1 of 29 August 2002.
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consistently fails to provide information on measures it has taken to give effect to a recommendation made by the Working Group in an Opinion issued on an individual case, the case may be brought before the Working Group for renewed consideration.21 In addition, the findings of the Working Group may be relevant for the consideration of cases by regional human rights mechanisms, such as the European Court of Human Rights.22 The Special Procedures Branch of the OHCHR, which services the thematic special procedures mandates of the Human Rights Council, assists mandate holders with their follow-up activities. Conclusion The above shows that follow-up activities, while virtually non-existent before 1990, are now at the core of the activities of the UN human rights treaty bodies and of the Office of the High Commissioner for Human Rights. Taken in isolation, this finding is ground for satisfaction – all stakeholders have realised that effective follow-up mechanisms provide the crucial link for better and more consistent domestic level implementation of human rights bodies. Successive Annual Appeals of the OHCHR have emphasised the importance of follow-up activities and their centrality to OHCHR activities. And yet more remains to be done to improve domestic-level implementation of treaty body recommendations. The key notion of “country engagement” in the High Commissioner’s 2005 Plan of Action should play an important context in this context, where the High Commissioner’s Office should precisely base its “engagement” to a considerable extent on the recommendations of the treaty bodies and special procedures mandate holders. A number of recommendations were formulated in the contribution to the first edition of this volume, to the extent that: – follow-up activities should be recognised as core activities of the OHCHR and the treaty bodies; – that the outputs of the procedure for follow-up on complaints and concluding observations should be better publicised and disseminated; – that treaty bodies should be more outspoken in highlighting instances of non-compliance with their decisions; – that all treaty bodies create procedures for following up COBs and amend their rules of procedure accordingly; – that recommendations in concluding observations should inform the preparation of the UN common country assessment and country strategies; – that field presences of the OHCHR should play a role in following up decisions and concluding observations.
21 See Annual Report of the Working Group on Arbitrary Detention to the Commission on Human Rights 1999, Document E/CN.4/1999/63, paras. 35 and 36. 22 As occurred in the case of Ocalan v. Turkey, Application No. 46221/99, judgment of the Grand Chamber of the European Court of Human Rights, 12 May 2005.
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Eight years on, it is heartening to note that most of the above recommendations have indeed been translated into reality: all treaty bodies have instituted procedures for following up on COBs, and all those that implement complaints procedures have set up procedures for following up on final decisions. In addition, the treaty bodies continue to review their working methods and amend their rules of procedure to make progress on other issues. One may safely assume that Jakob Möller would welcome these developments.
5
Petitions before the United Nations Treaty Bodies: Focus on the Human Rights Committee’s Optional Protocol Procedure Alfred de Zayas*
The United Nations receives thousands of petitions concerning alleged violations of human rights from individuals, groups and organizations. These are screened by the Secretariat of the Office of the United Nations High Commissioner for Human Rights (OHCHR) in Geneva, which channels them into the appropriate procedures, whether treaty- or resolution-based. The Commission on Human Rights (until 2006)/Human Rights Council (since 2006), the Sub-Commission on Promotion and Protection of Human Rights/Advisory Committee (since 2007 pursuant to Resolution 5/1), and their respective working groups and Special Rapporteurs operate according to the mandates conferred upon them by ECOSOC and General Assembly Resolutions. Seven “treatybodies” have been established to monitor compliance with the seven core conventions, but only four have petitions procedures in operation: the Human Rights Committee (HRC), the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Elimination of Discrimination Against Women (CEDAW), and the Committee against Torture (CAT). A fifth treaty-based petitions procedure has been envisaged in Article 77 of the Convention on the Rights of All Migrant Workers and Members of their Families (CMW), but this procedure has not entered into force. The treaty-bodies consider petitions and issue “Views”, “Opinions”, or “Decisions” of a quasi-judicial nature. Unlike the resolution-based 1503 petitions procedure (renamed “complaints procedure” pursuant to Council Resolution 5/1 in 2007) and the thematic mandates of the so*
J.D. (Harvard), Dr. phil. (Göttingen). Visiting Professor of Law at numerous universities in the United States, Canada and Europe. Retired senior lawyer with the Office of the United Nations High Commissioner for Human Rights, former Secretary of the Human Rights Committee, former Chief of Petitions at the Office of the United Nations High Commissioner for Human Rights. President, PEN International, Centre Suisse Romande. Jakob Th. Möller and Alfred de Zayas have just completed a book entitled The Case-Law of the Human Rights Committee 1977-2007: A Handbook, which is being published by N.P. Engel Kehl/Strasbourg in December 2008.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp.35-76.
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called “special procedures” of the Commission/Council/Sub-Commission, the treatybased procedures do not have universal geographic application, but can be invoked only with respect to those States that have recognized the competence of the relevant committees to receive complaints and to make recommendations thereon. At the end of July 2008, 109 States (out of 161 States parties to the International Covenant On Civil and Political Rights, ICCPR) were bound under the procedure governed by the Optional Protocol to the ICCPR (the figure would have been 111 if Jamaica and Trinidad and Tobago had not denounced the Optional Protocol), 53 States had given the declaration under Article 14 of CERD (173 States parties), 63 had given the declaration under Article 22 of CAT (144 States parties), and 90 had adhered to the Optional Protocol to CEDAW (185 States parties). In this brief survey, I shall focus on the Optional Protocol procedure of the Human Rights Committee (OP), which is similar to the procedures of CERD and CAT with respect to working methods, admissibility criteria, examination of the merits and formulation of conclusions. The CERD and CAT petitions procedures have been serviced by the “Communications Branch”/ “Petitions Unit” from the beginning and have developed jurisprudence consistent with that of the HRC. As of 2008 the petitions procedure under the Optional Protocol to CEDAW will henceforth be dealt with by the Secretariat of the OHCHR, thereby ensuring the consistent and coherent development of United Nations treaty-based jurisprudence. This survey will highlight some success stories of the HRC and indicate where jurisprudential development is possible and necessary, notably concerning the right to identity (Articles 16 and 17 ICCPR), the human right to peace (Article 20), and the right to a remedy (Article 2). Since the Human Rights Committee started its work under the Optional Protocol at its second session in August 1977 to the end of July 2008, 1799 communications relating to 82 States parties had been registered for consideration. The status of registered communications was as follows: (a) Concluded by the adoption of Views under Article 5(4) of the Optional Protocol (violations found in 503 cases) (b) Concluded by decision of inadmissibility (c) Discontinued or withdrawn (d) Pending cases
635 504 251 409
The United Nations Human Rights Committee is an independent body of 18 experts, which was established in 1976 to monitor State party compliance with the ICCPR, and to act as a quasi-judicial organ with competence to examine complaints from individuals, pursuant to the OP. The Committee also has competence to examine inter-State complaints pursuant to the procedure established under Article 41 ICCPR, which, although 48 States have accepted it, remains unused as of July 2008. Both the ICCPR and the OP entered into force on 23 March 1976. The Committee meets for three three-week sessions per year, preceded by a one-week working group session, which is devoted exclusively to the examination of individual complaints. The
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spring session takes place at the UN headquarters in New York; the July and October sessions take place at the UN European headquarters at the Palais Wilson in Geneva. Since the United Nations, unlike the European Union, is not a supranational organization, its decisions, except those of the Security Council (see Article 25 of the UN Charter) and the judgments of the International Court of Justice (Article 59 of the ICJ Statute), have no binding force, nor is there any enforcement mechanism. Unlike decisions of the European Court of Human Rights, which States parties to the European Convention are legally bound to implement, decisions of the Human Rights Committee, CERD, CAT and CEDAW are deemed to be recommendations. In the absence of treaty-based jurisdiction, there is no procedure for imposing sanctions on non-complying States. Nonetheless, the degree of State compliance with committee decisions is encouraging. States have taken meaningful steps to implement decisions by adopting or amending legislation, issuing new regulations, paying compensation to victims, releasing prisoners, granting commutation of death sentences, issuing passports, lifting restrictions on the freedom of movement and residence, reinstating officials in their posts, etc. The committees also take urgent action by issuing requests for interim measures of protection, primarily concerning stays of execution and the deferral of deportation or extradition orders. Bearing in mind that the International Court of Justice has no competence to examine cases submitted by individuals, the HRC is the closest the world has ever come to an international court of human rights. In order to arrive there, it would be necessary to strengthen the OP by amendment or to establish a new judicial body by treaty. Following the creation of the Office of the High Commissioner for Human Rights in December of 1993 (GA Resolution 48/141), the prospect of an international court of human rights no longer appears an impossible dream. With its 30-year experience, the HRC provides a good foundation. The HRC’s final decisions on admissibility and merits constitute international jurisprudence. Case-law is a form of “hard law”, admittedly not as “hard” as the normative rule itself (the article of the treaty) because case-law frequently applies norms liberally, and the interpretation of a norm may vary from judge to judge, from expert committee to expert committee. But precisely this flexibility and potential for development makes case-law so attractive. Whereas a treaty norm can be changed only by amendment pursuant to cumbersome treaty procedures (e.g. Article 51 of the ICCPR), case-law can be distinguished or even overruled by a later decision of the same committee. While treaty norms sometimes appear static, case-law is dynamic and has the unique function of concretizing the treaty norm by giving it a human face, by applying it to a real fleshand-blood victim, and by making specific recommendations with respect to a remedy. Case-law is not dead letter but living law. For the victim whose suffering is remedied – it means everything. For the person condemned to death, whose sentence is commuted, for the prisoner who is released, for the victim who receives a moral victory or even compensation – this is justice in action. Moreover, precedent creates new law that complements and explains the original norm, providing specific guidance to public officials and lawyers, illustrating what action should be taken in similar factual situations. A case that is satisfactorily solved means hope for all future victims who can invoke the norm with the expectation that it will be similarly applied or even further developed. In this
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sense case-law provides solutions not merely to a specific dispute between victim X and State Y, but acquires a preventive function of general validity erga omnes. Petitions addressed by individuals to the HRC under the OP are referred to as “communications”. No communication can be received by the Committee unless it concerns a State party to the Covenant which is also a party to the OP (Article 1 in fine). The Committee’s Views on the merits and its decisions declaring cases inadmissible are made public in the annual reports of the Human Rights Committee to the General Assembly pursuant to Article 45 of the Covenant. Decisions declaring communications admissible and other interlocutory decisions are not made public. The Committee’s case-law can also be accessed online, <www.ohchr.org>. Consideration of communications under the Optional Protocol takes place in closed meetings (Article 5(3) OP). It is a written procedure, without any possibility for complainants or States parties to appear before the Committee and make oral pleadings. Secretariat documents pertaining to communications are confidential during the examination by the Committee and remain confidential after the case has been closed. The old Rule 96 of the Committee’s Rules of Procedure provided for confidentiality of all submissions by the parties. This rule was amended in 1997 (renumbered Rule 102 in 2004), and now allows each party to publish its own submissions during or after the Committee’s proceedings. Procedure on admissibility Registration Not every communication received by the Secretariat is immediately registered. When a communication is obviously inadmissible, e.g. when domestic remedies have not been exhausted without any explanation, or when the author admits that the case is currently under examination before another international instance of judicial or quasi-judicial settlement, or when the author fails to substantiate any of his or her allegations, the Secretariat treats the petition as a “contact letter” and so informs the author and the Committee. In this way, the Committee’s scarce time is not wasted in formal discussion and adoption of written decisions on inadmissibility. Admissibility criteria Once a communication has been registered, the Committee must decide whether it is admissible under the Optional Protocol. The requirements for admissibility, which are contained in Articles 1, 2, 3 and 5(2) of the OP, are listed in Rule 96 (old Rule 90) of the Committee’s Rules of Procedure, pursuant to which the Committee shall ascertain, inter alia: i. That the communication is not anonymous and that it emanates from an individual, or individuals, subject to the jurisdiction of a State party to the Protocol (personal standing, principle of admissibility ratione personae); ii. That the individual claims to be a victim of a violation by a State party to the ICCPR and OP (ratione loci);
5 – Petitions before the United Nations Treaty Bodies: Focus on the Human Rights Committee’s Optional Protocol Procedure
iii. That the communication is submitted by the victim or by his/her duly authorized representative; the Committee may, however, accept to consider a communication submitted on behalf of an alleged victim when it appears that the victim is unable to submit the communication personally (e.g. if held in incommunicado detention); iv. That the communication is not requesting in abstracto examination of a State party’s legislation or is tantamount to an actio popularis; v. That the communication concerns an event or omission subsequent to the entry into force of the OP for the State party concerned (ratione temporis); vi. That the communication does not constitute an abuse of the right of submission; even if the OP does not establish time limits for the submission of a communication following the exhaustion of domestic remedies, the Committee may declare the communication inadmissible on grounds of abuse, in cases of unexplained excessive delays in submission, since such delays can make the examination of the complaint by the HRC and by the State party unreasonably difficult; vii. That a valid reservation by the State party does not exclude the Committee’s competence; viii. That the communication is not incompatible with the provisions of the Covenant; i.e. that the complainant invokes a right protected by the Covenant, and not a right beyond its scope, such as asylum, property, work, (principle of admissibility ratione materiae); ix. That the same matter is not being examined under another procedure of international investigation or settlement; x. That the petitioner has exhausted all available domestic remedies. During its first 19 years and until the amendments to the Rules of Procedure in 1997, allowing for the joint consideration of the admissibility and of the merits of a communication (new Rule 97(2), old 91(2)), the Committee took a formal decision on admissibility before proceeding to the determination of the merits of a given case. Thus, the Committee or its Working Group on Communications requested the State party concerned or the author of the communication to submit, within a time-limit indicated in each such decision (normally six weeks or two months), additional written information or observations relevant to the question of admissibility of the communication (Rule 97(1), old 91(1)). Such a request does not imply that any decision has been taken on the question of admissibility (Rule 97(5), old 91(5)). Any reply received from the State party or from the author is transmitted to the other party for comments. If the case is only referred back to the author for clarifications under Rule 97 and is subsequently declared inadmissible, no transmittal to the State party may have taken place. The Committee may also decide to discontinue or suspend consideration of a communication, for example, if its author indicates that he/she wants to withdraw the case or if the Committee has lost touch with the author. A decision to declare a communication inadmissible (or otherwise to discontinue or suspend consideration of it) may, in a clear case, be taken without referring the case to the State party for its observations. The decision to declare a communication admissible may be taken by a unanimous Working Group of five members. Pursuant to the new Rule 93(3), the Working Group also has the competence to adopt a decision on inadmissibility, which is then placed before the Committee
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plenary for eventual further discussion, in the absence of which, the Working Group’s decision matures into a decision by the HRC. Following the amendments to the Rules of Procedure in 1997, the examination of admissibility and merits is joined in approximately 90 per cent of the cases. In some cases, however, the State party may request a formal decision on admissibility without consideration of the merits. After due consideration of the request, the Special Rapporteur on New Communications (at present Christine Chanet) or the Working Group may decide to sever the examination of admissibility from that of the merits. Thus, in some cases the Committee need not initially be concerned with the merits. If the Committee, however, declares the case admissible, the State party is given six months to make its submissions on the merits. Examination of merits After a communication has been found to be admissible, either by a formal decision on admissibility or in the course of joint examination with the merits, the Committee proceeds to consider the substance of the complaint. In accordance with Article 4 of the Optional Protocol, the State party is required to submit to the Committee “explanations or statements clarifying the matter and the remedy, if any, which may have been taken” by it. These observations are transmitted to the author for comments. Before the adoption of the Committee’s Views, further information may be sought from the State party or the author by means of an interim decision. Throughout the proceedings, the principle of equality of arms prevails, and both parties have the opportunity to comment on the other party’s submissions. Interim measures According to Rule 92 (old Rule 86) of the Committee’s Rules of Procedure, the Committee may inform the State party that interim measures of protection may be desirable to avoid irreparable harm to the victim of the alleged violation. Such request for interim measures does not imply a determination of the merits of the communication. Early in its work, the Committee had occasion to request interim measures in cases concerning the deferral of extradition or expulsion e. g. No. 22/1977 (O.E. v. S.), where it notified the State party “that pending further consideration of the case, the alleged victim, having sought refuge in S., should not be handed over or expelled to Country X”. In an interim decision relating to another case, the Committee expressed concern over the state of health of the alleged victim and requested the State party “as a matter of urgency to arrange for him to be examined by a competent medical board and ... to furnish the Committee with a copy of the board’s report” (No. 10/1977, Altesor v. Uruguay). At the Committee’s 28th session in July 1986, interim measures of protection were granted for the first time in a capital penalty case, requesting a State party to refrain from carrying out a sentence of death pending the Committee’s examination. The State party,
HRC Selected Decisions, Vol. 1, p. 5. Ibid., p. 106.
5 – Petitions before the United Nations Treaty Bodies: Focus on the Human Rights Committee’s Optional Protocol Procedure
Jamaica, granted the stay of execution. As could have been anticipated, the success in obtaining a stay of execution led directly to a flood of requests for stays of execution in all those countries parties to the Optional Protocol which retain capital punishment. Within a few months the Committee found itself confronted with an ever increasing number of capital punishment cases submitted by inmates or non-governmental organizations interested in the general abolition of the death penalty. Since the cases of Earl Pratt and Ivan Morgan in 1986, the Committee has issued over 300 requests for stays of execution concerning death row inmates in Barbados, Georgia, Guyana, Jamaica, the Philippines, Sierra Leone, Tajikistan, Trinidad and Tobago, Uzbekistan and Zaire (now the Democratic Republic of the Congo). In very few cases the States parties concerned ignored the Committee’s request and proceed with the execution. Some States parties have contented not to have received the Committee’s request in a timely fashion. This, of course, is a problem that may arise when counsel for persons on death row do not submit the cases to the HRC until very shortly before the day of the scheduled execution. Even with the benefits of modern technology, the Special Rapporteur for New Communications needs a certain amount of time to study a case and decide whether it falls within the jurisdiction of the Committee. If it does, he then must decide whether the facts as submitted justify issuing a request under Rule 92. In this context, it should be emphasized that Article 6(2) of the Covenant does not prohibit the imposition of the death penalty, provided that certain conditions are fulfilled. The Committee cannot systematically and automatically ask for stays of execution in all cases of death penalty, unless there is a substantiated allegation that the execution of the death penalty would entail a violation of Article 6 of the Covenant, e.g. because the sentence of death followed a trial in which the basic guarantees of a fair hearing under Article 14 had been violated. In those cases where the State party has failed to respect a Rule 92 decision, the Committee has held the State party to be in breach of its obligations under the Optional Protocol. In case No. 973/2001 (Khalilov v. Tajikistan), the State party executed the author’s son before the Committee had concluded its examination. The Committee deemed it particularly inexcusable for the State to have done so after the Committee had acted under Rule 92 of its Rules of Procedure, requesting that the State party refrain from doing so. The Committee expressed concern about the lack of an explanation by the State party for its action, and stressed that interim measures were essential to the Committee’s role under the Protocol. Flouting of the rule, especially by irreversible measures, undermined the protection of Covenant rights through the Optional Protocol. The Committee has issued Rule 92 requests also with respect to the extradition of persons to face the imposition of the death penalty in another State. In the cases of Kindler
Official Documents of the General Assembly, 1989, Forty-Fourth Session, Supplement No. 40 (A/44/40), hereinafter HRC 1989 Report, Annex X, sect. F. HRC reports to the GA always bear the Supplement No. 40, and the number of the session of the GA corresponding to the period when the report is submitted. Thus, the report submitted in 2005, which covers the HRC’s 82nd through 84th sessions, corresponds to the 60th session of the General Assembly, and will be referred to as HRC 2005 Report, or UN Doc. A/60/40. HRC 2005 Report, Vol. II, Annex V, sect. I.
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v. Canada (470/1991) and Chitat Ng v. Canada (469/1991), the Special Rapporteur on New Communications issued the request under Rule 86 (new Rule 92) only a few hours before the extradition was to take place. The State party proceeded with the extraditions, both to the United States, and subsequently explained to the Committee that it had not received the request in a timely fashion. In a subsequent case, Cox v. Canada (539/1993), the Canadian authorities did comply with the Committee’s request. Following the adoption of the Committee’s Views in the case, in which the Committee found that the extradition would not entail a violation of the Covenant, the Canadian authorities proceeded with the extradition of Mr. Keith Cox to the United States. The Committee has been confronted with another category of Rule 92 requests, aimed at deferring the deportation of aliens. Many States have received such requests and complied. Evidence and burden of proof Thus far the Committee has not developed any independent fact-finding functions under the Optional Protocol. Neither the case Rapporteur nor the Working Group travel to States parties to conduct their own investigations. Pursuant to Article 5(1) of the OP, the Committee is bound to consider “all written information made available to it” by the parties. Thus, at present, only the parties can submit written information. There are no oral hearings, no amicus curiae briefs from third parties, nor does the Committee draw its conclusions from reports by non-governmental organizations such as Amnesty International and Human Rights Watch, although it takes such information into consideration when examining the State party’s reports under Article 40 ICCPR. With respect to the burden of proof, the Committee has established in a number of cases dealing with alleged violations of Articles 6 (right to life), 7 (torture and ill-treatment) and 9 (arbitrary arrest, disappeared persons) that this cannot rest alone on the author of the communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to relevant information. It is implicit in Article 4(2) of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violation of the Covenant made against it and its authorities, especially when such allegations are corroborated by evidence submitted by the author of the communication, and to furnish to the Committee the information available to it. In cases where the author has submitted to the Committee allegations supported by substantial witness testimony, and where further clarification of the case depends on information exclusively in the hands of the State party, the Committee may consider such allegations as substantiated in the absence of satisfactory evidence and explanations to the contrary from the State party (No. 30/1978, Bleier v. Uruguay). Furthermore, the Committee held very early in its
Views adopted on 30 July 1993, making a finding of no violation of any provision of the Covenant. HRC 1993 Report, Vol. II, Annex XII, sect. U. HRC 1982 Report, Annex X, para. 13.3.
5 – Petitions before the United Nations Treaty Bodies: Focus on the Human Rights Committee’s Optional Protocol Procedure
jurisprudence that “a refutation of [the author’s] allegation in general terms is not sufficient” (No. 11/1977, Grille Motta v. Uruguay). Individual opinions The Committee in practice works by consensus without resorting to voting as provided for in Article 39(2)(b) of the Covenant. However, pursuant to Rule 104 (old Rule 94(4)) of the Committee’s Rules of Procedure), members can append their individual opinions to the Committee’s Views. Such individual opinions have been appended to more than 100 of the 635 Views adopted to date. Although initially not provided for in the Rules of Procedure, members started adding individual dissenting opinions to Committee decisions declaring cases inadmissible. As early as 1984, Bernhard Graefrath appended an individual opinion to the Committee’s decision declaring communication No. 121/1982 (A.M. v. Denmark) inadmissible because the European Commission had already considered the same matter and declared the application inadmissible as “manifestly ill-founded”, and the State party had made a reservation precluding the Committee’s competence in such cases. In case No. 78/1980 (A.D. v. Canada), Roger Errera appended an individual opinion, expressing his view that the case should have been declared admissible. In 1989 the Rules of Procedure were amended, adding Rule 92(3) (now rule 104) to allow members to append individual opinions to decisions declaring communications inadmissible. Individual opinions have been appended to decisions declaring communications inadmissible in some 60 cases. In 1992 the practice of appending individual opinions was extended to decisions declaring communications admissible. This became apparent when the Committee published its Views on the cases concerned, e.g. No. 539/1993 (Cox v. Canada), where seven members of the Committee had endorsed two dissenting opinions, arguing that the case should have been declared inadmissible. The Committee’s Views, making a finding of no violation, reproduces the texts of the dissenting opinions to the admissibility decision, together with two concurring opinions and four dissenting opinions to the Views. In all, the texts of seven individual opinions, signed by 12 members of the Committee were appended to this decision. It is not surprising that the Committee has gradually moved away from the constraints of consensus, which frequently led to Views that only reflected the least common denominator or lacked proper rationale. Better argued majority opinions are now complemented by concurring and/or dissenting individual opinions that further explain or contest the majority’s ratio decidendi. As commentators have already noted,
HRC 1980 Report, Annex X, para. 14. HRC Selected Decisions, Vol. I, p. 32. Professor Graefrath argued that a declaration of inadmissibility could not be deemed an examination within the meaning of the Danish reservation. A. de Zayas and J. Th. Möller, ‘Optional Protocol Cases Concerning the Nordic States before the United Nations Human Rights Committee’, 55 Nordic Journal of International Law (1986) p. 384. HRC Selected Decisions, Vol. II, pp. 23–25.
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individual opinions contain some of the most original and innovative legal thought in the Committee. One of the most exciting dissenting opinions was appended by three Committee ladies, Elizabeth Evatt, Cecilia Medina and Christine Chanet, to the Committee’s Views in communication No. 552/1993 (Wieslaw Kall v. Poland). In their dissent they challenged the Committee’s established position that the right to a remedy stipulated in Article 2(3) of the Covenant cannot be invoked autonomously. They argued: What article 2 intends is to set forth that whenever a human right recognized by the Covenant is affected by the action of a State agent there must be a procedure established by the State allowing the person whose right has been affected to claim before a competent body that there has been a violation. This interpretation is in accordance with the whole rationale underlying the Covenant, namely that it is for the States parties thereto to implement the Covenant and to provide suitable ways to remedy possible violations committed by the State organs.10
Joinder and severance of communications Pursuant to Rule 94(2) (old Rule 88(2)) of the Committee’s Rules of Procedure, the Committee or its Working Group may decide to join the consideration of two or more communications. Conversely, the Committee may decide to separate the authors of a multiple communication and split the communication into two or more cases, for instance, when some of the authors have exhausted domestic remedies whereas the others are still in the process of exhausting them. Issues considered by the Committee A review of the Committee’s work under the Optional Protocol from its 2nd session in 1977 to its 93rd session in July 2008 can be found in the Committee’s annual reports for 1984 to 2008, which, inter alia, contain summaries of the procedural and substantive issues considered by the Committee and of the decisions taken. The following summary of jurisprudence illustrates the Committee’s thinking in response to the cases under review.
10 Views adopted on 14 July 1997, HRC 1997 Report, Vol. II, Annex VI sect. J. See also A. de Zayas, ‘Individual Opinions in the Practice of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights’, in R. Zerbini Ribeiro Leao, Liber Amicorum Cancado Trindade, vol. III. (Sergio Antonio Fabris Editor, Porto Alegre, Brasil, 2005) pp. 537 et seq. See also M. Nowak, CCPR Commentary (N.P. Engel, Strasbourg and Kehl, 2005) pp. 897 et seq.
5 – Petitions before the United Nations Treaty Bodies: Focus on the Human Rights Committee’s Optional Protocol Procedure
Procedural issues The standing of the author (OP, Articles 1 and 2) Normally, a communication should be submitted by the individual himself or by his representative; the Committee may, however, accept to consider a communication submitted on behalf of an alleged victim when it appears that he/she is unable to submit the communication (Rule 96(b), old 90(b)). In practice, the Committee has accepted communications not only from a duly authorized legal representative, but also from close family members and in one case from the unmarried girlfriend of the alleged victim. An interesting question arose when a non-custodial parent submitted a case on his own behalf and on behalf of his son. While the case was declared inadmissible for nonexhaustion of domestic remedies, it is important to note that the Committee recognized the father’s standing to represent the human rights of his son: The Committee has taken notice of the State party’s contention that the author has no standing to act on behalf of his son, as Danish law limits this right to the custodial parent. The Committee observes that standing under the Optional Protocol may be determined independently of national regulations and legislation governing an individual’s standing before a domestic court of law. In the present case, it is clear that T.S. cannot himself submit a complaint to the Committee; the relationship between father and son and the nature of the allegations must be deemed sufficient to justify representation of T.S. before the Committee by his father.11
In other cases the Committee has found that the author of a communication lacked standing. In case No. 128/1982 (L.A. v. Uruguay), the author was a member of a nongovernmental organization and had taken interest in the alleged victim’s situation. He claimed to have authority to act because he believed “that every prisoner treated unjustly would appreciate further investigation of his case by the Human Rights Committee”.12 The Committee decided that the author lacked standing and declared the communication inadmissible. The HRC has established through a number of decisions on admissibility that a communication submitted by a third party on behalf of an alleged victim can only be considered if the author justifies his authority to submit the communication. The Committee has also held that an organization as such cannot submit a communication. In case No. 163/1984 (C. et al. v. Italy) it stated: According to Article 1 of the Optional Protocol, only individuals have the right to submit a communication. To the extent, therefore, that the communication originates from the [organization], it has to be declared inadmissible because of lack of personal standing”.13
11 P.S. v. Denmark, HRC 1992 Report, Annex X, sect. R., para 5.2. 12 HRC 1983 Report, Annex XXVI, para. 2. 13 HRC 1984 Report, Annex XV, para. 5.
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Similarly, in case No. 104/1981 (J.T. v. Canada), the Committee declared a communication inadmissible, partly because “the W. G. Party is an association and not an individual, and as such cannot submit a communication to the Committee under the Optional Protocol.”14 The victim Until the Committee’s Views in case No. 488/1992 (Nicholas Toonen v. Australia), adopted in March 1994, the Committee’s position was clear: Hypothetical or possible future violations were beyond the Committee’s competence. To be considered a “victim”, the complainant had to be personally affected by State action or omission, e.g. by the application of the law to him or her, not by the mere existence of the law. Indeed, in case No. 35/1978 (Aumeeruddy-Cziffra et al. v. Mauritius) the Committee had clearly stated that a person can only claim to be a victim in the sense of Article 1 of the Optional Protocol if he or she is actually affected. It is a matter of degree how concretely this requirement should be taken. However, no individual can in the abstract, by way of an actio popularis, challenge a law or practice claimed to be contrary to the Covenant. If the law or practice has not already been concretely applied to the detriment of that individual, it must in any event be applicable in such a way that the alleged victim’s risk of being affected is more than a theoretical possibility.15
That is, a person was not deemed to be a victim unless he or she had personally endured a violation. In case No. 61/1979 (Leo Hertzberg et al. v. Finland) the Committee stressed that it has only been entrusted with the mandate of examining whether an individual has suffered an actual violation of his rights. It cannot review in the abstract whether national legislation contravenes the Covenant, although such legislation may, in particular circumstances, produce adverse effects which directly affect the individual, making him thus a victim in the sense contemplated by Articles 1 and 2 of the Optional Protocol.16
This jurisprudence was modified in the Toonen v. Australia case, in which a homosexual complained about the existence of a penal statute in the state of Tasmania, Australia which, however, had not been applied to him. In declaring the communication admissible, the Committee noted that “the legislative provisions challenged by the author had not been enforced by the judicial authorities of Tasmania for a number of years. It considered, however, that the author had made reasonable efforts to demonstrate that the threat of enforcement and the pervasive impact of the continued existence of these provisions on administrative practices and public opinion had affected him and con14 HRC 1983 Report, Annex XXIV, para. 8. 15 HRC 1981 Report, Annex XIII, para. 9.2. 16 HRC 1982 Report, Annex XIV, para. 9.3.
5 – Petitions before the United Nations Treaty Bodies: Focus on the Human Rights Committee’s Optional Protocol Procedure
tinued to affect him personally...”17 It was feared that the Toonen decision could open the floodgates to all sorts of communications concerning hypothetical future violations and requiring the Committee to develop guidelines to determine the degree of risk or foreseeability of a violation. This has not been the case. No claim under Article 2 of the Optional Protocol Article 2 of the OP provides that “individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration”. Although an author does not need to prove the alleged violation at the admissibility stage, he must submit sufficient evidence substantiating his allegation for purposes of admissibility. A “claim” is, therefore, not just an allegation, but an allegation supported by a certain amount of substantiating evidence. Thus, in cases where the Committee finds that the author has failed to substantiate his claim for purposes of admissibility, the Committee has held the communication inadmissible, under Rule 96(b) (old Rule 90(b)) of its Rules of Procedure, declaring that the author “has no claim under Article 2 of the Optional Protocol”. This formula serves a similar purpose as the admissibility criterion under Article 35 (old Article 27) of the European Convention according to which an unsubstantiated or poorly argued case can be declared inadmissible as “manifestly ill-founded”. Since the OP does not provide for this formal criterion, it was necessary to invent something similar. Incompatibility with the provisions of the Covenant (OP, Article 3) It is obvious that the Committee’s competence is limited to examining alleged violations of rights contained in the Covenant. For instance, the right to asylum contained in Article 14 of the Universal Declaration of Human Rights and the right to property contained in Article 17 of the Universal Declaration have no counterpart in the Covenant. A communication which exclusively claims a violation of these rights would necessarily be declared inadmissible ratione materiae. Nevertheless, an author may still have his day in court if he claims that his non-Covenant right to asylum or to property was breached in connection with a violation of the autonomous Covenant right to equality of treatment and non-discrimination, which is enshrined in Article 26 of the Covenant. Thus, in communication No. 516/1992 (Simunek et al v. the Czech Republic) the authors claimed discrimination in connection with the restitution for property confiscated by prior Czechoslovak governments. In declaring the communication admissible, the Committee observed that “the right to property, as such, is not protected under the Covenant. However, a confiscation of private property or the failure by a State party to pay compensation for such confiscation could still entail a breach of the Covenant if the relevant act or omission was based on discriminatory grounds in violation of article 26 of the Covenant.”18 17 HRC 1994 Report, Annex IX, sect. EE, para 5.1. 18 HRC 1995 Report, Vol. II, Annex X, sect. K, para. 11.3.
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Competence of the Committee vis à vis national law and decisions In its work under the OP, the Committee has indicated that it is not an appeal instance intended to review or reverse decisions of domestic courts and that it cannot be used as a forum for pursuing a complaint on the basis of domestic law. Very early in its jurisprudence the Committee delimited its own jurisdiction in its Views in case No. 58/1979 (Anna Maroufidou v. Sweden): The Committee takes the view that the interpretation of domestic law is essentially a matter for the courts and authorities of the State party concerned. It is not within the powers or functions of the Committee to evaluate whether the competent authorities of the State party in question have interpreted and applied the domestic law correctly in the case before it under the Optional Protocol, unless it is established that they have not interpreted and applied it in good faith or that it is evident that there has been an abuse of power.19
Similarly, in declaring case No. 174/1984 (J.K. v. Canada) inadmissible, the Committee observed that it was beyond its competence “to review findings of fact made by national tribunals or to determine whether national tribunals properly evaluated new evidence submitted on appeal”.20 Reservations and interpretative declarations In cases Nos. 220/1987 (T.K. v. France) and 222/1987 (M.K. v. France), the authors, French citizens of Breton origin, complained that the French courts had consistently denied them the right to express themselves in their mother tongue, Breton, and that the Administrative Tribunal of Rennes had refused to consider their complaints filed in the Breton language. The authors alleged, inter alia, a violation of minority rights under Article 27 ICCPR, in respect of which the French government had entered the following “declaration” upon accession to the Covenant: “In the light of article 2 of the Constitution of the French Republic, the French Government declares that article 27 is not applicable so far as the Republic is concerned.” The Committee held the cases to be inadmissible, finding that the French “declaration” was actually a reservation precluding the Committee’s competence to examine the merits of the claim.21 Some members of the Committee argued that the declaration should not have been treated as a reservation, while others thought that the reservation was incompatible with the Covenant. In case No. 845/1999 (Kennedy v. Trinidad and Tobago), the Committee examined the validity of a reservation by Trinidad and Tobago concerning the access of death row inmates to the OP procedure. The Committee applied the test established in its General Comment No. 24 on reservations and declared Trinidad and Tobago’s reservation to be invalid: 19 HRC 1981 Report, Annex XVII, para. 10.1. 20 HRC 1985 Report, Annex XIV, para. 7.2. 21 HRC 1990 Report, Vol. II, Annex X, sect. A, para. 8.6, and Annex X, sect. B., para. 8.6.
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The present reservation, which was entered after the publication of General Comment No. 24, does not purport to exclude the competence of the Committee under the Optional Protocol with regard to any specific provision of the Covenant, but rather to the entire Covenant for one particular group of complainants, namely prisoners under sentence of death. This does not, however, make it compatible with the object and purpose of the Optional Protocol. On the contrary, the Committee cannot accept a reservation which singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population. In the view of the Committee, this constitutes a discrimination which runs counter to some of the basic principles embodied in the Covenant and its Protocols, and for this reason the reservation cannot be deemed compatible with the object and purpose of the Optional Protocol. The consequence is that the Committee is not precluded from considering the present communication under the Optional Protocol.22
At its 83rd session in March 2005 the Committee considered the reservation made by Australia to Article 10(2)(a) of the Covenant, which states that the principle of segregation between accused and convicted persons is an objective to be achieved progressively. In declaring case No. 954/2000 (Minogue v. Australia) inadmissible, the Committee recalled its previous jurisprudence that while it may be considered unfortunate that the State party has not so far achieved its objective to segregate convicted and unconvicted persons in full compliance with Article 10(2)(a) of the Covenant, it cannot be said that the reservation is incompatible with the object and purpose of the Covenant. 23 Inadmissibility ratione temporis Under Article 1 of the OP the Committee may only receive communications concerning alleged violations of the Covenant which occurred after the entry into force of the ICCPR and the OP for the State party, unless continuing effects exist which in themselves constitute a violation of a Covenant right. In cases No. 275/1988 (S.E. v. Argentina) and Nos. 343, 344 and 345/1988 (R.A.V.N. et al. v. Argentina) the authors claimed that several articles of the Covenant had been violated in connection with the deaths or disappearance of their relatives in Argentina before 8 November 1986, the date of entry into force of the OP for Argentina.24 The Committee held that it was precluded ratione temporis from examining the cases. This jurisprudence was distinguished and modified in case No. 950/2000 (Sarma v. Sri Lanka) concerning the disappearance of a person prior to the entry into force of the Covenant and OP for Sri Lanka. The Committee argued that since the State party had not argued that the individual concerned had died before the entry into force of the OP, it was theoretically possible that he was still being held in incommunicado detention in Sri Lankan prisons, and that therefore the protection against arbitrary detention under Article 9 prevailed.25 In case No. 851/1999 (Zhurin 22 HRC 2000 Report, Vol. II, Annex XI, para. 6.7, decision on admissibility adopted on 2 November 1999. 23 HRC 2005 Report, Vol. II Annex VI, sect. F. 24 HRC 1990 Report, Vol. II, Annex X, sects. J, R. 25 HRC 2003 Report, Vol. II, Annex VI, sect. V.
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v. Russian Federation), the Committee addressed the issue of “continuing effects” when declaring the communication inadmissible. It recalled its jurisprudence that a term of imprisonment, without additional factors, does not amount to a “continuing effect”, in violation of the Covenant, sufficient to bring the original circumstances giving rise to the imprisonment ratione temporis within the Committee’s jurisdiction.26 Inadmissiblity because of submission to another procedure of international investigation or settlement Pursuant to Article 5(2)(a) of the OP, the Committee shall ascertain that the same matter is not being examined under another procedure of international investigation or settlement. Such procedures include, for instance, the individual complaints procedures of CAT, CERD and CEDAW, the individual complaints procedures of the European Court of Human Rights, the Inter-American Commission of Human Rights, the African Commission of Human and Peoples’ Rights. It does not include the collective or mass-complaints procedures of the UN Commission on Human Rights/Human Rights Council pursuant to resolution 1503. What is prohibited by Article 5(2)(a) is simultaneous examination by two international settlement procedures. Following a decision by the Inter-American Commission of Human Rights or European Court of Human Rights, for instance, the HRC could, in principle, be seized of the same matter, provided that the State party has not introduced a reservation aimed at preventing subsequent examination by the HRC. In case No. 965/2000 (Karakurt v. Austria) the State party invoked such a reservation, contending that the case had already been examined by the European Court and declared inadmissible. The Committee, however, disregarded the reservation and argued: The concept of the ‘same matter’ within the meaning of article 5(2)(a) of the Optional Protocol must be understood as referring to one and the same claim or the violation of a particular right concerning the same individual. In this case, the author is advancing freestanding claims of discrimination and eq1uality before the law, which are not, and indeed could not have been, made before the European organs. Accordingly, the Committee does not consider itself precluded.27
This interpretation of “the same matter” goes beyond what had been the prior practice of the HRC. The same matter used to entail two elements: the same complainant and the same factual situation. The new jurisprudence of the HRC opens up the possibility of examination of “the same matter” if it can be shown that the protection under the ICCPR is greater than that under the other procedure earlier engaged.
26 Ibid., Vol. II, Annex VI, sect. A. 27 HRC 2002 Report, Vol. II, Annex IX, sect. II, para. 7.6.
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The requirement of exhaustion of domestic remedies (OP, Article 5(2)(b)) Most cases declared inadmissible by the Committee are so declared because the author has not shown that he/she has satisfied the requirement under Article 5(2)(b) of the Optional Protocol to exhaust all available domestic remedies prior to submitting a communication for examination by the Committee. However, the Committee has already established that the rule of exhaustion applies only to the extent that these remedies are effective and available. The State party is required to give “details of the remedies which it submitted that had been available to the author in the circumstances of his case, together with evidence that there would be a reasonable prospect that such remedies would be effective” (case No. 4/1977 (Torres Ramírez v. Uruguay)). Article 5(2)(b) also provides that the Committee is not precluded from examining a communication if it is established that the application of the remedies in question has been unreasonably prolonged. Substantive issues Covenant Article 6: right to life Article 6(1) protects the right to life. In General Comment 6[16] the Committee has expressed its view that States parties should take specific and effective measures to prevent the disappearance of individuals and establish effective facilities and procedures to investigate, thoroughly, by an appropriate and impartial body, cases of missing and disappeared persons in circumstances that may involve a violation of the right to life. In cases Nos. 540/1993 (Celis Laureano v. Peru) and 563/1993 (Bautista v. Colombia), the Committee found a violation of Article 6(1) because the State party was held responsible for the disappearance of the individuals on whose behalf the communications had been submitted. As of July 2007, the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, has been ratified by 61 States. However, many countries, many of them parties to the Covenant and to the Optional Protocol, still retain capital punishment as part of the criminal justice system. While capital punishment, as such, is not prohibited under Article 6(2) of the Covenant, the Committee has found a violation of Article 6 in cases where it has been determined that the trial leading to a conviction and sentence of death was marred by violations of basic fair trial guarantees under Article 14 of the Covenant. Whereas a simple violation of a procedural provision not affecting the result of the trial will not entail a violation of Article 6, a material breach of Article 14, e.g. the denial of the right to cross-examine witnesses, lack of legal representation or interpretation, would also entail a violation of Article 6 if no further possibility of appeal is available. Extradition or deportation to face the death penalty The issue whether extradition of a person to a country where he might be subjected to capital punishment may entail a violation of Article 6 of the Covenant was decided
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in the negative in the three Canadian extradition cases Nos. 469/1991 (Ng v. Canada), 470/1991 (Kindler v. Canada) and 539/1993 (Cox v. Canada). This jurisprudence was reversed in case No. 829/1998 (Judge v. Canada) because Canada is an abolitionist country and should not expose persons under its jurisdiction to capital punishment elsewhere. The Committee has held that a deportation to a country that retains capital punishment does not necessarily violate Article 6. In case No. 692/1996 (A.R.J. v. Australia), the Committee had to determine whether the author’s deportation from Australia to Iran, after having served a sentence of imprisonment in Australia for illegal importation of two kilograms of cannabis resin, exposed him to a real risk of a violation of his rights under the Covenant. The author had argued that he would face the death penalty in Iran if he were deported. Australia contested the author’s allegation. On the basis of the information before it, the Committee found that deportation in this case would not entail a violation of Article 6. Most serious crimes Article 6(2) also states that the death sentence may only be imposed for the “most serious crimes”. In case No. 390/1990 (Lubuto v. Zambia), the complainant had been convicted and sentenced to death for aggravated robbery with the use of firearms. The Committee, considering that in the particular case no one had been killed or wounded and that the court under the applicable Zambian law could not take these elements into account when sentencing, was of the view that the mandatory imposition of the death penalty under those circumstances was in violation of Article 6(2) of the Covenant. Article 7: the right not to be subjected to torture or to cruel, inhuman or degrading treatment Serious ill-treatment in prison In cases Nos. 623/, 624/, 626/, 627/1995 (Domukovsky et al. v. Georgia), all four authors had complained about ill-treatment and torture, and given specific details. The Committee considered: The State party has denied that torture has taken place, and stated that the judicial examination found that the claims were unsubstantiated. It has, however, not indicated how the court has investigated the allegations, nor has it provided copy of the medical reports in this respect. In particular, with regard to the claim made by Mr. Tsiklauri, the State party has failed to address the allegation, simply referring to an investigation which allegedly showed that he had jumped from a moving vehicle and that he had spilled hot tea over himself. No copy of the investigation report has been handed to the Committee, and Mr. Tsiklauri has contested the outcome of the investigation, which according to him was conducted by police officers without a court hearing ever having been held. In the circumstances, the Committee considers that the facts before it show that the authors were subjected to torture and to cruel and inhuman treatment, in violation of articles 7 and 10, paragraph 1, of the Covenant.28 28 HRC 1998 Report, Vol. II, Annex XI, sect. M, para 18.6.
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In case No. 591/1994 (Chung v. Jamaica), the complainant gave a detailed account of how he had been beaten by prison warders and stated that he had addressed a written report to the Ombudsman. The State party rejected the allegation, but did not indicate how the claim had been investigated. The Committee recalled that a State party is under an obligation to investigate allegations of violations of the Covenant and to forward the outcome of investigations to the Committee, in detail and without delay. In the absence of a detailed reply from the State party, the Committee concluded that a violation of Article 7 had occurred. In case No. 577/1994 (Polay Campos v. Peru), Mr. Polay, the leader of the Movimiento Revolucionario Túpac Amaru, had been displayed to the press in a cage. The Committee found that this amounted to degrading treatment within the meaning of Article 7 of the Covenant. Mr. Polay was also kept in isolation for a period of a year after his conviction, having been denied visits and correspondence. The Committee concluded that this constituted inhuman treatment within the meaning of Article 7. The Committee also found that the uncontested claim that Mr. Polay was kept in solitary confinement in a cell measuring two meters by two, without natural light save for ten minutes a day, showed a violation of Article 7 of the Covenant.29 Disappearances In case No. 107/1981 (Quinteros v. Uruguay) the Committee found that mental anguish suffered by a mother because of the disappearance of her daughter also constitutes a violation of Article 7: The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter, in particular of Article 7.30
This jurisprudence was confirmed in case No. 540/1993 (Celis Laureano v. Peru), which concerned a girl who had disappeared and had no contact with her family or with the outside world. In these circumstances, the Committee concluded that the abduction and disappearance of the victim and prevention of contact with her family and the outside world constituted cruel and inhuman treatment, in violation of Article 7 of the Covenant. Death row phenomenon An issue related to capital punishment is that of the so-called “death row phenomenon”. Hitherto the Committee has not followed the reasoning of the European Court of Human Rights in its 1989 judgment in Soering v. United Kingdom, and stated that prolonged judicial proceedings do not per se constitute cruel, inhuman and degrading treatment, if the accused is merely availing himself of appeal possibilities, even if such delay may be a source of mental strain and tension for detained prisoners. 29 HRC 1998 Report, Vol. II, Annex XI. F. 30 HRC 1983 Report, Annex XXII, para. 14.
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In case No. 541/1993 (Simms v. Jamaica) the Committee observed: “Although some national courts of last resort have held that prolonged detention on death row for a period of five years or more violates their constitutions or laws, the jurisprudence of this Committee remains that detention for any specific period would not be a violation of article 7 of the Covenant in the absence of some further compelling circumstances.”31 In case No. 606/1994 (Francis v. Jamaica), the Committee had to determine whether the author’s treatment during his nearly 12 years’ detention on death row entailed violations of Articles 7 and 10 of the Covenant. After having reaffirmed its established jurisprudence that the period per se did not constitute a violation, the Committee held: Whereas the psychological tension created by prolonged detention on death row may affect persons in different degrees, the evidence before the Committee in this case, including the author’s confused and incoherent correspondence with the Committee, indicates that his mental health seriously deteriorated during incarceration on death row. Taking into consideration the author’s description of the prison conditions, including his allegations about regular beatings inflicted upon him by warders, as well as the ridicule and strain to which he was subjected during the five days he spent in the death cell awaiting execution in February 1988, which the State party has not effectively contested, the Committee concludes that these circumstances reveal a violation of Jamaica’s obligations under articles 7 and 10, paragraph 1, of the Covenant.32
As of today the Committee’s position on the death row phenomenon turns on the State imputability of delays and/or compelling circumstances linked to the individual concerned. The leading case remains No. 558/1994 (Errol Johnson v. Jamaica), in which the Committee declined to find a violation of Article 7 because of the duration of death row detention: “The first … implication is that if a State party executes a condemned prisoner after he has spent a certain period of time on death row, it will not be in violation of its obligations under the Covenant, whereas if it refrains from doing so, it will violate the Covenant. An interpretation of the Covenant leading to this result cannot be consistent with the Covenant’s object and purpose … The second implication of making the time factor per se the determining one… is that it conveys a message to States parties retaining the death penalty that they should carry out a capital sentence as expeditiously as possible after it was imposed. This is not a message the Committee would wish to convey to States parties. Life on death row, harsh as it may be, is preferable to death.”33
Expulsion/extradition In case No. 706/1996 (T. v. Australia), the Committee found that the author’s deportation from Australia to Malaysia would not violate the State party’s obligations under Article 7 since the information before the Committee did not indicate that it was the 31 HRC 1995 Report, Vol. II, Annex XI, sect. H, para. 6.5. 32 Ibid., Annex X, sect. N, para. 9.2. 33 HRC 1996 Report, Vol. II, Annex VIII sect. W, paras. 8.3 and 8.4.
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foreseeable and necessary consequence of his deportation that he would be treated in violation of Article 7. Article 9: liberty and security of person Arbitrary arrest and detention (Article 9(1)) As to the concept of “arbitrariness” of a detention, neither the Covenant itself nor the travaux preparatoires provide much guidance. In case No. 458/1991 (Albert Mukong v. Cameroon), the author claimed that he had been arbitrarily arrested and detained over a period of several months. The State party rejected the author’s claim by indicating that the author was arrested and detained in accordance with the applicable rules of criminal procedure and that the police detention and preliminary inquiries by the examining magistrate were compatible with Article 9. In its Views the Committee considered: It remains ... to be determined whether other factors may render an otherwise lawful arrest and detention ‘arbitrary’ within the meaning of article 9. The drafting history of article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, and lack of predictability and due process of law ... this means that ... remand in custody must further be necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime.34
The Committee concluded that the author’s detention was neither reasonable nor necessary in the circumstances of the case and was thus in violation of Article 9(1) of the Covenant. In case No. 305/1988 (van Alphen v. Netherlands) the author, a Dutch lawyer, claimed to have been arbitrarily detained for a period of nine weeks with a view to pressuring him to cooperate with the government’s investigation into tax fraud by one of his clients. Although the detention was initially legal, the Committee held that its duration was unreasonable and thus in violation of Article 9(1) of the Covenant: ‘[A]rbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime. The State party has not shown that these factors were present in the instant case.35
34 HRC 1994 Report, Annex IX, sect. AA, para. 9.8. See also A. de Zayas, ‘The United Nations and the Guarantees of a Fair Trial in the International Covenant on Civil and Political Rights’, in D. Weissbrodt and R. Wolfrum, The Right to a Fair Trial (Heidelberg, 1997) pp. 669–696, here at 680 et seq. 35 HRC 1990 Report, Vol. II, Annex IX, sect. M., para 5.8.
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In cases Nos. 623/1995 (Domukovsky v. Georgia) and 626/1995 (Gelbakhiani v. Georgia), the complainants claimed that they had been illegally arrested by Georgian special forces while residing in the territory of Azerbaijan. Although the State party argued that the arrest was pursuant to an agreement with the Azerbaijan authorities, it had provided no specific information about the agreement, whereas the complainants had produced a letter from the Azerbaijan Ministry for Internal Affairs to the effect that it was not aware of any request for their arrest. In the circumstances, the Committee considered that due weight should be given to the allegation and found that the arrest was in violation of Article 9(1) of the Covenant. Security of person Article 9(1) of the Covenant prohibits not only arbitrary arrest or detention, but also requires that the State guarantee security of the person. In the Committee’s Views in case No. 195/1985 (William Delgado Paez v. Colombia), the Committee held: The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead to the view that the right to security arises only in the context of arrest and detention. The travaux préparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right of life, the right to liberty and the right to security of the person. These elements have been dealt with in separate clauses in the Covenant. Although in the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of the non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.36
In applying this finding to the facts of Mr. Delgado’s case, the Committee determined that there existed an objective need for Mr. Delgado to be provided by the State with protective measures to guarantee his security, given the threats made against him, including an assault on his person. While expressing its understanding for the situation prevailing in Colombia, the Committee found that the State party had not taken, or had been unable to take, appropriate measures to ensure Mr. Delgado’s right to security of his person under Article 9(1) of the Covenant. In so finding, the Human Rights Committee goes well beyond the jurisprudence of the European Commission and Court of Human Rights, which have taken a restrictive view of the concept of “security of person”, inter-
36 HRC 1990 Report, Annex IX, sect. D, para. 5.5.
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preting it not as an autonomous right but rather only in connection with the concept of liberty, i.e. freedom of movement and protection from arbitrary arrest or detention.37 Being promptly informed of the charges Article 9(2) provides that anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. In case No. 1128/2002 (Marques de Marques v. Angola) the Committee concluded that the author’s uncontested claim that he was not informed of the reasons for his arrest and that he was charged only 40 days after the arrest entailed a violation of Article 9(2).38 In case No. 624/1995 (Tsiklauri v. Georgia),39 the applicant claimed that he had been arrested without a warrant, and that he was not shown a warrant for his arrest until after one year of detention. The State party denied the allegation, but did not provide any details as to when the arrest warrant was presented to the applicant. The Committee consequently found a violation of Article 9(2). Being brought “promptly” before a judge One of the important rights guaranteed in Article 9 of the Covenant is the right of every arrested person to be brought “promptly” before a judge. While the meaning of the term “promptly” in Article 9(3) must be determined on a case-by-case basis, the Committee has stated in its General Comment on Article 9 and its jurisprudence that delays should not exceed a few days. In case No. 373/1989 (Stephens v. Jamaica), it was not clear on which exact day the author was brought before a judge or other officer authorized to exercise judicial power. In any event, this occurred not earlier than eight days after he had been taken into custody. Such a delay was deemed to be incompatible with Article 9(3).40 Article 9(3) also stresses that it shall not be the general rule that persons awaiting trial shall be detained in custody. This provision has been found to bar many instances of pre-trial detention. In case No. 447/1991 (Shalto v. Trinidad and Tobago) the author had been found guilty of murdering his wife. However, the Court of Appeal, on 23 March 1983, quashed his conviction and ordered a retrial. The author remained in detention until the retrial, which started on 20 January 1987. The Committee found that the author’s detention for a period of almost four years between the judgment of the Court of Appeal and the beginning of the retrial could not be deemed compatible with the provisions of Article 9(3).41
37 J. Frowein and W. Peukert, Europäische Menschenrechtskonvention. EMRK-Kommentar (Kehl, Strassburg, 1985) p. 53. 38 HRC 2005 Report, Vol. II, Annex V, sect. V. 39 HRC 1998 Report, Vol. II, Annex XI, sect. M. 40 HRC 1996 Report, Vol. II, Annex VIII, sect. 1, para. 9.6. 41 HRC 1995 Report, Vol. II, Annex X, sect. C, para. 7.2.
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Article 12(4): the right to enter one’s own country In case No. 538/1993 (Stewart v. Canada), the Committee considered the scope of the term “his own country”. The applicant in the case was a British citizen who had immigrated to Canada with his family in 1967 at the age of seven and was ordered deported in 1990 because of his criminal record. The Committee noted that the scope of the phrase “his own country” is broader than the concept “country of nationality”. Taking into account the wording of Article 13 of the Covenant, which applies to “an alien lawfully in the territory of a State party”, the Committee observed that “his own country” as a concept applies to individuals who are nationals and to certain categories of individuals who, while not being nationals in a formal sense, are also not “aliens” within the meaning of Article 13. The Committee thus considered that the protection of Article 12(4) was not limited to nationals but also embraces “an individual who, because of his special ties to or claims in relation to a given country cannot there be considered to be a mere alien”. The Committee observed that the question in the present case is whether a person who enters a given State under that State’s immigration laws, and subject to the conditions of those laws, can regard that State as his own country when he has not acquired its nationality and continues to retain the nationality of his country of origin. The answer could possibly be positive were the country of immigration to place unreasonable impediments on the acquiring of nationality by new immigrants. But when, as in the present case, the country of immigration facilitates acquiring its nationality, and the immigrant refrains from doing so, either by choice or by committing acts that will disqualify him from acquiring that nationality, the country of immigration does not become ‘his own country’ within the meaning of article 12, paragraph 4, of the Covenant. In this regard it is to be noted that while in the drafting of article 12, paragraph 4, of the Covenant the term ‘country of nationality’ was rejected, so was the suggestion to refer to the country of one’s permanent home.42
The Committee concluded that in the applicant’s case Canada could not be regarded as “his own country” for the purposes of Article 12(4) of the Covenant. Six members of the Committee appended dissenting opinions. Pursuant to the Committee’s General Comment on article 12,43 however, someone who has lived for many years in a country and has genuine links to that country may legitimately invoke the protection of Article 12 ICCPR. Article 13: the right of an alien not to be expelled arbitrarily from his country of residence The Covenant does not provide for a right to asylum, but “an alien lawfully in the territory of a State party ... may be expelled therefrom only in pursuance of a decision 42 HRC 1997 Report, Vol. II, Annex VI, sect. G, para. 12.5. 43 HRC 2000 Report, Vol. I, Annex VI, sect. A.
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reached in accordance with law”. The application of this provision of Article 13 was examined in case No. 58/1979 (Anna Maroufidou v. Sweden), where the Committee determined that her expulsion had been carried out in pursuance of a decision reached in accordance with Swedish law, and that Article 13 had not been violated.44 In case No. 155/1983 (Eric Hammel v. Madagascar) the author, a French lawyer and a member of the Malagasy bar for more than 19 years, was subjected to summary expulsion to France, on account of his defence of politically delicate cases in Madagascar and submitting these cases to the HRC on behalf of detained victims. In finding a violation of Article 13, the Committee noted that the author was not given an effective remedy to challenge his expulsion and that the State party had not shown that there were compelling reasons of national security to deprive him of that remedy. In formulating its views, the Human Rights Committee also takes into account its General Comment 15[27], on the position of aliens under the Covenant, and in particular points out that an alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one.45
Article. 14: Guarantees Of A Fair Trial The scope of Article 14(1) has not yet been sufficiently defined. It is a provision with considerable potential since it could be interpreted to mean that a person has a right to his day in court, and a right to a remedy, even if the law does not provide for the possibility to engage a “suit at law”. Moreover, it could be interpreted to require not only equality before courts and tribunals, but also the absence of arbitrariness. Indeed, Article 14, together with Article 26, could emerge as the ultimate expression of the “right to justice”. In case No. 468/1991 (Angel Oló Bahamonde v. Equatorial Guinea), the author’s efforts to obtain judicial redress before the courts had remained unsuccessful. The Committee observed that the notion of equality before the courts and tribunals encompasses the very access to the courts and that a situation in which an individual’s attempts to seize the competent jurisdictions of his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1. In this context, the Committee has also noted the author’s contention that the State party’s President controls the judiciary in Equatorial Guinea. The Committee considers that a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant.46 44 HRC 1981 Report, Annex XVII, para. 10.1. 45 Selected Decisions, Vol. II, pp. 179–183, para. 19.2 at p. 182. See also three cases submitted by Eric Hammel against Madagascar, all three of which resulted in finding of violations. Cases Nos. 49/1979 (Dave Marais v. Madagascar), 115/1982 (John Wight v. Madagascar) and 132/1982 (Monja Jaona v. Madagascar) in Selected Decisions, Vol. II, pp. 82–87, 151,152 and 161–164. 46 HRC 1994 Report, Annex IX, sect. BB, para. 9.4.
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In case No. 577/1994 (Polay Campos v. Peru), Mr. Polay had been judged by a special tribunal of anonymous judges in a remote prison. The Committee concluded: In this situation, the defendants do not know who the judges trying them are and unacceptable impediments are created to the preparation of their defence and communication with their lawyers. Moreover, this system fails to guarantee a cardinal aspect of a fair trial within the meaning of article 14 of the Covenant: that the tribunal must be, and be seen to be, independent and impartial. In a system of trial by ‘faceless judges’, neither the independence nor the impartiality of the judges is guaranteed, since the tribunal, being established ad hoc, may comprise serving members of the armed forces.47
Undue delay in proceeding In case No. 823/1998 (Czernin v. Czech Republic) the author claimed to be a victim of a violation of Article 14(1) as the inaction of the authorities on his application for resumption of citizenship proceedings amounted to a failure to give him a fair hearing by a competent, independent and impartial tribunal established by law. The Committee considered that in the pursuit of a claim under domestic law, the individual had to have access to effective remedies, which implied that the administrative authorities had to act in conformity with the binding decisions of national courts. It noted that since the author’s applications for resumption of proceedings in 1995, they had repeatedly been confronted with the frustration arising from the administrative authorities’ refusal to implement the relevant decisions of the courts. The Committee considered that the inaction of the administrative authorities and the excessive delays in implementing the relevant courts’ decisions were in violation of Article 14(1) in conjunction with Article 2(3), which provides for the right to an effective remedy.48 Right to have adequate time and facilities to prepare one’s defence Article 14(3)(b) provides that, in the determination of a criminal charge, the suspect is entitled to have adequate time and facilities for the preparation of his/her defence and to communicate with counsel of one’s own choosing. Paragraph 3(d) provides that everyone is entitled to defend himself in person or through legal assistance, which should be provided free of charge where the interests of justice so require. In case No. 459/1991 (Wright and Harvey v. Jamaica), the counsel for the accused had conceded at the appeal hearing that his client’s case had no merit. The Committee considered that while Article 14(3)(d) did not entitle the accused to choose counsel provided to him free of charge, the Court should ensure that the conduct of the case by the lawyer is not incompatible with the interests of justice. In a capital case, when counsel for the accused concedes that there is no merit in the appeal, the Court should ascertain whether counsel has consulted with the accused and informed him accordingly. If not, the Court must ensure that the accused is so informed and given an opportunity to engage other counsel. In the circumstances, the Committee found a violation of Article 14(3)(b) and (d). 47 HRC 1998 Report, Vol. II, Annex XI, sect. F, para. 8.8. 48 HRC 2005 Report, Vol. II, Annex V, sect. A.
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It is not unusual for convicts to be dissatisfied with legal aid counsel, and frequently they complain to the Committee that counsel did not argue the appeal properly. Of course, this dissatisfaction would be the same if counsel were privately retained, but because counsel is State appointed, the responsibility of the State is engaged. The Committee requires that counsel be competent and that he consult with his client, especially if he intends to withdraw the appeal or to argue that there is no merit in the appeal. If counsel so consults his client and his client requests that other legal aid counsel be appointed, the State should accommodate this wish within reasonable limits. Of course, the client cannot dictate to counsel how to argue an appeal, and the situation may arise that no counsel can be found who would advance the arguments on appeal that his client would like to see argued. Moreover, legal aid counsel cannot be expected to make frivolous appeals when there is no merit in a case. It would seem that Article 14(3)(d) must be interpreted to ensure at a minimum that counsel explain to the author what he can and cannot argue on appeal. Article 14(3)(c): trial without undue delay One of the important guarantees of Article 14 is the right to be tried without undue delay. The Committee’s General Comment on Article 14 explains that “his guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgment be rendered; all states must take place ‘without undue delay’. To make this right effective, a procedure must be available in order to ensure that the trial will proceed ‘without undue delay’, both in first instance and on appeal.” In case No. 428/1990 (François Bozize v. the Central African Republic), the Committee found a violation of this provision, as Mr. Bozize, a political opponent of the government, still had not been tried at the first instance after four years of detention.49 In case No. 473/1991 (Barroso v. Panama), the Committee found a violation of Article 14(3)(c) because of a delay of over three and a half years between indictment and trial. Similarly in case No. 336/1988 (Nicole Fillastre v. Bolivia), the Committee found a violation of Article 14(3)(c) where the accused had been indicted in 1987 and the determination of these charges had not resulted in a judgment at first instance nearly four years later. The State party had not shown that the complexity of the case was such as to justify the delay. The Committee specifically rejected the State party’s explanation that financial constraints affected the administration of justice and therefore justified the delay.50 This jurisprudence confirms the principle “justice delayed is justice denied” which, however, should apply not only to domestic courts and tribunals, but equally to international expert committees. Indeed, it is an anomaly that sometimes the Human Rights Committee takes five years to determine that a State party had violated Article 9(3) and Article 14(3)(c) of the Covenant by not ensuring a trial within a reasonable time.51 49 HRC 1994 Report, Annex IX, sect. S, para. 5.3. 50 HRC 1992 Report, Annex IX, sect. N, para. 6.6. 51 In September 1995 the Institute of Higher Studies on Criminal Sciences at Siracusa, Italy, held a conference on the general issue of delay in criminal procedures at which a number of papers were presented. The papers were published in the Revue de droit pénal, 1996. See A.
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Right to appeal Article 14(5) gives anyone convicted of a crime the right to have his conviction and sentence reviewed by a higher tribunal according to law. This right can be effectively exercised only if there is a written judgement of a lower tribunal. On several occasions the Committee has observed that Article 14(5) has to be read together with Article 14(3)(c), so that the right to review of conviction and sentence must be made available without undue delay. In case No. 377/1989 (Anthony Currie v. Jamaica), the Committee referred to its prior jurisprudence and reaffirmed that “under article 14, paragraph 5, a convicted person is entitled to have, within reasonable time, access to written judgments, duly reasoned, for all instances of appeal in order to enjoy the effective exercise of the right to have conviction and sentence reviewed by a higher tribunal according to law”. The Committee found that the failure of the Court of Appeal to issue a written judgment 13 years after the dismissal of the appeal effectively barred the complainant from petitioning the Judicial Committee of the Privy Council and constituted a violation of Article 14, paragraphs 3(c) and 5. In case No. 536/1993 (Perera v. Australia), the Committee had occasion to observe that Article 14(5) does not require that a Court of Appeal proceed to a factual retrial, but that a Court conduct an evaluation of the evidence presented at the trial and of the conduct of the trial. But in case No. 701/1996 (Gomez Vazquez v. Spain) the Committee found Spain’s system of appeals insufficient for purposes of Article 14: As to whether the author has been the victim of a violation of article 14, paragraph 5, of the Covenant because his conviction and sentence were reviewed only by the Supreme Court on the basis of a procedure which his counsel, following the criteria laid down in article 876 et seq. of the Criminal Procedure Act, characterizes as an incomplete judicial review, the Committee takes note of the State party’s claim that the Covenant does not require a judicial review to be called an appeal. The Committee nevertheless points out that, regardless of the name of the remedy in question, it must meet the requirements for which the Covenant provides. The information and documents submitted by the State party do not refute the author’s complaint that his conviction and sentence were not fully reviewed. The Committee concludes that the lack of any possibility of fully reviewing the author’s conviction and sentence … the review having been limited to the formal or legal aspects of the conviction, means that the guarantees provided for in article 14, paragraph 5, of the Covenant have not been met.52
Article 16: right to recognition as a legal person At its 90th session in July 2007 the Committee adopted Views in case No. 1328/2004 (Messaouda Cheraitia et al. v. Algeria), holding that Article 16 had been violated. The case concerned the arrest of the author’s son, Mourad Kimouche, on 16 May 1996 at the author’s home by members of the Armée Nationale Populaire dressed in uniform. In de Zayas, ‘Le Comité des droits de l’homme et la célerité de la procédure pénale’, 66 Revue Internationale de Droit Penal (1995) pp. 686–694; also de Zayas, supra note 34, pp. 669–696. 52 HRC 2000 Report, Vol. II, Annex IX, sect. I, para. 11.1.
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spite of efforts by the authors, they never saw their son again and received no information from the government concerning the whereabouts of their son. The Committee held that Articles 7, 9, and 16 in conjunction with Article 2(3) of the Covenant had been violated. This decision signals the potential of Article 16 not only in cases of disappearance, but in cases where a person’s identity and access to remedies are at stake. Article 17: Right not to be Subjected to Arbitrary or Unlawful Interference with Family The right to family is protected by Article 17, which also encompasses the right to privacy, and by Article 23. In case No. 549/1993 (Hopu and Bessart v. France), the authors (ethnic Polynesians) protested against the building of a hotel complex on their ancestral burial grounds, where, they claimed, family members were buried. The Committee observed “that the objectives of the Covenant require that the term ‘family’ be given a broad interpretation so as to include all those comprising the family as understood in the society in question. It follows that cultural traditions should be taken into account when defining the term ‘family’ in a specific situation.”53 On the basis of the information before it, the Committee concluded that there had been arbitrary interference with the author’ right to family and privacy. Another groundbreaking case concerned the failure of the State party to ensure implementation of the decisions of its own courts in matters of visiting rights of a non-custodial parent. In case No. 946/2000 (L.P. v. the Czech Republic) the author complained that, notwithstanding the orders of the competent Czech courts, he had been unable to exercise his visiting rights. In finding a violation of Article 17, juncto Article 2 of the Covenant, the Committee observed: As to the alleged violation of article 17, the Committee notes the State party’s contention that there is no documentation of arbitrary or unlawful interference by the State party with the author’s family, that the decisions of courts of all instances have complied with the rules of procedure set by law, and that the delay in the resolution of the divorce and custody proceedings is due to the numerous petitions submitted by the author. However, the current communication is not based only on article 17, paragraph 1, of the Covenant, but also on paragraph 2 of the said provision, according to which everyone has the right to the protection of the law against interference or attacks on one’s privacy and family life. The Committee considers that article 17 generally includes effective protection to the right of a parent to regular contact with his or her minor children. While there may be exceptional circumstances in which denying contact is required in the interests of the child and cannot be deemed unlawful or arbitrary, in the present case the domestic courts of the State party have ruled that such contact should be maintained. Consequently, the issue before the Committee is whether the State party has afforded effective protection in the author’s right to meet his son in accordance with the court decisions of the State party. Although the courts repeatedly fined the author’s wife for failure to respect their preliminary orders regulating the author’s access to his son, these fines were neither fully enforced nor 53 HRC 1997 Report, Vol. II, Annex VI, sect. H, para. 10.3.
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replaced with other measures aimed at ensuring the author’s rights. In these circumstances and taking into account the considerable delays at various stages of the proceedings, the Committee takes the view that the author’s rights under article 17 of the Covenant, in conjunction with article 2, paragraphs 1 and 2 of the Covenant, did not receive effective protection.54
This holding announces perhaps a brave new approach in the Committee’s jurisprudence. It bears much potential for future situations because the implementation of court judgments is a matter of crucial importance for the rule of law and for the credibility of every system of justice. It does not help a victim of violation of human rights that the courts recognize his or her rights when the State fails to do anything to ensure enforcement of the decisions of its own courts. Article 18: freedom of conviction There have not been many cases concerning freedom of religion. The right of conscientious objection to military service had been consistently denied by the Committee since case No. 185/1984 (L.T.K. v. Finland), declared inadmissible ratione materiae because “the Covenant does not provide for the right of conscientious objection; neither Article 18 nor Article 19 of the Covenant, especially taking into account paragraph 3 (c) (ii) of Article 8, can be construed as to imply that right”.55 At its 88th session in October/ November 2006, the Committee reversed its position, adopting Views in cases Nos. 1321-1322/2004 (Myung-Jin Choi and Yeo-Bum Yoon v. Republic of Korea). The authors, Mr. Yoon and Mr. Choi, were both Jehovah Witnesses, who refused the draft on account of their religious beliefs. They were separately tried and sentenced to one and a half years of imprisonment. Their convictions and sentences were subsequently upheld by the Supreme Court. The authors claimed a violation of Article 18(1) before the Committee. In its Views the Committee noted the State party’s argument that Article 19 of the Korean Constitution does not provide for the right to object to fulfilling one’s military service duty. The State party also argued that conscientious objection could be restricted as it may harm national security, and concluded that the prohibition of conscientious objection to military service was justified and consistent with the restrictions allowed pursuant to the wording of Article 18(3). The Constitutional Court recognized a limited right to freedom of conscience in that it allowed the objector to request the State to waive service “if possible”. In finding a violation of Article 18(1) the Committee noted that article 8, paragraph 3, of the Covenant excludes from the scope of ‘forced or compulsory labour’, which is proscribed, ‘any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors’. It follows that the article 8 of the Covenant itself neither recognizes nor excludes a right of conscientious objection. Thus, the present claim is to be assessed solely in the light of 54 HRC 2002 Report, Vol. II, Annex IX, sect. HH, paras. 7.2–7.4. 55 Ibid., Annex XXI, para. 5.2.
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article 18 of the Covenant, the understanding of which evolves as that of any other guarantee of the Covenant over time in view of its text and purpose. The Committee recalls its previous jurisprudence on the assessment of a claim of conscientious objection to military service as a protected form of manifestation of religious belief under article 18, paragraph 1. It observes that while the right to manifest one’s religion or belief does not as such imply the right to refuse all obligations imposed by law, it provides certain protection, consistent with article 18, paragraph 3, against being forced to act against genuinely-held religious belief. The Committee also recalls its general view expressed in General Comment 2256 that to compel a person to use lethal force, although such use would seriously conflict with the requirements of his conscience or religious beliefs, falls within the ambit of article 18. The Committee notes, in the instant case, that the authors’ refusal to be drafted for compulsory service was a direct expression of their religious beliefs, which it is uncontested were genuinely held. The authors’ conviction and sentence, accordingly, amounts to a restriction on their ability to manifest their religion or belief. Such restriction must be justified by the permissible limits described in paragraph 3 of article 18, that is, that any restriction must be prescribed by law and be necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. However, such restriction must not impair the very essence of the right in question. 57
Article 19: freedom of expression A free press, freedom of research and freedom of expression are crucial to the proper functioning of a democratic society. These freedoms, however, may be subject to reasonable limitations, e.g. to protect health and morals and the reputation of others. It has been a difficult task for the Committee to determine where the limits should lie, especially in cases concerning the expression of ideas that are offensive to others. In case No. 550/1993 (Faurisson v. France), the applicant had been convicted under the “Gayssot Act” of 13 July 1990, which makes it a criminal offense to challenge the conclusions and the verdict of the International Military Tribunal at Nuremberg or the existence of one or more crimes against humanity as defined by Article 6 of the Statute of the International Military Tribunal annexed to the London Agreement of 8 August 1945. While the Committee expressed its concern that the application of the terms of the Gayssot Act could lead to decisions or measures incompatible with the Covenant, it concluded that in the case of Mr. Faurisson such incompatibility had not occurred: To assess whether the restrictions placed on the author’s freedom of expression by his criminal conviction were applied for the purposes provided for by the Covenant, the Committee begins by noting, as it did in its General Comment 10, that the rights for the protection of which restrictions on the freedom of expression are permitted by article 19, paragraph 3, may relate to the interests of other persons or to those of the community as a whole. Since the statements made by the author, read in their full context, were of a nature as to raise or 56 HRI/GEN/1/Rev. 8, Part II. 57 HRC 2007 Report, Vol. II, Annex VII, sect. V, paras. 8.2 and 8.3.
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strengthen anti-Semitic feelings, the restriction served the respect of the Jewish community to live free from fear of an atmosphere of anti-Semitism.58
Seven Committee members appended separate concurring opinions. Nisuke Ando observed: In my view the term ‘negation’, if loosely interpreted, could comprise various forms of expression of opinions and thus has a possibility of threatening or encroaching the right to freedom of expression, which constitutes an indispensable prerequisite for the proper functioning of a democratic society. In order to eliminate this possibility, it would probably be better to replace the act with a specific legislation prohibiting well-defined acts of anti-Semitism or with a provision of the criminal code protecting the rights or reputations of others in general.59
In the same sense Committee members Elisabeth Evatt and David Kretzmer warned: The Gayssot Act is phrased in the widest language and would seem to prohibit publication of bona fide research connected with matters decided by the Nuremberg Tribunal. Even if the purpose of this prohibition is to protect the right to be free from incitement to antiSemitism, the restrictions imposed do not meet the proportionality test. They do not link liability to the intent of the author, nor to the tendency of the publication to incite to antiSemitism. Furthermore, the legitimate object of the law could certainly have been achieved by a less drastic provision that would not imply that the State party had attempted to turn historical truths and experiences into legislative dogma that may not be challenged, no matter what the object behind the challenge, nor its likely consequences.60
By finding no violation of Article 19, the Committee seems to have accommodated pressures of political correctness, out of apprehension that a finding in favour of Mr. Faurisson could have been subject to misinterpretation. Many observers, however, including Noam Chomsky, have made the distinction between incitement to racial hatred and mere expression of nonconformist historical views. Is it the function of lawyers to legislate on historical issues? Is it the function of judges to convict individuals for the non-violent expression of historical views? And, if questioning aspects of the Holocaust can be subject to penal sanctions, should the questioning of aspects of the Armenian genocide, or of the Cambodian democide, or of the Yugoslav “ethnic cleansing” be treated similarly? If not, why not? It would seem to be more in keeping with the travaux préparatoires of Article 19 to affirm that consensus opinions do not need the protection of Article 19, but rather the expression of uncomfortable or shocking views. Moreover, it would seem that Article 19 should protect the “right to be wrong” since all research depends on hypotheses, which in the end may be proven wrong. The Committee will have to come to grips with these issues. 58 HRC 1997 Report, Vol. II, Annex VI, sect. I, para. 9.6. 59 Ibid., Appendix B. 60 Ibid., Appendix C, para. 9.
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Article 20: prohibition of propaganda for war The Committee has dealt with this Article in the context of the examination of State party reports under Article 40 and issued a General Comment during its 90th session.61 No OP communications have been submitted on this issue, although several States parties to the Covenant engage in propaganda for war, which, in a very real sense, poses a greater threat to human rights than, for instance, restrictions on the exercise of the right to freedom of movement (Article 12) or on freedom of expression (Article 19). In this context it is relevant to recall the work of the United Nations General Assembly and Commission on Human Rights in its resolutions concerning the human right to peace.62 Article 24: the rights of the child Article 24 of the Covenant provides that every child shall have, without any discrimination, the right to such measures of protection as required by his status as a minor, on the part of his family, society and the State. The facts of communication No. 400/1990 (Mónaco de Gallicchio v. Argentina) showed that the author’s granddaughter disappeared, together with her parents, in 1977, when she was nine months old. The grandmother managed to locate her granddaughter in 1984; she was then living as the adopted daughter of one S.S., who was subsequently charged with concealing the whereabouts of a minor and forgery of documents. In January 1989, the grandmother was granted provisional guardianship over the child, but denied the right to represent the child in the various proceedings; S.S. was granted visiting rights. On 11 August 1992, the adoption of the child by S.S. was nullified. In 1993, the granddaughter’s legal identity was established. Noting the long delay in the completion of the judicial proceedings, the Committee found that the protection of children stipulated in article 24 of the Covenant required the State party to take affirmative action to grant Ms. Vicario prompt and effective relief from her predicament. In this context, the Committee recalls its general comment on article 2463, in which it stressed that every child has a right to special measures of protection because of his/her status as a minor; those special measures are additional to the measures that States are required to take under article 2 to ensure that everyone enjoys the rights provided for in the Covenant. Bearing in mind the suffering already endured by Ms. Vicario, who lost both of her parents under tragic circumstances imputable to the State party, the Committee finds 61 HRC 1983 Report, Annex VI. General Comment No. 11. (also reproduced in HRI/GEN/1/ Rev.8, Part II). 62 On 12 November 1984, the United Nations General Assembly adopted resolution 39/11, entitled “Right of peoples to peace”, approving the Declaration on the Right of Peoples to Peace. See also Commission on Human Rights resolution 2002/71 of 25 April 2002, and the “Luarca Declaration on the Human Right to Peace”, submitted to the Human Rights Council on 15 March 2007, <www.currentconcerns.ch/index.php?id=299&print=1&no_cache=1>. 63 General Comment No. 17, adopted in 1989. HRC 1989 Report, Annex VI.
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that the special measures required under article 24, paragraph 1, of the Covenant, were not expeditiously applied by Argentina, and that the failure to recognize the standing of Mrs. Mónaco in the guardianship and visitation proceedings and the delay in legally establishing Ms. Vicario’s real name and issuing identity papers also entailed a violation of article 24, paragraph 2, of the Covenant, which is designed to promote recognition of the child’s legal personality.64
Since the Convention on the Rights of the Child has no communications procedure and the Committee on the Rights of the Child cannot examine individual complaints, it would be practicable to subsume many of the provisions of the Convention on the Rights of the Child under the protection required by Article 24 of the Covenant. Thus, victims could avail themselves of the HRC’s OP procedure in the 109 States that have adhered to the OP. Article 25: the right to take part in political activity Restrictions on the right to engage in political activity have been examined by the Committee in the light of State party contentions that such restrictions were necessary because of a state of emergency. In case No. 34/1978 (J. Landinelli Silva v. Uruguay), the Committee found a violation, noting that even on the assumption that there exists a situation of emergency in Uruguay, the Human Rights Committee does not see what ground could be adduced to support the contention that, in order to restore peace and order, it was necessary to deprive all citizens, who as members of certain political groups had been candidates in the elections in 1966 and 1971, of any political right for a period as long as 15 years. This measure applied to everyone, without distinction as to whether he sought to promote his political opinions by peaceful means or by resorting to, or advocating the use of, violent means. The Government of Uruguay has failed to show that the interdiction of any kind of political dissent is required in order to deal with the alleged emergency situation and pave the way back to political freedom.65
In communication No. 205/1989 (Mikmaq Tribal Society v. Canada) the Committee addressed the issue whether an Indian tribe had a right to representation in a constitutional assembly organized by the Canadian government.66 Its finding of no violation has been subject to much criticism in the scholarly press, including by a former member of the Committee, Professor Bernhard Graefrath.67 In case No. 500/1992 (Debreczeny v. the Netherlands), the author, a local policeman, was elected to the municipal council, but was not allowed to take his seat because under Dutch law the membership in the municipal council was incompatible with employ64 65 66 67
HRC 1995 Report, Vol. II, Annex X, sect. B, para. 10.5. HRC 1981 Report, Annex XII, para. 8.4. HRC 1992 Report, Annex IX, sect. A, para. 5.5. B. Graefrath, ‘Mikmaq-Entscheidung des Menschenrechtsausschusses und deutsche Verfassungsdiskussion’, 46:4 Neue Justiz (1992) pp. 151 and 152.
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ment as a civil servant in subordination to local authorities. In its Views, the Committee notes that while the right provided for by Article 25 is not an absolute right, restrictions of this right must be neither discriminatory nor unreasonable. In the Committee’s opinion, the application of the lawful restrictions to the author did not constitute a violation of Article 25 of the Covenant. Article 26: the right to equality before the law and to equal protection by the law and the prohibition of discrimination Article 26 of the Covenant provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. These are two distinct rights. The Committee, however, has focused primarily on the prohibition of discrimination, which has been defined as a distinction which is not based on reasonable and objective criteria. The first part of the Article has a potential similar to that of Article 14(1). If equality means absence of arbitrariness, this Article holds the promise of a general “right to justice”. The Committee has already begun exploring these exciting new vistas. As Carla Edelenbos observed in a perceptive commentary, “[e]ven if the Committee has so far failed to develop the full potential of article 26, the article embodying the overarching principle of equality will yet emerge as the most effective tool in asserting the elusive right to justice.”68 The early jurisprudence of the Committee was conservative and limited itself to obvious situations of discrimination, as in case No. 35/1978 (Aumeeruddy-Cziffra et al. v. Mauritius), where the State party’s immigration law and deportation law subjected foreign husbands of native women to certain restrictions, whereas foreign wives of native men were not so subjected.69 Only gradually did the Committee discover the potential of Article 26, by interpreting it as an autonomous right to non-discrimination and expanding its application to rights outside the ICCPR, such as economic, social and cultural rights. This was an enormous innovation. And it was not obvious to everyone. The great breakthrough in the Committee’s Article 26 jurisprudence took place at its 29th session in April 1987, when it found violations in cases Nos. 172/1984 (Broeks v. The Netherlands) and 182/1984 (Zwaan-de Vries v. The Netherlands), recognizing that the scope of Article 26 extends to rights not otherwise guaranteed by the Covenant. In other words, the right to nondiscrimination is deemed to be an autonomous right, and it may be applied to non-discrimination with respect to economic, social or cultural rights, with respect to the right to property, with respect to the right to asylum, none of which are protected under the ICCPR. As the Committee observed in the Broeks and Zwaan-de Vries cases, “the right to equality before the law and to equal protection of the law without any discrimination 68 C. Edelenbos, ‘Article 26, the Human Rights Committee’s Views and Decision: The way of the Future?’, in G. Alfredsson et al., International Human Rights Monitoring Mechanisms, Essays in Honour of Jakob Th. Möller (Martinus Nijhoff Publishers, The Hague, 2001) pp. 123 et seq., at p. 127. 69 HRC 1981 Report, Annex XIII, para. 10.1.
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does not make all differences in treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26.” Equality within the meaning of Articles 3 and 26 The Committee found a violation of Article 26 in case No. 202/1986 (Ato del Avellanal v. Peru), where the author had been denied the right to sue in Peruvian courts because, according to Article 168 of the Peruvian Civil Code, when a woman is married only her husband is entitled to represent matrimonial property before the courts. In its Views, the Committee observed that [u]nder article 3 of the Covenant States parties undertake ‘to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant’ and that article 26 provides that all persons are equal before the law and are entitled to the equal protection of the law. The Committee finds that the facts before it reveal that the application of article 168 of the Peruvian Civil Code to the author resulted in denying her equality before the courts and constituted discrimination on the ground of sex.70
Non-discrimination in respect of private property In case No. 516/1992 (Simunek et al v. the Czech Republic), the authors had left their country (Czechoslovakia) for political reasons and had had their property confiscated. A law enacted in 1991 provided for restitution or compensation for confiscations carried out by the Communist government, but excluded non-residents and non-Czech citizens. The authors argued that the application of this law violated their rights under Article 26. The Committee considered that [i]n examining whether the conditions for restitution or compensation are compatible with the Covenant, the Committee must consider all relevant factors, including the authors’ original entitlement to the property in question and the nature of the confiscations. The State party itself acknowledges that the confiscations were discriminatory, and this is the reason why specific legislation was enacted to provide for a form of restitution. The Committee observes that such legislation must not discriminate among the victims of the prior confiscations, since all victims are entitled to redress without arbitrary distinctions. Bearing in mind that the authors’ original entitlement to their respective properties was not predicated either on citizenship or residence, the Committee finds that the condition of citizenship and residence in Act 87/1991 are unreasonable. In this connection the Committee notes that the State party has not advanced any grounds which would justify these restrictions. Moreover, it has been submitted that the authors and many others in their situation left Czechoslovakia because of their political opinions and that their property was confiscated either because of their political opinions or because of their emigration from the country. These victims of political persecution sought residence and citizenship in other countries. Taking into account that the State party itself is responsible for the departure of the authors, it would be incompatible
70 HRC 1989 Report, Annex X, sect. C, para. 10.2.
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with the Covenant to require them permanently to return to the country as a prerequisite for the restitution of their property or for the payment of appropriate compensation.
The State party contends that there is no violation of the Covenant because the Czech and Slovak legislators had no discriminatory intent at the time of the adoption of Act 87/1991. The Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with article 26. But an act which is not politically motivated may still contravene article 26 if its effects are discriminatory.”71 In case No. 747/1997 (Des Fours Walderode v. Czech Republic) the Committee held that Article 26 had been violated because Des Fours had been subjected to unequal treatment and ad hominen legislation had been enacted to prevent him to obtain compensation: With regard to the author’s allegation of a violation of article 26 of the Covenant, the Committee begins by noting that Law No. 243/1992 already contained a requirement of citizenship as one of the conditions for restitution of property and that the amending Law No. 30/1996 retroactively added a more stringent requirement of continued citizenship. The Committee notes further that the amending Law disqualified the author and any others in this situation, who might otherwise have qualified for restitution. This raises an issue of arbitrariness and, consequently, of a breach of the right to equality before the law, equal protection of the law and non-discrimination under article 26 of the Covenant. The Committee recalls its Views in cases No. 516/1003 (Simunek et al.) 586/1994 (Joseph Adam) and 857/1999 (Blazek et al.) that a requirement in the law for citizenship as a necessary condition for restitution of property previously confiscated by the authorities makes an arbitrary and consequently a discriminatory distinction between individuals who are equally victims of prior State confiscations, and constitutes a violation of article 26 of the Covenant. This violation is further exacerbated by the retroactive operation of the impugned Law.72
In the struggle for justice and against State arbitrariness, the Des Fours Walderode decision signals the potential of Article 26. Whereas in this case the author proffered considerable elements of proof to substantiate a consistent pattern of discrimination by Czech authorities and by the press on account of his German ethnic origin, the Committee hesitated to make a finding of ethnic discrimination in breach of the second sentence of Article 26, which would have entailed more delicate subjective evaluations. Instead, the Committee preferred to make the easier and more objective finding that Dr. Des Fours Walderode had been denied equality of treatment – for whatever reason – i.e. that he had been a victim of arbitrariness, in violation of the first sentence of Article 26.
71 HRC 1995 Report, Vol. II, Annex X, sect. K, paras. 11.6 and 11.7. (not yet published, available electronically). 72 HRC 2002 Report, Vol. II, Annex IX, sect. K, paras. 8.3 and 8.4.
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Article 27: protection of minorities Whereas the Universal Declaration does not contain an article on the rights of minorities, the Covenant grants them two rights: equality with the majority and a right to identity, which may require affirmative action. Article 27 has been invoked before the Committee primarily in connection with the rights of Canadian Indians to their cultural heritage. In case No. 24/1977 (Sandra Lovelace v. Canada), a native Indian had been denied by operation of the Indian Act the legal right to reside on an Indian reserve because she had married a non-Indian. She later divorced. The Committee found a breach of Article 27 because for purposes of Article 27 she must still be considered among “persons belonging” to the minority concerned, and although the right to reside in the reserve was not as such guaranteed by Article 27, access to her native culture and language had in fact been denied to her. Canada subsequently informed the Committee that the Indian Act had been duly amended, so as to remove therefrom any discriminatory provisions.73 In case No. 167/1984 (Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada), the Committee also found a violation of Article 27, noting: “Historical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue.” The whole idea of “historical inequities” and of the continuing effects of said inequities were commented favourably in academia and by non-governmental organizations. On the practical plane, the goal of the Committee was to help the Lubicon Lake Band find redress for historical inequities and improve the economic and social condition of Band members. I am persuaded that the negotiations that took place during the Committee’s examination of the case ultimately contributed to some very interesting proposals and programmes by the Canadian government.74 Remedies Pursuant to the principle “Ubi jus, ibi remedium”, every system of justice must have appropriate procedures to provide redress for the violation of law. The HRC has gradually created its own jurisprudence on remedies. No impunity In the Committee’s Views on case No. 322/1988 (Rodriguez v. Uruguay), the Committee concluded that “Mr. Hugo Rodriguez is entitled, under article 2, paragraph 3 (a) of the Covenant, to an effective remedy. It urges the State party to take effective measures (a) to carry out an official investigation into the author’s allegations of torture, in order to identify the persons responsible for torture and ill-treatment and to enable the author to seek civil redress; (b) to grant appropriate compensation to Mr. Rodriguez ...”75 Similarly, in the Committee’s Views on case No. 328/1988 (Zelaya v. Nicaragua), the Committee concluded that Mr. Roberto Zelaya Blanco is entitled under Article 2(3)(a) 73 HRC 1983 Report, Annex XXXI. 74 HRC 1990 Report, Annex IX, sect. A, para. 33. 75 HRC 1994 Report, Annex IX, sect. B, para. 14.
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of the Covenant to an effective remedy. It urged the State party to take effective measures “(a) to grant appropriate compensation to Mr. Zelaya for the violations suffered, also pursuant to article 9, paragraph 5, of the Covenant; (b) to carry out an official investigation into the author’s allegations of torture and ill-treatment during his detention...”76 It is important to recall the Committee’s admonition against laws providing for or resulting in impunity for violations of human rights. In its Views in the Rodriguez v. Uruguay case, the Committee observed that amnesties for gross violations of human rights and legislation such as the Law No. 15,848, Ley de Caducidad de la Pretension Punitiva del Estado, are incompatible with the obligations of the State party under the Covenant. The Committee notes with deep concern that the adoption of this law effectively excludes in a number of cases the possibility of investigation into past human rights abuses and thereby prevents the State party from discharging its responsibility to provide effective remedies to the victims of those abuses. Moreover, the Committee is concerned that, in adopting this law, the State party has contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations.77
Commutation or release In many cases concerning capital punishment, the Committee has determined that commutation of sentence is an appropriate remedy where there have been human rights violations that do not vitiate the conviction. However, where a conviction is arrived at through a proceeding in which the guarantees of a fair hearing, such as access to counsel, equal opportunity to call witnesses and to cross-examine witnesses, have been violated, the Committee recommends release. Typical language is as follows: The Committee is of the view that Mr. Lubuto is entitled, under article 2, paragraph 3(a) of the Covenant to an appropriate and effective remedy, entailing a commutation of sentence ... Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee’s Views.78
Restitution of confiscated property In cases concerning discrimination in the restitution of property, the Committee has expressed the view that restitution and compensation for usufructus is required. In case No. 847/ 1997 (Des Fours v. Czech Republic), the Committee observed: 76 HRC 1994 Report, Annex IX, sect. C, para. 12. 77 See note 75, (Rodriguez v. Uruguay), HRC 1994 Report, Annex IX, sect. B, para. 12.4. 78 Views in case No. 390/1990 (Lubuto v. Zambia), HRC 1996 Report, Annex VIII, sect. 2, paras. 9 and 10.
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In accordance with article 2, paragraph 3(a) of the Covenant, the State party is under an obligation to provide the late author’s surviving spouse, Dr. Johanna Kammerlander, with an effective remedy, entailing in this case prompt restitution of the property in question or compensation therefore, and, in addition, appropriate compensation in respect of the fact that the author and his surviving spouse have been deprived of the enjoyment of their property since its restitution was revoked in 1995.79
Follow-up80 Although under the Optional Protocol the decisions of the Committee are not binding and cannot be directly implemented, States parties are expected to keep their commitments under the Optional Protocol in good faith. After all, these States voluntarily submitted to a regime of investigation and settlement, which only makes sense if the States take the Committee’s findings seriously. Most States, however, still lack enabling legislation to receive decisions of the Committee into their national legal orders.81 The goal therefore must be to give decisions of the Committee a defined status under domestic law, permitting the authors to obtain redress through the local courts or administrative instances. It is interesting to recall that in 503 out of 635 Views, the Committee determined that provisions of the Covenant had been violated. Each View making a finding of a violation also makes a recommendation as to a remedy. How much compliance has there been? No system of human rights protection would be complete without a monitoring and/or follow-up jurisdiction. However, Article 5 of the Optional Protocol does not envisage any follow-up mechanism. Thus, during its first 13 years of its operation, the Committee lacked a systematic way of knowing whether and to what extent its decisions were being implemented by States parties. Only some States parties provided information as to their compliance, and frequently the Committee learned from the authors of the communications that notwithstanding the Committee’s finding of a violation of the Covenant and in spite of concrete recommendations by the Committee, no relief had been granted. Therefore, since 1990 the Committee systematically asks States parties to provide information on measures taken in compliance with the Committee’s Views (within 90 days of the transmittal of the Views, extended in 2008 to 180 days).
79 HRC 2002 Report, Vol. II, Annex IX, sect. K, para. 9.2. 80 A. de Zayas, ‘The Follow-Up Procedure of the UN Human Rights Committee’, in International Commission of Jurists, 47 The Review (1991) pp. 28–35. At the Third Joint Conference of the American Society of International Law and Nederlandse Vereniging voor Internationaal Recht, held at The Hague 13–15 July 1995, a panel was devoted to the issue of implementation of the human rights treaties, with the participation of the first High Commissioner for Human Rights, Dr. José Ayala Lasso, and of the author of this article. A considerable part of the discussion was devoted to the issue of follow-up. See ASIL, Contemporary International Law Issues: Conflicts and Convergence, Proceedings (1995) pp. 40–61. See also A. de Zayas, ‘Petitioning the United Nations’, in ASIL, Proceedings of the 95th Annual Meeting (Washington, 2001) pp. 82–87. 81 A good example of enabling legislation is the Colombian Law No. 288 of 1996.
5 – Petitions before the United Nations Treaty Bodies: Focus on the Human Rights Committee’s Optional Protocol Procedure
Legal basis for a follow-up competence At the Committee’s 17th session in October 1982 some members expressed doubt whether the Committee could follow-up on its decisions since they understood the Committee as a sui generis body with no judicial powers. Under this perspective, the implementation of Views was left strictly to the good will of the State party concerned. Some thought that monitoring compliance with the Views was ultra vires, and might even be contrary to Article 2(7) of the UN Charter. If States parties wanted to make the Committee’s Views binding, they could use the amendment procedure under Article 11 of the Optional Protocol.82 Other members, however, felt that the Committee could not let its work under the Optional Protocol degenerate into an exercise in futility. They felt that due consideration had to be paid to both the letter and spirit of the Covenant, and that where the Committee believed that certain appropriate action was reasonably open to it, the Committee should take it and that the Optional Protocol allowed considerable latitude for interpretation. Only gradually did a consensus emerge that “follow-up” procedures were within the Committee’s mandate. This is implicit in the preamble to the Optional Protocol, which declares that the Committee receives and considers communications “in order further to achieve the purposes of the Covenant and the implementation of its provisions”. To this end it is legitimate for the Committee to engage in exchange with States parties regarding their response to the Committee’s Views. The International Court of Justice has affirmed that even in the absence of specific enabling powers, an international body may act in ways not specifically forbidden for the achievement of its purposes and objectives (Advisory Opinion in the Case of Certain Expenses, ICJ Reports 1962). Moreover, the competence to “consider” communications, laid down in Article 1 of the Optional Protocol, may be interpreted broadly as encompassing not only the examination of cases up to the rendering of Views but also beyond that to “consider” the measures adopted by a State party to remedy the violations of the Covenant found in the course of examination of a communication. The function of the Special Rapporteur for Follow-Up was created in 1990, the first Rapporteur being the late Janos Fodor (Hungary). He was followed by Andreas Mavrommatis (Cyprus), Prafullachandra Natwarlal Baghwati (India), Fausto Pocar (Italy), Christine Chanet (France), Nisuke Ando (Japan) and Ivan Shearer (Australia). The first follow-up monitoring mission was carried out in Jamaica in June 1995 by Andreas Mavrommatis together with the author of this article.83 The Committee’s follow-up work is reflected in a country-by-country survey contained in a separate chapter of its annual reports to the General Assembly. Evaluation As indicated above, the procedures of the Committee on the Elimination of Racial Discrimination and of the Committee against Torture are similar to those of the Human Rights Committee. Their scope of activity, of course, is limited by their respective Conventions. CERD has made a significant contribution, especially concerning the 82 HRC 1983 Report, p. 93, para. 392. 83 HRC 1995 Report, Vol. I, Chapter I, Follow-up activities, paras. 557–562.
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reaffirmation of the State party’s obligations under Articles 4 and 5 to take legislative and judicial measures to combat racial discrimination.84The jurisprudence of the Committee against Torture has been especially rich concerning the prohibition of refoulement enshrined in Article 3 of the Convention. Many refugees and asylum seekers have been able to avail themselves of this protection, and the Committee against Torture has issued many requests for interim measures of protection, which States parties have honoured by refraining from deporting asylum seekers. Although the HRC, CERD, and CAT are not judicial bodies as such, their application and interpretation of the provisions of the relevant treaties have yielded a body of very quotable jurisprudence. In particular, the development of follow-up procedures constitutes a significant step toward implementation of their decisions, and surely success in follow-up contributes to the credibility of the committees and reinforces the public’s perception that their decisions are meaningful expressions of human rights law. To strengthen further the follow-up procedure, meetings of States parties should be held annually, in which the States parties themselves would review, as the Committee of Ministers of the Council of Europe, compliance with the decisions of the respective committees.
84 CERD, Communication No. 4/1991, L.K. v. The Netherlands, in which the Committee held “that the remarks and threats made on 8 and 9 August 1989 to L.K. constituted incitement to racial discrimination and to acts of violence against persons of another colour or ethnic origin, contrary to article 4 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination, and that the investigation into these incidents by the police and prosecution authorities was incomplete…The Committee cannot accept any claim that the enactment of law making racial discrimination a criminal act in itself represents full compliance with the obligations of States parties under the Convention. The Committee reaffirms its view …that ‘the freedom to prosecute criminal offenses – commonly known as the expediency principle – is governed by considerations of public policy and notes that the Convention cannot be interpreted as challenging the raison d’être of that principle. Notwithstanding, it should be applied in each case of alleged racial discrimination in the light of the guarantees laid down in the Convention’... When threats of racial violence are made, and especially when they are made in public and by a group, it is incumbent upon the State to investigate with due diligence and expedition. In the instant case, the State party failed to do this... The Committee finds that in view of the inadequate response to the incidents, the police and judicial proceedings in this case did not afford the applicant effective protection and remedies within the meaning of article 6 of the Convention”, UN Doc. A/48/18, case No. 4/1991, paras. 6.3–6.7.
6
The Human Rights Committee’s Jurisprudence under Article 26 of the ICCPR: The Hidden Revolution Carla Edelenbos*
While Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides for equality in respect of the rights set forth in the Covenant and Article 3 stipulates gender equality in respect of the enjoyment of the Covenant rights, Article 26 encompasses the right to equality in all areas of human endeavour: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The revolutionary character of Article 26 did not become obvious until many years after its drafting. Initially, the Article was interpreted as a classic anti-discrimination provision, prohibiting discrimination based on one of its enumerated grounds. Initially, it was assumed that the prohibition of discrimination referred to discrimination in respect of Covenant rights. Accordingly, in its early jurisprudence, the Human Rights Committee found, for instance, in Shirin Aumeeruddy-Cziffra et al. v. Mauritius, a violation of Article 26 “in relation to Articles 17(1) and 23(1)” because of the difference in treatment between foreign spouses of Mauritian men and foreign spouses of Mauritian women. In another classic discrimination case, Ato del Avellanal v. Peru, the Committee found a violation of Articles 3, 14(1) and 26 of the Covenant because of denial of equality * 1
United Nations Human Rights Officer, opinions expressed by the author in this article do not necessarily reflect the point of view of the organisation(s) with which she is associated. Shirin Aumeeruddy-Cziffra et al. v. Mauritius, No. 35/1978, views adopted on 9 April 1981. The Committee’s case-law can be consulted on various websites, including the website of the Office of the High Commissioner for Human Rights <www.ohchr.org>. The database published on the website of the Netherlands Institute for Human Rights (SIM) allows for easy searches on subject, article or key word <sim.law.uu.nl/SIM>. OHCHR has so far also published eight volumes of selected decisions by the Human Rights Committee. Graciela Ato del Avellanal v. Peru, No. 202/1986, views adopted on 28 October 1989.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 77-82.
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before the courts and discrimination on the ground of gender. Interestingly, however, the finding of the violation of Article 26, although intrinsically linked in the argument to the finding of a violation of Article 14(1), was no longer explicitly connected to the enjoyment of another right in the Covenant, as had happened in the Mauritian case. This paved the way for the evolution in the interpretation of Article 26, on constituting an autonomous right to non-discrimination. The Committee’s views in 1987 in a number of Dutch cases that Article 26 applied also in the field of social security, that is when the enjoyment of no other Covenant right was at stake, caused a great shock among the States Parties, probably because of its potential financial consequences. With hindsight, it seems almost surprising that the applicability of Article 26 outside the ambit of Covenant rights should have been perceived as such a controversial issue. Since the principle that all Covenant rights should be guaranteed without discrimination is already embodied in Articles 2(1) and 3 of the Covenant, what would otherwise the function of Article 26 be? It may therefore not have been the theoretical interpretation in itself that created such controversy, but rather the sudden realisation of the implications of what had hitherto been a theoretical debate without practical consequences. Criteria for social security benefits formerly inspired by vague standards of necessity now had to be evaluated. Once obvious distinctions in social security matters, such as those between man and woman, between married and unmarried couples, suddenly became problematic and had to be justified. And all this carried potentially enormous financial implications with it. Moreover, the fact that the Human Rights Committee could intervene in what was essentially the political process of income distribution must have been hard for any government to accept. It was no surprise that, following the Committee’s Views in Broeks v. The Netherlands and Zwaan-de Vries v. The Netherlands, the debate rang high among Dutch politicians and that withdrawal from the Optional Protocol, and even the Covenant, was seriously being considered.
The use of Article 26 as an accessory right has not, however, completely disappeared from the Committee’s jurisprudence. See for instance Yong-Joo Kang v. Republic of Korea, No. 878/1999, views adopted on 15 July 2003, where the Committee found that the State Party’s coercive ideology conversion system constituted a violation of Articles 18(1) and 19(1) both in conjunction with Article 26. See also the hybrid case Blaga v. Romania, No. 1158/2003, views adopted on 30 March 2006, where the Committee’s considerations turn on the interpretation of equality before the law which implies that final judgements can no longer be reviewed, and goes on to find a violation of Article 26 in conjunction with Article 2(3) (the right to an effective remedy). Broeks v. The Netherlands, No. 172/1984, views adopted on 9 April 1987; Zwaan-de Vries v. The Netherlands, No. 182/1984, views adopted on 9 April 1987. That the controversy caused by the Committee’s interpretation has not fully ebbed away yet is shown by the reservation entered by the Federal Republic of Germany when acceding to the Optional Protocol through which it excludes the Committee’s competence to consider communications by means of which a violation of Article 26 of the Covenant is reprimanded, “if and insofar as the reprimanded violation refers to rights other than those guaranteed under the aforementioned Covenant”. A similar reservation was entered by the Republic of Turkey upon its ratification of the Optional Protocol on 24 November 2006. Reservations to the
6 – The Human Rights Committee’s Jurisprudence under Article 26 of the ICCPR: The Hidden Revolution
The Committee, being aware of the financial consequences of its views, was careful not to throw any oil on the fire and has applied its interpretation of Article 26 as an autonomous right cautiously. For instance, an avalanche of claims was avoided by the Committee’s decision to rule out retroactive claims, once the Netherlands had amended its legislation and brought it into conformity with Article 26. The notion that the right to social security as guaranteed in the International Covenant on Economic, Social and Cultural Rights is a progressive right probably influenced the Committee’s attitude on this point. Nevertheless, the Committee continued to find violations in similar circumstances concerning discrimination in the enjoyment of economic, social and cultural rights, not only in cases of gender discrimination but also when the discrimination was based on nationality, political opinion,10 religion11 and sexual orientation.12 The Committee’s pioneering approach to non-discrimination as a self- standing right has since been reflected in Protocol No. 12 to the European Convention on Human Rights and Fundamental Freedoms,13 which provides a general prohibition of discrimination in the enjoyment of any right set forth by law. Politically sensitive have also been a series of views in which the Committee has applied the non-discrimination principle of Article 26 to cases of restitution of property or compensation for expropriation under the former communist regimes of Eastern Europe. Most of these cases have concerned the Czech Republic, where the Committee held that the requirements of citizenship and residence in order to be eligible for compensation for the confiscation of property were in violation of Article 26. The argument Covenant limiting the application of Article 26 to rights contained in the ICCPR have also been made by Liechtenstein and Switzerland. See Cavalcanti Araujo-Jongen v. The Netherlands No. 418/1990, views adopted on 22 October 1993. See for instance the Committee’s inadmissibility decision in J.H.W. v. The Netherlands, Communication No. 501/1992, decision adopted on 16 July 1993, where “the Committee notes that the State party, in 1989, adopted measures to abolish the exemption at issue in the present communication. The Committee considers, taking into account that social security legislation and its application usually lag behind socio-economic developments in society, and that the purpose of the abrogated exemption was at its time not generally considered discriminatory, that the issue which the author raises in his communication is moot …” (But differently, Johannes Vos v. the Netherlands, No. 786/1997, views adopted on 26 July 1999, para. 7.6, “what is at issue … is not the progressive implementation of the principle of equality between men and women with regard to pay and social security, but whether or not the application to the author of the relevant legislation was in compliance with the Covenant”.) See for instance Pauger v. Austria, No. 415/1990, views adopted on 26 March 1992. See also Johannes Vos v. The Netherlands, No. 786/1997, views adopted on 22 July 1996. See for instance Ibrahima Gueye et al. v. France, No. 196/1985, views adopted on 3 April 1989. See also Karakurt v. Austria, No. 965/2000, views adopted on 4 April 2002. 10 Orihuela Valenzuela v. Peru, No. 309/1988, views adopted on 14 July 1993. 11 Waldman v. Canada, No. 694/1996, views adopted on 3 November 1999. 12 Edward Young v. Australia, No. 941/2000, views adopted on 6 August 2003. 13 Protocol No. 12 was adopted on 4 November 2000 and entered into force on 1 April 2005.
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is identical to that in the earlier social security cases that “the right to property, as such, is not protected under the Covenant. However, a confiscation of private property or the failure by a State party to pay compensation for such confiscation could still entail a breach of the Covenant if the relevant act or omission was based on discriminatory grounds in violation of article 26 of the Covenant.”14 The impact of these cases may have been caused by the fact that the right to property, although embodied in Article 17 of the Universal Declaration of Human Rights (UDHR), is not protected by any of the two Covenants specifying the legal obligations ensuing from the UDHR. With these decisions, therefore, the Committee’s interpretation of the non-discrimination principle laid down in Article 26 had come full circle: from an accessory right in the early jurisprudence, to an autonomous right related to the enjoyment of human rights laid down in its sister Covenant, the ICESCR, and finally to a self-standing right tout court, without any reference to existing human rights obligations by States. In its reasoning leading up to the finding of a violation of Article 26 in Simunek, the Committee also found that “all victims are entitled to redress without arbitrary distinctions”. This development paved the way for the next revolution in the interpretation of Article 26, that of the principle of equality before the law as an effective protection against arbitrariness.15 The main case in this respect is Kavanagh v. Ireland,16 where the Committee found that the decision of the Director of Public Prosecutions to try Mr. Kavanagh before a special criminal court, rather than before the ordinary courts, was not based on reasonable and objective grounds, and that therefore the author’s right to equality before the law and to the equal protection before the law had been violated. The revolutionary impact of this interpretation of Article 26 is clear. Under Article 14(1), which establishes the principle of equality before the courts and tribunals, the Committee’s jurisprudence already held that although it is generally for the courts of States Parties to evaluate facts and evidence in a particular case and to apply the law, the Committee can review these matters when it can be ascertained that the evaluation or the application of the law was clearly arbitrary or amounted to a denial of justice.17 Through the application of the principle of equality before the law embodied in Article 26, arbitrary decisions by any public authority can now be examined by the Committee. As illustrated by the Committee’s case-law, this opens up far-reaching possibilities. In a number of cases where the Committee did not directly find a violation of the principle of equality before the law, important considerations were made which show just how far the Committee may apply the prohibition of arbitrariness which Article 26 entails. In Des Fours Walderode v. The Czech Republic, for instance, the Committee, while finding a violation of Article 26 for discrimination, also hinted at the arbitrariness of the
14 Simunek et al. v. The Czech Republic, No. 516/1992, views adopted on 19 July 1995, para. 11.3. 15 As predicted by this author in her article ‘Article 26, the Human Right Committee’s Views and Decisions: The Way of the Future?’, in G. Alfredsson et al. (eds.), International Human Rights Mechanisms (Kluwer Law International, 2001) pp. 123–127. 16 Kavanagh v. Ireland, No. 819/1998, views adopted on 4 April 2001. 17 See for instance Clifton Wright v. Jamaica, No. 349/1989, views adopted on 27 July 1992.
6 – The Human Rights Committee’s Jurisprudence under Article 26 of the ICCPR: The Hidden Revolution
amendment of the law which resulted in the author being deprived of the restitution of his property.18 In Teesdale v. Trinidad & Tobago,19 the issue was a possible violation of Article 26 of the Covenant in relation to the commutation of the author’s death sentence. The majority of the Committee found no violation based on a “classical” interpretation of discrimination. However, the dissenting individual opinion of Mr. Kretzmer and Mr. Shearer argued that the power to grant a pardon or commutation of sentence, while being discretionary, “must be exercised in a non-discriminatory manner so as to ensure the right of all individuals to equality before the law”. Likewise, the dissenting individual opinion of Mr. Solari-Yrigoyen argued that discretion is not absolute and must be based on reasonable criteria. The approach advocated by the individual opinions in Teesdale seems by now to have become the majority view as illustrated by the case of O’Neill and Quinn v. Ireland.20 In its views, the Committee accepted to review the discretionary decision of the government to exclude the authors from a negotiated early-release scheme for politically motivated crimes. Having concluded its review, the Committee found that the case did not “disclose arbitrariness” and held that “the authors’ rights under article 26 to equality before the law and equal protection of the law have not been violated”. Even the granting of citizenship, an eminently governmental prerogative, has come under scrutiny by the Committee through the application of Article 26 in Borzov v. Estonia.21 Although the Committee found that the denial of Estonian citizenship for reasons of national security did not constitute a violation of Article 26 in the specific case, it referred to its jurisprudence in the Kavanagh case and held importantly that “the invocation of national security on the part of the State party does not, ipso facto, remove an issue wholly from the Committee’s scrutiny”. The Committee’s jurisprudence thus demonstrates that all decisions lacking reasonable and objective justification, i.e. all arbitrary decisions by public authorities, may be challenged before the Committee, even, as illustrated by the cases referred to above, decisions normally falling within the discretionary power of the government, such as commutation of sentence, early release or the granting of citizenship.22 18 Des Fours Walderode v. The Czech Republic, No. 747/1997, views adopted on 30 October 2001. See in particular para. 8.3: “This raises an issue of arbitrariness and, consequently, of a breach of the right to equality before the law.” See also Brok v. The Czech Republic, No. 774/1997, views adopted on 31 October 2001, where the Committee found that the exclusion of the author from the restitution or compensation scheme established by law was a denial of his right to equal protection of the law “irrespective of whether the arbitrariness in question was inherent in the law itself or resulted from the application of the law by the courts of the State party” (para. 7.4). 19 Kenneth Teesdale v. Trinidad & Tobago, No. 677/1996, views adopted on 1 April 2002. 20 O’Neill and Quinn v. Ireland, No. 1314/2004, views adopted on 24 July 2006. 21 Borzov v. Estonia, No. 1136/2002, views adopted on 26 July 2004. 22 The Committee’s inadmissibility decision in Gallego Diaz v. Spain, No. 988/2001, decision adopted on 3 November 2004, even seems to hint at the possibility that the application of a bilateral treaty which negatively affects the rights of an individual may be in violation of
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The future case-law of the Committee will show whether the principle of equality can indeed be turned into an effective instrument to fight the arbitrary nature of so many decisions made by public authorities, hold them accountable and in this way come closer to the realisation of good governance and the ever elusive right to justice.
Article 26 where it observes that the complainant had not shown any elements that would make the treaty provision at stake “arbitrary” (para. 7.3).
7
The Petition System under ICERD: An Unfulfilled Promise Theo van Boven*
Introduction The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted by the United Nations (UN) General Assembly in 1965, was the first human rights treaty approved by the United Nations that provided for its own mechanism of international supervision. It established in Article 8(a) the Committee on the Elimination of Racial Discrimination (CERD) with tasks to: consider periodic reports submitted by the States Parties (Article 9); to receive State-to-State complaints (Articles 11–13, a procedure not resorted to as yet); and to receive and consider communications from individuals or groups of individuals (Article 14). It is this communications procedure, set forth in Article 14 of the Convention, that is the subject matter of this paper. Article 14 was the outcome of lengthy and complex negotiations in the UN General Assembly in 1965. Its inclusion in the Convention was made possible because of its optional character: States Parties are only bound by the communications procedure after they have made an explicit declaration in which they recognise the competence of the CERD to receive and consider communications. Article 14 served as a precedent for similar provisions to be included in later years in other legal international instruments, notably the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), Article 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
*
Professor emeritus of international law, Maastricht University (Netherlands), former member of the Committee on the Elimination of Racial Discrimination (1991–1999). General Assembly resolution 2106A (XX) of 21 December 1965. Article 14 as an optional clause was adopted in the Third Committee of the UN General Assembly by 66 votes in favour, none against and 19 abstentions (East European countries, some African-Asian States and France) (see T. van Boven, ‘The Convention on the Elimination of All Forms of Racial Discrimination’, 20 International Spectator (1966) pp. 665, 666. General Assembly resolution 2200A (XXI) of 16 December 1966.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 83-90.
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Punishment (CAT) and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It should be noted that Article 14 did more to serve as a breakthrough and a precedent in connection with other international legal instruments than as an international recourse procedure for victims of racial discrimination. Article 14 still remains one of the most underutilised provisions of the ICERD. This paper will try to uncover some of the largely hidden features of Article 14, but it certainly cannot transform a dwarf into a giant. Origins of Article 14 Article 14 gives the Committee on the Elimination of Racial Discrimination the power once the Committee has declared a communication admissible to consider such communication in the light of all information made available to it by the State Party concerned and by the petitioner (Article 14(7)(a)) and to forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner (Article 14(7)(b)). This implies that the Committee has substantive duties in examining communications and formulating its views, which may include suggestions and recommendations. These powers of the CERD are considerably stronger than those envisaged in earlier proposals put forward during the drafting stage in the UN General Assembly. Such earlier proposals would have given the Committee no more than a sort of “letterbox”-function to the effect that it would merely forward the communications to States Parties concerned without the requirement of any further action. In fact, to make a stronger version of Article 14 more widely acceptable, the compromise solution was reached that the communications procedure would be optional. A notable political factor that facilitated the inclusion of a communications procedure in the Convention was the wish of many African-Asian countries to make the Convention an effective instrument in the struggle against colonialism and apartheid, taking into account the clear nexus that existed between racism and colonialism. In fact, the right of petition was regarded as an important device in the international trusteeship system and in decolonisation procedures, and it was against this background that this device found its logical place in the ICERD. Some significant aspects of Article 14 The communications procedures provided for in Article 14 of the ICERD, in the First Optional Protocol to the ICCPR, in Article 22 of the CAT and in the Optional Protocol to the CEDAW contain many similar features, in particular as regards the admissibility requirements set out in these legal instruments and elaborated in their Rules of Procedure.
General Assembly resolution 39/46 of 10 December 1984. General Assembly resolution 54/4 of 6 October 1999. Van Boven, supra note 2, p. 665. See General Assembly resolutions 1514 (XV) and 1654 (XVI).
7 – The Petition System under ICERD: An Unfulfilled Promise
These have been amply discussed and reviewed elsewhere. For present purposes, three distinct aspects of Article 14 will be highlighted. The first pertains to the authors of the communications. Article 14 refers to “individuals” or “groups of individuals” claiming to be victims of a violation, whereas Article 1 of the First Optional Protocol to the ICCPR and Article 22 of the CAT make reference to “individuals” only. Consequently, Article 14 explicitly provides for the possibility that groups (collectivities) initiate a procedure alleging violation of any rights of the Convention. A second distinct aspect of Article 14 is that the CERD is not prevented from considering communications that are being or have been examined under another procedure of international investigation or settlement. A third significant aspect is that the CERD may forward at the end of the examination of the merits of the communication its “suggestions” and “recommendations” to the State Party concerned and to the petitioner(s) rather than merely its “views” as is provided for in the First Optional Protocol to the ICCPR (Article 5(4)) and in the CAT (Article 22(7)).10 Although the respective treaty bodies (Human Rights Committee and Committee Against Torture) have interpreted the term “views” in a broad sense so as to include requests for reparations and follow-up measures, the CERD has a wider discretion and may indicate to the State Party concerned such suggestions and recommendations that would go beyond the mere question whether the Convention has been violated in the individual case by including broader policy implications. The disappointing statistical record of Article 14 Article 14(9) provides that the CERD shall only be competent to exercise its functions under this Article when at least ten States Parties to the Convention have made the declaration in accordance with paragraph 1 of the Article. While the Convention itself entered into force as early as 4 January 1969 (which was the 30th day after the deposit of the 27th instrument of ratification pursuant to Article 19(1) of the ICERD), it was only on 3 December 1982 that a tenth State Party (Senegal) made the declaration under Article 14(1) and thus opened up the possibility to utilise the communications procedure against any of the ten States Parties that had made the declaration. Finally, the CERD began its work under Article 14 at its 30th session in 1984. The pace of acceptance of the Article 14-procedure is slow and disappointing. As pointed out, more than 13 years passed after the entry into force of the ICERD before the crucial number of ten acceptances was reached in 1982. Twelve more years passed before the 20th State Party (Chile) made the declaration in 1994, and on 1 January 2006 only 46 out of 170 States Parties had accepted the Article 14-procedure. These 46 States are geographically dis-
See inter alia M. O’Flaherty, Human Rights and the UN: Practice Before the Treaty Bodies (Sweet & Maxwell, London, 1996) pp. 104–109. However, the Optional Protocol to the CEDAW also refers to “individuals” or “groups of individuals” (Article 2). 10 It is significant to note that the Optional Protocol to the CEDAW uses in this respect the term “views together with its recommendations” (Article 7(3)).
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tributed as follows: Africa 3, Asia 2, Latin America 8, Western Europe and Others 20, Eastern Europe 13.11 Equally disappointing is the modest number of communications received and considered under Article 14. At the time of this writing (August 2006), only 35 communications have been examined by the Committee (23 cases have been concluded with an opinion on the merits and 12 cases have been declared inadmissible). On the positive side, it should be noted that there is an increase in the frequency of communications addressed to the CERD. Thus, out of the total of 35 cases dealt with under Article 14 between 2000 to 2006, the Committee reached decisions in 26 cases. However, these facts and figures do not offer an impressive picture, in particular when they are compared with corresponding procedures under other international human rights treaties.12 The committee’s attitude on Article 14 Since the CERD agreed in 1991, like other treaty bodies, to adopt, after the consideration of each report of a State Party, a collective statement in the form of “concluding observations”, it developed a practice of including in its concluding observations some reference to Article 14. When a State Party has made the declaration under Article 14(1), the Committee may express its satisfaction; when a State Party indicates its willingness to consider making the declaration, the State Party would be encouraged to take the necessary steps; when a State Party leaves it open whether it would accept the right to petition under Article 14, the Committee occasionally recommends or suggests that the State Party consider making the declaration. Since some members of the Committee made efforts that such recommendations or suggestions be included more consistently in the concluding observations with regard to each State Party that had not made the declaration under Article 14(1), this issue led time and again to controversies between these members and a few other members who opposed such inclusion with the argument that the provision of Article 14 was deliberately made optional and that States need not be reminded of this provision. Given the fact that the concluding observations reflect the collective opinion of the Committee and that they are adopted by consensus, a standard formula was finally worked out in order to accommodate the conflicting views. This standard formula, reflecting conspicuously the discord that existed among members, was included in the concluding observations relating to many States Parties in the following terms: Africa: Algeria, Senegal, South Africa; Asia: Cyprus, Republic of Korea; Latin America: Brazil, Chile, Costa Rica, Ecuador, Mexico, Peru, Uruguay, Venezuela; Western Europe and Others: Australia, Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland; Eastern Europe: Azerbaijan, Bulgaria, Czech Republic, Georgia, Hungary, Macedonia, Poland, Romania, Russian Federation, Serbia and Montenegro, Slovakia, Slovenia, Ukraine. 12 1,453 overall cases registered with the Human Rights Committee (316 cases pending) and 288 overall cases registered with the Committee Against Torture (41 cases pending) (see UN Doc. HRI/MC/2006/CRP.1, Annex IV). 11
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It is noted that the State Party has not made the declaration provided for in Article 14 of the Convention and some [emphasis added] members of the Committee requested that the possibility of such declaration be considered.
It was genuinely regrettable that the CERD as a custodian of the Convention did not take a common and solid stand on this issue. However, since the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, 31 August to 8 September 2001) used the phrase that States Parties “consider making the declaration under article 14”,13 the Committee followed suit and now uses consistently and routinely this wording. Article 14 in operation The 35 cases that have been concluded with an opinion on the merits or with a decision on the admissibility issue, which are published in annual reports of the Committee in accordance with Article 14(8), reveal some interesting aspects. States parties under scrutiny As stated above, 170 States are parties to the ICERD, and 46 of them have made the declaration under Article 14(1). It is striking that the 35 cases so far examined relate only to eight States having accepted the competence of the CERD to receive and consider communications: six belonging to Western Europe and Others and two belonging to Eastern Europe. Among these eight States, Denmark is by far the leading country from which communications originate: no less than 14. This can largely be attributed to the activities of the Documentation and Advisory Centre on Racial Discrimination in Copenhagen, which over a period of some ten years has tested and utilised the potentials of the procedure. Another organisation acting on behalf of victims of racial discrimination that has found its way to the procedure under Article 14 is the European Roma Rights Centre in Budapest. This resulted in opinions and decisions pertaining to Slovakia and to Serbia and Montenegro. However, the general picture is a serious underutilisation of the communications procedure under Article 14. Lack of knowledge of the procedure among non-governmental organisations and practicing lawyers is certainly one explanation of this unfortunate underutilisation. Ethnic or national origin of authors of communications By far most of the authors of communications, whether or not citizens of the State against which they directed their complaints, are persons of foreign ethnic or national origin, persons of African or Asian descent residing in Western countries. They reflect the situation of first and second generations of migrants who settled in Western countries and who often face prejudices and practices of racial discrimination. But over the years some communications, albeit limited in number, came from persons who individually or col13
Report of the World Conference, A/CONF.189/12, Programme of Action, para. 75.
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lectively and for many generations have been victims of deeply rooted and persistent discrimination in their own countries. They are Roma in many European countries and Aboriginals in Australia. Individual complaints lodged and communicated by persons of foreign ethnic or national origin or by those who for many generations have been marginalised and isolated in their own countries are symptomatic of broader patterns of discrimination which are taken up by the CERD in its examination of periodic reports under Article 9 of the Convention and in General Recommendations drawn up by the Committee.14 The Article 14-procedure must always be seen in conjunction with the other procedures and activities of the CERD. Economic and social discrimination and hate speech In the majority of the cases, the complaints allege in substance violations of equality and non-discrimination in the area of economic and social rights (Article 5(e)), in particular the right to work and access to employment, the right to housing and the right to access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks (Article 5(f)). These cases tend to confirm the pattern that daily life practices of racial discrimination mostly affect the enjoyment of economic and social rights and the right of access to places or services for use by the general public. Equally these cases tend to show that States often fail to prohibit or bring to an end acts and practices of racial discrimination carried out by any person, group or organisation, which is contrary to Article 2(1)(d) of the Convention. Further, the CERD often establishes a link with the right to effective protection and remedies provided for in Article 6, and considers the failure of authorities to carry out a prompt and effective investigation into claims of breaches of the Convention as a violation of Article 6. Reflecting present-day political and social climates and tensions, the Committee has in recent years been faced with complaints concerning racially offensive language of a xenophobic and anti-Semitic nature, raising intrinsic issues under Article 4 of the Convention, including the scope of the “due regard” clause in relation to freedom of expression. The CERD viewed this type of language as not protected by the “due regard” clause and saw such language as a violation of the Convention.15 Follow-up According to Article 14(7)(b) of the Convention, the Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioners. In its jurisprudence, the Committee has developed the practice that whenever it deems that the petitioner’s rights are violated under the terms of the Convention measures are to be taken by the State Party to provide the petitioner adequate relief by means of restitution, compensation or satisfaction. Furthermore, in many instances, the 14 See for instance General Recommendation XXVII (2000) on discrimination against Roma and General Recommendation XXX (2004) on discrimination against non-citizens. 15 Communication No. 30/2003 (The Jewish Community of Oslo et al. v. Norway) and Communication No. 34/2004 (Mohammed Hassan Gelle v. Denmark).
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Committee recommends that the State Party adopt broader measures of a structural nature in accordance with the provisions of the Convention, e.g. in the field of legislation or in the area of law enforcement, so as to offer not only redress to the individual petitioner but also to other persons who may be affected by similar practices of racial discrimination. It is interesting to note that even in a number of cases where the CERD did not conclude that there was a violation of the Convention, the Committee still felt there were enough reasons to recommend or suggest to the State Party some remedial measures so that the State more adequately deals with an issue that the Committee considered problematic.16 It is of great importance for the effectiveness of the communications procedure, as well as for all human rights procedures involving the accountability of States, that views and opinions as well as suggestions and recommendations of supervisory organs be subject to follow-up control. Thus, Rule 95(5) of the Rules of Procedure of the CERD provides, in connection with consideration of communications on their merits, that the State Party concerned shall be invited to inform the Committee in due course of the actions taken in light of the Committee’s suggestions and recommendations. It is up to the CERD to see to it that States Parties comply with these requirements of follow-up action. In earlier years, when the number of communications was very low, some States Parties concerned were invited to inform the Committee about any follow-up action in the context of the reporting procedure under Article 9(1) of the Convention.17 In later years the CERD, following the experience of other treaty bodies, notably the Human Rights Committee, started to develop a closer and more coherent system to monitor the follow-up of suggestions and recommendations pursuant to Article 14(7)(b) of the Convention. This resulted, in August 2005, in the adoption of two new paragraphs to Rule 95 of the Rules of Procedure, providing for the designation of one or several special rapporteurs by the Committee for follow-up purposes, in particular with a view to ascertaining the measures taken by States Parties in light of the Committee’s suggestions and recommendations.18 Final remarks The overall picture regarding Article 14 is not satisfactory. While there are indications of progress, the overall statistics as regards acceptances of the petition procedure by States Parties and the number of communications submitted under this procedure speak for themselves. The question arises why Article 14 has so far failed to gain impact and vitality, particularly taking into account that petition procedures under other human rights treaties, notwithstanding their optional character, are progressively growing in reach and 16 See for instance Communication No. 11/1998 (Lacko v. Slovak Republic); Communication No. 17/1999 (B. J. v. Denmark); and Communication No. 27/2002 (Kamal Quereshi v. Denmark). 17 Communication No. 4/1991 (L. K. v. Netherlands) and Communication No. 10/1997 (Habassi v. Denmark). 18 See the CERD, Annual Report 2005: Follow-Up on Opinions Adopted by the Committee Under Article 14, paragraph 7 of the Convention, Doc. A/60/18, Annex IV, Section II.
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relevance. There are no easy answers to this question. One explanation might be that many States have always considered the ICERD as more of a (foreign) policy instrument than a (domestic) rights document. This was the predominant perception about the Convention in the early years. The same perception influenced the role and the composition of the CERD, which, more than any other treaty body, had strong roots in international diplomacy. Although the circumstances just referred to may offer some clue as to why only a limited number of States Parties – and very few from Africa and Asia – have made the declaration under Article 14(1), they appear to be less relevant as an explanation why so few persons have resorted to the petition procedure vis-à-vis the States Parties that have made the declaration. Here it would seem that the sheer lack of knowledge and information about the existence of Article 14 as a possible recourse is a major impediment. While there is an increasing awareness among human rights lawyers and other interested people about the availability and the accessibility of petition procedures under other worldwide and regional human rights treaties, Article 14 of the ICERD is generally overlooked as a possible avenue for redress. It is a positive sign, however, that some important non-governmental institutions, possessing a good deal of expertise on the ICERD, have taken an active interest in Article 14 and have started to encourage and to assist the utilisation of this communications procedure. The need for publicity and information regarding the potentials of Article 14 must be emphasised consistently. With this purpose in mind, States Parties, the CERD itself, human rights organisations and institutes, the legal profession and many constituencies combating racial discrimination must engage themselves in vigorous and persistent action.
8
CEDAW and the Optional Protocol: First Experiences Cees Flinterman* and Ginney Liu**
Introduction The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (OP-CEDAW) is a separate treaty that can be ratified or acceded to by States that are already Parties to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). As of March 2007 there are 185 States Parties to the CEDAW and 85 States Parties to the OP-CEDAW, Botswana being the most recent one with its accession on 21 February 2007. The Protocol entered into force on 22 December 2000. It contains two new procedures: an individual communication procedure, through which the CEDAW Committee can review complaints to decide if rights guaranteed by the CEDAW have been violated and identify remedies for victims (Articles 2–7), and an inquiry procedure through which the CEDAW Committee can launch an inquiry into grave or systematic violations of women’s human rights on its own initiative (Articles 8 and 9). In this short chapter we will first briefly discuss the background of the Optional Protocol; we will then focus on some of the main elements of the two procedures and the quasi-jurisprudence developed by the CEDAW Committee under these procedures; and finally we will indicate some of the challenges the CEDAW Committee is facing when it deals with the procedures under the Convention.
*
Professor of human rights; director of Netherlands Institute of Human Rights (SIM), Utrecht University, The Netherlands. ** Student-assistant, Netherlands Institute of Human Rights (SIM), Utrecht University. 1 <www.un.org/womenwatch/daw/cedaw/protocol/sigop.htm>, last consulted on 16 March 2007. Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 91-97.
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Background The serious gap between the promise of the Convention and the reality of women’s lives has triggered the creation of the OP-CEDAW in order to help to fill this gap. It is interesting to note that during the drafting of the CEDAW in the 70s of the last century a complaints procedure was suggested, but was not taken up. Arguments were made by some delegates that complaints procedures were needed for “serious international crimes” such as apartheid and racial discrimination rather than discrimination against women. At the World Conference on Human Rights in Vienna in 1993, however, the need for new procedures to strengthen implementation of women’s human rights was acknowledged and a call was made for the examination of the possibility of introducing an Optional Protocol to the CEDAW. The Commission on the Status of Women (CSW) established a working group which, with contributions of States, non-governmental organisations and members of the CEDAW Committee, worked from 1996–1999 on the text to the OP-CEDAW, which was adopted by the UN General Assembly and opened for signature by individual States on 10 December 1999. The OP-CEDAW is the first specialised human rights supervisory mechanism on gender at the international level. The treaty does not create any new substantive rights. The importance of the OP-CEDAW lies in its capacity to be used as a means to safeguard and enhance the realisation of women’s rights. It can be used as a tool to strengthen the implementation of the CEDAW itself. Through the development of jurisprudence it may strengthen the understanding of women’s human rights standards and States’ obligations under the CEDAW. States Parties are encouraged to fully implement the provisions in the Convention and to identify and repeal existing national discriminatory laws and practices. Furthermore the treaty aims at contributing to greater public awareness of human rights standards with regard to discrimination against women. From a legal point of view the CEDAW and OP-CEDAW have limited means to ensure enforcement. Implementation of decisions and views of the CEDAW Committee is dependent on the willingness of the State to realise women’s human rights. It is expected, however, that States which have ratified the OP-CEDAW will improve their performance in order to meet the obligations set forth in the CEDAW. Procedures General The individual communication procedure under the Optional Protocol is modeled after similar existing individual communication procedures, notably the procedures provided for in the Optional Protocol to the International Covenant on Civil and Political
Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/24, Part I, Chapter III, Sect I, para. 40.
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Rights.3 The OP-CEDAW contains, however, a number of elements which can be regarded as progressive development of international (human rights) law; these elements are based on the experiences of the Human Rights Committee and other treaty bodies. The OP-CEDAW provides, for example, in Article 5 that the CEDAW Committee may impose “such interim measures as may be necessary to avoid irreparable damage to the victim or victims of the alleged violation”. So far the Committee has used this power twice in appropriate cases. It is clear that the imposition of interim measures does not imply a determination on the admissibility of the communication. The inclusion of the power of the CEDAW Committee to impose interim measures makes it more difficult for States Parties not to comply with such measures. Another innovative provision in the OP-CEDAW relates to the follow-up by the Committee after it has decided a communication on its merits by the adoption of views. These views are not binding, but a State Party is nevertheless required to give due consideration to these views and to submit to the Committee, within six months, information on any action it has taken in light of the views and recommendations of the Committee. Thereafter, the CEDAW Committee may request the State Party concerned to submit further information on its compliance with the views and recommendations in the context of its periodic reports. It is also interesting to note that the OP-CEDAW explicitly provides that individuals making use of the procedures under the Protocol may not be intimidated or subjected to ill-treatment. Moreover, States Parties oblige themselves to give wide publicity to the work of the Committee under the OP-CEDAW. Both latter provisions relate to both the individual communication procedure and to the inquiry procedure. Mention should also be made of the prohibition of reservations included in the OPCEDAW. This provision makes it impossible for States Parties to restrict the scope of the communications procedure to only some of the substantive provisions of the CEDAW, a “pick-and-choose” policy. It was feared at the time of the negotiations on the OPCEDAW that States Parties would be tempted to restrict the scope of the OP-CEDAW, especially since the CEDAW contains a number of economic, social and cultural rights which many States consider to be non-justiciable. The prohibition of reservations makes it clear that a State that ratifies or accedes to the OP-CEDAW accepts thereby that a woman or a group of women may submit a communication on the violation of any of the rights enshrined in the CEDAW. The wide scope of the individual communication procedure is certainly of great significance. The acceptance of the non-reservations clause at the final stages of the
See also the individual communication procedure provided for in Article 20 CAT and in Article 14 CERD. Article 5(2) OP-CEDAW. Article 7(4) OP-CEDAW. Article 7(5) OP-CEDAW. Article 11 OP-CEDAW. Article 13 OP-CEDAW. Article 17 OP-CEDAW.
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negotiations was part of a package which further included that States Parties to the OP-CEDAW may at the time of ratification or accession declare that they do not accept the inquiry procedure, the so-called “opting out” clause.10 So far only a few States have availed themselves of this opportunity.11 It is needless to say that a declaration to opt-out may at any later time be withdrawn by the State Party concerned.12 Communication procedure The individual communication procedure under the OP-CEDAW can be divided into two stages: the admissibility stage and the merits stage. The CEDAW Committee has established a Working Group on Individual Communications to assist it in its activities under the OP-CEDAW. After registration of a correspondence by an individual woman or group of women the communication is submitted to the State Party for its explanations and statements on the admissibility and merits of the case.13 Up to 2007 the CEDAW Committee has registered 14 communications, out of which 8 are still pending. This may seem to be a low number since six years have passed since the OP-CEDAW entered into force. It should, however, be pointed out that communications may only be submitted after the exhaustion of all local remedies.14 It is well-known that the exhaustion of local remedies may take a long time; it is for that reason that the OP-CEDAW further provides that if the application of local remedies is unreasonably prolonged or unlikely to bring effective relief, the CEDAW Committee may declare the communication admissible.15 It should further be noted that communications may only be submitted concerning violations which have occurred after the entry into force of the OP-CEDAW for the respective State, the “ratione temporis rule”.16 Even though this rule is not of an absolute nature,17 it is clear that this requirement together with the exhaustion of local remedies rule restricts the inflow of communications at least in the early years after the entry into force of OP-CEDAW. Three cases have been so far declared non-admissible by the CEDAW Committee at the advice of its working Group on Individual Communications. The first case, concerning a German woman, is a complex case where the Committee concluded that some aspects of the communication (on the alleged discriminatory nature of German divorce law, in particular for older women) were still pending in German courts.18 The other 10 11 12 13 14 15 16 17 18
Article 10(1) CEDAW. These States are: Bangladesh, Belize and Colombia. Article 10(2) CEDAW. See Rules 56–75 CEDAW Rules of Procedure, which are devoted to the examination of individual communications by the CEDAW Committee. Article 4(1) OP-CEDAW. Ibid. Article 4(2)(e) OP-CEDAW. See also e.g. Ms. Dung Thi Thuy Nguyen v. The Netherlands, Communication No. 3/2004. B.J. v. Germany, Communication No. 1/2003.
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case concerned a Turkish woman who complained about her dismissal as a schoolteacher after her refusal not to wear a scarf; in this case the issue of gender discrimination had never been brought up in the context of the domestic Turkish courts.19 The CEDAW Committee requires that the substance of a communication before the Committee should also have been submitted to the domestic courts in order to fulfil the requirement of exhaustion of local remedies in a proper way; this is also in conformity with the case law of other treaty bodies. The third case concerned a British woman married to a Colombian citizen who complained about a violation of her right to transfer her British nationality to her child born in Colombia in 1954, long before the entry into force of both the CEDAW Convention and the OP-CEDAW for the UK; the woman in question argued that the facts of the alleged discrimination had still subsisted in 2007. This case was declared inadmissible on grounds of non-exhaustion of local remedies and the ratione temporis rule.20 Apart from the three above-mentioned, inadmissible communications, the CEDAW Committee has addressed the merits of the communications on three other occasions. One of the main difficulties the Committee is facing in this respect is that the CEDAW is not so much formulated in terms of rights of women but rather in terms of obligations of States Parties. The Convention, moreover, does not explicitly cover important issues, such as the problem of elimination of violence against women. It was only through General Recommendation No. 19 (1992) that the CEDAW Committee had brought the issue of violence against women within the scope of the Convention by stating that the definition of discrimination as contained in Article 1 includes gender-based violence.21 It was inter alia on this basis that the CEDAW Committee found that Hungary had violated Ms. A.T.’s rights by not providing her with appropriate remedies (including a safe shelter) against her violent husband.22 In a later case Hungary was once again found in violation of the rights of a (Roma) woman who had been sterilised without her consent. The CEDAW Committee found inter alia that Article 12 of the Convention on the right to health implicitly prohibits non-consensual sterilisation.23 In the third case which was decided by the CEDAW Committee on the merits, the Committee found that the Netherlands had not violated Article 11(2)(b) of the Convention by not guaranteeing self-employed women full pay during their maternity leave. The Committee held that States Parties had a certain margin of discretion in this respect.24 The case law of the Committee under the individual communication procedure is still limited, but it shows that the Committee is taking its new mandate seriously and is making an effort to build on and expand the case law of other treaty bodies with a mandate to examine individual communications. 19 Rahime Kayhan v. Turkey, Communication No. 8/2005. 20 Salgado v. UK, Communication No. 200. 21 General Recommendation No. 19: Violence Against Women, UN Doc. HR1/GEN/1/Rev7, p. 246. 22 A.T. v. Hungary, Communication No. 2/2004. 23 Ms. A.S. v. Hungary, Communication No. 4/2004; see also General Recommendation No. 24, Women and Health, UN Doc. HRI/GEN/1/Rev.7. 24 Dung Thi Thuy Nguyen v. The Netherlands, Communication No. 3/2004.
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Inquiry procedure The inquiry procedure is dealt with in Articles 8 and 9 of the OP-CEDAW25 and has been inspired by a similar procedure under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.26 Under this procedure the Committee may initiate and conduct an investigation when it receives reliable information indicating grave or systematic violations of the rights set forth in the Convention. A “grave” violation refers to severe abuse (e.g. discrimination against women linked to the violations of their right to life, physical and mental integrity and security). A “systematic” violation refers to the scale or prevalence of a violation, or to the existence of a scheme or policy directing a violation. A violation does not need to result from the direct intention of a State Party to be systematic in character. An inquiry may be conducted without the consent of a State Party. However, at all stages of the inquiry procedure the cooperation of the State Party shall be sought. For an on-site visit to the State party its consent is, of course, required. It should be noted that the inquiry is conducted confidentially On the basis of the outcomes of the investigation the Committee may set out a broad range of recommendations to achieve gender equality. Article 12 of the OP-CEDAW provides that the CEDAW Committee is to include a summary of its activities under the inquiry procedure in its annual report to the UN General Assembly; in such cases the Committee may consult with the State Party concerned.27 The inquiry procedure provides yet for another opportunity for non-governmental organisations to address the CEDAW Committee on alleged systematic or grave violations of women’s human rights. It is not a complaint procedure; the Committee has full discretion to initiate the procedure after it has determined whether the information received is reliable and indicates grave or systematic violations. So far, the Committee has used its mandate only once on the basis of information submitted by two non-governmental organisations which related to numerous cases of abduction, rape and murder of women in Juarez (Mexico); in none of these cases had any serious police investigation let alone prosecution or criminal punishment taken place. In this particular case the Committee designated two of its members to conduct the inquiry. The Mexican authorities gave their full cooperation to the investigation, which included an on-site visit. The investigation resulted in a lengthy report, which contained a number of specific and general recommendations to the Mexican government. The recommendations have also been included, after consultations with the Mexican government, in the 2004 annual report of the Committee to the General Assembly.28 In the framework of the examination of the periodic reports of Mexico the Committee may also in the future hold the government of Mexico accountable for its compliance with the recommendations resulting from the inquiry. 25 26 27 28
See also rules 76–91, CEDAW Rules of Procedure. Article 20 CAT. Rule 80(2) CEDAW Rules of Procedure CEDAW report, UN Doc. A/59/38, pp. 161–164.
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Challenges The OP-CEDAW has widened the mandate of the CEDAW Committee in a considerable manner. The first experiences under the OP-CEDAW, both in the context of the individual communication and inquiry procedures, have shown that these procedures are demanding in nature and time-consuming. It is, therefore, highly important that a Working Group on Individual Communications has been created and has been given separate meeting time (two weeks per year). It is also relevant that the CEDAW Committee has been granted an extra (third) session per year as from 2006, thus enabling it to face its tasks of examination of State reports, individual communications and the conduction of inquiries in a more effective manner. The coming years will show whether there will be a growing number of communications under the OP-CEDAW. So far the procedure is little known; so there is a need to widely circulate information on the OP-CEDAW and the CEDAW among women, women’s organisations and, in particular, the legal profession. It should be realised that individual women or groups of women in many countries have a wide choice of international procedures, both at the regional and United Nations level; the choice for one such procedure almost necessarily excludes all others.29 The quality of the case law of the CEDAW Committee will be an important criterion for potential claimants to find their way to the CEDAW Committee. There is no doubt that an expanding case law helps to clarify and concretise the obligations that States Parties have accepted when ratifying or acceding to the CEDAW. It is therefore hoped that the OP-CEDAW will be accepted worldwide in the years to come.
29 See Article 4(2)(a) OP-CEDAW which provides that the Committee shall declare a communication inadmissible where the same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement.
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CAT and Articles 20 and 22 Bent Sørensen*
The Convention The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1) (hereinafter: the Convention) was adopted in consensus by the General Assembly of the United Nations on 10 December 1984, and entered into force 26 June 1987, when 20 State Parties had ratified the Convention (Article 27). Article 1 provides a definition of torture, a definition which, in spite of (or because of ?) its limitations, is widely accepted. It has over the years proved to be a useful tool in the struggle against torture. Article 2 prohibits torture, and furthermore emphasises strongly that there is no excuse for torture whatsoever. Articles 4–16 and Article 19 describe the duties of the State Parties. The State Parties must implement the provisions of the Convention in their legislation and, in practice, act according to the spirit and provisions of the Convention. The main demands are: – to prohibit torture – not to “refouler” – to punish torturers – to educate – to rehabilitate the tortured – to control the system of interrogation and detention – to report to the Committee. As of January 2006, 141 States have ratified the Convention.
*
Professor, MD, DMSc. Former member of the UN Committee Against Torture. Senior Medical Adviser to the IRCT. E-mail:
[email protected]
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 99-107.
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The Committee To monitor compliance with the Convention’s provisions, a Committee Against Torture (hereinafter: the Committee) was established. The Committee consists of “10 experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity …” (Article 17(1)). The Committee “shall establish its own rules of procedure …” (Article 18(2)). The Rules of Procedure can be found in the annual Report of the Committee Against Torture to the UN General Assembly. Since its inception, the Committee convened twice a year in two-week sessions, in later years, however, the sessions have been extended to three weeks. The author was a member of the Committee from its start in 1988 until 2000. The Committee handles cases relevant to Article 20 and Article 22 of the Convention. Article 20(1) reads as follows: If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practiced in the territory of a State Party, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned. (author’s emphasis)
Article 20 is a potentially forceful article – which no doubt explains the existence of Article 28 of the Convention, which, quite unusually for a human rights convention, specifically raises the possibility that States may make a reservation in respect of Article 20 “at the time of ratification”. While reservations to Article 20 (or to any other provision of the Convention) may be subsequently withdrawn, the phrase “at the time of ratification” appears to exclude the possibility of State Parties making a reservation to Article 20 post-ratification. Thus, it is possible to change a “no” to Article 20 to a “yes”, but it is impossible to change a “yes” to a “no”. By January 2006, Article 20 was in force with respect to all States except the following: Afghanistan, China, Equatorial Guinea, Israel, Kuwait, Mauritania, Morocco, Saudi Arabia and Syria. Article 20(5) says that “all the proceedings of the Committee referred to in paras. 1 to 4 of this article shall be confidential, and at all stages of the proceedings the cooperation of the State Party shall be sought”. However, when all investigations have finished, the Committee can decide, “after consultation with the State Party concerned, to include a summary account of the results of the proceedings in its annual report made in accordance with article 24 of the Convention”. The Committee’s Rule of Procedure no. 73 is in accordance herewith, but paragraph 2 reads “meetings during which the Committee considers general issues, such as procedures for the application of article 20 of the Convention, shall be public, unless the Committee decides otherwise”. It is obvious that the Committee has discussed the contents and definition of “reliable information”, “well-founded indications” and “system-
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atically practiced” thoroughly, also because the Convention’s text is quite clear: If the three questions are answered in the affirmative, the Committee shall invite the State party to cooperate in the investigation. Naturally, only incidents that have taken place after the Convention came into force in the country concerned are of interest. Furthermore, the torture described must comply with the definition of torture as stated in the Convention’s Article 1: – “severe pain or suffering, whether physical or mental” – “inflicted intentionally” – “for such purposes as …” – “by a public official” It should be noted that Article 20 only concerns torture. It does not concern “other cruel, inhuman or degrading treatment or punishment”, or any other form of organised violence, which is not defined as torture (e.g. forced disappearances and extrajudicial executions), nor does it concern capital punishment. The number of actions that have been taken under Article 20 is also very limited; just six reports have been published: – Turkey (1993) – Egypt (1995) – Peru (2001) – Sri Lanka (2002) – Mexico (2003) – Serbia and Montenegro (2004) As a result of the investigations the Committee has concluded that systematic torture was performed in Turkey, Egypt, Peru and Mexico, but not in Sri Lanka and Serbia and Montenegro. Making a reservation to Article 20 prevents the Committee Against Torture from exercising one of its potentially most effective powers in relation to the concerned State Party. Nevertheless, it should be noted that less than five per cent of States Parties (7 out of 142) have chosen to do so. Article 22(1) reads: A State Party to this Convention may at any time declare under this article that it recognises the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation of a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State party which has not made such a declaration.
Article 22(8) reads: … A declaration may be withdrawn at any time by notification to the Secretary General …
Thus a “no” to Article 22 can at any time be changed to a “yes”, and a “yes” can be changed to a “no” – in contrast to the regulations of Article 20. A “no” to Article 20
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requires an active negative action from the State Party concerned. A “yes” to Article 22 requires an active positive action from the State Party. By January 2006, 56 countries (out of 142) have declared themselves in favour of Article 22. Until now no State Party has withdrawn its endorsement of Article 22. The geographic distribution of State Party ratifications is rather interesting: Table 1 Western States, incl. the former Eastern European States No. of State Parties 36
Africa
Latin America & the Caribbean
Asia
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Conditions for receiving complaints The conditions are described in Article 22(2) and (5): Paragraph 2: – The complaints may not be anonymous. Others can complain on behalf of an individual, but then it must be quite clear that the complainant has an authorisation to submit the complaint. – The complaint may not be “an abuse of the right to submission of such communications”. – The complaints may not be “incompatible with the provisions of the Convention”. Paragraph 5 reads: The Committee shall not consider any communications from an individual under this article unless it has ascertained that: (a) The same matter has not been, and is not being, examined under another procedure of international investigation or settlement; (b) The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.
These conditions can be found in Fact Sheet No. 7, “Communications Procedures”. Furthermore, Annex 5 in Fact Sheet No. 17, “Committee Against Torture”, contains a
By January 2006 56 State Parties have declared themselves in favour of Article 22: Algeria, Argentina, Australia, Austria, Azerbaijan, Belgium, Bosnia Herzegovina, Burundi, Cameroon, Canada, Costa Rica, Cyprus, Chec Republic, Denmark, Ecuador, Finland, France, Georgia, Germany, Greece, Ghana, Guatemala, Hungary, Iceland, Ireland, Italy, Libya, Luxembourg, Malta, Mexico, Monaco, Netherlands, New Zealand, Norway, Paraguay, Peru, Poland, Portugal, Russia, Senegal, Serbia and Montenegro, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey, Ukraine, Uruguay, Venezuela.
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model communication, as does the website of the Office of the High Commissioner for Human Rights (UNHCHR) (<www.ohchr.org>). The Committee’s handling of complaints All negotiations are done in camera. Only final conclusions are published in the Committee’s annual report. When the Secretariat of the Committee receives a complaint it immediately informs the member of the Committee who is appointed as thematic rapporteur to Article 22 communications. They first decide whether to reject the complaint immediately for formal reasons, or if there is such an evident lack of substance in the complaint that handling it would be meaningless. If conditions have been met, the Committee will start examination of the complaint as such. It should be noted that most communications refer to all alleged violations of Article 3 of the Convention, dealing with extradition of a person to a country where he will be in danger of being subjected to torture. Quite often complaints related to Article 3 are forwarded to the CAT Secretariat at a very late stage: the complainant is to be expelled from the country a few days later. However, the thematic rapporteur is able to address such cases and can act vis-à-vis the State Party involved within a few hours notice. If he finds that there is substance to the complaints, he suggests to the State Party concerned that the complainant should not be expelled before the Committee (which, as mentioned above, only meets twice a year) has had the possibility to investigate and decide on the case. Until now the State Parties have always respected such request. The procedure is that the complainant’s presentation together with any questions raised by the Committee is forwarded to the government in question for comments. The questions for the government to answer are: Does it consider find that the case admissible? What is the government’s view, and what is its conclusion? When the reply from the State is at hand, the Committee examines the case. If the Committee finds the complaint inadmissible, the author of the complaint and the State are informed accordingly. If the Committee finds the complaint admissible, it is sent once more to the State and to the complainant together with the Committee’s conclusions and with a request to comment on the substance (merits) of the complaint. When these replies are received, the Committee handles the case still once more. Based on the observations by the State and the complainant, including comments by both parts to each other, the Committee decides on whether the State according to the Committee’s view has violated the Convention, and if yes, according to which paragraphs and in what way. The result is published in the annual report with a thorough account of the handling and conclusions. The name of the State Party is always published, whereas the name of the complainant is kept anonymous, unless he or she expressly wants otherwise.
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Status of communication As mentioned, all negotiations regarding Article 22 are to be held in camera. Only the conclusions are published in the annual reports, which thereby are to be considered as the only official literature. The first report covered 1988, while the latest covered the 33rd session and the 34th session made in 2005. The names of the 56 State Parties who have declared themselves in favour of Article 22 can be seen in footnote 1. However, complaints have been received from persons in only 24 State Parties, cf. table 2. Table 2 Status on 20 May 2005: – 269 registered complaints, derived from: – 24 countries – 69 discontinued – 47 declared inadmissible – 111 final decision on merits, of these: – 32 were found as violations of the Convention – 42 still pending Only in three cases, all from Serbia and Montenegro, did the Committee find that a complainant had been subjected to torture, as defined in Article 1 (case 161 published in 2003, case 171 published in 2005 and case 207 published in 2005). In six cases the Committee noted a violation of Article 12 (or 13). The State Parties’ duty in Article 12 is to “proceed to a prompt and impartial investigation, whenever there is reasonable ground to believe that an act of torture has been committed…”. The majority of work for the Committee concerns alleged violations of Article 3 of the Convention, cf. table 3. Table 3, Articles 3/22 by 20 May 2005 Country Sweden Switzerland Canada Nederlands France Australia Denmark Norway Hungary Greece Finland Germany Total
Violation 11 3 2 1 2 2 0 0 0 0 0 0 21
No violation 22 22 7 8 0 2 5 0 1 0 1 1 69
Inadmissible 8 4 11 4 4 1 1 2 0 1 0 0 36
Total 41 29 20 13 6 5 6 2 1 1 1 1 126
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Discussion During its Article 20 investigations, the Committee found systematic torture in Turkey, Egypt, Mexico and Peru. In Sri Lanka and in Serbia and Montenegro systematic torture belonged to the past, while sporadic torture still occurred. Of those countries, only Egypt and Sri Lanka have not declared themselves in favour of Article 22. It might have been expected that the Committee would receive a substantial number of complaints under Article 22 about torture from Turkey, Peru, Serbia and Montenegro and from Mexico. However only three cases have been received, all concerning Serbia and Montenegro. A possible explanation, which has been substantiated by oral discussion between the author and persons from the aforementioned countries, is that tortured persons normally prefer to go to a regional court (Strasbourg or Costa Rica). If the court sentence is in favour of the complainants, the court normally demands compensation by the State to the tortured person, in contrast to a decision from CAT, which “only” tells the State Party involved that it has violated Article 2, but does not have the formal competence to specify the amount. By decision of the Inter-American Court in Costa Rica, a Peruvian family received USD 800,000. Sometimes the parties of a case have come to a settlement before the case reaches the final decision by the court, often with a considerable amount of money paid to the claimants. Kemal Koch, a Danish citizen, tortured in Turkey, received DKK 450,000, approx. USD 80,000, by settlement reached before the decision in the European Court in Strasbourg. Article 3 reads: 1.
2.
No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he will be in danger of being subjected to torture. the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
The Committee is not a judicial body in spite of its functions pursuant to Article 22. The Committee thus does not deal in detail with procedures and eventual errors of the legal proceedings. Furthermore, a judicial body normally deals with the past and the proofs, while the Article 3 procedures are about the future. However, in some cases the Committee makes judicial decisions of principle, creating precedent of jurisdiction. In the case of Mr. Paez v. Sweden (39/1996), Mr. Paez claimed that his expulsion from Sweden to Peru would constitute a breach of Article 3. During the handling of the case it became clear that both Mr. Paez, Sweden and the Committee considered Mr. Paez to be a terrorist, and that “[t]here was substantial grounds to believe that he would be in danger of being subjected to torture”, if he was sent back to Peru. The State Party told the Committee that Sweden – like many other countries – was not allowed to give asylum
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to terrorists. The Committee took note of this, but said that it was a problem for Sweden because Sweden was not allowed to send Mr. Paez back to Peru as “[t]he text of article 3 of the Convention is absolute”. Sweden accepted this decision. Case 120/1998 Shek Elmi v. Australia: Mr Elmi claimed that his expulsion from Australia to Somalia would be a breach of Article 3 of the Convention. The State Party claimed that Mr. Elmi would not be subjected to torture, as defined in Article 1 of the Convention. In order to be labelled as torture the act would have to be performed by “a public official …”. Since Somalia did not have a government, such public official did not exist; consequently, torture as defined in Article 1 could not take place. The Committee examined the conditions in Somalia very carefully, and concluded that in the part of Somalia to which Mr. Elmi was going to be extradited there exists a de facto government. Therefore, Mr. Elmi should not be expelled. Australia respected this decision. More generally, the State Parties wonder how the Committee – based on only official printed material – could come to a conclusion on the merits of a case different from that of the State Party. The State Party had the opportunity, often for two to three years, to interview the person seeking refugee status and normally before two or more court instances, while the Committee only had access to printed material. In private conversations between representatives from the State Party involved and members of the Committee the State Party asked: Why this discrepancy? What could be the explanation? The Committee member answered that some of the members of the Committee had a deep knowledge of torture, the effects of torture and thereby the behaviour of torture. The Case 41/1996 Kisoko v. Sweden could illustrate this: The Swedish authorities wanted to extradite Mrs. Kisoko and based its decision on lack of confidence in Mrs. Kisoko. There were severe inconsistencies in the complaint’s statements at different times. In the first interviews she said absolutely nothing about having been subjected to torture; a month later or so she claimed that she had been ill treated, and sometime later she stated she had been severely tortured, among others by gang-rape, during her eight-months long stay in a police station in Zaire. The Committee, however, has the knowledge that victims of torture have reduced concentration and reduced memory, and that he/she does not want to talk about torture – it is simply too horrifying. This could be a possible explanation for the so-called inconsistencies. Sweden accepted the view of the Committee. Finally, allow me a personal comment about the problem of the thresholds for what is “substantial”. When US ratified the Convention it defined “substantial” as being at least 50 per cent probability. However, the more one knows about torture and the horror of it, the lower one sets the threshold. The author has been deeply involved in many of the decisions about Article 3 of the Convention, during his work in the Committee from its start in 1988 to 2000. As a personnel comment, I will confess that the decisions as regards “sending back or not?” have been the most difficult to take in my whole life. The Committee has to be accepted by the State Parties for its impartiality, accountability, sense of justice and fairness. At the same time, it has a very big responsibility for the well-being and maybe the life of the complainant. I still have nightmares now and then – not due to the 21 cases where the Committee prevented an expulsion, but because
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of some of the 69 cases where the Committee found no violation of Article 3, resulting in an expulsion. Have any of these been tortured, when they came back? If only one has then that is one too many. Literature The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. “The Committee Against Torture”, Fact Sheet No. 17. Links to the Official Reports of the Committee Against Torture can be found at <www.unhchr. ch>. “Communications Procedures”, Fact Sheet No. 7, United Nations, Geneva, November 1989. Report of the Committee Against Torture, General Assembly, Official Records, United Nations, New York; 43rd Session, Supplement No. 46 (A/43/46), 1988; 44th Session, Supplement No. 46 (A/44/46), 1989; 51st Session, Supplement No. 44 (A/51/44), 1996; 48th Session, Supplement No. 44 (A/48/44), 1993; 55th Session, Supplement No. 44 (A/55/44), 2000; 56th Session, Supplement No. 44 (A/56/44), 2001; 57th Session, Supplement No. 44 (A/57/44), 2002; 58th Session, Supplement No. 44 (A/58/44), 2003; 59th Session, Supplement No. 44 (A/59/44), 2004; 51st Session, Supplement No. 46 (A/43/46), 1996; 60th Session, Supplement No. 44 (A/60/44), 2005; 52nd Session, Supplement No. 44 (A/52/44), 1997; 54th Session, Supplement No. 44 (A/54/44), 1999.
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Monitoring the CRC Lucy Smith*
The Convention on the Rights of the Child (CRC) was adopted unanimously by the United Nations (UN) General assembly in 1989, and is thus a young member of the family of the UN human rights conventions. CRC is unique in many ways, first of all because it is the only human rights convention that is solely about child rights. It entered into force with unprecedented rapidity, only seven months after it was adopted, and it is now ratified by all States in the world except the USA and Somalia. What is special about the Convention is also that it is the first international human rights treaty that covers the whole range of civil, political, economic, social and cultural rights, and it is the longest of United Nation human rights treaties in force. In 2000 the General Assembly adopted two optional protocols to the Convention, one about the involvement of children in armed conflict and one about sale of children, child prostitution and child pornography, both entered into force in 2002. It is difficult to be an opponent to the goal of making a better world for children. Most governments with a reasonable long-time perspective also understand that their children are the future of a country, and that investing in children is the most sensible investment a country can make. This was probably the main reason for the warm embracement of the Convention; to ratify the Convention has been “politically correct”. However, it might also be said that the possibility of making reservations according to Article 51 is the reason why some States found it possible to ratify. Many States have made reservations, and some of them have such a wide scope that they certainly are in conflict with international law and Article 51(2) as being incompatible with the object and purpose of the Convention. The CRC established an innovative approach to the rights of the child: For the first time the human rights of the child was expressly recognised in a Convention; it is about empowerment as well as protection. Some of the articles, especially the ones about civil rights and freedoms, were clearly controversial. It may look as if the drafters themselves *
Member of the UN Committee on the Rights of the Child, professor emeritus and former rector of the University of Oslo.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 109-116.
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were worried that they were being too radical in some of the articles; in the preamble the emphasis is on the traditional values, that the family is a fundamental group in society, that childhood is entitled to special care and assistance, that the traditions and cultural values of all people are of importance, etc. Nothing in the preamble points to the fact that the child is the subject of human rights, including civil and political rights and especially the right to be heard. However, this represents the real novelty of the Convention. The Committee of the Rights of the Child Monitoring of the implementation of the CRC outside the State Party of the CRC is primarily carried out by the CRC Committee through the State Parties’ reporting to and having dialogue with the Committee. There is no individual complaints procedure as with some of the other UN conventions. The Committee now has 18 members, all elected by the State Parties, which for this Committee is nearly the equivalent of the UN General Assembly. According to Article 43(2) the members shall be “experts of high moral standing and recognized competence in the field covered by this Convention”, and they “shall serve in their personal capacity”. Independence is not expressly mentioned, and being a civil servant has not been a hindrance for election. This has been criticised by among others Amnesty. However, the members of the Committee have agreed that they would refrain from participating in any aspect of the considerations of the reports submitted by their own State, except for correcting obvious mistakes as regards facts. The work of the Committee As with the other UN human rights conventions, little is said in the Convention about monitoring. The word “monitoring” is not mentioned at all. But it follows from Article 43 that a Committee shall be established “for the purpose of examining the progress made by the State Parties in achieving the realization of the obligation undertaken in the present Convention”. The wording here is quite similar to the one in Article 17 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). State Parties submit to the CRC Committee report on the measures they have adopted to give effect to the rights recognised in the CRC, and on the progress made on the enjoyment of these rights. Each State Party must submit its initial report within two years after the ratification, and then every fifth year. Article 44(a) is about co-operation with other UN organisations, and United Nations Children’s Fund (UNICEF) is the only organisation expressly mentioned. The co-operation with UNICEF is invaluable for the Committee in the monitoring of the State Parties, both as regards reports from UNICEF regarding the individual State Parties, and even more important, in connection with the implementation of the concluding observations from the Committee. Also the UNICEF Innocenti Research Centre is conducting valuable work regarding the CRC.
United Nations Proposals to strengthen the Human Rights Treaty Bodies, AI Index: IOR 40/018/2003.
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The Committee meets three times a year for a period of four weeks. The first three weeks are devoted to the considerations of the reports and dialogues with the State Parties. The last week of the session is the so-called pre-session which is preparation for the forthcoming session. The meetings with the State Parties are public, while most of the other meetings, including the pre-session meetings, discussions of working methods and of the concluding observation, are private. In addition to the State Parties’ reports, the CRC Committee receives reports from international non-governmental organisation (NGOs) and UN bodies, in particular UNICEF. The NGOs quite often co-operate to write one report for a country, a so-called “shadow report”. These reports, which give the Committee important additional information, are discussed in the pre-session. Each State Party is considered in one meeting, where the different organisations give oral statements, and thereafter the members of the Committee ask questions. The pre-sessions are indispensable for the Committee to get a fuller picture of the situation in the country, and to get some information that is too sensitive to put in writing. Usually United Nations Educational, Scientific and Cultural Organization (UNESCO) and United Nations High Commissioner for Refugees (UNHCR) are represented in these meetings in addition to UNICEF and the national NGOs. It is clearly a great advantage for the Committee that there are so many NGOs working with children’s rights. Some of the NGOs are strong, both financially and as regards human resources, like Save the Children. The pre-session meetings result in a list of additional questions sent to the State Party with a request to answer them in writing some time before the Committee is meeting with the delegation from the State Party concerned. The dialogue with the State Parties As a general rule the Committee will spend two meetings (one day) on the dialogue with each State Party, irrespective of the size of the country. In my opinion this should not be a rule without exception, and in 2005 the Committee devoted three meetings on the consideration of China (including Hong Kong and Macau). The consideration of many other large countries would certainly benefit from more time, but restrictions on time and resources make this impossible, at least unless less time is spent on the very small States. Some say that is unfair not to give each country the same amount of time; I say that it is unfair to all the children of the large countries to spend so little time per child. The dialogue with the State Parties varies a lot, depending among other things on problems in the country, on the size and competence of the delegation, on the information received and on the attitude of the delegation. Some delegations are open, eager to get advice, which creates a basis for a fruitful dialogue. In other cases the Committee does not really get any answers to the questions. After the dialogue the Committee writes its concluding observations on the basis of a draft from the Secretariat. The Secretariat starts working with the concluding remarks before the pre-session, when the Secretariat receives the State Party report and some of the alternative reports from the NGOs. It has become more and more usual that the drafting of the concluding remarks is done in close co-operation between the
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Committee member who is the country rapporteur and a person from the Secretariat. The concluding observations now always follow the same structure. This enhances the general quality of the observations, and also makes the editing easier. However, it sometimes results in less focused concluding observations. It might be more fruitful if the observations were more tailored to the individual conditions of the country, for example that the most serious problems were highlighted in a special paragraph at the beginning. It is also a question whether the concluding observations should be restricted to fewer issues where the Committee can give more detailed recommendations. Two chambers Because of the large number of State Parties and the many issues dealt with in the Convention, there has for many years been a large backlog of reports pending consideration. This is unfortunate, especially because of the time-lapse between the writing of the report and the dialogue with the State Party. The Committee therefore decided to seek funding for working in two chambers for a limited time, and a decision from the General Assembly made this possible. In 2006 the Committee considered reports in two parallel chambers of nine members each, “as an exceptional and temporary measure”. The Committee considered 49 reports in the three sessions in 2006, compared to 27 in 2005.As a result of this innovative working method the time-lapse between the submission of a report and its consideration by the Committee has been reduced from two years to one or less. The composition of the chambers as well as the reports to be considered were drawn by lots, but nevertheless the geographic, gender and professional background in each chamber was satisfactory. The concluding remarks were adopted in plenary sessions. The Committee is of the opinion that the quality of the work was maintained with the two-chamber system in spite of the considerable workload for both the Secretariat and the Committee members. The greatest problem was the document services, and in some cases the Committee members received the papers in the last moment and in a limited number of languages. The experiences from 2006 show, however, that working in two chambers is an acceptable option if the influx of reports makes this necessary for the State Party reports to be reviewed within a 12 month period after their submission. The impact of the Convention The Convention has obviously had a great impact in some ways. First and foremost, children’s rights are on the agenda to a much larger extent than they were before. Child rights have been mainstreamed, especially in the United Nations system and its programmes and priorities. It is also evident that the CRC is an important tool for UNICEF and the NGOs in their work with the national governments. The Convention has also in some countries inspired the national NGOs to co-operate on children’s issues, establishing networks or forums, and writing a common shadow report to the Committee. In accordance with Article 45 the CRC Committee works closely with UNICEF, which is expressly mentioned in Article 45. It follows from the Mission Statement of UNICEF that the CRC is the organisation’s guiding frame of reference and that it “strives to es-
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tablish children’s rights as enduring ethical principles and international standards of behaviour towards children”. UNICEF is present in most countries in the world, and it is obvious that the work of UNICEF is, and has been, instrumental to a broader awareness of the CRC, and also in the implementation of the Convention in many countries. The CRC has also been important as an inspiration for acquiring deeper knowledge about childhood issues, and in this connection the participation of children and young people in local planning and local decision-making may be especially fruitful. Much has happened in this area as a direct result of the ratification of the CRC. In several countries some or most municipalities now have children and youth councils or similar bodies for exerting influence. The voices of children are becoming stronger in many ways, primarily as a result of the CRC, and also the UN Special Session on Children in 2002. There is a growing awareness of children as agents of change. Quite often now the Committee also meets with child delegations during the pre-session. The children will then take part both in the meeting with the NGOs and UN organisations, and in separate and informal meetings with the Committee. The direct impact of the Convention on the situation of the individual child is less apparent. Most States have changed their legislation regarding children to be more in accordance with the Convention, and many States have now established independent children’s rights institutions. Legislation is a necessary first step. However, from legislation on paper to the realisation of rights for the individual child is yet a long way to go in most countries. The ultimate effect of international human rights, including the CRC, will depend on the national legal mechanism for enforcing such rights. There are many factors impeding the implementation of the Convention, even in countries where the CRC has been incorporated. First of all, there is a lack of resources, both human and economic, but it is also sometimes a lack of political will, and often a lack of a true comprehension of children’s rights. The key to understanding the CRC – and to live by it – is to know, accept and internalise that a child is an independent human being with subjective rights, and that a child has the same right to dignity as adults have. In many countries this understanding is still lacking. Even if there is a political will in the State Party and also some economic resources, lack of leadership regarding the implementation is often a problem. In most countries a lack of co-operation between the different bodies working for the implementation of the Convention is a general problem, at all levels and between all levels, local and central. There is often an obvious need for a coordinating, overarching body for strengthening and making more effective the efforts of implementation of the CRC. It is almost always difficult for the Committee to assess what is a reasonable budget allocation for children issues, first of all because very often the Committee does not get disaggregated data, secondly because it is a difficult concept in itself. The Committee urges the State Parties to make the children visible in the budgets because this is the only way to monitor the will to fulfil their obligations to use “to the maximum extent of their available resources” (Article 4).
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Problems and challenges regarding the monitoring The fact that the Committee does not have any sanctions is often mentioned as the greatest problem of the monitoring mechanisms. On the other hand, much time and resources are spent on punitive actions, courts procedures, etc. that might be better used in awareness raising, advising and recommending actions. One problem is the lack of resources in the Secretariat, which has dedicated people with a deep knowledge of human rights, but it is understaffed and underfunded. The Committee sometimes meets a problem during a session – most often of legal nature – which requires further research, or at least an overview of literature and/or practice. There is seldom capacity in the Secretariat to do this type of work. Due to lack of time, the drafts that are produced sometimes do not have the quality that could be wished for. More resources to the Secretariat would certainly also enhance the quality of the concluding observations. Time restrictions are also a problem for the Committee members. Most of the members have a full time job at home, and do not have much time to prepare for the work in the Committee between sessions. This leaves little time to in-depth studies. The Committee members seldom get the full picture of a country solely by the information they get in the pre-session and from the State Party. The strength of the Committee of the Rights of the Child is that all the members share a passion for child rights and the Convention. For this reason the Committee has in most cases no problems reaching a consensus, and they are all committed to the promotion of child rights. There are also very good relations between all the members. For eight years, from 1998 to 2006, the Committee has had a strong and very competent president, who has been active in many ways, and obviously has contributed a lot to the quality of the work of the Committee. The general comments The CRC Committee has published seven so-called general comments, the first in 2001, and the last of two in 2006. The Convention itself is very scant as regards these general comments, according to Article 45(d) the “Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention”. The travaux préparatoires do not give much guidance. The CRC is a young convention, however, and has been able to build on the practice of other UN conventions, like for example the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and CEDAW. First and foremost this is a way for the Committee to publish its interpretation of the provision of the Convention, but also give recommendations based on the Convention. A Unified standing treaty body? There is a general agreement that there are serious challenges facing the UN treaty monitoring mechanisms. One of them is the reporting burden on the State Parties, oth-
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ers are the non- or delayed reporting, backlog of reports and insufficiently harmonised working methods of the treaty bodies. In her Plan of Action the High Commissioner for Human Rights indicated that she would develop proposals for a unified treaty body. The proposal is elaborated in a concept paper on the High Commissioner’s proposal for a unified standing treaty body, dated 22 March 2006. The idea is to abolish the seven treaty bodies (including the CRC Committee) and to have one committee of about 25 to 30 members, elected by States, employed full time and paid by the UN. This committee should deal with all the treaty-specific reports. So far the proposal has received little support, and there are many legal and technical problems involved in such a reform. The Committee on the Rights of the Child, although appreciative of the efforts to improve the monitoring mechanisms under the seven human rights treaties, does not agree that a uniform treaty body would solve many of the problems, and that it would certainly lead to less attention to the human rights of children. I have personally as a law professor worked with child rights issues since the middle of the 1970s. My experience has been that working with child rights gives little prestige (combining it with other more macho fields, like stock exchange legislation, has been useful), and that there has been little attention to this issue, both among legal scholars, even human rights scholars, and in the public at large. The adoption of the CRC made a difference in this respect, and gradually a momentum has been built up regarding child rights, as described above. The reporting process has stimulated the creation of NGOs at the national level to promote the implementation of the Convention. As stated in the concept paper, it “has afforded a platform for national dialogue on human rights among the various stakeholders, and a public scrutiny of Government policies” (para. 12). With only one committee, it is obvious that the attention to child rights will be less, and the result could be that some or much of the momentum then will be lost. Individual complaints? CRC has no sanctions for violations of the Convention like some of the UN human rights treaties have. Time and again the question is asked whether there should be a possibility of individual complaints. In my opinion this is not a good idea at the time being, for several reasons. First of all resources spent on work done in the countries, such as monitoring systems like a children’s ombudsman, education of professionals and parents, awareness raising, will have more effect than added instruments on the international level. The Committee consistently emphasises the importance of an effective national complaints procedure for children, and has encouraged the State Parties to develop such procedures. There is also a problem that a child alone seldom will know about the complaints procedure and even more seldom have the competence or the resources to submit complaints. What probably would happen is that resourceful parents submit complaints on behalf of their children on issues where they themselves have strong feelings. A possible
A/5/2005/Add.3, para. 147. HRI/MC/2006/2.
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solution could be that others than the child could submit complaints, either another country or an organisation. However, lack of resources, both human and economic, in the Office of the High Commissioner for Human Rights is still a problem. My work in the CRC Committee has given me a more optimistic attitude on the impact of the Convention, but also a more realistic view on new implementation mechanisms or new protocols. It is my firm belief that all available resources should be canalised into strengthening the system we now have, with the Convention, the two protocols, the Expert Committee and the Secretariat.
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A Brief Look at The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families M. Arthur Robinson Diakité*
Introduction One of the roots of this Convention is in a United Nations (UN) General Assembly resolution entitled “Measures to Improve the Situation and Ensure the Human Rights and Dignity of All Migrant Workers”. The resolution recommended that the UN Commission on Human Rights and the Economic and Social Council (ECOSOC) collaborate with the International Labour Organization (ILO), United Nations Educational, Scientific and Cultural Organization (UNESCO) and other UN agencies to consider the issues in depth in future sessions. Several years and 19 sessions later, the UN General Assembly adopted resolution 45/158 of 18 December 1990, which is known as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (also known as the Migrant Workers Convention, the MWC and the ICRMW). The new Convention provides minimum standards that address the treatment, welfare and human rights of all migrant workers and members of their families, be they documented or undocumented. To do so, it draws on principles and standards that are included in the Universal Declaration of Human Rights (UDHR) of 1948 and all subsequently adopted universal human rights covenants and conventions including those in ILO conventions. This briefing, though far from exhaustive, will highlight some of the Convention’s major features and concludes with some widely held views and comments.
*
LL.M., Juris Licentiate in Human Rights Law, Lund University, Lund, Sweden. Mr. Diakité is a researcher in international migration law and is affiliated with the Raoul Wallenberg Institute, Lund, Sweden. See A/Res/32/120, <www.un.org/documents/ga/res/32/ares32r/120.pdf>, visited 25 September 2008. General Assembly resolution 45/158, 18 December 1990, <www.ohchr.org/english/law/cmw. htm>, visited 18 September 2008. Ibid. It entered into force on 1 July 2003 after 20 ratifications in accordance with Article 87.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 117-131.
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The main features of the Convention The Convention contains a preamble and 93 articles that are divided into nine parts. It calls for the fundamental human rights protection of all migrant workers and members of their families during the entire migration process, which includes preparation for migration, departure, transit and the entire period of stay and remunerated activity. The protection is to apply even in cases where there are non-documented, irregular or clandestine movements and trafficking, and remains applicable during the migrant’s return to the State of origin or habitual residence. It also addresses a number of obligations and responsibilities for both sending and receiving State Parties. Other major features of the Convention are: – it reiterates and overlaps with existing rights in other universal instruments; – it expands some of those rights considerably; – it places limitations on a number of existing rights; – it appears to have created some new human rights; – it has a unique, and some say unsettled, place in human rights law. In 16 paragraphs, the Preamble to the Convention takes into account the work done by several United Nations organisations, UNESCO and ILO in the protection of migrant workers and members of their families. It recognises the importance made by certain States at the regional and bilateral level towards the protection of migrant workers and members of their families, and emphasises that there is an increasing need to provide protection to all migrant workers, including those who are non-documented or in an irregular situation. Towards the end, it calls upon employers and migrants to respect and comply with the laws and procedures established by the States concerned. Scope and definitions Part I of the Convention (Articles 1–6) addresses the scope and definition of a migrant worker and the extent to which it applies to those it is concerned with protecting. For example, in Article 2(1) the term migrant worker refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national, and in Article 2(2)(a–h) it lists the specific categories of migrant workers it offers protection to: frontier workers, seasonal workers, seafarers, workers on offshore installations, itinerant workers, project-tied workers, specified-employment workers and self-employed workers. Article 3 addresses persons to whom the Convention does not apply: employees of international organisations, development programme workers, foreign government employees, investors, refugees, stateless persons, foreign students, trainees, seafarers and workers on offshore installations. Article 4 provides a definition of the term “members of the family”, which it defines as persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent
Ibid., Article 1. Ibid.
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persons who are recognised as members of the family by applicable legislation, bilateral or multilateral agreements between the States concerned. But the Article is unclear on whether or not it supports same-sex, common-law or polygamous relationships in this definition. Article 5 is the all-inclusive article of this treaty, and includes migrant workers and members of their families who are in a documented or regular situation, or a non-documented or irregular situation. Article 6 defines the terms State of origin, employment and transit as used in the Convention. Non-discrimination with respect to rights Part II of the MWC consists of a single article (Article 7) which is dedicated exclusively to non-discrimination with respect to the rights of migrant workers. It specifically calls for the rights enumerated in the Convention to be respected without distinction of any kind, and provides that these rights are to be respected and ensured “in accordance with the international instruments concerning human rights”. The provision overlaps with similar general provisions prohibiting discrimination in other conventions. Human rights of all migrant workers and members of their families In 28 articles (Articles 8–35), Part III addresses the right of migrant workers to be treated equally with nationals in a number of areas. It describes the civil, political, economic, social and cultural rights that are applicable to all migrant workers and members of their families regardless of their legal status. Though randomly placed, many of the rights in this section overlap with, expand upon and extend existing human rights, while some permit minor restrictions. For example, Article 9 protecting the right to life is less detailed than the one available in International Convention on Civil and Political Rights (ICCPR) Article 6, while Article 16 on the right to liberty and security of persons is more elaborate than those it overlaps with in other conventions. Another example of overlap and expansion can be seen in Article 10 of the MWC which prohibits torture or cruel, inhuman or degrading treatment or punishment. It is identical with the protections in Article 5 in the UDHR except that it replaced the phrase “no one” with “no migrant worker”. But it does not contain protection from medical or scientific experimentation found in ICCPR Article 7. Other examples are Article 11, which proscribes slavery, servitude or compulsory labour, reflecting the language of ICCPR Article 8, and Article 12, which deals with the freedom of religion, which reflects the language of both Article 18 of the UDHR and of the ICCPR. With regard to restrictions, the protections on the right to hold opinions without interference in MWC Article 13 not only corresponds with those of ICCPR Article 19, but
To compare the texts of the universal human rights instruments referred to in this article, see <www2.ohchr.org/english/law/>, visited 20 September 2008. Ibid. Cf. UDHR Articles 3, 5 and 9; ICCPR Articles 6, 7 and 9; ICERD Article 5(b); CAT Article 1; and CRC Articles 6, 37(a) and 39. Ibid.
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allows a restriction if the right will advocate racial hatred, discrimination or violence. But the substance of MWC Article 14’s right to privacy compared with that of UDHR Article 12 shows that the MWC includes additional protection against the unlawful interference with “other communications”, which in the 21st century could include emails, faxes and text messages. Another expansion is MWC Article 15, which provides migrant workers with the right to fair and adequate compensation for expropriated assets, a right that is missing in UDHR Article 17 and International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Article 5(d).10 Article 18, which provides for equality with nationals before courts and due process, is also enumerated in greater detail and substance than in other instruments.11 But the pendulum swings again in the direction of expansions in: Article 19 which provides for humanitarian considerations regarding prison sentences; Article 20 which provides that migrant workers should not lose their resident permits due to a breach of contract; and Article 21 which prohibits any unauthorised destruction of identity documents, including a passport or equivalent document of a migrant worker or a member of his/her family. The nine paragraphs of Article 22, which corresponds with ICCPR Article 13 in its protection of migrant workers from collective expulsions, contain items within their protections that are new and expansive. These include the right to receive information in a language they understand, the right to have their case reviewed by competent authorities, the right to seek compensation, the right to be informed of their rights and other rights that are not available in other conventions.12 Furthermore, Article 23, which offers migrant workers and members of their families recourse to the protection and assistance of consular or diplomatic authorities of either their State of origin or of a State representing the interests of that State, has no presence in any other human rights convention. Its presence here obligates State Parties to follow the principles of the Vienna conventions on diplomatic and consular relations respectively. The right to recognition everywhere as a person before the law is addressed in Article 24 and is identical with provisions in UDHR Article 6 and ICCPR Article 16. However, in the MWC the right applies to “[e]very migrant worker and every member of his or her family” and thus provides protection across a wider range of persons as long as they are related to the migrant worker. The right to equal treatment with nationals regarding conditions of work, minimum ages of employment, equal remuneration and other conditions of work is widely addressed in Article 25. It includes the right for migrant workers to not be deprived of any rights due to irregularity in their stay or employment, and prohibits relief from legal or contractual obligations by reason of any such irregularity. The freedom of association is addressed in two articles: Article 26 which recognises right of migrant workers to join trade unions and other associations, and Article 40 which provides them with See MWC Article 13(3)(d). Supra note 7. 10 Adopted by the General Assembly on 21 December 1965. Supra note 7. 11 See UDHR Articles 7, 8, 10 and 11(1); ICCPR Articles 14 and 26; ICERD Articles 5(d) and 6; and CRC Article 12(2). Supra note 7. 12 The protections here overlap with MWC Article 50 on granting stays and Article 56 prohibiting expulsion without humanitarian considerations. Supra note 3.
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the right to freely form associations and trade unions for the promotion and protection of their economic, social, cultural and other interests. No restrictions are to be placed on the exercise of these rights in either Article, except those that are proscribed by law and which are necessary in a democratic society for the interests of national security, public order or the protection of the rights and freedom of others. Equality is also to be respected in such areas as urgent medical assistance for the preservation of their life or the avoidance of irreparable harm to their health (Article 28). The rights of children to a name and identification in Article 29 has overlapping provisions in ICCPR Article 24 and Convention on the Rights of the Child (CRC) Articles 7 and 8, while the equal access to education for migrant children irrespective of the permission to stay or any irregular situation of employment of either parent or of the child’s stay in the State of employment is addressed in Article 30.13 Migrant workers also have the right to transfer their earnings and savings as well as their personal effects and belongings in Article 32, and in Article 33 State Parties, States of origin and States of transit are obligated to inform all migrant workers, regulars or irregulars about the rights arising from the Convention. The obligation of this Article includes taking measures to ensure that the information is disseminated to them through trade unions and other appropriate bodies, institutions or other States concerned with migrant workers. Neither of these rights have any parallels in the universal system. Article 34 calls for migrant workers and family members to comply with the laws and regulations of any State of transit or employment and to respect the cultural identity of the inhabitants of such States.14 The final article in Part III of the Convention, Article 35, points out that none of the articles in that Part should be interpreted to implying the regularisation of non-documented migrant workers or their family members. Other rights of migrant workers and members of their families who are documented or in a regular situation The 26 articles of Part IV provide for social rights for migrant workers and their families who are in a regular situation. A number of them have no parallels in other universal human rights instruments (e.g. Articles 36–38, 46–53).15 The rights include the right to information regarding conditions of employment, remunerated activities and the name of the authority to address themselves to for any modification of their employment condition (Article 37). This section also has an article on the right to return after a temporary absence, and a request for States to take into account the special needs and obligations of migrant workers and members of their families in Article 38(1). The right to be fully informed of the terms on which their temporary absences are authorised is in Article 38(2). Article 41 concerns the right to participate or vote in the public affairs of the State of origin, and to vote and to be elected at elections of that State, in accordance Ibid. The articles on equality before the law here also overlap with UDHR Articles 7, 8, 10 and 11(1); ICCPR Articles 14 and 26; and ICERD Articles 5(a) and 6. 14 The corresponding provision to Article 34 is in UDHR Article 29(2), <www.unhchr.ch/udhr/ index.htm>, visited on 25 September 2008. 15 Supra note 3. Articles 39, 40, 42 and 43 have parallels in other instruments. 13
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with its legislation. Neither of those two articles are available in other universal human rights conventions. Article 42 consists of several corresponding provisions on political rights that expand those available in other universal instruments. These are: Article 42(1) which provides for States of origin and employment to consider the establishment of procedures or institutions to address the special needs of migrant workers and members of their families and to allow them to freely chose their representatives in those institutions; Article 42(2) which provides that the State of employment shall facilitate the consultation or participation of migrant workers and members of their families in the decisions concerning the life and administration of local communities; and, finally, Article 42(3) which addresses the right of migrant workers to enjoy political rights in the State of employment if the State grants them this right. The expansion applies especially to UDHR Article 21, which limits the provision to “everyone … in his country”, and to ICCPR Article 25, which limits it to “[e]very citizen”. But it corresponds more with ICERD Article 5 which provides that “everyone … without regard to … national or ethnic origin…”, and Article 7 of the Convention on the Elimination of All Forms of Discrimination of Women (CEDAW) which grants it to “women in the political and public life of the country…”.16 The rights in Article 43 address how migrant workers shall enjoy equality of treatment with nationals in education, training, housing, social, health services and cultural life when they meet the appropriate requirements. However, the Article lacks many of the broader and more detailed features on economic, social and cultural rights and the standard of living in UDHR Articles 22 and 25(1) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 11. It also fails to include physical and mental health in its list of provision of health services (Article 43(1)(e)). Above all, it does not contain the measures that are detailed for women in CEDAW Articles 10–16. Article 44 calls upon State Parties to protect the unity of the family and facilitate its unification even though it does not mention that there is a right to family unification. Article 45 addresses the rights that members of the families of migrant workers have with regards social, cultural and health services, and mother tongue teaching for their children. Each of the above articles have at least one corresponding provision in other universal conventions. But Articles 46–53 have no parallels in other universal instruments. They address exemptions from import and export duties and taxes on their personal property and the equipment needed for remunerated activity in their State of employment (Article 46); the right to transfer earnings in their State of employment (Article 47); entitlement to equality with nationals when taxed (Article 48); the right to freely choose their remunerated activity (Article 49(2)); and the right to fair consideration the right for family members of a migrant to stay on if there is a termination of a relationship through divorce or death (Article 50). Article 51 provides for the right of migrant workers not to lose their authorisation of residence and be rendered irregular due to termination of employment prior to the expiration of their work permits. The Article also provides that such migrant workers have the right to seek alternative employment and retraining during the remaining period of their authorisation to work. Article 52(1)–(4) provides for 16 See supra note 7.
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the right to freely choose a remunerated activity after the termination of employment and lawful residence. But it also allows the States to limit access to certain categories of employment where it is necessary in the interests of the State and provided by national legislation. The restrictions on the migrant’s choice of employment also depend on qualifications and bilateral or multilateral agreements. Article 53(1) addresses the rights of a migrant worker’s family members who are authorised to reside in the State to freely choose their employment, and 53(2) calls on States to consider granting those not permitted to freely choose special measures over other workers to seek admission and employment. Articles 54 and 55 continue the theme of equal treatment of migrant workers with nationals regarding employment but are not as broad as Articles 23 and 24 of the UDHR as neither of them mention the right to rest and leisure. The rights migrant workers and members of their families have regarding expulsion in Article 56 are unique as they do not appear in any previous universal convention. In this Article they are subject to safeguards established in Part III, and State Parties are to consider the length of time the person has already resided in the State in expulsion proceedings.17 Provisions applicable to particular categories of migrant workers and members of their families Part V (Articles 57–63) contains six articles with provisions that are applicable to the Convention’s categories of workers referred to in Part I, Article 2, provided they are documented or in a regular situation. Articles 57–60 describe the rights they are entitled to and the considerations State Parties should have regarding their rights under Part IV. However, Articles 61 and 62 restrict the rights of project-tied and self-employed migrant workers regarding a number of rights protected in Articles 43, 45, 52 and 55. Article 63(1) excludes the self-employed who are employed by contract from certain rights, but Article 63(2) provides that the termination of their economic activity shall not imply the withdrawal of permission for them or members of their families to stay or engage in a remunerated activity. This applies except where it is dependent upon a specific activity for which they were admitted. None of the rights in this section have overlapping or corresponding provisions in any other universal convention Promotion of sound, equitable, humane and lawful conditions in connection with international migration of workers and members of their families Part VI (Articles 64–71) contains eight articles which address social, economic, cultural and other needs and resources for migrant workers and members of their families. Article 64 addresses the obligation of State Parties to consult, co-operate and promote sound equitable, humane and lawful conditions in connection with the international migration of workers and members of their families. It calls for due regard to be paid not only to their labour needs but to the social, economic, cultural and other needs of migrant workers and members of their families and to their migrant communities. Article 65 calls for State Parties to maintain appropriate services concerned with international 17 Ibid.
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migration and their families, to formulate policies, exchange information, to consult and co-operate with other State Parties involved with such migration and to provide adequate consular and other services that are necessary to fulfil the needs of migrant workers and the members of their families. The next two articles, Articles 66 and 67, call for State Parties to adopt measures for the orderly recruitment and return of migrant workers when they decide to return or when their employment expires. These measures are even to be applied to irregular migrant workers. The prevention and elimination of illegal or clandestine migration and the employment of irregular migrant workers is addressed in Article 68. It furthermore calls upon receiving States to take appropriate measures against the dissemination of misleading information relating to emigration and immigration; to take measures to detect and eradicate illegal or clandestine movements of migrant workers and their families; to impose effective sanctions on persons, groups or entities which organise, operate or assist in organising clandestine migration; and to impose effective sanctions on persons, groups or entities which use violence, threats or intimidation against migrant workers and their families who are in an irregular situation. It has parallel provisions in the CRC Articles 11 and 35. Article 69 calls upon States Parties to take measures to ensure that the presence of undocumented migrant workers does not persist and to consider the possibility of regularising such persons in accordance with national legislation or bilateral or multilateral agreements if the length of stay permits it, especially when family considerations are relevant. Article 70 calls upon States Parties to take measures to ensure the equality of migrant workers and members of their families with those of nationals in maintaining standards of fitness, safety, heath and the principles of human dignity. Article 71 calls for State Parties to facilitate the repatriation to the State of origin of the remains of deceased migrant workers and members of their families, and to ensure that compensation matters relating to deceased migrant workers are promptly settled.18 Application of the Convention Part VII (Articles 72–78) focuses on supervision procedures, all of which have parallel or overlapping procedures in other universal human rights conventions. In these articles the Committee is authorised to examine State Party reports, issue comments and observations and transmit copies of reports and relevant information to the DirectorGeneral of the ILO, the General Assembly of the UN and other relevant intergovernmental organisations.19 Within the group is Article 74, which contains eight sections, three of which are concerned with reports and consultation with other bodies and organs of the UN. This procedure widens the range of resources for this Committee to receive and share information on matters concerning migrant workers and the members of the families considerably.
18 Supra note 3. 19 See Article 74(1), (2), (3), (7) and (8), and cf. the procedures in ICCPR Article 41, ICERD Articles 11 and 14, CRC and the CEDAW at <www2.ohchr.org/english/law/>, visited 25 September 2008.
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Article 74(4) mandates the Committee to invite specialised agencies and organs of the UN, intergovernmental organisations and other concerned bodies to submit written information on matters that fall within the scope of the activities of the Convention. In Article 74(5), a representative of the ILO shall be invited to participate as a consultant to the Committee’s meetings. Representatives of other specialised agencies, organs and intergovernmental organisations may also be invited to the Committee meetings whenever their field of competence is considered (Article 74(6)). Procedures for inter-State complaints (Article 76) provide that State Parties recognise the competence of the Committee to receive and consider communications from other States regarding any failure to fulfil their obligations under the Convention.20 The procedure for individuals (Article 77) provides that it will come into force when ten States Parties recognise the competence of the Committee to receive and consider communications on or on behalf of individuals within its jurisdiction claiming violations of their rights under the Convention. The expansion of the right in this Article is that the Committee may wave the general rule requiring the exhaustion of available domestic remedies if it is of the view that such a prolonging will not bring effective relief to the individual.21 Article 78 allows State Parties to set their own criteria to procedures for the settlement of disputes in accordance with international agreements that are in force between them. 22 General provisions Part VIII (Articles 79–84) covers general provisions and protects the right of each State to establish its own criteria governing admission of migrant workers and members of their families. Article 79 has no parallel in earlier universal instruments but the following two, Articles 80 and 81, do. Article 80 provides that interpreting the Convention is not to impair the provisions of the UN Charter or any of its organisations or specialised agencies, and is paralleled with the language of ICCPR Article 46. This parallel expands it in comparison with UDHR Article 29(3), which only refers to the “purposes and principles of the United Nations”. Article 81 addresses how the more favourable rights or freedoms provided for in the Convention cannot be affected by law. Article 82 addresses how the rights may not be renounced, and how it is not permitted to put pressure on migrant workers and members of their families to force them to relinquish or forgo any of the rights. The last two articles of this section provide that States are to ensure effective remedies for the violation of any of the rights, and that remedies shall be enforced when granted (Article 83), and that State Parties are to adopt the legislative and other measures that are necessary to implement the provisions of the Convention (Article 84).
20 Ibid. See the procedures in ICCPR Articles 41–43, CAT Article 21 and ICERD 11–13. 21 Ibid. See the provisions under ICCPR Op. Protocol (1966), CAT Article 22, ICERD Article 14 and CEDAW Op. Protocol (1999). 22 Ibid. As of 26 September 2008 no State had given a declaration on either procedure; hence neither had entered into force.
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Final provisions Part IX contains nine articles that are the final provisions of the Convention, each of which has parallels in earlier conventions.23 The first three, Articles 85–87, contain formal instructions regarding the Secretary-General being the depository, its availability for signatures and accession, and the time-frame for when the Convention comes into force following ratification. Of the three, the drafting and final wording of Article 88 is considered the most compromising. For one, it suggests that a State ratifying or acceding to the present Convention “may not” exclude the application of any “Part” of it or any particular category of migrant workers described in Article 3. Deliberately capitalising the “p” was to ensure its references to entire sections of the Convention rather than to individual provisions, which probably would have been preferred by more developed migrant-destination States than poorer sending ones. Another issue is the use of the phrase “may not” which seems to give State Parties a choice because it is considered less binding than a more mandatory “shall not”. Another contentious feature of this Article is the absence of a reciprocity clause, which is probably one of the major reasons why a number of States have not ratified it. Hence, Article 88 remains one of the Conventions most contentious articles.24 Article 89 addresses the possibility of denunciation, but does not release States from their obligations on matters that are pending before the Committee. Amendments of the Convention are provided for in Article 90. Article 91 addresses reservations made to the Convention during signature, ratification or accession. Paragraph two provides that reservations that are incompatible with the object and purpose of the Convention are not permitted. The handling of disputes in Article 92(1) allows State Parties to seek arbitration or refer a dispute to the International Court of Justice in case there is no agreement on the organisation of the arbitration. Article 92(2) allows a State Party to declare that it is not bound by the first paragraph of the Article at the time of signature or ratification, and 92(3) provides that a State Party may withdraw that declaration by notification to the UN Secretary-General. This, too, may be withdrawn in writing to the Secretary-General.25 The final article of the MWC, Article 93, addresses languages of the Convention, the transmission of certified copies and the technical matter of signatures. In spite of such innovative features the Convention has failed to attract wide ratification, especially by States known to receive large numbers of migrant workers, documented or undocumented. By the end of its fifth year after coming into force, large migrant-destination countries, such as the United States, South Africa, Nigeria, India and China, had not ratified it. At this time, the only State in Europe which is Party to the Convention is Bosnia and Herzegovina, while Montenegro and Serbia have signed 23 Supra note 7 to cf.: ICCPR Articles 48–53; ICERD Articles 17–25; ICESCR Articles 26–41; CEDAW Articles 23–30; and CRC Articles 46–54. 24 Report of the Open-Ended Working Group, 45, UN GAOR Third Comm. at 15, UN Doc. A/ C.3/45/1/1990 (Article 88 is wrongly numbered as 87). See also comments by J. A. R. Nafziger and B. C. Bartel, The Migrant Worker Convention: Its Place in Human Rights Law, Vol.25 (Winter 1991), Center for Migration Studies, pp. 771–779. 25 See MWC Article 92(1)–(3). Supra note 3.
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it. No State within the European Union has either signed or ratified the Migrant Worker Convention at this time.26 The procedures of the Committee on Migrant Workers Under the authority of Part VII, the monitoring body for Convention, the Committee on Migrant Workers (CMW), has published its Concluding Observations and Recommendations for State Parties who have submitted their State Reports under Article 73. The first of its concluding observations was on the State report from the Republic of Mali, which was the first State Party to submit a State report to the Committee.27 Although it welcomed the initial report submitted by the State party as well as the willingness to co-operate displayed during the constructive dialogue, the Committee found that the report did not contain sufficient information on several important questions of both a legal and practical nature, and contained only general, incomplete or vague answers. Amongst the positive aspects of the State Party report were the mechanisms established in other countries enabling expatriate Malians to participate in presidential elections. It was also pleased that it is a Party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, and the Protocol Against the Smuggling of Migrants by Land, Air and Sea.28 The Committee was also satisfied with the effort made by the State Party to combat trafficking in children, but was concerned that trafficking of children continued, and that they were subjected to slavery and forced labour.29 However, expressions of regret expressed by the Committee far outnumbered those of appreciation due to the fact that Mali had not acceded to the International Labour Organization Migration for Employment Convention (Revised), 1949 (No. 97) or Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143); had not provided sufficient information on the special measures to implement the Convention; noted with concern the lack of statistics on migration flows affecting Mali and on other migration-related issues; that officials working in the area of migration had barely any training; had not provided information on effective measures taken by he State party to inform migrant about their rights under the Convention; and that the legislation made no difference between national workers and migrant workers. There were two more reasons for concern by the Committee: the State Party submitted no information on its efforts to combat trafficking in women, and that there was an absence of any comments
26 See the status of ratifications at <www2.ohchr.org/english/bodies/ratification/12.htm>, visited on 24 September 2008. 27 CMW/C/MLI/CO/1, 31 May 2006, <www.unhchr.ch/tbs/doc.nsf/(Symbol)/CMW.C.MLI. CO.1.En?Opendocument>. 28 Ibid., paras. 7 and 8. 29 Ibid., para. 22.
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on the State Report from non-governmental organisations (NGOs) working in the area of migration.30 The Committee recommended that the State Party should take all appropriate measures to ensure that its recommendations are implemented, including by transmitting them for consideration and action to members of the government and Parliament and, where appropriate, to local authorities, public agencies, the judiciary, NGOs and civil society. In its concluding observations and recommendations on the initial report of Syria, the Committee welcomed the recent ratification by the State party of some of the major international human rights treaties.31 The Committee also took note of the State Party’s recent efforts to regulate the employment and recruitment of non-Syrian female domestic workers, as well as its recent efforts to improve the situation of non-Arab migrant workers with regard to the enjoyment of their rights in connection with the freedom of association. It also took note of the State Party’s intention to harmonise its legislation with the provisions of the Convention, and expressed appreciation of the efforts undertaken to promote and protect the rights of the large number of Syrian migrant workers and their families abroad through the establishment of a Ministry of Expatriates and the planned establishment of a new department for migrant workers in the Ministry of Social Affairs and Labour. It then urged the State Party to accede to instruments and to consider making the declarations provided for in Articles 76 and 77 of the Convention. In its concluding observations and recommendations on the initial report of Bolivia, the Committee noticed and welcomed the fact that foreigners have the right to vote in municipal elections.32 However, the Committee noted with concern that there is no further information showing that the State Party has taken measures to disseminate information and promote the Convention among all the relevant stakeholders, in particular civil society organisations. It was also concerned that some migrants and members of their families, including Peruvians, have allegedly suffered from discrimination and stigmatisation resulting from the behaviour of State authorities, including the National Migration Service and Police. The Committee made several recommendations to this State Party, amongst them: that the State Party strengthen its efforts to fully incorporate the Convention into its domestic law, to ensure that a Migration Law that is harmonised with international treaties be promptly adopted, and invited the State party to consider acceding to ILO Conventions which concern migrant workers as soon as possible. Other recommendations were for the State Party to strengthen its efforts to inform migrant workers about available administrative and judicial remedies and to address their complaints in the most effective manner; that the State party ensure that, in legislation and in practice, migrant workers and members of their families, including those in an irregular situation, have the same rights as nationals of the State Party to file complaints and to obtain 30 Ibid., paras. 14, 15, 16, 17, 18 and 23. 31 CMW/C/SYR/Co/1, 2 May 2008, <www2.ohchr.org/english/bodies/cmw/cmws08.htm>, visited 29 September 2008. 32 CMW/C/BOL/CO/1, 29 April 2008, <www2.ohchr.org/english/bodies/cmw/cmws08.htm>, visited 29 September 2008.
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effective redress before the courts (including the labour courts). Another recommendation was for the State party to establish a co-ordination mechanism to improve the services provided to migrant workers and members of their families, while ensuring the uniformity and conformity of the State Party with the international and regional treaties to which Bolivia is a party. Judging by its recommendations, the Committee on Migrant Workers is strongly concerned with the problems of irregular migration, the trafficking of women and children and the importance of the ratification of other regional and bilateral agreements. This is evidenced by the urging of ratification of other human rights and ILO treaties, and has the purpose of enhancing the overall effectiveness of the treaty system. Since many of its current State Parties may not have ratified a number of earlier treaties, this is an important step for this treaty body to be making at this time. Challenges and strengths of the Migrant Worker Convention Despite its multiple protections for all categories of migrant workers, the Convention has a number of challenging issues regarding its protection of all migrant workers. The contentiousness of those challenges is matched by the absence of ratifications by both important sending and receiving States.33 Below are some summaries of a few items of concern. Because the Convention protects all migrant workers and members of their families without distinction, many countries are opposed to the recognition and protection it provides for clandestine and irregular workers and may use that feature as a reason for not ratifying it. Also, even though it uses gender-neutral terms in its protections, if fails to address the facts of inequalities between women and men in low-skilled, semiskilled or highly-skilled employment and thereby fails to address a wide range of issues around inequalities in gender-based formal, informal and industrial work. Another challenge is that while the Convention provides for education and language training for migrant children, it makes no mention of opportunities for women, who often care for children during long periods of isolation, or what rights they should have to fully integrate themselves in the State of employment of their husbands.34 Then there is the issue around the vagueness of Article 28 calling for State Parties to provide emergency medical care to regular and irregular migrants. The MWC’s level of care is not up to the standards of Article 12 of the ICESCR, which is to be applied without discrimination on any social grounds. In its General Comment No. 14, the Committee on Economic, Social and Cultural Rights (CESCR) has stated that States are under an obligation to
33 On 26 September 2008, there were only 29 Signatories and 39 State Parties to this Convention. See <www2.ohchr.org/english/bodies/ratification/13.htm>. 34 S. Hune, ‘Equality of Treatment and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,’ in J. Cator and Jan Niessen (eds.), The Use of International Conventions to Protect the Rights of Migrants and Ethnic Minorities (Churches’ Commission for Migrants in Europe, Strasbourg, 1994) p. 88.
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respect the right to health even to illegal immigrants.35 Access to housing of migrants and their families who are in a regular situation as outlined in Article 70 provides critics with another grey area: it does not appear to be in step with CESCR’s comments, which points out that this right must, in accordance with Article 2(2) of the ICESCR, not be subject to any form of discrimination.36 Another issue the Convention has is that having included non-documented and irregular migrants as categories of persons who are to be protected, it fails to provide any specific means to practically implement the limited rights they have. Such issues have inadvertently created a gap in the effectiveness of the Convention since those that have not ratified the Convention are the very States whose resources are needed to render it fully effective. In spite of the gaps and weaknesses of the Migrant Worker Convention, it remains a substantial tool for monitoring and supervising the rights of migrant workers. One of its major strengths lie in its consolidation of the rights and obligations that have been considered by some of the earlier human rights treaties, especially those advocating standards for the treatment of non-citizens.37 Another major strength is the powers it has in Article 74(2)–(8), which enables the CMW to gather and share information it is concerned with from a wide range of bodies and institutions, including the Economic and Social Council, the Human Rights Council, the ILO and the Special Rapporteur on the Rights of Migrant Workers. Another resource takes place during the annual InterCommittee Meetings.38 The range for co-operation and support for the Committee and the Convention is therefore quite wide.39 Such inter-agency or inter-body cooperation is in line with ideas and expansion that have been widely suggested by other leading scholars and the Secretary-General of the UN. Another strength of the Convention is that it is more than just a catalogue of rights for migrant workers, but is an instrument that migrants can use to exercise those rights: Article 83 assures them an “effective remedy” when their rights are violated. Strengths beside, widespread ratification has been hampered by several factors: the fact that no UN agency fully supported the promotion of Convention; its position as a victim of the political rivalry between developed and undeveloped countries’ support for ILO Convention No. 143;40 its absence 35 Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health (Article 12 of the Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August 2000, para. 34, <www2.ochr.org/english/bodies/cescr/comments.htm>, visited 29 September 2008. 36 Ibid. and General Comment No. 4, 11 December 1991, para. 6. 37 D. Weissbrodt, Prevention of Discrimination and the Protection of Indigenous Peoples and Minorities, Preliminary Report of the Special Rapporteur, E/CN.4/Sub.2/2001/20, 6 June 2001, paras. 194–208, where the discrimination of non-citizens is especially questioned. 38 HRI/GEN/3/Rev.1/Add.1, 7 May 2004, <www.unchr.ch/html/menu2/6a.htm>, accessed on 3 October 2008. 39 See the Special Rapporteur urging the US government to ratify the MWC at A/HRC/7/12/ Add.2, 5 March 2008, <www.2.ohchr.org/english/bodies/hrcouncil/docs/7session>, visited on 3 October 2008. 40 R. Böhning, ‘The ILO and the New UN Convention on Migrant Workers: The Past and Future’, 25 International Migration Review (1991) p. 699.
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from being included in several lists of human or labour rights instruments (e.g. UN Human Development Report, 2005, Tables 31 and 32); and the erroneous information and misrepresentations about its features (e.g. on family unification, “new rights”, family members).41 A final reason for its delayed full appreciation may be that the many issues of migrant workers have failed to attract the attention of the large, well-funded and popular NGOs. The numbers of NGOs supporting this Convention pale in comparison to those concerned with other human rights issues.42 Since 1990, the year the Migrant Worker Convention was adopted by the UN General Assembly, scores of scholars and labour law experts have published recommendations on how to attract more ratifications of this important Convention. They range from modifications of existing rights to the adoption of an optional protocol, increasing public recognition of abuses, increasing diplomatic pressures, re-examining the protections for irregular migrants, family re-unification and improving procedures for the review of individual complaints and State reports. How many of those recommendations have been adopted by monitoring bodies and States (both Parties and non-Parties) is the subject of debate and discussion. The sum of this briefing, which is clearly not exhaustive, is that the protections offered in the Migrant Worker Convention place it in a unique position within the body of human rights law. Its challenging features and strengths need time to be appreciated by State Parties and those concerned with the lives and plights of migrant workers.
41
, visited on 25 September 2008. 42 See the list of NGOs under External Links at <www2.ohchr.org/english/bodies/cmw/index. htm>.
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Negotiating the Monitoring Mechanism for the Convention on the Rights of Persons with Disabilities: Two Steps Forward, One Step Back* Anna Bruce
Introduction On 13 December 2006 the General Assembly adopted the Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities (OP-CRPD). CRPD covers all areas of life recognised by earlier United Nations (UN) human rights conventions as fundamental to human beings. By elaborating on entitlements and State obligations concerning how society responds to persons living with impairment, CRPD brings out the disability dimension of human rights. OP-CRPD complements CRPD by providing for additional mechanisms to monitor its implementation. *
This chapter is based in part on research undertaken while I was a Visiting Fellow at the Australian Human Rights Centre, Faculty of Law, University of New South Wales. I would like to express my gratitude to the Swedish Foundation for International Cooperation and Internationalisation in Research and Higher Education for financial support. I also thank the Office of the Swedish Disability Ombudsman for inviting me to participate on their behalf in the negotiations on the Convention on the Rights of Persons with Disabilities. ** Anna Bruce, researcher and PhD candidate at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University, Sweden. General Assembly resolution, 13 December 2006, A/RES/61/106. The form of CRPD is a hybrid of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 18 December 1979, and the Convention on the Rights of the Child (CRC), 20 November 1989. Like CRC and unlike CEDAW, CRPD contains absolute entitlements, i.e. standards determined independent of comparison with a person outside the protected group. Like CEDAW and unlike CRC, CRPD also contains a protection against discrimination on the “badge” defining the protected group, i.e. disability. For an introduction to CRPD and OP-CRPD see the UN Enable website <www.un.org/esa/ socdev/enable/conventioninfo.htm>, visited 8 October 2007. For an account of the use of UN human rights treaties in the context of disability, see G. Quinn and T. Degener with A. Bruce, C. Burke, Dr. J. Castellino, P. Kenna, Dr. U. Kilkelly and S. Quinlivan, The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability, Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 133-148.
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The work of the Ad Hoc Committee charged with negotiating CRPD coincided with intensified efforts within the UN to reform its treaty monitoring system. The stocktaking as well as the reform proposals generated by the efforts of, notably, the Office of the High Commissioner for Human Rights (OHCHR) coloured the negotiations in the Ad Hoc Committee, spawning discussions echoing their main themes: how best to provide international monitoring that is continuous, proactive, facilitating, accessible, consistent and firmly anchored in national implementation efforts. The following is a three-tier analysis of the monitoring regime of CRPD: how does it compare to earlier UN treaty monitoring regimes, to what extent does it mirror the themes of UN treaty body reform and to what extent does it reflect the calls within the Ad Hoc Committee for reform? International monitoring in CRPD Monitoring body: The Committee on the Rights of Persons with Disabilities (the CRPD Committee) Committee or no Committee? Article 34 of CRPD establishes the CRPD Committee to monitor its implementation. The creation of the CRPD Committee was subject to an intense and lengthy debate in the Ad Hoc Committee. While many States as well as actors from civil society favoured the creation of an international monitoring body, other States preferred to task existing
United Nations, 2002, and the updates on the implementation of its recommendations by the OHCHR <www2.ohchr.org/english/issues/disability/study.htm>, visited 8 October 2007. The Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities was established at the proposal of Mexico by a General Assembly resolution on 19 December 2001, (A/RES/56/168), para. 1. Following an invitation by the Secretary-General (Strengthening of the United Nations: An Agenda for Further Change, 9 September 2002, (A/57/387), and In Larger Freedom: Towards Development, Security and Human Rights for All, 21 March 2005, (A/59/2005)) the OHCHR has intensified efforts to reform the UN treaty monitoring system. See OHCHR, Plan of Action: Protection and Empowerment, May 2005, (A/59/2005/Add.3), and OHCRC, Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, 22 March 2006, (HRI/MC/2006/2), <www2.ohchr.org/english/bodies/treaty/reform.htm>, visited 8 October 2007. See proposals from Chile (8th session), Costa Rica (8th session), EU (7th session), Israel (6th session), Kenya (6th session), Mexico (7th session), National Human Rights Institutions (NHRIs) (6th session), International Disability Caucus (IDC) (8th session, Working Text as amended by the IDC, Final, 18 August 2006) and Amnesty International (AI) (8th session). In this text, I refer to the most recent written position on each issue by States, national human right institutions (NHRIs) and non-governmental organisations (NGOs) submitted between the first draft of CRPD (Report of the Working Group to the Ad Hoc Committee, January 2004, (A/AC.265/2004/WG/1)) and the beginning of the 8th and last session of the Ad Hoc Committee (references to the 8th session refer to proposals submitted for consideration
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treaty bodies with the monitoring of CRPD. All actors referred to general treaty body reform as their inspiration; those favouring the creation of a new body wanted to shape this body according to lessons learned by earlier treaty bodies, while those opposing the creation of a new body wanted to anticipate the possibility of a single unified treaty body for all UN human rights conventions envisaged within the context of treaty body reform. The OHCHR themselves favoured the creation of a new treaty body to oversee the implementation of CRPD. Their long-term plan for a single unified treaty body was accommodated by the suggestion to include some members of existing treaty bodies in the CRPD Committee and the suggestion to include a simplified procedure in CRPD to transfer the mandate of the CRPD Committee to a possible future single unified treaty body.10 In the end, the Ad Hoc Committee was not ready to wed itself to the vision of a consolidated treaty body. A proposal from national human rights institutions wanted to complement the CRPD Committee with an additional international actor, a Global Disability Rights Advocate (Global Advocate).11 The Global Advocate would raise awareness about CRPD and provide assistance and share knowledge and best practices regarding the realisation of the rights protected therein. Compared to the CRPD Committee, s/he would take a more proactive and assistive role. The Global Advocate was envisaged as a fulltime position and s/he would thus be able to continuously interact with States Parties and respond imduring this session). IDC is the coalition of disability NGOs in the Ad hoc Committee. As IDCs written proposals were continuously modified, more so than others, I have included above the title and the date of the version I am referring to throughout the text as “IDC (8th session)”. I refer to proposals from individual disability NGOs when an issue is not addressed by another actor. For many of the proposals referred to in this text, see <www.un.org/esa/ socdev/enable/rights/adhoccom.htm>, visited 8 October 2007. See proposals from United States (7th session) and India (7th session). See OHCHR 2006, supra note 5. The OHCHR provided tailor-made recommendations to the Ad Hoc Committee. See Expert Paper on Existing Monitoring Mechanisms, Possible Relevant Improvements and Possible Innovations in Monitoring Mechanisms for a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, 18 January 2006, (A/AC.265/2006/CPR.4), and Statement by Louise Arbour, at the Ad Hoc Committee’s 7th session, 27 January 2006, <www.un.org/esa/socdev/enable/rights/ahc7stathchr. htm>, visited 8 October 2007. See also Monitoring Implementation of the International Human Rights Instruments: An Overview of the Current Treaty Body System, January 2005, (A/ AC.265/2005/CRP.2). See OCHCR 2006, ibid., para. 21. 10 See ibid., para. 58. Similar proposals were put forward by Costa Rica (8th session), EU (7th session), Mexico (7th session), NHRIs (6th session) and AI (8th session). Precedent for such a “sunset clause” is Article 27 of the International Convention for the Protection of All Persons from Enforced Disappearances (CED), 20 December 2006. Although CED was adopted by the General Assembly after CRPD and OP-CRPD, the drafting of the monitoring provisions of CED preceded the drafting of the monitoring provisions of CRPD and OP-CRPD. 11 See proposal from NHRIs (6th session). A similar mechanism was included in earlier versions of the proposal from IDC.
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mediately to complaints and reports of violations. The Ad hoc Committee rejected this idea mainly because of cost, and fears that the Global Advocate would duplicate the role of the CRPD Committee or the Special Rapporteur on Disability.12 Although the envisaged Global Advocate would have advanced central aims of treaty body reform such as pro-activity, raising awareness, facilitation and continuity of monitoring, the OHCHR did not explicitly support this idea.13 Membership of the CRPD Committee Many of the proposals by States as well as by civil society on this issue concerned the quality of individual membership. Proposals included the suggestion of specifying that members must have competence and experience in both the fields of human rights law and disability.14 Instead, general wording drawing on Article 43(2) of the Convention of the Rights of the Child (CRC), with the addition of a general reference to “experience”, was chosen for Article 34(3), stating that members of the CRPD Committee “shall be of high moral standing and recognized competence and experience in the field covered by the present Convention”. Similarly, an express requirement of the impartiality and independence of members was suggested but not adopted.15 A proposal to include 12 The Special Rapporteur on Disability was established by the adoption of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities. General Assembly resolution, 20 December 1993, (A/RES/48/96), para. IV. 13 See OHCHR 2006, supra note 9, paras. 61–63. 14 See proposals from Costa Rica (8th session), EU (7th session), Kenya (6th session), NHRIs (6th session). IDC emphasised that in relation to disability having such experience equated being a person with disabilities, see IDC (8th session). Precedents for a detailed account of the requirement on individual members are Article 5(2) of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT), 18 December 2002, “proven professional experience in the field of the administration of justice, in particular criminal law, prison or police administration, or in the various fields relevant to the treatment of persons deprived of their liberty”, and, to some extent, Article 28(2) of the International Covenant on Civil and Political Rights (ICCPR), 16 December 1966 and Article 17(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 10 December 1984, “legal experience”. 15 See proposals from Costa Rica (8th session), EU (7th session), Israel (6th session), Kenya (6th session), Mexico (7th session), NHRIs (6th session), and AI (8th session). Precedents for an explicit reference to independence and/or impartiality are Article 8(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 21 December 1965, “acknowledged impartiality”, Article 5(6) of OP-CAT and Article 26(1) of CED, “independent and impartial”, and Article 72(1)(b) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), 18 December 1990, “impartiality”. Examples of this theme in the practice developed by the treaty monitoring bodies is the declaration by a new committee member that s/he will act impartially and the exclusion of a member during the consideration of a report concerning the State of which s/he is a national or a communication concerning the State of which s/he is a national or a matter to which s/he is otherwise inappropriately connected. See e.g. Rules of Procedure of the Human Rights Committee (hereinafter HRC ROP), 22 September 2005,
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the requirement that each member be “available to serve the Committee efficiently” met with the same fate.16 Echoing Article 9 of the Optional Protocol to the Convention Against Torture (OP-CAT) and Article 26(4) of the Convention for the Protection of All Persons from Enforced Disappearance (CED), Article 34(7) states that re-election to the CRPD Committee is allowed only once, thus avoiding the problem in earlier treaty bodies with members serving for an unlimited time. All the proposals above echo general treaty body reform as well as specific suggestions made by the OHCHR to the Ad Hoc Committee.17 A number of more innovative solutions for the selection process of members were presented to the Committee by States and civil society, as well as by the OHCHR: giving representative organisations of persons with disabilities and/or the OHCHR or the Secretary-General a role in short listing potential candidates for States Parties to choose among.18 These suggestions got little support in the negotiations. Article 34(3)–(4) of CRPD demonstrates an unprecedented focus on representation and participation. In the nomination of candidates States are invited to give “due consideration” to the general duty in Article 4(3) to “closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations”. When States elect the members of the CRPD Committee they shall give consideration to “balanced gender representation” and “participation of experts with disabilities”. While the focus on gender representation echoes recent UN human rights conventions, this is the first time such an instrument promotes participation in its treaty body by the particular cluster of persons whose rights it sets out to protect.19 Suggestions from a State as well as from civil society that personal experience of disability should be required for a majority of the members of the CRPD Committee did not find support in the Ad Hoc Committee.20 Reluctance to include such a requirement was repeatedly expressed as an apprehension that such a “quota” [sic] would result in personal experience of disability taking precedence over human rights expertise; a claim vociferously denied by others who noted that there are plenty of persons embodying both qualifications. A remnant of this apprehension is also detectable in the wording “experts with disabilities”; there is no similar emphasis on the requirement of expertise
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(CCPR/C/3/Rev.8), Rules 16, 71(4) and 90. With a view not to overburden the text I will continuously exemplify the practice of existing treaty bodies with one example. See proposal from Mexico (7th session). A precedent for this proposal can be found in Article 5(6) of OP-CAT, “members … shall be available to serve the Subcommittee on Prevention efficiently”. See OHCHR 2006, supra note 9, para. 19. See generally OHCHR 2006, supra note 5, para. 22. See proposals from Israel (6th session), Mexico (7th session) and NHRIs (6th session). See OHCHR 2006, supra note 9, para. 19. Neither ICERD, CEDAW, CRC or ICRMW contains such a requirement. The explicit reference to involve organisations of children with disabilities in the nomination of candidates represents another novelty. Precedence for the reference to “balanced gender representation” is Article 5(4) of OP-CAT and Article 26(1) of CED. Such proposals were put forward by Israel (6th session) and NHRIs (6th session). A similar position was forwarded in earlier versions of the proposal from IDC.
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in connection with gender. In recognition of the heterogeneity of the experiences of persons with disabilities, it was suggested by States as well as civil society that Article 34(4) require the CRPD Committee to reflect the experience of different forms of disability.21 Such suggestions were opposed on the notion that this represented a medical approach to disability, selecting persons by way of impairment. This particular concern appears misguided as it is not the diverse experiences of different impairments that was sought here, but rather the particular experience of social responses; the disability connected to the impairment.22 The provisions on representation in relation to gender and disability in Article 34(4) of CRPD reflect suggestions from the OHCHR.23 General treaty body reform has so far focused on representation in relation to gender.24 Cooperation between the CRPD Committee and other actors The important role of non-governmental organisations (NGOs) in the work of the CRPD Committee was extensively discussed in the Ad Hoc Committee, particularly as an issue of representation. However, suggestions from States as well as from civil society to formalise this relationship by explicitly referring to NGOs in the text were strongly resisted by a number of States.25 Instead, such cooperation is subsumed under the general mandate of the Committee in Article 38(a) to seek expert advice from “other competent bodies”.26 Article 38(b) obliges the CRPD Committee to consult, “as appropriate”, the other treaty bodies when deciding on its working methods as well as when issuing “sugges21 Proposals to this effect were put forward by Costa Rica (8th session), Israel (6th session), Mexico (7th session), IDC (8th session) and NHRIs (6th session). This was also suggested by the OHCHR, see OHCHR 2006, supra note 9, para. 19. 22 The fear of reflecting historical attitudes where difficulties in the lives of persons with disabilities were seen exclusively in terms of medical problems while social barriers were ignored sometimes had the Ad Hoc Committee looking for a foolproof way to evaluate its work and thus rid the future of unwanted remnants of the past. Simplifications of the well-known dichotomy between a medical and a social approach to disability reflects such a yearning and, like in the cased described above, sometimes backfired by creating a fear of every mention of the word impairment or any acknowledgement that the experience of disability differs to some degree along the lines of impairment. Ironically CRPD, by oftentimes using the term “disability” while arguably meaning “impairment”, ends up blurring the distinction between the two. 23 See OHCHR 2006, supra note 9, para. 19. 24 See generally e.g. OHCHR 2006, supra note 5, para. 22. 25 See proposals to formalise the CRPD Committee’s relationship with NGOs by EU (7th session), Israel (6th session), NHRIs (6th session) and IDC (8th session). 26 This is a carbon copy of the formulation in Article 45(a) of CRC. Article 74(4) of ICRMW refers to “other concerned bodies”. Article 11(c) of OP-CAT is more explicit in its reference to “international, regional and national institutions or organizations …”. Existing treaty bodies all, to a varying extent, include NGOs in their work. See e.g. Overview of the Working Methods of the Human Rights Committee (hereinafter HRC VM), paras. III (A) and VIII, <www2. ohchr.org/english/bodies/hrc/workingmethods.htm>, visited 8 October 2007.
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tions and general recommendations”. The reference to consistency in substantive output mirrors Article 28(2) of CED and aims to encourage uniformity in the interpretation of similar provisions. The strive to harmonise working methods aims to increase the efficiency of the treaty bodies by avoiding duplication of work and to make the procedures more accessible to national as well as international actors. Article 38(b) as well as proposals to formalise the relationship between treaty bodies and NGOs closely align with treaty body reform and mirror specific suggestions by the OHCHR to the Ad Hoc Committee.27 The CRPD Committee will take on a facilitating role in serving as a clearinghouse for access to different kinds of support in the implementation of CRPD. According to Article 36(5), mirroring Article 45(b) of CRC, the CRPD Committee shall transmit explicit or implicit requests for technical advice and assistance in State reports to “the specialized agencies, funds and programmes of the United Nations, and other competent bodies …”. In addition, Article 37(2) establishes the Committee as a clearinghouse for international cooperation among States.28 Monitoring procedures: reporting, communications and inquiries Reporting One of the main themes discussed by the Ad Hoc Committee in relation to State reporting was how to successfully incorporate this procedure into an ongoing national process of stocktaking and reform. Proposals to this effect emphasised the importance of targeted and implementable responses from the CRPD Committee on reports and the formalised follow-up to such responses.29 Existing treaty bodies provide concrete guidance for States and civil society in the national reform process by issuing concluding ob27 Regarding cooperation with NGOs see generally OHCHR 2006, supra note 5, para. 56, and specifically OHCHR 2006, supra note 9, para. 27. Regarding cooperation between treaty bodies see generally OHCHR 2006, supra note 5, paras.17 and 23, and specifically OHCHR 2006, supra note 9, para. 25. Existing treaty bodies are working within the framework for Inter-Committee Meetings of Human Rights Treaty Bodies and Meetings of Chairpersons of Human Rights Treaty Bodies to harmonise working methods and have so far adopted consolidated reporting guidelines for a common core document. Harmonized Guidelines on Reporting to the International Human Rights Treaty Monitoring Bodies, 10 May 2006, HRI/ MC/2006/3 (hereinafter Harmonized Guidelines on Reporting). Reports from these meetings are available at the website of the OHCHR, supra note 5. 28 International cooperation constituted one of the more controversial issues during the negotiations. In the end, consensus was found in that while national implementation is the direct responsibility of the individual State party alone, the reality is that implementation of the rights of CRPD often is near impossible without international cooperation. A separate article is devoted to international cooperation (Article 32) as well as it being mentioned in other articles such as here in Article 37. 29 See proposals from Costa Rica (8th session) and NHRIs (6th session). The former proposal suggests a comprehensive review mechanism connected to State reporting including “factfinding missions”. The latter proposal suggests the use of National Action Plans.
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servations (COs) after the consideration of a report.30 These point to remaining areas of concern in the reporting State as well as suggest remedies thereto. Existing methods of follow-up to COs include appointing a rapporteur and setting a time limit within which the State is to report back on the implementation of the COs, thus ensuring continuity in international monitoring between the consideration of reports.31 The use of and follow-up to COs are forwarded by treaty body reform as one of the means to strengthen the connection between international monitoring and national reform.32 In the end, the Ad Hoc Committee did not favour the codification of this or any related practice as it was felt to unduly detail the working methods of the CRPD Committee. Instead Article 36(1) mirrors earlier instruments by subsuming such practice under a broad mandate to make “suggestions and general recommendations”.33 However, one innovation in this regard is the obligation in Article 36(4) for Sates to “facilitate access to the suggestions and general recommendations” and thus to any COs issued.34 Other concerns of the Ad Hoc Committee were the widespread failure by States to submit timely reports to treaty bodies, as well as the difficulty for the treaty bodies to find the time to consider those reports actually submitted. However, suggestions by States and civil society to remedy this by leaving the reporting schedule completely to the discretion of the CRPD Committee were rejected, based on fears that some States would, whether appropriate or not, be subjected to more attention and stricter scrutiny than others.35 Instead, the formula in Article 35 of CRPD echoes the majority of earlier instruments by calling for an initial report within two years of the entry into force of CRPD for the State concerned and subsequent reports “at least every four years and 30 See e.g. HRC ROP, supra note 16, Rule 71(3). The terminology differs among treaty bodies: the Committee on the Elimination of Racial Discrimination, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child and the Committee on Migrant Workers refer to “concluding observations”; the Committee on the Elimination of Discrimination Against Women refers to “concluding comments”; and the Committee Against Torture refers to “conclusions and recommendations”. 31 See e.g. HRC ROP, supra note 16, Rule 72, and HRC VM, supra note 27, para. IV. 32 See generally OHCHR 2006, supra note 5, para. 26, and specifically OHCHR 2006, supra note 9, paras. 29 and 30. 33 This general mandate is phrased differently in the various instruments: Article 9(2) of ICERD, Article 21(1) of CEDAW and Article 45(d) of CRC refer to “suggestions and general recommendations”; Article 40(4) of ICCPR and Article 19(3) of CAT refer to “general comments”; Article 74(1) of ICRMW refers to “comments”; Article 21 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, refers to “recommendations of a general nature”; and Article 29(3) of CED refers to “comments, observations or recommendations”. 34 This echoes a similar provision in the Harmonized Guidelines on Reporting, supra note 28, para. 46. 35 See proposals on flexibility in reporting by Chile (8th session), Costa Rica (8th session), EU (7th session), Mexico (7th session) and NHRIs (6th session). Precedents for these proposals are Article 40(1)(b) of ICCPR and Article 17(1) of ICESCR. The Human Rights Committee requests reports every three to five years depending on reporting record. See HRC ROP, supra note 16, Rule 66(2), and HRC WM, supra note 27, para. III.
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further whenever the Committee so requests”.36 With a view to easing the burden on reporting States and to allow the Committee to focus on the most pressing issues, a number of States and civil society proposed that all reports save the first should consist of responses to a customised list of questions; reflecting the recent practice of the Committee Against Torture.37 Fears that this method of review was too piecemeal led to its rejection in the Ad Hoc Committee. These proposals echo general treaty body reform as well as the specific suggestions made by the OHCHR to the Ad Hoc Committee. The OHCHR also made a radical and unpopular suggestion aimed at overcoming the difficulties of States to fulfil reporting obligations: letting an independent third party draft the State report.38 While the Ad Hoc Committee agreed that the consideration of reports should be a cooperative and facilitating dialogue, rather than an adversarial evaluation, Article 36(2) of CRPD codifies the practice of “review”: to consider the status of implementation in a State even in the absence of a “significantly overdue” report. However, this practice was adopted by earlier committees as a matter of perceived necessity; without it the status of implementation in many States would have been excluded from their work.39 Experience shows that the scheduling of a consideration often is enough to encourage the State to submit a report and that the subsequent dialogue can be carried out in a cooperative and constructive spirit. This codification of current practice mirrors a specific suggestion by the OHCHR to the Ad Hoc Committee as well as a general preference within treaty body reform.40 Article 35(4) makes CRPD the first UN human rights convention to explicitly recommend that the national report be compiled through “an open and transparent process”, as well as to specifically address the involvement of the group covered by the instrument.41
36 See Article 9(1) of ICERD, Article 18(1) of CEDAW, Article 19(1) of CAT and Article 73(1) of ICRMW. 37 See proposals from Costa Rica (8th session), EU (7th session), Mexico (7th session) and NHRIs (6th session). All UN treaty bodies save the Committee on the Elimination of Racial Discrimination have formalised the practice of responding to a report by transmitting a “list of issues” to the State. See e.g. HRC WM, supra note 27, para. III(A). However, only the Committee Against Torture has adopted this practice, nota bene on a trial basis, as a replacement for a report. See <www2.ohchr.org/english/bodies/cat/docs/CAT_newprocedure.pdf >, visited 8 October 2007. On a similar note, the Human Rights Committee is asking States to limit all reports following the first to addressing COs and articles where significant developments have taken place. See HRC WM, supra note 27, para. II. 38 See OHCHR 2006, supra note 9, para. 42. 39 See e.g. HRC ROP, supra note 16, Rule 70, and HRC WM, supra note 27, para. V. 40 See generally OHCHR 2006, supra note 5, para. 19, and specifically OHCHR 2006, supra note 9, para. 35. 41 Article 35(4) invites States to give “due consideration” to the general obligation in Article 4(3).
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This provision mirrors a specific suggestion by the OHCHR to the Ad Hoc Committee as well as a general theme within treaty body reform.42 Individual and group communications Article 1–5 of OP-CRPD authorises the CRPD Committee to examine communications submitted by or on behalf of individuals or groups of individuals.43 Older UN treatybased communication procedures (under International Convention on the Elimination of All Forms of Racial Discrimination, the Optional Protocol to the Covenant on Civil and Political Rights (OP-ICCPR 1)44 and CAT) have developed practices which to a varying degree are codified in subsequent instruments (International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), the Optional Protocol to the Convention on the Elimination of All forms of Discrimination Against Women (OP-CEDAW),45 OP-CRPD and CED). Such practices include allowing a representative to submit a communication on behalf of an alleged victim, provided that the victim has expressly consented to this, alternatively that the representative can justify not obtaining such consent.46 Among the four instruments above, only Article 2 of OP-CEDAW expressly codifies this practice. Proponents for including a similar provision in OP-CRPD wished to explicitly strike a balance between the concern that the cluster of persons CRPD set out to protect has been subject to much harm on behalf of others “representing” them and the concern that all who would potentially benefit from the protection of the communications procedure may not be able to communicate their consent, either for reasons of being forcibly isolated or for reasons inherent to the process of communication.47 Another example of elevated codification of developed practice in OP-CEDAW compared to ICRMW, CED and OP-CRPD is that only OP-CEDAW establishes a procedure to follow-up the implementation of the Committee’s views.48 Proposals to this effect did not reach consensus in the Ad Hoc
42 See generally Harmonized Guidelines on Reporting, supra note 28, para. 45(d). See specifically OHCHR 2006, supra note 9, para. 23. A number of treaty bodies have made similar requests in their reporting guidelines. See e.g. the Committee Against Torture, Guidelines on the Form and Content of Initial Reports Under Article 19 to be Submitted by States Parties, 18 July 2005, (CAT/C/4/Rev.3), para. 4. 43 The decision to exclude this mechanism from CRPD itself resulted from unwillingness to attach a communications procedure to economical, social and cultural rights. It was not entirely clear why an Optional Protocol was more appealing to the Ad Hoc Committee than an optional provision in CRPD. 44 Adopted 16 December 1966. 45 Adopted 15 October 1999. 46 See e.g. HRC ROP, supra note 16, Rule 96(b). 47 See proposals from Chile (8th session), Kenya (6th session) and NHRIs (6th session). A similar position was forwarded in earlier proposals from IDC. 48 OP-CEDAW, Articles 7(4)–(5). For this practice see e.g. HRC WM, supra note 27, para. XI.
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Committee.49 Proposals in the Ad Hoc Committee to codify developed practice on interim measures were successful.50 Consequently, Article 4 of OP-CRPD mandates the CRPD Committee to, pending the decision on the merits of a communication, “request that the State party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation”. Novel suggestions in the Ad Hoc Committee included a provision for collective complaints, i.e. complaints submitted on behalf of a large unspecified cluster of persons. Proposals to this effect were forwarded based on the potential of collective complaints to transcend the situation of an individual and provide for systematic and wide reaching change.51 At face value the text of Article 1 would seem to permit collective complaints: it allows for complaints to be submitted by a representative, it does not expressly require consent and it allows for the submission of numerous complaints within a single communication. However, the Ad Hoc Committee explicitly rejected the idea of collective complaints as it had no precedent within the UN.52 All proposals above were supported by the OHCHR.53 Inquiries Articles 6 and 7 of OP-CRPD follow CAT, OP-CEDAW and CED by empowering the CRPD Committee to conduct inquiries into serious violations of CRPD.54 The threshold for instigating an inquiry is quite high, as it requires violations to be “grave or systematic”, in other words serious in nature or prevalence. Compared to the mechanism of communications, the inquiry mechanism is aimed towards broad and systematic change rather than individual justice.55 Unlike for communications a follow-up procedure for inquiries is explicitly provided for.56 There was little discussion in the Ad Hoc Committee on how to improve on existing inquiry mechanisms. One such proposal from civil society suggested that the procedure be conducted publicly.57 This proposal was ignored and Article 6(5) of OP-CRPD thus 49 See proposals from Chile (8th session), Costa Rica (8th session), Mexico (7th session) and NHRIs (6th session). 50 Precedents for this are found in Article 5 of OP-CEDAW and Article 31(4) of CED. For this practice see e.g. HRC ROP, supra note 16, Rule 92. 51 See proposal by NHRIs (6th session). 52 Another concern related to the issue of collective complaints, although it was not explicitly discussed by the Ad Hoc Committee in this context, is its inherent lack of consent. See supra this section. 53 In relation to collective complaints see OHCHR 2006, supra note 9, para. 48, in relation to consent see ibid., in relation to follow-up see ibid., para. 47, and in relation to interim measures see ibid., para. 46. 54 See CAT Article 20, OP-CEDAW Articles 8–9 and CED Article 33. 55 According to Article 8 a State party ratifying OP-CRPD can decide to opt out of the inquiry mechanism. This option is not available for the communications mechanism. 56 Precedence for follow-up can be found in OP-CEDAW Articles 8(4) and 9. 57 See proposal from Mental Disability Rights International (7th session).
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states that the procedure is to be conducted confidentially. However, based on Article 39 of CRPD, the CRPD Committee is to summarise “its activities”, and thus any inquiry procedure, in its annual reports.58 Another unsuccessful suggestion, this time from the OHCHR, proposed that the CRPD Committee be able to instigate an inquiry without the formal submission of information on violations.59 Finally, an unsuccessful proposal relating to OP-CRPD as a whole concerned explicit protection against intimidation and retaliation against persons using its procedures.60 Proposed additional mandates The inclusion of a number of additional mandates for the CRPD Committee were discussed and rejected by the Ad Hoc Committee. An explicit mandate to convene thematic discussions and carry out thematic studies was found to unnecessarily detail the mandate of the CRPD Committee and create an expectation which may unduly increase its workload.61 Proposals to empower the Committee to request thematic studies from other actors, notably the Secretary-General, were not really discussed during the negotiations.62 Proposals that the CRPD Committee should have a general mandate to undertake country visits with the consent of the State were opposed either on account of being superfluous, as country visits are envisaged by OP-CRPD as a part of the inquiry procedure, or as uncomfortably intrusive.63 CRPD echoes OP-CEDAW by not establishing an inter-State complaints procedure, a mechanism that has never been used in the UN system.64 A proposal to explicitly empower the CRPD Committee to issue General Comments was not taken up due to reluctance to strengthen their legal status.65 Finally, 58 Similar provisions are found in relation to all UN inquiry procedures. See Article 20(5) of CAT, Article 12 of OP-CEDAW and Article 36 of CED. 59 See OHCHR 2006, supra note 9, para. 50. 60 See proposals by Chile (8th session), Costa Rica (8th session), NHRIs (6th session) and IDC (8th session). Precedent for these is article 11 of OP-CEDAW. The OHCHR did not address this issue. 61 See proposal on thematic discussions from Costa Rica (8th session). A number of treaty bodies convene thematic discussions. See e.g. Committee on the Rights of the Child, Provisional Rules of Procedure, 25 April 2005, (CRC/C/4/Rev. 1), Rule 75. See proposal on thematic studies from NHRIs (6th session). 62 See proposals from Chile (8th session), Costa Rica (8th session) and NHRIs (6th session). Precedent for these proposals is Article 45(c) of CRC. 63 See proposals by Costa Rica (8th session), EU (6th session) and IDC (8th session). The only formalised pro-active mandate to make country visits is in Article 14 of OP-CAT. Members of all treaty bodies have made such visits with varying formality of mandate. See e.g. Overview of the Working Methods of the Committee on the Rights of the Child, para. XII, <www2. ohchr.org/english/bodies/crc/workingmethods.htm>, visited 8 October 2007. 64 See proposals from Chile (8th session) and Mexico (7th session). 65 See proposals from Israel (6th session) and NHRIs (6th session). A similar position was forwarded in earlier versions of the proposal from IDC. The Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination Against Women refer to these as “General Recommendations”. Treaty bodies base this practice of in-
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the OHCHR suggested unsuccessfully that a provision allowing the CRPD Committee to immediately address pressing situations in States Parties be included in CRPD.66 All the additional mandates above save the consideration of inter-State complaints and the carrying out of thematic studies were suggested by the OHCHR.67 National monitoring in CRPD Monitoring body: an independent mechanism The independent national monitoring mechanism The pivotal importance of national monitoring as the glue connecting international monitoring and national implementation is recognised by treaty body reform and was a recurring theme in the Ad Hoc Committee’s negotiations.68 Article 33 of CRPD explicitly requires States Parties to create a mechanism within government for overseeing and coordinating implementation and an independent mechanism to “promote, protect and monitor implementation of the present Convention”.69 CRPD is the second UN human rights instrument, following OP-CAT, to explicitly require States Parties to provide for independent monitoring on the national level.70 Compared to OP-CAT, CRPD provides less detail on the nature and functioning of this mechanism. However, some guidance is provided by Article 33(2) which requires States parties to “take into account” the Principles Relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights (the Paris Principles) when establishing or designating an independent national mechanism to monitor the implementation of the rights in CRPD.71
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terpreting their respective instruments on the general mandate to comment on State reports. See supra note 34. See OHCHR 2006, supra note 9, para. 55. Such a provision is included in Article 34 of CED, and builds on the practice developed by a number of existing treaty bodies. See e.g. HRC WM, supra note 27, para. XII. OHCHR envisages the future single treaty body to entertain a similar procedure. See OHCHR 2006, supra note 5, paras. 53 and 54. See OHCHR 2006, supra note 9, paras. 51–54. While General Comments and country visits are clearly recommended, the support for thematic discussions and thematic studies is less explicit. See generally Louise Arbour, supra note 9 and see specifically OHCHR 2006, supra note 9, para. 77. As the former obligation primarily concerns implementation, I will here focus on the latter. See OP-CAT, Part IV, Articles 17–23. A forerunner is Article 14 of ICERD which recommends the creation/indication of a national legal body to consider communications under ICERD. Adopted by General Assembly resolution 48/134 of 20 December 1993, (A/RES/48/134). Existing NHRIs, nota bene meeting the standards set in the Paris Principles, represent the inspiration and model for this mechanism.
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Membership of the independent national monitoring mechanism Proposals that Article 33 should require a majority representation of persons with disabilities did not find support in the Ad Hoc Committee.72 However, Article 33 requires that “[c]ivil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process”. The Paris Principles address the membership of the national mechanism, requiring “the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights …”.73 In comparison, OP-CAT explicitly addresses membership in terms of gender, ethnicity and minority status.74 Additionally OP-CAT, unlike OP-CRPD or the Paris Principles, explicitly calls for members to possess “the required capabilities and professional knowledge”.75 Monitoring procedures of the independent national monitoring mechanism Mandates Unlike OP-CAT, CRPD does not specify the mechanism’s mandate and powers of investigation; instead it refers to the Paris Principles. Proposals on specific language were ultimately rejected by the Ad Hoc Committee as too detailed and prescriptive and as failing to take into account the varying nature of existing national mechanisms.76 The mandate envisaged by the Paris Principles, endorsed in CRPD, includes reporting and making proposals and recommendations to the government concerning any situation or legal and administrative provision relevant to the implementation of CRPD, raising awareness about CRPD and the rights therein, being involved in formulation of research relevant to the fields covered by CRPD and considering or channelling complaints concerning individual situations within the ambit of CRPD.77 Compared to OP-CAT, the Paris Principles, and thus CRPD, lack an explicit obligation for the State Party to examine and respond to the recommendations of the independent mechanism and to publish
72 See proposals from Israel (6th session) and IDC (8th session). These call for representation of persons with diverse disability experience. In addition the IDC proposal addresses representation in relation to gender and national, ethnic, indigenous and minority groups. 73 Paris Principles, Section 2, para 1. 74 See Article 18(2) of OP-CAT. Proposals in relation to gender, minority status and ethnicity were put forward by Israel (6th session) and IDC (8th session). 75 Article 18(2) of OP-CAT. 76 See proposals by Israel (6th session), NHRIs (6th session) and AI (6th session). This issue was addressed in earlier versions of the proposal from IDC. 77 See Sections 1 and 4 of the Paris Principles.
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its annual report.78 Otherwise, the mandates envisaged by the Paris Principles cover those of OP-CAT.79 Investigative powers The investigative powers envisaged by the Paris Principles cover those explicitly enumerated in OP-CAT and include accessing information, hearing individuals, addressing public opinion and developing relations with national and international actors.80 Unlike OP-CAT, CRPD does not explicitly stipulate a right for the independent national mechanism to cooperate with the treaty body.81 However, a general mandate to cooperate independently with all UN organs, including in relation to State reports, can be derived from the Paris Principles.82 Conclusions Compared to earlier UN human rights conventions, the main innovations in the monitoring regime of CRPD are the requirement for independent national monitoring of the implementation of the rights in CRPD and the requirement of representation and participation in terms of disability (and to some extent gender and youth) in the establishment and functioning of its national as well as international monitoring bodies. Both these innovations mirror trends in recently crafted instruments, notably OP-CAT and CED. The former feature carries the legacy of general treaty body reform, while the latter is first and foremost a product of the strong participation of NGOs in the work of the Ad Hoc Committee. Except for national level monitoring, the obvious mark of treaty body reform on CRPD is the obligation of the CRPD committee to cooperate with existing treaty bodies and the obligation of States to involve national actors in the compilation of reports. Numerous suggestions by the OHCHR aimed at, inter alia, connecting international monitoring with national implementation, ensuring the quality of membership in the CRPD Committee and easing the reporting burden on States as well as the CRPD Committee were lost on the road to consensus. Notably, a proposal by OHCHR to in78 See OP-CAT, Articles 22 and 23. See also the proposal by Israel (6th session) on State obligations to respond to the recommendations of the independent national mechanism. 79 The mandate to consider individual complaints is explicitly suggested (but not required) in Section 4 of the Paris Principles but is not explicitly mentioned in OP-CAT. Since Article 18(4) of OP-CAT refers to the Paris Principles this mandate is equally suggested under OPCAT as under CRPD. 80 See Section 3 of the Paris Principles and Article 20 of OP-CAT. However, a feature missing from the Paris Principles as well as from CRPD is the protection from retaliation for those interacting with the independent national mechanisms stipulated in Article 21 of OP-CAT. 81 See Article 20(f) of OP-CAT. Proposals detailing the methods of cooperation between the independent national mechanism and the CRPD Committee were put forward by Israel (6th session), NHRI (6th session), IDC (8th session) and AI (6th session). 82 See Section 1, paras. d–e of the Paris Principles.
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clude a sunset clause anticipating the creation of a single unified treaty body was unsuccessful. CRPD only reflects a fraction of the innovative proposals on monitoring put forward in the Ad Hoc Committee. Unsuccessful proposals worth mentioning concern the Global Advocate, the quality of membership in the CRPD Committee, the reporting procedure, collective complaints and the composition, mandate and powers of the independent national mechanism and its relationship with the CRPD Committee. The upshot is that the monitoring system of CRPD largely resembles its forerunners. As the negotiations on monitoring in the Ad Hoc Committee moved from a general discussion to concrete negotiations, thinking new turned into thinking safe, both as in securing at least the same quality of monitoring as earlier conventions and as in the reluctance of States to sign up for untested methods of international scrutiny. The end result accommodates these fears well: most of the features of the monitoring system of CRPD are well tried and tested, and they do not fall short of existing systems. On a more reflective note, earnest dilemmas surface in relation to almost every issue confronted by the Ad Hoc Committee: should a report be comprehensive or have depth, should the Committee be powerful and thereby seem judgemental or should its powers be based on the will of States to cooperate, and ultimately how should the limited resources of the UN be spent? These valid concerns are not always easy to pry apart from less honourable intentions reflecting the view that an improved monitoring system equals not only welcome assistance in the realisation of human rights, but also not so welcome heightened international scrutiny of national implementation. Finally, it will be up to the CRPD Committee to establish its own working methods and, within the limits of this mandate, it is free to adopt innovative ways, including practice developed by earlier treaty bodies.
Part III: The Resolution-based System under the UN Charter
13
Five Years of Working in the UN Commission on Human Rights: Some Reflections for the Future Work of the UN Human Rights Council Ulrika Sundberg*
In honour of Mr Jakob Möller Jakob Möller was kind enough to receive me as a summer intern in 1987 at the then United Nations (UN) Centre for Human Rights, where he was heading the Communications branch. This branch handled both the individual complaint procedure under the Optional Protocol to the International Covenant on Civil and Political Rights and all letters and communications sent to the UN or the Secretary General by individuals, relatives or non-governmental organisations alleging violations of human rights. Most of these were channelled into the Economic and Social Council’s (ECOSOC) 1503 procedure. My two direct supervisors were Maria-Fransesca Ize-Charrin and Alfred de Zayas. This internship gave me the opportunity to understand the importance of the right to an effective international remedy for the protection of human rights. During this internship, I also had my first encounter with the UN Commission on Human Rights. I noted that its work was to a large extent influenced by the Cold War spirit and the rapport de force between the Eastern and Western blocks. This internship has subsequently greatly influenced my choices in my professional life, and I am eternally grateful to Mr Möller for giving me this opportunity. When I was offered to work as the Swedish representative dealing with the UN Commission on Human Rights more than ten years later, I hesitated to accept since diplomatic work traditionally aims at creating best possible relations between countries. Insisting on respect for human rights is not necessarily conducive to this goal. Even after the Cold War, confrontation had not disappeared. Would I be able to remain true to the professionalism and goals which Jakob Möller and his collaborators had taught me a decade earlier? Perhaps, due to the above internship, I was better prepared to assume this human rights post than many of my colleagues. But to promote minimum human rights standards in a complex diplomatic and political environment in an even-handed, *
Ambassador and Special Advisor to the Commissioner for Human Rights of the Council of Europe. The opinions expressed are those of the author in her personal capacity.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 151-164.
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universal and non-discriminatory way was certainly difficult, in particular as this meant applying them equally to Sweden, other Western States, developing countries and superpowers. The political landscape and the room for manoeuvre radically changed and was even curtailed after “9/11”. However, the legacy of Jakob Möller has remained a cornerstone of the UN human rights system. Introduction In this chapter, I will try to summarise my experiences in the UN Commission on Human Rights, in particular some of the challenges that it faced from 2000 to 2005, and which eventually triggered its abolition in 2005. For better understanding, I will describe them under the following headings: 1. The idea of universality according to the Universal Declaration of Human Rights, the “doctrine of no power” and its reversal; 2. The limited competence of the Commission on Human Rights, selectivity and regionalisation; 3. The indivisibility of human rights and international protection of economic, social and cultural rights; 4. Regional actors and solidarity in the Commission; 5. The loss of the United States’ leadership role in the Commission. The idea of universality according to the Universal Declaration of Human Rights It is reported that already in 1943 a confidential paper within the State Department had made an assessment of the consequences of establishing universal human rights standards. It may be interesting to look at the arguments put forward at that time: The arguments in favour of an international bill of rights were that: – it would promise individuals security and freedom, which are basic human desires of direct concern to everyone; – it would constitute a barrier to doctrines of State supremacy and racial superiority, which are inimical to individual rights; – by establishing universal standards it might prevent complaints by one State against another or dissatisfaction by nationals who felt that citizens of other States fared better; – it might help to create conditions of tranquillity and well-being which are basics to international peace; – it would eliminate any necessity of protecting special groups, especially minorities. The arguments against were:
K. Sellars, The Rise and Rise of Human Rights (Sutton Publishing, Gloucestershire, 2002) p. xii.
13 – Five Years of Working in the UN Commission on Human Rights: Some Reflections for the Future Work of the UN Human Rights Council – – – –
it would lack the juridical basis with which national bills of rights are founded, for there is no international sovereignty or true international government to grant or enforce individual rights; it would mark the extension of international influence into a field traditionally regarded as domestic; it would make the protection of individuals paramount to the safety of the State; it would be difficult to enforce.
For the US government the benefits of human rights and their advocacy in foreign policy, at that time, far outweighed the drawbacks, and the country decided to give priority to human rights in the United Nations. The universality of human rights The Commission on Human Rights was set up in 1946, pursuant to Article 68 of the United Nations Charter. Its original mandate was promptly to prepare an international bill of rights, including a universal declaration of human rights. The first members were experts and political personalities, endorsed by the Secretary General, like Eleanor Roosevelt (USA), René Cassin (France), Guildhaume Myrddin Evans (UK), Vladimir Koretsky (Russia), Hansa Metha (India) and Charles Malik (Lebanon). The Universal Declaration on Human Rights (UDHR) was adopted two years later on 10 December 1948, with eight States abstaining. Among those were Saudi Arabia which opposed the right to change religion; South Africa which rejected the rights of free movement and participation in government; and the Soviet Union and its satellites States which argued that economic and social rights were not sufficiently upheld. This vote signalled, already then, how controversial human rights discussions could be in an inter-governmental organisation like the United Nations. The next step on the road to the universality of human rights took 20 years. On the basis of the UDHR’s articles, the Commission started the elaboration of a legally binding standard. Due to the Cold War, two international instruments, rather than one comprehensive and universal, were adopted in 1966: the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). The adoption of two instruments reflected the different interests of States to the UN human rights agenda, manifested in two sets of rights. The no power doctrine From the outset, the Commission was confronted with the question whether it could deal with specific examples of violations of human rights. Already in 1947, India submitted a complaint to the Commission regarding the discrimination and treatment of Indian nationals in South Africa. Also the NAACP sub
ECOSOC resolution 5(I) 1946. ECOSOC resolution 9(II) 1946. NAACP: National Association for the Advancement of Coloured People.
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mitted to the General Assembly a report on lynching and racial discrimination in the United States. Mrs. Eleanor Roosevelt, however, quickly intervened to stop a potentially embarrassing public debate in the UN. These initiatives prompted the Commission to adopt a “doctrine of no power” vis à vis countries where human rights violations occur. It declared that it had no power to take any action in regard to any complaints concerning human rights violations. It underlined that its mandate was only to develop norms and provide advisory services and technical assistance. However, the UN Secretariat continued to receive an important number of letters and communications alleging violations of human rights. In response, the Secretariat was entrusted, in 1959, to list the communications received. The Commission was then charged with making a thorough study of situations which could reveal a pattern of violations of human rights and to report to ECOSOC. In 1965, the Commission was faced with a substantial number of communications relating to South Africa. The UN Division of Human Rights tasked Jakob Möller with drafting a procedure to handle the information received and categorise it under the respective articles of the UDHR. In 1966, the Commission asked ECOSOC for guidance on how it should consider country situations. The reversal of the no power doctrine In 1967, the no power doctrine was reversed. This was made possible due to the arrival of the newly independent developing States in the General Assembly. The Soviet Union and its satellite States saw opportunities in this new composition. ECOSOC authorised the Commission to deal with specific country situations. The first country to come under its scrutiny was South Africa, including South West Africa and Southern Rhodesia. In 1970, ECOSOC created a confidential procedure – resolution 1503 – which mandated10 the Commission to study communications sent to the UN alleging violations of human rights. This, in a way revolutionary, procedure originated from the draft paper prepared by among others Jakob Möller. Under the 1503 procedure, the Commission and the Sub-Commission on the Prevention of Discrimination and Protection of Minorities elaborated objective criteria for taking up a country situation, to discuss it and to make its findings public. This happened if the country situation “revealed a consistent pattern of violations of human rights” and “all effective domestic remedies had been exhausted”. In such cases, a spe 10
ECOSOC resolution 75(V) 1947. Sellars, supra note 1, p. 19. ECOSOC resolution 728F (XVIII). ECOSOC resolution 1123, 1966. ECOSOC resolution 1235 (XLIII) 1967. Compilation of communications addressed to the Secretary General was authorised by ECOSOC resolution 728F (XXVIII)1959. See also ECOSOC resolution 1503 (XLVIII)1970, Sub Commission’s resolution 1(XXIV)1971 on admissibility criteria. The procedure was amended by ECOSOC resolution 2000/3.
13 – Five Years of Working in the UN Commission on Human Rights: Some Reflections for the Future Work of the UN Human Rights Council cific country rapporteur or an independent expert could be appointed to monitor the situation in the country concerned. In 1975, the situation in Chile was put on the agenda of the Commission, and the following year, 1976, also the situation in Cyprus.11 Since 1970 more than 90 countries have been scrutinised under the 1503 procedure.12 With its resolutions 1235 and 1503, ECOSOC expanded the mandate of the Commission to deal with country situations, both publicly and in closed sessions. The country scrutiny procedure initially took place under item 12, until the reform of the Commission’s agenda in 1996/97, when it became “item 9”: Question of the violation of human rights and fundamental freedoms in any part of the world: a) the question of Cyprus; b) procedure established in accordance with ECOSOC resolution 1503 (XLVII) and 2000/3. ECOSOC also proclaimed, through the adoption of these resolutions, that the UN’s universal and minimum human rights standards, as stipulated in the UDHR, were to be effectively applied worldwide, indeed also in countries not having ratified the international human rights conventions. At the same time, it showed that human rights issues could be influenced by political considerations of States. Realpolitik became eventually more important than the application of criteria elaborated under ECOSOC resolutions 1235 and 1503, and the process of selection did not always respond to situations “revealing a consistent pattern of gross and reliably attested violations of human rights”, and the later were no longer used as a basis for the process of selection. The limited competence of the Commission on Human Rights Selectivity and double standards Since the developing countries had pushed for the monitoring of States’ human rights performance by bringing South Africa, Chile and the occupied Arab territories, including Palestine, to the Commission, one would have expected that they would remain loyal to this idea, which originated from them. The tension around the issue of scrutinising the human rights records of States had most certainly been building up for some years, but in the year 2000 countries from all five regions were still presenting country initiatives cross- or trans-regionally.13 By 2002/2003, a movement started within each regional group, where it would take care of its own problems. Some regional big powers used very effectively the sentiment of re-
11 ECOSOC resolution 4 (XXXII) 1976. 12 For further information visit <www.ohchr.org>. 13 E.g. the Czech Republic presented a resolution on the situation in Cuba, and the US on the situation in the former Yugoslavia.
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gional solidarity,14 and eventually, by 2005, only Western States presented pan-regional initiatives. In 2001, there was still some hope as to the Commission’s capacity to handle and monitor States’ human rights performance worldwide. The 57th session of the Commission, which happened to coincide with the Swedish Presidency of the European Union (EU), was the last one where all country resolutions presented to the Commission were adopted. Probably, this fact was due to the extensive efforts of transparency and dialogue with States subject to country initiatives. My colleagues and I, as part of the Swedish delegation, spent an enormous amount of time trying to negotiate consensus texts in order to get political commitments from countries in question to improve the situation which raised concern. At the same time, we were trying to draft strong enough texts that could be accepted by general agreement or a large majority of the Commission’s members on issues like the Middle East and the Chechen Republic of the Russian Federation. Regrettably, our diplomatic efforts were misunderstood, and demarches were made in Stockholm by some superpowers. Such practice aimed at undermining State representatives, including individual members of delegations, became a regular feature in the context of the work of the Commission. It was surprising to witness the complete change of attitude towards country scrutiny. A critical point was reached in 2002 when all countries under the 1503 procedure were African States. To this changed approach contributed most likely the fact that 28 African States were mentioned in the EU statement on countries of concern to the Union. There was a strong reaction from the African group. At the closing session of the Commission in April, the African coordinator stated on behalf of the group: “The Commission is not a tribunal for the developed countries to judge African countries.” The non-transparent way in which countries were chosen for scrutiny contributed to discrediting the Commission’s work. The States presenting initiatives on country situations were often not publicly disclosing or justifying why a certain country was selected and not another one with an equally bad human rights record. References were often made to domestic politics, media pressure or public opinion. By the same token, Western States became more and more reluctant to accept public scrutiny of themselves by the Commission, whether by country rapporteurs or thematic ones.15 The selectivity became more apparent after 9/11 and the global war against terrorism. The earlier situation with country initiatives from all regions was replaced by a majority of initiatives under item 9 being presented by Western States in 2004. With the US’s war against terrorism and the UN authorised invasion of Afghanistan in 2002, the mandate to monitor the situation in the country, set up in 1989, was ter-
14 Peru, Uruguay and Chile presented a resolution on Cuba, Commission resolution 2003/13. Honduras presented a similar resolution 2004/11. In 2005 it was the US who presented the initiative on Cuba. Equally, South Africa presented a resolution on the situation in Nigeria and the African group presented initiatives on e.g. Sudan, including Darfur, in 2003. 15 See E/CN.4/2004/56/Add.2. The Special Rapporteur on Torture visit to Spain. Mr Theo van Boven preferred to resign from this mandate a few months after the 60th session of the Commission, in part due to the heated debate with the Spanish government.
13 – Five Years of Working in the UN Commission on Human Rights: Some Reflections for the Future Work of the UN Human Rights Council minated after pressure from the US and its allies.16 The US objected to the visits by the independent expert to places of detention of prisoners of war or enemy combatants and other detainees in the country. The situation in Afghanistan was moved to the agenda item of technical assistance, despite its gravity. The US also insisted that the mandate of the special rapporteur for Iraq, set up in 1991, be restricted to focus on only human rights violations committed under the regime of Saddam Hussein.17 Clearly, the US and some of its allies felt that the laws of war and international humanitarian law should not fall within the purview of the Commission. In 2004, an initiative on the situation of the detainees at Guantanamo military base was presented by Cuba. Again, the US exercised strong political pressure, this time on developing countries to convince Cuba to withdraw its draft resolution.18. The following year, a similar Cuban initiative was voted down by a majority of Latin American and Western countries, including all EU members sitting in the Commission, arguing that it was politically motivated. This happened even though non-governmental organisations like Amnesty International had submitted individual cases of torture occurring on the base, under the 1503-procedure. Even, the International Committee of the Red Cross (ICRC) expressed publicly concerns about the treatment of the detainees at Guantanamo, which is a measure of last resort. Still, the ICRC’s appeal was largely ignored by the US administration. Human Rights Watch had also documented cases of renditions, also of an extralegal nature, in connection to the US’s war against terrorism. The UN High Commissioner for Human Rights, international non-governmental human rights organisations and the media criticised the Commission’s handling of the situation at the Guantanamo military base. One could argue that this rejection vote put an end to the credibility of the Commission’s protection mandate of human rights. Was this the outcome that many countries on both sides of “the barricades” wished to achieve? Regionalising human rights The African Union (AU) was created in July 2002 in Durban. The new Union decided to take the lead on human rights in the African region by setting up its own human rights machinery, including the African Court on Human Rights. In addition, the Union created a voluntary peer review mechanism under its NEPAD initiative.19 This regional cohesion was operationalised in the Commission in 2003. The AU nominated Libya as the African group’s candidate as chairperson of the Commission to the dismay of the Western and other States.20 Countries likely to be subject to country initiatives like 16 17 18 19 20
Commission resolution 2002/19. Commission resolution 2003/84. See Commission report E/2005/23,E/CN.4/2005/135, pp. 390-393, draft resolution L.94 rev 1. New Economic Partnership for Africa’s Development. The US called for a vote on the election of Libya as a chairperson. Until then all nominations by regional groups as chairpersons or members of the bureau had been elected by acclamation by the Commission.
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Zimbabwe and Sudan were given seats in the Commission by consensus of their regional peers.21 During the 59th session of the Commission, the African group invariably proposed to move all African country situations from the scrutiny procedure to the item governing the provision of advisory services and technical assistance.22 The group argued that the realisation of human rights costs money, in particular to build national protection capacity: no money, no human rights. The indivisibility of human rights Besides country scrutiny, another important issue of division between the developing States and the developed countries was the parity of the two sets of rights. Despite repeated pledges as to the indivisibility of rights and the need for the UN to give equal attention to all human rights, the discussions in the Commission did not lead to any convergence of views on the importance to protect economic, social and cultural rights, whether nationally or internationally. In Vienna, the 1993 World Conference on Human Rights had received a proposal from the CESCR23 to create an individual complaints procedure under the International Covenant on Economic, Social and Cultural Rights.24 It took an additional ten years before Portugal brought an initiative to the Commission to consider options on the feasibility to establish a mechanism to hear individual complaints of violations of these rights. The traditional line of reasoning of most developed countries has been that these rights cannot be considered as justiciable, and can thus not be adjudicated by a court of law. Some States believe that the principle of progressive realisation of these rights creates special difficulties as to accountability.25 According to them, these rights are merely aspirations and political objectives and not enforceable rights, and thus not on par with civil and political rights. However, some rulings suggesting justiciability26 of economic and social rights, in conjunction with the non-discrimination principle, have been made by the supreme
21 Also the Latin American group gave Cuba a permanent seat in the Commission to enable it to defend itself against country initiatives against it, notably sponsored by the US. 22 See e.g. Commission decision 2003/10 and resolution 2003/81 on Chad, Decision 2003/105 and resolution 2003/82 on Liberia. 23 UN Committee on Economic, Social and Cultural Rights. 24 A draft optional protocol to the ICESCR contained E/1997/22-E/C.12/1996/6, Annex IV, and the Programme of Action to strengthen the implementation of the ICESCR E/1997/22-E/ C.12/1996/6, Annex VII. 25 Commission resolution 2001/30 and the appointment of an independent expert. 26 Justiciability means the possibility of hearing and adjucating these rights before a court of law.
13 – Five Years of Working in the UN Commission on Human Rights: Some Reflections for the Future Work of the UN Human Rights Council courts of South Africa27, India28 and Canada29. There were also decisions by the African Commission on Human Rights,30 the European Court on Human Rights31 as well as the UN’s Human Rights Committee confirming this idea. In addition, similar rulings had been made under the European Social Charter and the American Convention on Human Rights and its Protocol of San Salvador32. Against this background, the provision of an effective remedy for the protection of economic and social rights seemed to be recognised at least at the regional level. If a common understanding on the need to protect these rights internationally could be reached, an important step towards reconciling the differences between developing and developed States on human rights would be made. This could be achieved inter alia by agreeing on an individual international remedy for these rights under ICESCR to ensure their international protection. Regional actors in the Commission Developing countries as a decision-making factor The Commission was composed at the outset of 18 States and its members were eminent experts. With the decolonialisation process, the number of Member States was successively increased, and the experts were replaced by government representatives or diplomats, who were not always the most experienced ones. By 2000, the number of members had reached 53 States, and the developing countries could easily obtain the majority of the votes. They could block or pass initiatives. Some bigger developing countries and some Eastern European States saw the potential of the increased membership. They could effectively influence and even set the human rights agenda if their forces were joined and united around some principal issues. Such issues of common interests, primarily for the developing world, were the right to development, economic and social rights as well as combating racism and racial discrimination. This “rapport de force” between the regional groups gave countries like the Russian Federation, Armenia, Ukraine, Brazil and Mexico important balancing roles between the North-South “blocks” in the Commission’s voting.
27 The Government of South Africa v. Grootboom, Constitutional Court of South Africa, ICHRL72. 28 People’s Union for Civil Liberties (PUCL) v. Union of India and Others, Supreme Court of India. 29 Schachter v. Canada, 2 S.C.R. 679, 1992, CanL II 74. 30 Purohit v. Gambia, Communication 241/2001. The Social and Economic Action Rights Centre & Anor v. Nigeria, Communication 155/96. 31 International Commission of Jurists v. Portugal, Complaint No. 1/1998 (E/CN4/2006/WG 23/2). 32 Council of Europe, Execution of the European Court of Human Rights’ judgments concerning social rights (GT-DH-SOC (2005) 004).
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Regional solidarity The benefits of regional solidarity probably manifested itself at the Second World Conference in Vienna. The outcome documents represented a compromise compilation of regionally agreed texts and of “trade offs” between different regional priorities, points of views and approaches to human rights. Through a collective action by the developing countries, “regional and cultural specificities” were reflected in the final declaration and programme of action. The two documents provided each regional group with points of references and justifications to pursue its political agenda for the years to come. From Vienna 1993 until Durban 2001, the regional groups were nurturing and institutionalising the instrument of regional solidarity. For example, the African, Asian and Latin American groups, with the support of some other members of the Commission, voluntarily joined forces in terminating the possibility for the experts of the SubCommission on Promotion and Protection of Human Rights to pass judgments on a country’s human rights performance.33 The same groups pushed for the operationalisation of the right to development and progress on the realisation of economic, social and cultural rights, which they called “the forgotten babies” of Vienna. The African group used the regional solidarity instrument very effectively in the preparatory work of the Durban Conference Against Racism in 2001. At the African regional preparatory meeting in Dakar, the heads of States agreed to demand compensation for slavery and the slave trade of the past. Their claim used the precedents set in 1999/2000 by some European countries, which then had agreed to pay compensation to victims of the Holocaust. A “trade off ” of mutual support between regional groups occurred at the Conference. The Asian regional preparatory meeting in Teheran stated that the treatment of Palestinians in the Occupied Arab Territories amounted to racism and racial discrimination. The Asian countries, in particular the Arab countries that also had practiced slave trade, and indeed some still do, agreed to support the African claim for compensation vis-à-vis the Western States. In return, the African countries would support their position that Israel is practicing racism against the Palestinians. This cooperation between the two groups was very effective, with the result that both Israel and the US walked out from the conference. The rise of the European Union A parallel development during 2000–2005 was the increased cohesion within the European Union (EU) in accordance with the Maastricht treaty on a Common Foreign and Security Policy (CFSP)34. From 2001, the frequency of internal coordination meetings increased exponentially and the level of common positions and joint actions by the EU rose to around 90 per cent of all issues being discussed in the Commission. On very 33 Commission decision 2000/109 and annexed report: Enhancing the effectiveness of the mechanisms of the Commission on Human Rights. 34 Regarding common positions and joint actions by the EU, see D. O’Keeffe and P. M. Twomey (eds.), Legal Issues of the Maastricht Treaty (Chancery Law, London, 1994) pp. 251 et seq.
13 – Five Years of Working in the UN Commission on Human Rights: Some Reflections for the Future Work of the UN Human Rights Council few issues was the EU unable to act as one through its presidency, e.g. the Middle East, Iraq or some aspects of fighting terrorism. The objective of the Maastricht provisions was for the EU to start playing a leading role globally, including on the promotion and protection of human rights. The perception of EU acting as a block of initially 15 States and from 2005 as 25 States within the Commission probably contributed to speeding up the consolidation of other regional groups. The later moved from coordinating procedural issues such as elections of members of the Bureau or allotment of speaking time to making substantive strategic initiatives like convening special sessions or proposing codes of conduct for special rapporteurs and other experts. Also, when the EU had a less proactive presidency, increased coordination on substantive issues took place in the Western and Other States group. The loss of the US’s leadership role in the Commission The US had been a member of the Commission on Human Rights since its inception in 1946. To the newly elected Republican administration, it must have come as a shock that the US lost its Commission seat in May 2001, where it had considered itself to be a main actor and leader. The US competed with Austria, France and Sweden for the three seats assigned to the regional group of Western and Other States. The Western candidates were all democratic countries with similar objectives and goals for the work of the Commission. From an insider’s perspective and based on “couloirs” talks at the time, it seemed like several factors contributed to the US’s loss. The US had acted in an isolated and, according to some, arrogant way on a number of issues during the 57th session. For example, the US had walked out from the Working Group on the right to development and was alone in openly opposing this right in the Commission. In many instances, the US had undermined the consensus reached in this UN body by asking for a vote on issues where general agreement existed. The US had called for a vote on the Palestinians’ right to self-determination, despite that the US, together with the UN, EU and the Russian Federation, just had committed itself to the Road Map for the Middle East.35 The US alone called for a vote on the widely supported resolution on the rights of the child. The US even ignored its closest ally, the EU, which managed through the Swedish Presidency to reach a difficult agreement with the Russian Federation on a number of commitments, contained in a draft proposal on the human rights situation in the Chechen Republic. The intention was to have the agreed text read out by the chairman of the Commission to reflect the support of all members. The US alone insisted that the Commission take a vote on this text, despite that it was broadly acceptable to the rest of the 52 Member States of the Commission.36 In addition, the US continued to be in financial arrears to the UN, despite major reform decisions by the General Assembly in 2000. 35 One of the pillars of the Road Map to achieving peace in the Middle East is the creation of a viable, sustainable democratic Palestinian State. 36 The following three years, the EU initiative on the situation in Chechnya was defeated in the Commission.
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The Republican administration and the American media reacted very strongly, and even accused the Commission of consisting of “flagrant” human rights violators. The international press in particular focused on the election of Sudan as a member instead of the US. However, this was an incorrect picture as the US was running for a seat allotted to the Western group. One could argue that this specific event paved the way for the eventual abolition of the Commission together with the African group’s nomination of Libya as chairperson. Conclusions The experiences described above during the period of 2000–2005 led to the abolition of the Commission. It is therefore necessary that the new principal body of the UN, the Human Rights Council, face up to the main unresolved issues and challenges of the Commission in its future work: – How to reach true universality and take into account specificities? – How to ensure that specificities do not undermine the universal nature of human rights? – How to agree on objective criteria and thresholds for scrutinising a country situation? – How to ensure that such criteria are applied to all countries in an even-handed way? – How to avoid letting political considerations dictate the outcomes or even prevail over universal human rights? – How to operationalise the right to development and how to provide effective international protection of economic, social and cultural rights? For the Human Rights Council, it will be important in these endeavours to find a modus vivendi, where these concepts coexist for better respect for all human rights rather than used as undermining arguments against each other. The need to truly universalise human rights Despite the efforts underlying universal standards of human rights as laid down in a number of international instruments elaborated with worldwide involvement, still a large majority of States view human rights as first and foremost Western concepts. There are many reasons for this. An underlying factor which historically has influenced the universality debate can be found in the US position expressed after the adoption of the UDHR: “that traditional American rights and freedoms had been transported to the rest of the world through the Universal Declaration on Human Rights. The United States had blazed the trail for internationalizing human rights through the United Nations”.37 The universality of human rights was reaffirmed after a long debate at the Second World Conference on Human Rights in 1993. However, the Conference had to recognise the existence of religion and cultural specificities. Another important achievement was 37 Sellars, supra note 1, p. 23.
13 – Five Years of Working in the UN Commission on Human Rights: Some Reflections for the Future Work of the UN Human Rights Council the acknowledgement of the indivisibility, interdependence and interrelatedness of all human rights. Also, the Conference established the right to development as a human right and it added that lack of development cannot be invoked to justify violations of human rights.38 The issue of selectivity A major drawback in the Commission’s work was its real or perceived selectivity. The credibility of the Commission was affected during its last years by the lack of clear objective criteria and thresholds for singling out countries for consideration. By excluding certain countries from the scrutiny procedure, either because of realpolitik or through no action or other procedural motions, the universal competence of the Commission was undermined. Equally by being more lenient to certain countries than others, the concept of universal standards was easily questioned. Kofi Annan summarised some of the realpolitik considerations which influence the UN human rights work on the Human Rights Day in December 2006, in connection with the situation in Darfur, Sudan, and the Human Rights Council’s lack of action: “There is more than enough blame to go around. It can be shared among those who value abstract notions of sovereignty more than the lives of real families, those whose reflex of solidarity puts them on the side of Governments and not of peoples, and those who fear that action to stop the slaughter would jeopardize their commercial interests. The truth is, none of these arguments amount even to excuses, let alone justifications, for the shameful passivity of most Governments. We have still not summoned up the collective sense of urgency that this issue requires.”
It is easy to agree that in fact political or economic concerns have prevailed over universal human rights interests not only with regard to Darfur or the Middle East, including Palestine but also vis-à-vis Afghanistan, China, Guantanamo detainees and Iraq, and this list could be continued. The proposal to elaborate a universal peer review or a universal periodic review applicable to all members of the Human Rights Council is therefore a welcomed measure to address the issue of selectivity. However, it is the universality of human rights and the universal competence of the Council that should be at the heart of such a mechanism in order to have an added value compared to the work of the treaty bodies. A new Jakob Möller is needed within the Office of the High Commissioner for Human Rights to assist States in drafting a credible and universal procedure. The need for international protection of all human rights After several decades of pledges regarding the indivisibility of all human rights, there is an urgent need to make substantial progress on respecting, protecting and fulfilling economic, social and cultural rights, both nationally and internationally. Real progress 38 The Vienna Declaration on Human Rights, Articles 5, 8 and 10.
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would, most probably, require further clarification as to the scope and content of these rights. By doing so, emphasis would be put among other issues on the process and elaboration of national budgets and how they are allocated. Such a process would require, inter alia, active, democratic and meaningful participation of rights holders, identification and accountability of duty bearers, non-discrimination at all levels and access to justice, also for the poor. This goal could, in part, be achieved by introducing an effective international remedy for individuals and associations of poor persons, e.g. and optional protocol to the International Covenant on Economic, Social and Cultural Rights. The search for an effective enforcement mechanism of human rights Some say that the main problem with human rights is the absence of a global enforcement mechanism. As stated above, already in 1943, the lack of an effective mechanism was highlighted as a major deficiency. The closest attempt so far to “enforce respect for human rights” has been the monitoring and public reporting by special rapporteurs of the Commission. Based partly on their reports, countries have used the “naming and shaming” instrument with the aim to improve a country’s human rights performance. However, this instrument has had limited effect and impact, if any. The establishment of the International Criminal Court in 2002 constitutes a major step forward, as an institution to enforce respect for some human rights. However, the Court’s jurisdiction does not cover the whole spectrum of human rights. From that perspective the individual complaints procedures under the UN human rights conventions39 and the 1503 procedure remains as relevant and necessary as they were when they were created by Jakob Möller and his collaborators. Finally, the role of the Commission – and also its successor – has been challenged by the establishment of European, Latin American and African Human Rights Courts, which apply regional human rights standards. Even the Arab League has now elaborated sub-regional standards, adapting international human rights to the Sharia law. A remaining challenge for the Council will be to convince the Asian countries to set up their regional mechanism for human rights. With more effective regional human rights institutions and peer review, the major role left for the UN’s Human Rights Council could well be advocacy, HR-education, empowerment, the provision of international protection and advisory services as well as technical cooperation in the sphere of human rights. With these possible conclusions and agreed priorities for the Council’s future work, one might ask if the UN is going to succeed in truly reengaging the States such as the US in its human rights work.
39 The term treaty bodies is used collectively to describe the seven committees set up to oversee the national implementation of States’ obligations under the UN human rights conventions. Currently, four individual complaints procedures exist under ICCPR, CAT, CERD and CEDAW.
14
The Establishment of the UN Human Rights Council* Jan Eliasson
The United Nations Human Rights Council has now been in operation since the summer of 2006. In hindsight we are able to detect some of the effects of the transition from a Commission to a Council. It should be possible to see whether the Council is “serving the peoples of the world” and whether it is “representing the voices of the afflicted men, women and children”, as I have previously stated. At the opening session of the Council I concluded: “Let us together prove that our new Human Rights Council will make a difference in their lives.” As I stated then, in June 2006, the first year was going to be crucial. And in my opinion the Council is already making a difference. Many improvements in the way the Council is operating are becoming apparent. We were able to create a new body with higher status, and the potential for elevating it even further will come up after the planned five-year review. These negotiations for setting up the Council were difficult, meant to encompass the global community, from south to north and from east to west, but they were necessary for recreating worldwide legitimacy for the global human rights body. Yet, many challenges still face the Council. The important process of reform and development within the Council continues, affecting its subsidiary bodies and other mandates and procedures, and the outcome will prove whether our multilateral endeavour was truly successful. It is for the Member States of the United Nations, with the members of the Council at the helm, to carry out the process in such a way that the Council will truly make a difference. States and groups of States must be able to rise above finger pointing, beyond geo-politics and over mere State interests. Only then will the Council be able to play the role our world requires it to play. In June 2006 I stated the following:
*
In addition to an introduction, this chapter reproduces the Statement by the President of the United Nations General Assembly, H.E. Mr. Jan Eliasson, at the first session of the UN Human Rights Council on 19 June 2006 in Geneva.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 165-168.
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Mr. Secretary-General, Mr. Director-General, Madam High Commissioner, Excellencies, Distinguished Delegates, Friends, I think we all agree that today we are all part of an historic occasion, the opening of the first session of the Human Rights Council. We are entering a new chapter in the United Nations’ work on human rights. In the days and weeks to come the world will closely follow and scrutinise this Council’s work and its commitment to the principles enshrined in the Universal Declaration and in the founding resolution, General Assembly resolution 60/251. Today, the world is behind you, supporting you, new members, urging you to live up to this commitment. Let us briefly recall the steps we have taken together and the achievements that led us to today’s event. First, let us all pay a special tribute to the Secretary-General of the United Nations. In his report ‘In Larger Freedom’ Kofi Annan reinforced the vision of a United Nations founded on three pillars: development, peace and security and respect for human rights, all mutually reinforcing. Without an effective human rights machinery, the United Nations as a whole would diminish in credibility. To place human rights on the same level as peace and security and development and to stress the interdependence of all three pillars was an historic contribution to achieve security in a broader sense, a life in dignity for all. The 2005 Summit – the largest meeting of world leaders ever assembled – endorsed the vision of the Secretary-General. At the Summit, our leaders took a number of decisive steps to strengthen the UN human rights machinery, including strengthening the Office of the High Commissioner for Human Rights, mainstreaming human rights throughout the United Nations system and creating a Human Rights Council. As you recall, I was mandated to conduct open, transparent and inclusive negotiations, to be completed as soon as possible during the 60th session of the General Assembly, with the aim of establishing the mandate, modalities, functions, size, composition, membership, working methods and procedures of the Human Rights Council. As you also know, I appointed two Co-Chairs to assist in this task, Ambassador Arias of Panama and Ambassador Kumalo of South Africa. One brought experience of the struggle for democracy in Latin America; the other brought experience of the struggle against apartheid. My appointment of two Co-Chairs from the global south was no coincidence. I have always taken issue with seeing human rights in the north-south perspective. The dedication of the Co-Chairs was instrumental in achieving the final result of the negotiations. On 23 February, after thorough consultations, I presented a draft resolution on the Human Rights Council to the membership of the United Nations. As we all know, this text was adopted on 15 March. I can tell you that it was not an easy decision to bring this matter to a vote. But the alternative to a consensus decision – which was not possible – was in my mind continued negotiations and no Human Rights Council in a long time. It is worth remembering that the foundation for our work with human rights within the United Nations, the Universal Declaration of Human Rights, was also adopted by a vote. Negotiating the establishment of the Human Rights Council was a challenge for all of us. We live in turbulent and difficult times. Issues of human rights lie at the heart of nations and are particularly sensitive as we all know. Member States, which spared no time and effort in these negotiations, felt strongly about certain issues. Ultimately, no Member State obtained everything it wanted. The adoption of the resolution meant compromising on several points.
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But – and to me this is critical – we never compromised on the principles enshrined in the Universal Declaration. We constructed a sharper instrument to promote and protect human rights. We now have a Council that is built on cooperation and dialogue, yet it is principled and strongly anchored in human rights law. It is a Council that will review all Member States’ fulfilment of their human rights obligations, thereby ensuring equal treatment of all. By adopting this resolution – which represented the fruits of our/your combined labour and aspirations – the General Assembly of the United Nations demonstrated that it can take decisions which are relevant and meaningful to the peoples of the world. And by that I think our work contributed to the revitalisation – the necessary revitalisation – of the General Assembly. And this the Members States did despite the tensions and mistrust sometimes all too apparent in today’s world. The resolution on the Human Rights Council was also a victory for multilateralism. It showed that you, the Member States, require a strong United Nations role and engagement in human rights. Never before have we needed strong and well-functioning multilateral institutions as we do today. Without them we cannot achieve our common global objective to free all people from fear, want and indignity. Excellencies, Distinguished Delegates, Let us take satisfaction and inspiration from the fact that we have created and established a new Human Rights Council. This has been done in a time of divisions among peoples, cultures and religions. At this moment, the United Nations, through the new Human Rights Council, sends a message of respect of human dignity and a message of hope and solidarity to the peoples of the world. The resolution gives the framework and global legitimacy to the Council and represents a unique opportunity for a fresh start of the work on human rights within the United Nations. I recognise that having a fresh start does not mean denying the value of the work of the Commission. We all agreed to build on the strengths of the Commission on Human Rights, such as the NGO participation and the system of Special Procedures. But let us also be vigilant of the negative dynamics of the past. We have created this new institution to further strengthen the United Nations human rights machinery and to enhance the promotion and protection of all human rights for all. In our task, let us be guided by a spirit of renewed cooperation and of upholding the highest standards of human rights. Now the first year of work of the Human Rights Council is crucial. I am encouraged by the skilful preparation of the Council’s work under the leadership of Ambassador de Alba of Mexico. I am confident that you will address the challenges ahead of you in the same constructive and committed manner as you showed during the establishment of the Council. You, who created and inspired the creation of the Council, demonstrated foresightedness as well as a sense of compromise and responsibility during the arduous road to completion of our work. Now you have to show determination and courage to translate intentions and words to the changing of realities and taking action. This requires from all of us statesmanship and preparedness not only to examine each other but also to examine ourselves. To conclude, we must place the human being in the centre. It is human beings who suffer in conflicts. It is human beings who die in terrifyingly high numbers from hunger and disease. It is human beings who are oppressed and silenced.
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The United Nations Charter reminds us of our fundamental duty: to serve the peoples of the world. It is ‘we the peoples’ who give us the direction representing the voices of the afflicted men, women and children. Let us together prove that our new Human Rights Council will make a difference in their lives.
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What Effect if Any Will the UN Human Rights Council Have on Special Procedures? Lyal S. Sunga*
Introduction Since the moment that the United Nations Commission on Human Rights (“Commission”) – the parent body of the UN human rights special procedures system – was replaced by the UN Human Rights Council (“Council”), the question became: What effect if any will this change have on special procedures? To consider this issue, it is valuable first to recall the origin and development of special procedures under the Commission and then to point out their main strengths and weaknesses. We can then discuss why UN Member States decided to replace the Commission with the Council and how this change could affect special procedures. The life and times of special procedures under the UN Commission on Human Rights Because they derive their legal authority not from any specific human rights treaty, but only from the general powers which the Charter of the United Nations confers upon the Economic and Social Council (ECOSOC) to deal with human rights questions, “special procedures” are also referred to as “extraconventional mechanisms” or “Charter-based bodies”. Special procedures were established to deal with serious human rights situations according to the current concerns of the international community, but they arose in an ad hoc, unsystematic and rather incoherent manner over many years. Unlike the UN human rights treaty bodies (such as the Committee on the Elimination of Racial Discrimination, the Human Rights Committee and the Committee Against Torture) which monitor a State Party’s observance of the specific human rights set forth in the particular convention it ratified, “special procedures” focus on human rights issues regardless of State consent. *
Lyal S. Sunga is Senior Lecturer, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lund, Sweden.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 169-183.
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In February 1946, ECOSOC established the Commission as its subsidiary body, and requested it to prepare an “international bill of rights”. The Commission’s first step in this regard was to identify and list human rights considered common to all – a task that began in January 1947 and which culminated in the UN General Assembly’s adoption of the Universal Declaration of Human Rights as a legally non-binding instrument on 10 December 1948. Bearing in mind the fact that prior to 1945, human rights had not been considered to constitute a legitimate matter of international legal concern (except for minority rights and international labour law) as well as the challenges of finding agreement among widely differing philosophical, ideological, religious and cultural viewpoints, it is remarkable that the first Commission’s 18 Member State representatives reached consensus in such short time. By holding up “a common standard of achievement for all peoples and all nations”, the Declaration laid down a solid normative foundation for the subsequent elaboration of international human rights law and implementation. In order to achieve agreement, however, the Declaration’s provisions were cast in the most general of terms that even omit to define the rights listed. Moreover, the Declaration’s adoption in the form of a non-binding resolution of the General Assembly made the instrument far from adequate for victims or potential victims of human rights violations, who needed concrete remedies more than hortatory pronouncements. Because in 1945 human rights had yet to be defined in specific enough legal terms to be incorporated in domestic law and implemented accordingly, individuals living in jurisdictions with poor human rights observance could do little more than send unsolicited communications in the form of letters, telexes and other missives directly to the United Nations, hoping that some action or other might be taken. Since its establishment, the UN has always received communications from individuals alleging human rights violations, but Member States at first could not agree to vest any investigatory powers in the Commission. Politically, the last thing that metropolitan Powers felt they needed was to see an active Commission receiving thousands of individual complaints about serious human abuses being committed in the territories of their colonial possessions. This explains why ECOSOC resolution 5(I) establishing the Commission in line with Article 68 of the UN Charter specifically refrained from conferring upon the Commission any powers of investigation or any capacity to receive or examine communications from individuals alleging human rights violations. However, the Commission’s explicit lack of capacity even to receive or examine communications seemed to caricature the stated concern of UN Member States to promote human rights. Already in 1947, ECOSOC resolution 75(V) changed the Commission’s procedures slightly to recognise the Commission’s authority at least to receive communications, but the resolution goes on to reiterate that the Commission had “no power to take any action in regard to any
ECOSOC resolution 5(I), adopted 16 February 1946, established the Commission on Human Rights and requests the Commission to work on: “(a) an ‘international bill of rights’; (b) international declarations or conventions on civil liberties, the status of women, freedom of information and similar matters; (c) the protection of minorities; (d) the prevention of discrimination on grounds of race, sex, language or religion.” Universal Declaration of Human Rights, adopted by UN General Assembly resolution 217A (III) of 10 December 1948.
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complaints concerning human rights”. ECOSOC resolution 76(V) repeats this stricture specifically as regards allegations of violations concerning the status of women. In the 1950s and 1960s, many countries in Asia and Africa rid themselves of colonial rule and were granted membership in an expanded General Assembly as newly sovereign and independent States. Pent-up indignation over the systematic human rights abuses committed in apartheid South Africa and elsewhere moved governments to consider that the UN should perhaps be empowered to hear from individuals after all. Already in 1961, the General Assembly had established a Special Committee on the Policies of Apartheid that reviewed individual communications. These procedures provided a model for the eventual adoption of ECOSOC resolution 1235 (XLII) on 6 June 1967 which authorised the Commission and the Sub-commission on the Prevention of Discrimination and Protection of Minorities (since 1999 denominated the Sub-commission on the Promotion and Protection of Human Rights) “to examine information relevant to gross violations of human rights and fundamental freedoms, as exemplified by the policy of apartheid as practised in the Republic of South Africa and in the Territory of South West Africa”. At the time that ECOSOC resolution 1235 was being drafted, the government of South Africa vehemently objected to being singled out by the international community. To avoid the charge of political selectivity without letting South Africa off the hook, ECOSOC added the word “exemplified” to indicate that the Commission would examine the human rights situation in any country where human rights violations reached the gravity of those committed in apartheid South Africa and South West Africa. The word “exemplified” thus authorised the Commission to refer publicly to human rights violations in any part of the world regardless of the State’s treaty obligations. Paragraph 3 of resolution 1235 further provides that “the Commission on Human Rights may, in appropriate cases, and after careful consideration of the information thus made available to it … make a thorough study of situations which reveal a consistent pattern of violations of human rights and fundamental freedoms” and make recommendations thereon to ECOSOC. Another major development came about in 1970 with the adoption of ECOSOC resolution 1503, paragraph 1 of which basically requests the Sub-commission to appoint a working group to consider all communications alleging human rights violations, including replies of governments thereon, that have been sent to the UN. This Working Group considered the communications in private meetings and then decided whether to refer the situation to the ECOSOC resolution 1235 public debate procedure.
Paragraph 5 of ECOSOC resolution 1503 requests the Sub-Commission “to consider in private meetings, in accordance with paragraph 1 above, the communications brought before it in accordance with the decision of a majority of the members of the working group and any replies of Governments relating thereto and other relevant information, with a view to determining whether to refer to the Commission on Human Rights particular situations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights requiring consideration by the Commission”. Under resolution 1503, the Commission is obliged to examine any situation referred to it by the Sub-commission and to determine whether “it requires a thorough study by the Commission and a report and recommendations”, whether it should become the subject of the public procedures under paragraph 3 of resolution 1235 or whether “it may be a subject of an investigation by an ad hoc committee to
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ECOSOC resolutions 1235 and 1503 allowed the Commission to move beyond exclusive human rights standards setting, towards public debate on particular human rights violations, as well as monitoring, investigation and reporting, turning the Commission into the world’s leading forum on urgent human rights issues. In 1980, the first thematic special procedures mandate grew out of the Commission’s concern over disappearances being committed in specific countries. These particular countries strenuously objected to their being named, and as in the formulation of ECOSOC resolution 1235, the response was to establish a mechanism with a broader rather than narrower mandate. Thus, the UN Working Group on Enforced or Involuntary Disappearances was created as a thematic mechanism to preserve a patina of political neutrality while allowing the Commission to address these kinds of violations occurring in countries under international concern. The Working Group’s establishment paved the way for the gradual addition of other thematic mechanisms that were to cover a broad range of human rights issues. During the confrontational Cold War years, both sides of the East-West ideological divide milked the propaganda value of human rights to denounce countries on the other side of the Iron Curtain. This ideological competition helped propel the Commission’s work to develop legally binding international human rights standards. By 1966, the Commission succeeded in preparing the “international bill of rights” that ECOSOC had requested the Commission to complete, by putting forward for adoption the International Covenant on Civil and Political Rights (favoured mainly by Western capitalist States), and the International Covenant on Economic, Social and Cultural Rights (championed mainly by socialist States together with Nordic countries and many developing countries). The two Covenants represent the main normative pillars of international human rights law, and their entry into force in 1976 signalled that the time was ripe for the international community on the one hand to elaborate further the substance of international human rights law, and on the other to develop effective procedures for their implementation.
be appointed by the Commission which shall be undertaken only with the express consent of the State concerned and shall be conducted in constant cooperation with that State and under conditions determined by agreement with it” in cases where: a) all domestic remedies have been exhausted, and b) the situation is not already being handled by other UN procedures provided for by a convention. On 29 February 1980, the Working Group was established by the Commission on Human Rights in resolution 20 (XXXVI) as the first UN thematic human rights mechanism, consisting of five members to serve as experts in their individual capacity to examine questions relevant to enforced or involuntary disappearances anywhere in the world. See W. Korey, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine (1998) p. 253, where Korey recounts that the proposal to create a Working Group arose out of Amnesty International’s documentation of thousands of disappearances around the globe. The naming of Argentina, Afghanistan, Cambodia, Ethiopia, Nicaragua and Uganda prompted the governments of a number of these countries to object to the right of an NGO to denounce any country by name. While they were to succeed in avoiding being named in the title of the Working Group, the effect was to empower the Working Group to examine the phenomenon of disappearances in any country.
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By the late 1990s, special procedures had become more balanced in several ways. First, individual mandate-holders seemed to introduce greater nuance into their reports and to equipoise sharp criticism of a government’s failings on human rights matters with praise for positive action it had taken to improve human rights observance. Commission mandate-holders also moderated their reports by offering governments under scrutiny practical recommendations for further improvement. Second, the World Conference on Human Rights, held in Vienna in 1993, emphasised the universality, indivisibility, interdependence and interrelatedness of human rights, which favoured the establishment of increasingly broad special procedures mandates and a more balanced treatment of economic, social and cultural rights alongside civil and political rights. The post-Cold War political climate further reduced Western political resistance to the argument, long tendered by Socialist Bloc and Non-Aligned Movement countries that economic, social and cultural rights should find their rightful place in the Commission’s monitoring agenda. Commission mandates were no longer focused so narrowly on the more obvious, and in some sense, more immediate threats to life and liberty, such as the phenomena of arbitrary detention, enforced or involuntary disappearances, extrajudicial, summary or arbitrary executions and torture. By the time the Commission was dissolved in 2006, there were mandates also on wide-ranging economic, social and cultural rights, such as on the right to adequate housing, the right to food, the right to education, the question of human rights and extreme poverty, the right to health, the effects of structural adjustment policies on human rights and on the adverse effects of the illicit movement and dumping of dangerous products and toxic wastes. Third, special procedures had become less lop-sided as regards the range of countries covered. Certain developing countries had long argued that it was hypocritical for developed countries to berate them continually for shortcomings in civil and political rights protection from privileged positions of economic and political power. In the years 1967 to 1980, Commission members could only agree to establish mandates with respect to territories in which particularly egregious human rights practices had attracted almost universal condemnation, namely, southern Africa in respect of apartheid, Palestinian territories under Israeli occupation and Chile under the Pinochet military regime. By 1996, all five of the UN Security Council’s permanent members – China, France, Russia, the United Kingdom and the United States – had come under thematic mandate attention, proving that none of even the most powerful of States were above special procedure scrutiny. Thus, the Commission functioned as a unique institutional laboratory that experimented with human rights investigation, monitoring and reporting – first by establishing “country mandates” in the late 1960s to examine human rights situations in particular countries or territories, and then from 1980 to 2006 also by establishing “thematic mandates”. In 1998, special procedures mandates reached a total number of 53. By 2006, several country mandates were terminated and some thematic mandates were com
See the Vienna Declaration and Programme of Action, Note by the Secretariat, World Conference on Human Rights, Vienna, 14–25 June 1993; A/CONF.157/23 of 12 July 1993, at para. 5. See J. R. Crook, ‘The Fifty-First Session of the UN Commission on Human Rights’, 90 American Journal of International Law (1996) pp. 126–138.
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bined such that by the Commission’s final year of existence the number of country mandates stood at 13 and there were 28 thematic mandates. The Commission had gained fame and notoriety as the world’s most politically charged human rights forum that annually brought together around 3,000 representatives of governments, international organisations, UN agencies, bodies and programmes, the International Committee of the Red Cross, and non-governmental organisations (NGOs) to hear the reports of Commission-appointed “special rapporteurs”, “independent experts”, “working groups” and “special representatives”. The beauty of special procedures has been their remarkable effectiveness in marshalling international public opinion against violator governments. Over the years, special procedures mechanisms have brought tremendous pressure to bear on governments whose practices have fallen seriously out of line with international human rights standards, thanks in no small part to the very active and vibrant role human rights NGOs have played in the Commission’s public sessions. With instant global mass media and communications, and galloping economic globalisation, the exposure of serious human rights abuse can bring a responsible government into grave disrepute much more quickly than it would have in the past. Bad publicity can hit the State treasury quickly as tourists choose alternative destinations and merchants shop elsewhere. Commercial trade, foreign investment, multilateral assistance, arms deals and the benefits of a whole range of other forms of international cooperation can easily become jeopardised with deterioration in a government’s human rights reputation. Like it or not, governments can little afford to ignore how their human rights practices are perceived at home and abroad because human rights along with democratic governance and the rule of law have become key elements in maintaining political legitimacy and international influence. Unlike treaty-based mechanisms, special procedures can be established very quickly and be applied to any country or according to any theme, regardless of State consent. As such, they can address urgent problems that arise in specific countries and can be tailored to look into the particular kinds of violations that may be occurring. Consisting of ad hoc mechanisms, special procedures have been particularly versatile in the way they contribute to or intermesh with other kinds of monitoring or implementation mechanisms. Particularly striking in this regard has been the way in which the reports of special rapporteurs have led or contributed to the establishment of commissions of enquiry to investigate facts and responsibilities concerning criminal violations of human rights
These mandates concerned the particularly serious human rights situations in Belarus, Burundi, Cambodia, Cuba, Democratic Republic of Korea (North Korea), Democratic Republic of Congo, Haiti, Liberia, Myanmar, Palestinian territories occupied since 1967, Somalia, Sudan and Uzbekistan. See further L. S. Sunga, NGO Involvement in International Human Rights Monitoring, International Human Rights Law and Non-Governmental Organizations (2005) pp. 41–69.
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and humanitarian law in the former Yugoslavia, Rwanda,10East Timor11 and Darfur,12to name just a few examples. Special procedures mechanisms have also coordinated visits and shared information with UN human rights field presences deployed in particular countries. Understandably, in most situations, governments wish to avoid drawing increased Commission examination. In some instances, the mere prospect of coming under Commission scrutiny has been enough to coax a government into accepting a less confrontational, albeit no less effective, form of UN human rights monitoring. In the case of Nepal, for example, following the King’s Royal Proclamation of a state of emergency on 1 February 2005 along with the suspension of a range of human rights, the Commission expressed its “deep concern about the serious setback to multiparty democracy and the weakening of the rule of law” and over “arbitrary arrests and secret detention, in particular of political leaders and activists, human rights defenders, journalists and others, and about continued enforced disappearances, as well as allegations of torture”. Having drawn extremely negative press by sacking his government, asserting direct rule over his subjects and suspending human rights guarantees, King Gyanendra must have realised that the Commission, about to convene in regular session in only four weeks time, would likely have established a new country mandate to monitor the human rights situation in Nepal. To avert this politically undesirable outcome, the King instead accepted the offer of the UN Office of the High Commissioner to deploy a UN human rights field presence to Nepal to monitor the situation first hand and provide technical assistance and advisory services – a far less confrontational process.13
See Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 14 of Commission resolution 1992/S-1/1 of 14 August 1992 and E/ CN.4/1992/S-1/9 of 28 August 1992. 10 See Report of the UN Security Council’s Commission of Experts on Rwanda, S/1994/1405 of 9 December 1994, p. 16, which refers to consultations with the Commission’s Special Rapporteur on Rwanda. 11 See the Report of the Special Rapporteur on Torture (E/CN.4/1997/7), the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (E/CN.4/1997/60), the Working Group on Arbitrary Detention (E/CN.4/1997/4 and Add.1) and the Working Group on Enforced or Involuntary Disappearances (E/CN.4/1997/34). 12 See e.g. the Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions on Her mission to the Sudan (E/CN.4/2005/7/Add.2), the Special Rapporteur on Violence against Women, Its Causes and Consequences, on her mission to the Darfur region of the Sudan (E/CN.4/2005/72/Add.5), among numerous others. 13 In an agreement between the UN High Commissioner on Human Rights and the government of Nepal, signed 10 April 2005, the government accepts the establishment of a human rights office in Nepal “to assist the Nepalese authorities in developing policies and programmes for the promotion and protection of human rights, to monitor the situation of human rights and observance of international humanitarian law, including investigation and verification nationwide through international human rights officers and the establishment of field-based offices staffed with international personnel, to report in accordance with the Agreement and
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If the Commission was so effective, then why did UN Member States decide to replace it with the Council? Part of the reason is that the Commission was a victim of its own success. The Commission’s broader focus inevitably diluted its examination of more urgent issues and arguably weakened its power to take effective action. The growth in the number of Commission mandates on an ad hoc basis also brought about a certain measure of overlap which did not help matters. Perhaps even worse, the Commission workload had increased substantially during the 1990s while the Secretariat responsible for servicing the Commission and its mandate-holders were given inadequate additional resources to match it. By the end of the 1990s, Commission mandate-holders were heard regularly complaining about the poor quality of Secretariat administrative, technical and research support. In short, individual Commission mandates succeeded in spotlighting particular human rights problems, but the special procedures system had begun to crack and crumble under its own weight. An even more serious set of problems had sprouted from what had always been a major strength of the Commission – its clearly political character. Having States as members, the Commission’s resolutions were always backed with a certain level of diplomatic and political force, depending on the depth and breadth of intergovernmental solidarity at hand, to address the more obvious and urgent violations. During the 1980s and 1990s, Commission members managed to scrape together enough consensuses to establish many important country and thematic mandates to address particularly pressing human rights situations. While raw political self-interests and alliances have always played an important role in Commission member voting, politicisation of the Commission seemed to degenerate more rapidly with the marked shift in the United States towards a heavily unilateralist foreign policy agenda. On 3 May 2001, for the first time in history, the United States lost its seat on the Commission as other States lined up against the Bush Administration’s cavalier attitude to global warming, missile defence agreements and the issue of making anti-AIDS medications available to those who need them. Matters went from bad to worse in the aftermath of the 11 September 2001 terrorist attacks on the World Trade Center and Pentagon, reaching a low point with the 59th session of the Commission, held from 17 March to 27 April 2003. To begin with, on 19 March 2003, the Bush Administration launched Operation Iraqi Freedom without Security Council authorisation, ignoring the pleas of the UN Secretary-General, European Union as well as Canada and many other countries, showing blatant disregard for international law and world public opinion. In so doing, the Bush Administration marginalised the UN and worsened the prospects for international dialogue inside and outside the Commission. Indeed, a proposal to have a special debate on the situation in Iraq pitted the US, Europe, Australia, Canada and certain Latin American countries against many Islamic countries, Cuba and China, but was narrowly defeated. Despite its very poor human rights record, Libya was elected to chair the Commission, starkly revealing the Commission’s thoroughly politicised character. The human rights NGO Reporters without Borders scattered leaflets during the opening of the Commission, proclaiming: to work in cooperation with other United Nations and other international organizations based in Nepal in this regard”.
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What credibility will remain for a body headed by the representative of a country that abuses human rights every day. By putting Libya at the helm, the Commission shows that it is ready to cover up the brutalities of some of its members through dirty deals.14
For its unruly protests, Reporters without Borders was barred from the Commission for one year as from 24 July 2003. A few days before the 2003 Commission session closed, the Secretary-General lamented that [t]his is a time when your mission to promote and protect human rights in the widest sense is more important than ever, your responsibility to act more urgent. And yet, divisions and disputes in recent months have made your voice not stronger, but weaker; your voice in the great debates about human rights more muffled, not clearer.15
Two years later, in addressing the opening of the Commission session in March 2005, the Secretary-General complained that the Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.16
He went on to propose that Member States should agree to replace the Commission on Human Rights with a smaller standing Human Rights Council … The creation of the Council would accord human rights a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations. Member States should determine the composition of the Council and the term of office of its members. Those elected to the Council should undertake to abide by the highest human rights standards.17
If we step back and look at the entire lifespan of special procedures under the Commission, we can see that at some point during the 1990s they had become recognisable in their organic totality as a system that seemed to take on a life of its own, despite the fact that these monitoring mechanisms were never created as an integrated body from the outset. As discussed above, each new special procedure was created ad hoc and sort of stitched on to the rest. Perhaps it was always inevitable that the Commission’s 14 See J.-C. Buhrer, UN Commission on Human Rights Loses All Credibility: Wheeling and Dealing, Incompetence and “Non-Action” – Reporters Without Borders Calls for Drastic Overhaul of How the Commission Works, report of Reporters without Borders of July 2003. 15 K. Annan, UN Secretary-General to Commission on Human Rights: We Must Hope a New Era of Human Rights in Iraq Will Begin Now, Statement of 24 April 2003, Geneva. 16 Secretary General’s Report on UN Reform, In Larger Freedom, 21 March 2005. 17 Ibid.
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bold, beautiful and well-intentioned experiment to monitor serious human rights violations eventually ended up like Dr. Frankenstein’s monster: 1) enormous; 2) out of control; 3) both fascinating and hideous to look at; and, above all, 4) more feared than loved by its creator. All the same, the special procedures system had established itself as the world’s most visible human rights forum and it could not be killed off just like that. So on 15 March 2006, the General Assembly established the Human Rights Council to replace the Commission. By doing so, the Assembly hoped that the Council would provide stricter control as foster parent over the special procedures monstrosity in the best interests of the international community at large. The Commission held its final session on 27 March 2006, and in accordance with the Assembly’s request, ECOSOC formally dissolved the Commission on 16 June 2006.18 The new Council held its first meeting on 19 June 2006. How does the UN Human Rights Council differ from the UN Commission on Human Rights? At first glance, nothing has changed in the transition from Commission to Council. The Council meets in Geneva, it is attended more or less by the same coterie of State delegates and representatives of international organisations and NGOs, and it talks about the same kinds of issues. Perhaps the most fundamental aspect that remains unchanged between Commission and Council is the overtly political character governing the process to establish special procedure mandates. Like the Commission, the Council’s membership is open to all UN Member States, Council membership has to reflect the UN principle of equitable geographic distribution and the members decide by majority voting which country should be subject of country mandate review.19 As with the Commission, the Council embraces civil, political, economic, social and cultural rights, including the right to development. There are some important differences, however, between the Commission and Council in terms of the formal criteria for membership. Unlike the Commission, which was a functional commission of ECOSOC, the Council has been constituted as a subsidiary body under the General Assembly and as such it operates directly under the Assembly’s auspices, commanding higher institutional profile within the UN system than did the Commission. Whereas the Commission’s membership was determined by majority voting in ECOSOC (which has only 54 Member States), Council membership is determined by majority vote of the entire General Assembly present and voting (which stood at 192 at the time of writing). Thus, Council membership requires a broader base of political support than that which had been required in respect of the Commission. The Council is also marginally smaller than the Commission, with 47 Member States instead of 53. To ensure greater equity in representation, Council members are not eligible for re-election after holding Council membership for two consecutive terms. 18 UN General Assembly resolution A/Res/60/251, adopted 15 March 2006. 19 Council membership has been allocated according to the following regional groupings: African Group (13); Asian Group (13); Eastern European Group (6); Latin American and Caribbean Group (8) and Western European and Others Group (7).
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As per paragraphs 8 and 9 of resolution 60/251, the General Assembly decided that when electing members of the Council, Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto; the General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights …
and that members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate with the Council and be reviewed under the universal periodic review mechanism during their term of membership.
Thus, important new conditions have been introduced as regards Council membership. In voting for States seeking membership in the Council, consideration has to be accorded to the degree to which the candidate State has contributed to human rights promotion and protection, and once elected Council members have to cooperate with the Council such as through the submission of voluntary pledges to uphold the highest human rights standards. How will the quality of commitment to human rights and cooperation with the Council be assessed? The new Council arrangements envisage a universal periodic review system to ensure that Council Members fulfil their membership responsibilities. On 18 June 2007, in line with resolution 60/251, the Council adopted resolution 5/1, with an annex entitled “Institution-Building of the Human Rights Council” that sets forth the universal periodic review procedures. Part C of the annex establishes that the order of review “should reflect the principles of universality and equal treatment” and that “[a]ll member States of the Council shall be reviewed during their term of membership”. The initial members of the Council have to be reviewed first, to be followed with a mixture of Council Member States and Observer States, while ensuring an equitable geographic distribution of countries under review. Paragraph 12 indicates that the first States to be reviewed will be done with the drawing of lots from each regional grouping, and then alphabetic order will be applied, “unless other countries volunteer to be reviewed”. The reviews are to be done in cycles of four years, which implies, as stated in paragraph 14, that “48 States have to be reviewed per year during three sessions of the working group of two weeks each” (because there are currently 192 Member States of the UN). The resolution’s annex also specifies the documentation upon which the review shall be based, and the workings of the process itself, which basically involves three main phases. First, the review is carried out in a working group composed of the President of the Council and the 47 Council Member States by a troika. The troika consists of individuals, who could come from member State delegations or be experts nominated by the State under review, and a different troika is formed for each State review. For example, the troika in respect of Bahrain – the first country to have been considered under the review system – was formed from one rapporteur each from Slovenia, United Kingdom and Sri Lanka. The rapporteurs in respect of Ecuador, the next country on the list, were drawn from
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Italy, Mexico and India, and in respect of Tunisia, from Bosnia-Herzegovina, Mauritius and China. Observer States are entitled to participate in the review itself and during the interactive dialogue, while “other relevant stakeholders may attend the review” (paragraph 18(c)). This part of the process culminates in the development of an “outcome document” that summarises recommendations made by States in respect of the State under review, including the reviewed State’s own observations. Second, the outcome document is placed before the Working Group for adoption within two weeks, but not before 48 hours has elapsed since the carrying out of the review phase, so as to afford the State under review sufficient time to prepare an adequate response. In the final phase, the outcome document is placed before a plenary session of the Council which accords the State under review 20 minutes to reply to issues raised during the review process, 20 minutes to member and observer States to comment on the outcome document, and a further 20 minutes for NGOs and other “stakeholders” such as national human rights institutions to add their comments before the Council considers whether to adopt the document by resolution. It is then up to the State to implement the recommendations over the next four years until such time as it is placed under the next review. The Commission used to meet annually in regular session from mid-March to the end of April, and in special sessions that were convened from time to time to address urgent situations. In contrast, the Council has to hold no fewer than three sessions per year in Geneva, for a total duration of not less than ten weeks annually. Where a Council member so requests and at least one-third of the Council membership agrees, a special session can be convened. Thus, the duration of regular session times has been stretched from six weeks to ten per year, and the timing of sessions has been made more flexible to enable closer review of urgent human rights situations as they may arise. What effect, if any, will the UN Human Rights Council have on special procedures? Will special procedures work better or worse under the Council than they did under the Commission? At this early stage in the life of the Council, any answer to the above question must remain tentative and speculative. At the time of writing, the Council was due to consider what should be done with the country and thematic mandates that the Commission bequeathed to it. To avoid unnecessary disruption in the operation of the special procedures system, all existing Commission mandates were provisionally continued to operate under the aegis of the Council. Despite the current uncertainty, it is nonetheless worthwhile considering the kinds of factors that could affect the quality of special procedures monitoring and reporting. Under the Council, special procedures could become more effective if the new qualifications required of State membership in the Council were to be properly implemented. After all, membership has been made conditional upon a State’s respect for human rights, which shall be assessed by the universal periodic review discussed above. Evidently, the future quality of special procedures is likely to be determined by how pertinent, precise and perspicacious the universal periodic review will be, and by the degree to which Council members find themselves politically able to use it as a con-
15 – What Effect If Any Will the UN Human Rights Council Have on Special Procedures?
sideration in the election of members to the Council, and as regards suspension of an existing member. Were the universal periodic review to end up being little more than a polite nod of approval to almost any State rather than as a thoroughgoing exercise to appraise the balance of a State’s human rights and wrongs, then the important condition that Council members shall uphold the highest standards of human rights promotion and protection could be rendered virtually irrelevant. If, on the other hand, the universal periodic review of Council members were to be carried out in a critical yet balanced, fair and relatively objective way, then quite possibly the review could play its intended role. More important in the assessment of a State’s commitment to human rights promotion and protection should be the government’s willingness to improve its human rights practices and its demonstrated efforts to do so, rather than its actual ability to repair human rights violations. There are obvious differences among countries as regards objective conditions such as wealth, size of population, political stability, relations with neighbouring countries and other factors that affect the efficacy of the State’s executive, legislative and judicial functions and ultimately the degree to which the government can realistically address human rights issues over a given period of time. The point of the Council, however, is not to produce a club of countries that already enjoys the highest human rights standards. Rather, the Council has to be a means by which to encourage and enable every State to make its own best efforts, using all available means at its disposal and working in close cooperation with the international community at large, to make genuine improvements in the promotion and protection of human rights in the sense of Article 56 of the Charter of the United Nations.20 Ultimately, the Council remains a political body made up of States. A brief look at the first few sessions of the Council indicates how difficult it will be for States to rise above base political motives and self-interest. Whereas the final session of the Commission at the time of its dissolution counted among its members a number of States whose governments showed weak political will to improve human rights promotion and protection in their jurisdictions, arguably the Council’s membership has improved marginally. Interestingly, the United States withdrew its candidature for membership in the new Council, probably fearing the prospect of a politically humiliating defeat over its illegal invasion of Iraq or its seemingly systematic maltreatment of terrorist suspects and their irregular rendition to third States for interrogation that amounted to torture. On 30 June 2006, Tunisia, on behalf of the Group of Arab States requested that a special Council session be convened to address Israeli military action in the Occupied Palestinian Territory. The special session of the Council was called for by 21 Council Member States and comprised two meetings. Council S-1/1 entitled “Human rights situation in the Occupied Palestinian Territory” expresses deep concern over Israel’s breaches of “international humanitarian law and human rights law in the Occupied Palestinian Territory, including the arbitrary arrest of Palestinian ministers, members 20 Article 56 of the Charter of the United Nations declares that “[a]ll Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55”. Article 55(c) obliges the United Nations to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.
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of the Palestinian Legislative Council and other officials, as well as the arbitrary arrest of other civilians, the military attacks against Palestinian ministries, including the office of the Premier, and the destruction of Palestinian infrastructure, including water networks, power plants and bridges”. The Council also decided to send an urgent factfinding mission headed by the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, and called for a negotiated solution to the crisis. Despite the resolution’s focus on the dire humanitarian situation of the Palestinian people under Israeli occupation, there emerged a disturbingly clear and familiar political cleavage with Arab and Latin American Council Member States together with Bangladesh, China, India, Pakistan, the Philippines, Russia, Sri Lanka and African Member States all voting in favour of the resolution, while Canada, Czech Republic, Finland, France, Germany, Japan, The Netherlands, Poland, Romania, Ukraine and the UK (all European Council Member States plus Canada and Japan) voted against. Cameroon, Mexico, Nigeria, South Korea and Switzerland abstained. Council Member States stuck more or less to the same voting pattern as the Council convened for its second special session, this time over Israeli action that violated the territorial sovereignty of Lebanon, causing thousands of deaths and injuries. The resolution condemned Israeli military operations in Lebanon, qualifying them as “gross and systematic human rights violations of the Lebanese people” and denounced the indiscriminate and massive air strikes on the village of Qana where Israeli forces tried to eliminate Hezbollah operatives. Had there been genuine concern for the terrible human rights situation of the Palestinians in Israeli occupied territory and of the Lebanese people whose suffering was produced in an obvious and direct way by what seemed to be an ill-considered and gross overreaction on the part of the Israeli government and military to the abduction of two of its soldiers, one might reasonably have expected nothing short of unanimous support for the resolution. Instead, the countries voting against and abstaining found other reasons not to support the resolution, seemingly placing humanitarian and human rights needs second to other considerations. In case the casual observer was tempted to laud the high-minded concern of Arab, Latin American and African States over Israeli’s belligerent actions in Palestine and Lebanon, while Western States dithered, the situation was precisely reversed over the question of gross and systematic violations being perpetrated in the Darfur region of Sudan where thousands had been raped and murdered by Janjaweed militia, with the seeming acquiescence or complicity of the government of Sudan. Shamefully, not a single Arab, Latin American or African country could bring itself to co-sponsor a draft resolution that expressed its grave concern over the seriousness of the human rights and humanitarian situation in Darfur, called for an immediate end to the ongoing violations and urged all parties to ensure an end to impunity.21 Early meetings of the Council seemed to prove the pessimists right and the optimists wrong: no government seemed capable of putting concern for human rights completely above its own political interests, alliances and biases. If this situation does not change, it is difficult to imagine the Council radically improving the special procedures system of international human rights monitoring, reporting and follow up, whose legitimacy 21 See A/HRC/S-4/L.1, 4 December 2006, on the human rights situation in Darfur.
15 – What Effect If Any Will the UN Human Rights Council Have on Special Procedures?
and efficacy depend upon the independence, impartiality and objectivity not only of mandate-holders but also of the manner in which mandates are established and countries selected for examination. On the other hand, it has become increasingly clear that human security, and ultimately the legitimacy, stability and security of governments that remain responsible to ensure it, depend upon the quality of democratic governance, human rights and the rule of law at home and abroad. If governments were again to realise, as they did in the immediate aftermath of World War Two, that their own political interests to ensure human security in fact coincide with their obligations under international law to promote and protect all human rights for all, then they might take more serious steps to strengthen UN human rights special procedures.
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Institutional Re-engineering for Effective Human Rights Monitoring: Proposals for the Unfinished Business under the “New” Human Rights Council Ibrahim Salama*
Introduction The United Nations (UN) was established to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”. Would the new Human Rights Council (HRC) do a better job in achieving this goal compared to its predecessor, the Commission on Human Rights (CHR)? If both are intergovernmental bodies, how could the HRC be less politicised and more objective than the CHR? The aim of this chapter is to explore the horizons for enhanced human rights protection under the “new” HRC through its yet undefined “expert advice”, and to submit institutional re-engineering proposals to this effect. Obstacles to enhanced human rights protection under the HRC The General Assembly (GA) resolution 251/60, which established the HRC, bears the scars of the typically controversial New York intergovernmental negotiating process. Like in previous similar exercises, Member States ended up exchanging “packages” of concessions which determined the features of the HRC. Such an approach is not conducive to conceiving a truly new human rights system, drawing on lessons of the past and aspiring to realise a shared workable vision for the future. However, a coherent and workable vision for the future is still possible to elaborate. The “genetic code” of the newly established HRC could still be handled to make it a more rational and stronger institution than the CHR. Diplomacy can be more than just the art of producing a “positively ambiguous” outcome that every body can accept, without having to change much on the ground. Member States and the human rights com*
Dr. Salama is an elected Member of the United Nations Sub-Commission on the Promotion and Protection of the Human Rights and Chairman of the United Nations Working Group on the Right to Development. Note: The opinions expressed in this chapter are those of the author.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 185-190.
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munity at large are the owners and founders of the HRC, which has been established only in principle, while its institution-building is still a work in progress. Although it may still be too early to judge, there are good reasons to question, in light of the first two sessions of the HRC, whether the ongoing efforts are heading in the right direction. Any observer of the HRC would quickly get the impression that only the names have changed, while actors, attitudes and results remain unaltered. There are many reasons for such a disappointing state of affairs. The first reason is that the decision to establish the HRC was not preceded by genuine, inclusive and transparent dialogue involving all stakeholders. GA resolution 251/60 raises more questions than answers. Two separate debates are conducted in parallel, although they are clearly linked: reviewing human rights Charter-based mechanisms and treaty body reforms. Business as usual under the HRC is undermined, and undermining the institution-building process, delegates are mentally overstretched between two processes that are incompatible in nature and require different levels of thinking. Finally, one has to admit that some Member States, from different regional groups, may not believe in or act towards a more objective international human rights system. Potential added value of the Human Rights Council Despite the preceding negative factors, one should be positive and future looking and not lose time debating the conditions and rationale of GA resolution 251/60. Now that the HRC has been established, the human rights community should focus its efforts on maximising its added value. Ineffectiveness and selectivity were the main weaknesses attributed to the CHR, both are a result of politicalisation. However, is it possible to blame political entities for lacking political will to end politicalisation? I therefore believe that the issues of double standards and selectivity should rather be approached in a realistic manner and from an institutional perspective. Human rights politics will always haunt the human rights scene; the question is how to minimise its negative impact. Indeed, the rules, methods and modalities of the HRC can and should make it more difficult for Member States to exercise their usual and, I dare say, understandable selectivity. New approaches and working methods can be conceived to stimulate equal emphasis on all human rights issues and equal attention to all human rights situations and violations. A higher level of expertise, rationalised special procedures, complementarity and creative institutional reengineering between various elements of the human rights construction and deeper involvement of national human rights institutions and non-governmental organisations are the key tools to achieve this strategic objective: making the HRC the backbone of a truly stronger and more meaningful international human rights system of promotion and protection. There are three major areas where I would identify the highest potential of added protection value under the HRC as compared to the CHR: “the universal periodic review” (UPR); the new “expert advice”; and the review of human rights mechanisms to reform and rationalise them. The three areas should be viewed in a comprehensive, preventive and capacity-building oriented approach.
16 – Proposals for the unfinished business under the “new” Human Rights Council
Universal periodic review as a mechanism for global scrutiny of the state of human rights worldwide GA resolution 60/251 stresses the need to preserve and build on the achievements of the CHR while redressing its shortcomings. The newly introduced procedure of “universal periodic review” of the human rights situation all over the world is an important step in this direction. But it is not a sufficient guarantee of objectivity, as long as country resolutions remain a matter of discretion that can be misused for political motives whenever the initiating country or group of countries can ensure the required majority. The proper functioning of such a system can only be achieved, in my view, by reforming the special procedures system, making proper use of their recommendations as well as those of treaty bodies and linking both components of the human rights system to the UPR. Findings by competent expert bodies and mechanisms should provide the principal basis for any country specific debates and resolutions. The UPR would thus complement and enhance existing human rights protection mechanisms and not replace or duplicate them. Avoiding duplication in this respect is not a difficult task to achieve if the concept of UPR is clearly defined as a peer review and follow-up mechanism. Such definition should determine the modalities, scope and outcome of its UPR. If the UPR is conceived otherwise, the worst-case scenario is not impossible: weakening the treaty body and special procedures systems while creating an even less credible alternative, probably nothing more than “window dressing”. This would frustrate all legitimate expectations of a stronger HRC and tarnish its image from the beginning. The result can only be more human rights politics and less human rights. Constituting the UPR as a follow-up procedure to the treaty body and special procedures recommendations concerning the State under review would enhance its added value, ensure its smooth insertion and complementarity within the human rights system and avoid its potential negative impact on the treaty bodies and special procedures. In case a country is not part to a specific human rights treaty, its terms of reference in this area should be all universally agreed human rights norms and standards as established in customary law and reflected in the relevant CHR and Council’s resolutions. Beyond its initial concept and corresponding modalities, an innovative UPR depends on elaborating its policy, methodology and indicators. Among other key elements, measuring performance, assessing and building national capacities, promoting best practices and mobilising additional funding to meet developing countries’ needs are headlines to be addressed in this respect. Suggested framework and criteria for the admissibility, consideration and adoption of country specific resolutions Country specific resolutions should not be envisaged unless the UPR process proves to be ineffective in improving a human rights situation in which gross and systematic human rights violations do not cease. The best solution in my view to overcome politisation and selectivity related to handling country specific resolutions is to temper the absolute monopoly currently exercised by Member States in this respect. States enjoy the exclusive right to introduce a resolution, consider it and vote on it. I suggest that
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the middle stage, i.e. consideration of country resolutions, should not be a pure State prerogative with absolute discretionary power. States should be required to abide by a number of rules and objective criteria through the UPR. Only a substantive and objective role of the UPR as a “politisation filter” can restore an eroded credibility of the human rights machinery under the CHR and avoid repeating its mistakes by the HRC. I suggest that the HRC should consider the elaboration of criteria for the admissibility of country resolutions such as not allowing a resolution to be introduced before the concerned country has been reviewed within the universal periodic review procedure, and given sufficient time – within a year of the initial review – for the implementation of the recommendations of the review mechanism. And finally, if a State’s policies and practices continue to be a subject of concern, as established by the relevant treaty bodies and mechanisms, only then, in light of such facts established beyond doubt, could a decision be taken by the new HRC. A country specific resolution should only pass if it enjoys the support of the absolute majority of the membership of the Human Rights Council (affirmative votes of half of the membership plus one). A two-thirds majority would render the adoption of country resolutions very difficult. On the other hand, the simple majority would have significantly undermined the legitimacy of a country resolution when not even half of the members approve it. Such a comprehensive set of criteria constitutes a framework which leaves no doubt as to the integrity of political motivations of country resolutions. The usual “viruses” of the human rights system, selectivity and double standards, can thus be reduced to a minimal level. The new expert advice system as a “thematic protection” mechanism The future role of the expert advice system to replace the Sub-Commission on the Promotion and Protection of Human Rights should be conceived in a holistic manner within the overall new human rights architecture. If treaty bodies are the “quasi-judicial” organ of the human rights system, the successor body of the current Sub-Commission constitutes its “quasi-legislative” tool. The Human Rights Council, as an “executive” human rights body, cannot function properly without both a collegial independent reflection on human rights standards in a thematic manner (HRCC) and an efficient monitoring mechanism for their implementation on the ground (UPR). In its 58th and “final session” in August 2006, the Sub-Commission adopted by consensus a comprehensive vision and recommendations. This 45-page document combines the features of a historical appraisal, a self-criticism and a coherent workable vision to strengthen the human rights machinery in the future. Detailed and comprehensive suggestions elaborated in this vision constitute a coherent composite of ideas and variety of views elaborated during intensive discussions among members of the Sub-Commission (Decision 2006/112). The proposed multi-task Human Rights Consultative Committee In a nutshell, the HRCC is the proposed successor of the Sub-Commission, which would meet the fundamental requirements of any credible expert advice to the HRC, i.e. to be
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a democratic, collegial, independent and expert body. Working under the supervision of the HRC should not deprive the HRCC from a certain “right of initiative”. Yet, proceeding to explore any initiative still requires an authorisation of the HRC. Such a clear definition of roles strikes a careful balance between the intellectual integrity and independence of the HRCC on the one hand, and the legal authority and political leadership of the HRC on the other. The self-criticism of the Sub Commission vis-à-vis its own shortcomings was indeed a criticism for States’ policies which formulated the system as it was. This auto criticism led the Sub-Commission to innovate regarding the way experts are selected, the methods of work of the new body and its links with the other components of the human rights system. Views were divided within the Sub-Commission as to if and how it may play a role within the UPR procedure. I belong to those members who favour such a role for many reasons: preparing a country profile for UPR on the basis of treaty bodies and special procedures recommendations is a highly technical issue; the expertise required to that effect could only be provided by Member States (then they become party and judge) or by the Office of the High Commissioner for Human Rights (OHCHR) (which threatens at least its image of neutrality) or by an expert body (which means either we will have to proliferate fragmented advisory bodies or else assign this task to a “chamber” of the HRCC composed of five experts representing all regional groups). The alternative of a single unified ”Committee of Experts” On the basis of emerging trends as well as recent negotiations experience, one should expect that the Sub-Commission’s vision and recommendations generate useful debate. Indeed that would even be the best-case scenario. Ultimately, the dynamics of negotiations would, however, most probably produce a set of “consolidated compromises” which, by definition, compromises the substantive coherence of the global outcome. I, therefore, think that one more attempt to rescue coherence and complementarily within and among the HRC and its sub-systems is worth suggesting: merge the SubCommission functions, including the 1503 procedure in its form prior to the changes introduced in the year 2000, with special thematic procedures in a single unified expert body to be named “The Committee of Experts” (CoE). The combined functions of this new body should integrate the roles of a Think Tank (old Sub-Commission) in addition to all other functions assigned to independent experts or special rapporteurs. Country specific mandates should be handled by a chamber of the CoE comprising a number of its members who will be tasked with the assessment of a given human rights situation in a country from the perspective of their respective thematic mandates. Their findings could provide a comprehensive and objective analysis not only of a given human rights situation but also of its origins and remedies. The CoE should meet only one week per year to review in a plenary meeting the draft reports and findings of its members within their respective mandates. This ensures coherence, collegiality and filtering of ideas before submitting such reports to the HRC. This solution preserves the advantages of an individual expert working on a topic (flexibility, specialisation, focus) but adds to it the virtues of collective thinking, multi-
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dimensionality, representativity and hence genuine universality and enhanced moral weight, technical soundness and credibility for the outcome of special procedures. Another important advantage of the CoE is that Member States can avoid negotiating the review of mandates on a case-by-case basis. Instead, they would mandate the CoE to identify possible protection gaps, missing links and suggest mergers between the mandates of its members which could be combined. Such a collective expert report prepared by a unified and representative pool of experts on how best to reform, rationalise and mutually support their existing respective mandates can put such mandates on a selfcorrecting and auto-rationalising track with the least possible political clashes among Member States on what mandates deserve to be added and what mandates should be terminated. I trust that in two to three years such a collective single unified expert advice body could even elaborate objective criteria for handling human rights protection mandates (both thematic and country specific). Such mandates are not always supposed to operate forever. When does a human rights concern deserve a mandate? In what form? For how long? And what next? Those issues, among others, are unaddressed issues in the current founding phase of the institution-building and review of the HRC. If such crucial issues are not adequately addressed, the same CHR practices can only lead to similar results under the HRC. My conclusion is therefore that unless the human rights community summons its will and thinks outside the box, we will in fact be reinventing the wheel only under a new name.
17
Urgent Action Sir Nigel Rodley*
It is easy to forget that when Jakob Möller began administering the confidential 1503 procedure, with his hallmark professionalism and commitment, he was seeking to establish a credible basis for what was then perceived as a pioneering intrusion by the UN into the realm of state sovereignty. While it offered a less politically selective measure of UN inquiry into consistent patterns of gross violations of human rights and fundamental freedoms than the parallel public (so-called 1235) procedure, it was characterised by a series of protracted steps that prevented rapid response to urgent situations, as well as by some selectivity. The thematic machinery created not only broke through the selectivity problems of the 1503 and public procedures, but also rapidly evolved means of responding to the situations they were called upon to address with an urgency commensurate with their gravity. The first thematic mechanism established, by the UN Commission on Human Rights, was the Working Group on Enforced or Involuntary Disappearances (1980). After complex negotiations, it had been given the vague power to “examine questions relevant to” enforced disappearances. On the other hand, it was to perform its functions “in an effective and expeditious manner” and “to respond effectively to information that comes before it”. It was on the basis of this language that the Group, at its first session, adopted a procedure for dealing with “urgent reports … requiring immediate action”. Specifically, where such reports were received between sessions of the Group, its Chairman was authorised to transmit the reports to the government of the country concerned, the latter being invited to respond with “such information as it might wish”. The reports were *
Professor of Law and Chair of the Human Rights Centre, University of Essex, Colchester, UK; former Special Rapporteur on Torture (1993–2001). I wish to express my gratitude to Safir Syed and Melinda Ching Simon, of the Office of the High Commissioner for Human Rights, for helpful information on recent developments in the UN urgent appeal system. Commission on Human Rights resolution 20 (XXXVI), 29 February 1980. UN Doc. E/CN.4/1435, para. 30.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 191-195.
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cabled or telexed (now they are faxed) directly to the foreign ministry of the country concerned, thus avoiding problems of delay or inaction that could be attendant on using the usual channel, namely, the country’s permanent mission to the UN Office at Geneva, to which copies would nevertheless be sent. The model set by the Working Group was emulated by analogous bodies established subsequently, notably, the Special Rapporteur on Extrajudicial, Arbitrary and Summary Executions (established in 1982), the Special Rapporteur on Torture (1985), the Special Rapporteur on Religious Intolerance (1986), the Working Group on Arbitrary Detention (1991), the Special Rapporteur on Freedom of Expression (1993), the Special Rapporteur on Racism (1993), the Special Rapporteur on the Independence of Judges and Lawyers (1994), the Special Rapporteur on Human Rights Defenders (2000) and the Special Rapporteur on Human Rights and Counter-Terrorism (2005). In addition to these procedures oriented to civil and political rights, some mandates dealing with economic and social rights, such as the Special Rapporteur on the Right to Health (2002), also resort to the urgent appeal technique; so do some mandates dealing with vulnerable groups, notably, the Special Rapporteur on Violence against Women (1994). Some country-specific rapporteurs may also resort to the use of urgent appeals. Most urgent appeals will be based on information submitted by non-governmental organisations (NGOs). Indeed, in the early days of the mechanisms most of their urgent appeals were based on information put out on Amnesty International’s Urgent Action Network, which that organisation had developed in the mid-1970s as part of its campaign against torture and which was subsequently expanded to include other threatened violations of human rights within its mandate. Nowadays several international, regional (e.g. the Asian Human Rights Commission) and national NGOs have similar systems. The UN procedures are not formalistic in their approach to sources. If the information from whatever source – it may, for instance, be a lawyer now – seems to suggest that an urgent appeal is called for, then it will be acted on if the source appears to be providing reliable information. The reliability will be assessed on the basis of various factors. Naturally, the source is one of them: if the source is known to the mandate as having a record of reliability, this will be considered as a particularly important factor. Existing knowledge of the human rights practices in the country will be relevant. For example, more information may be required in respect of an allegation of feared torture or summary execution in a country where such practices are not reportedly prevalent than in respect of a country where allegations of the practice are widespread. Attention will be paid to the internal
See generally O. de Frouville, Les Procédures thématiques: Une Contribution efficace des Nations Unies à la protection des droits de l’homme (Pedone, Paris, 1996) pp. 63–66; N. Rodley, The Treatment of Prisoners Under International Law, 2nd ed. (Clarendon Press, Oxford, 1999) pp. 148, 200, 201, 240, 241, 275, 276; T. Van Boven, ‘Urgent Appeals on Behalf of Torture Victims’, in Mélanges en homage au Doyen Gérard Cohen-Jonathan (Bruylant, Brussels, 2004) pp. 1651–1666; J. Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (School of Human Rights Research, Utrecht, 2006) pp. 253–266.
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consistency of the information. Clearly the more facts advanced to substantiate the fear, the better. Any information reliably suggesting that violations within the mandates of the Working Group on disappearances and the Special Rapporteurs on executions and on torture are in danger of occurring or in the process or occurring will, by virtue of the gravity of such violations, be treated as urgent. That is why those mechanisms are still responsible for most urgent appeals. There is not the space here to explore the finer points of the mandates. Briefly, the Working Group requires evidence of an arrest or abduction by public officials, with the detention remaining unacknowledged despite efforts to clarify the situation. (In addition, it requires at least an approximate indication of the date of the arrest or abduction or of the disappearance from previously acknowledged detention – cases over three months old will not usually be considered suitable for the urgent appeal procedure.) The Special Rapporteur on summary or arbitrary executions will require evidence of threatened extra-legal killing by or with the toleration of public officials or of threatened inflictions of the death penalty without compliance with international standards (e.g. denial of fair trial, right of appeal, procedure for petition, reprieve or commutation of sentence). The Special Rapporteur on torture needs evidence of serious physical or mental coercion inflicted by or with the toleration of public officials for certain purposes (mainly, to elicit information or a confession or to punish or intimidate) or of threatened infliction of corporal punishment, as a criminal penalty or as a disciplinary sanction (e.g. flogging, stoning, amputation of limbs). Since the purpose of urgent appeals is essentially to avoid harm to life or limb (that is, irreparable harm) the other mechanisms resorting to such appeals usually indicate that their appeals are to avoid similar harm. As a rule, the threatened harm will, therefore, also fall within the mandates of the machinery of disappearances, executions and torture. Occasionally an urgent appeal may be made not to protect a potential victim, but because of the overall seriousness of some legal or institutional development. This was the case, for example, of a joint appeal made in 1995 to the government of Peru regarding the promulgation of two amnesty laws, one providing for amnesties for criminal or other illegal activities of public officials in the fight against terrorism and the other for the exclusion of any judicial review of the legislation. The appeal was made by the Special Rapporteurs on executions, torture and the independence of judges and lawyers and the Chairman of the Working Group on disappearances. This initiative is also an example of the now common phenomenon of joint appeals. The facts of individual cases may well involve, as has been seen, more than one thematic mandate. Indeed, they may also involve the mandate of a country-specific rapporteur who considers urgent appeals a proper working method for his or her mandate. With a view to responding to reiterated appeals from governments and the Commission to avoid duplication and overlap of work, the machinery has been resorting ever more frequently to joint appeals where these are appropriate; they have also encouraged the co
The Human Rights Council accepts the use of urgent appeals when the “alleged violations are time-sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of a very grave nature”: HRC res. 5/2 (2007), Annex, Article 10.
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ordination within the Office of the High Commissioner for Human Rights (the relevant part of the UN Secretariat) needed to facilitate the initiation of joint activities, including in respect of urgent appeals. Indeed, this function has been assigned to an Information and Management Team, within which a Quick Response Desk that was established in 2001 processes urgent appeals, including by means of joint action. It expects to deal with incoming information requiring urgent action within a matter of hours. It is important to note a basic distinction between urgent appeals in individual cases and the transmittal of allegations of human rights violations within the purview of particular mandates. The latter type of action is essentially a fact-finding procedure in response to an accusation. The former is conceived of as a preventive initiative (some mandates use the dubious term “humanitarian” to describe it), not intended as accusatory, but as a means of ensuring action aimed at avoiding harm. Not only is the distinction relevant in terms of the expected response of governments, but also in terms of the degree of proof required for the expression of concern. Precisely because no accusation is implied by the appeal, it is possible, in view of the time-sensitivity of the information, to accept a somewhat lower level of corroboration of the information than might be the case for an allegation of a violation having taken place. The urgent appeal technique has been generally accepted by States. However, one appeal in 2006 became controversial. The Special Representative on Human Rights Defenders addressed an urgent appeal to members of the Economic and Social Council urging them to approve the granting of consultative status to the International Lesbian and Gay Association, the main international NGO in its field. Negative reaction to this initiative led the High Commissioner for Human Rights and the Special Representative jointly to withdraw the appeal. The controversy that nevertheless spilled over into the second session of the Human Rights Council probably had more to do with the nature of the action (asking States to vote in a particular way) and the specific field of action of the NGO than the arguably inappropriate use of the urgent appeal system. The Human Rights Council has continued the system of special procedures, but has also made a change in the system that is at odds with the urgent nature of the subject-matter of urgent appeals. In the past, while ordinary allegations of violation of the rights of concern to a particular mandate would be sent to the State through diplomatic channels (typically the State’s permanent mission to the UN Office at Geneva), urgent appeals were usually sent directly to the State’s capital. Although it endorsed the system of urgent appeals, it now required even these communications to be sent through diplomatic channels, unless agreed otherwise between specific governments and the Office of the High Commissioner for Human Rights. Since some diplomatic channels are notoriously overworked, inefficient or, as a matter of policy, block communications between the UN and the capitals, it is to be hoped that the Office of the High Commissioner for
See Human Rights Council Concludes Debate on Right to Health, Right to Food and Human Rights Defenders, Press Release 22, September 2006, HRCO 6045E (from UN Human Rights website). HRC res. 5/1 (2007), Annex, chapter II. HRC res. 5/2 (2007), Annex, Articles 10 and 14.
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Human Rights will be diligent in reaching alternative arrangements as necessary and possible. The public, annual reports of the mechanisms will, with varying degrees of detail, ranging from the statistical to the named-case-specific, usually contain information on a country-by-country basis of urgent appeals made and any responses from governments received. In this respect too, they mark a contrast to the largely confidential 1503 procedure. That procedure may be likened to a parent, a very respected parent, that gave birth to children who in turn have rebelled against the parent’s way of doing things, while seeking to secure the same values of purpose (the protection of human dignity) and of technique (respect for facts and professionalism). In other words, all this is also partly the legacy of Jakob Möller.
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Part IV: The UN Secretariat
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The Office of UN High Commissioner for Human Rights Bertie G. Ramcharan*
Introduction The United Nations (UN) High Commissioner for Human Rights is, alongside the United Nations Secretary-General, one of the world’s leaders on human rights, who is expected to provide intellectual and moral leadership on human rights issues, to steer the United Nations human rights programmes strategically, to engage in cooperative activities with Member States of the United Nations for the strengthening of their national protection systems and to be an international custodian of the responsibility to protect. That responsibility is discharged by being a voice of conscience, by engaging in human rights diplomacy and by fact-finding activities. The High Commissioner is the administrative head of the Office of the High Commissioner and is mandated to help coordinate the human rights activities of the UN system and to contribute to its ongoing reform and revitalisation. The mandate of the High Commissioner The resolution establishing the position of High Commissioner gives the officeholder the mandate to act for the promotion and the protection of all human rights, *
Professor, Geneva Graduate Institute of International Studies; Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law; Former Deputy, Former Acting High Commissioner for Human Rights. General Assembly resolution A/RES/48/141 of 7 January 1994. For further information regarding the UN High Commissioner for Human Rights, see B. G. Ramcharan, The United Nations High Commisisoner for Human Rights (Martinus Nijhoff, 2002) and same author, A UN High Commissioner in Defence of Human Rights (Martinus Nijhoff, 2004). See also A. de Zayas, ‘United Nations High Commissioner for Human Rights’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, volume iv (Elsevier, Amsterdam, 2000) pp. 1129–1132, and same author, ‘United Nations High Commissioner for Human Rights’, in H. Volger (ed.), Concise Encyclopedia of the United Nations (Kluwer, The Hague, 2002) pp. 217–222.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 199-204.
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civil and political, economic, social and cultural, and the right to development. The High Commissioner acts under the authority of the Secretary-General and reports to the General Assembly annually, through the Human Rights Council. As practice has evolved since the inception of the Office in 1994, the High Commissioner has submitted a separate report annually to the Human Rights Council (formerly the Commission on Human Rights), the Economic and Social Council and the General Assembly. The position of High Commissioner, established by the General Assembly, operates under the supervision of the General Assembly and its Human Rights Council. The Office of High Commissioner The Office of High Commissioner consists of some 500 staff members at its headquarters in Geneva, some ten staff members in its New York office, regional representatives deployed in some parts of the world, human rights field offices in some countries and human rights advisers in particular countries. The staff and activities of the Office are financed in part from the regular budget of the United Nations and through extrabudgetary contributions from Member States. About two-thirds of its resources come from extra-budgetary sources and the remaining third from the regular budget of the United Nations. Each year, the Office issues an appeal for voluntary contributions. The contributors are mainly Western countries, which provide the bulk of the voluntary contributions, but many countries from different parts of the world also make smaller contributions as a sign of their support for the activities of the Office. The Office provides secretariat servicing for the various Charter-based and treatybased human rights bodies, provides support for human rights fact-finders, prepares reports and studies requested by UN human rights bodies, has regional teams with desk officers covering the Member States of the United Nations and provides expert advice and assistance requested by governments. The Office also co-operates with the secretariats of regional human rights bodies and of the International Criminal Court and the ad hoc international criminal tribunals. The staff of the Office comes from different parts of the world, and there is a push by Member States for more staff to come from developing countries. Policy orientations of the office since its establishment In the first decade of its existence, one could detect the following policy orientations of the High Commissioners: to build up the Office on the foundations of the former UN Centre for Human Rights; to activate the voice of the High Commissioner; to mainstream human rights in the activities of the United Nations system; to take human rights activities to the field; to increase the availability of expert advice and assistance requested by Member States; to contribute to the development or strengthening of national protection systems in each Member State; to contribute to greater effectiveness of the human rights treaty bodies; to indicate the human rights dimensions of major international issues discussed at the United Nations or in global conferences; to highlight the importance of respecting human rights in the fight against global terrorism; to contribute to the work of the Security Council through briefings provided by the High
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Commissioner and staff of the Office; and to support the quest for justice for victims of gross violations of human rights. The Office is a member of the four Executive Committees established by the SecretaryGeneral to steer the activities of the Organisation, and this has helped in the integration and mainstreaming of human rights in the different activities of the United Nations. The degree of effectiveness of the Office’s contributions has depended on political currents within powerful Member States and on the approaches of the heads of partner departments. In some instances, partners have been proactive in furthering the human rights dimension of their own mandates. This can be seen, for example, in the fact that human rights components have now become standard in all UN peacekeeping operations. United Nations peacemakers are also more aware of human rights considerations. The newly established Peace-Building Commission has an in-built human rights dimension. In some instances, however, partners’ embrace of human rights is more guarded. This has been the case with the International Monetary Fund (IMF), the World Bank, the United Nations Development Programme (UNDP) and, more recently, even the United Nations Children’s Fund (UNICEF). The difficulties that have been experienced in deepening the human rights dimension in the different organisations have stemmed from many factors: in the first place, human rights issues sometimes attract governmental sensitivities, and international organisations pay attention to those sensitivities. This indicates the need for careful human rights diplomacy. In the second place, the Office of High Commissioner has not always been able to occupy the intellectual space it has opened up. For example, when High Commissioners have pushed for human rights engagement in the UNDP and the World Bank and have been met with positive responses, they have, in some instances, not been able to work out practical co-operative programmes with these institutions. Practical co-operation with partners is important in helping them to take forward a human rights agenda. In the third place, the role and contribution of the human rights treaty bodies have not been sufficiently explained to partners so that they might, in turn, integrate this dimension into their work and support the process of taking forward the implementation of the human rights treaties in each country. Intellectual leadership of the High Commissioner In a rapidly evolving world, one of the main contributions that can be made by the High Commissioner, or the Office of High Commissioner, is as an intellectual leader on the human rights dimensions of international issues. The Office has sought to do this and has had some modest successes. The Office has provided thoughtful reports to human rights bodies on topics such as globalisation and human rights, the international trading regime and human rights, the principle of equality in international human rights law and in international economic law, the human rights norms and jurisprudence that must be taken into account in the struggle against global terrorism, human rights and poverty reduction strategies and the implementation of the right to development. The Office has also had a practice of contributing papers on the human rights dimensions of issues engaging the attention of international conferences.
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One has the impression, however, that this intellectual contribution has not registered much outside of the United Nations, and the Office might need to think of ways and means of attracting more attention to the new thinking in which it engages and to its articulation of the human rights dimensions of international issues. The Annual Report of the High Commissioner receives little attention in the media, and speeches by the High Commissioner often go unnoticed. The communications strategies of the Office would need revisiting. The moral leadership of the High Commissioner The moral leadership of the High Commissioner has been visible intermittently. When the High Commissioner takes a stance on a situation of international concern, the world sometimes takes notice. The first High Commissioner, Jose Ayala Lasso, took the lead in calling for a special session of the then Commission on Human Rights to deal with the genocide then taking place in Rwanda. His successor, Mary Robinson, made a courageous call for respect for the principle of proportionality during North Atlantic Treaty Organization’s (NATO) bombing campaign in Kosovo. The late Sergio Vieira de Mello made a principled call for the release of the Guantanamo detainees after a year of detention. This author highlighted the human rights violations in Darfur and the human rights concerns in Iraq following the invasion of that country by Coalition Powers. The incumbent High Commissioner, Louise Arbour, cautioned about war crimes and crimes against humanity in the conflict between Israel and Hezbollah in Lebanon in the summer of 2006. In all of these instances, the world paid attention, even if the practical results were not many in almost each instance. Nevertheless, the moral voice of the High Commissioner is of great importance in the contemporary world, and it must be used wisely and to effect. One way in which that moral voice can be activated further in the world is through engagement of the High Commissioner on thematic issues. This author considered it a matter of conscience to highlight the plight of the victims of human trafficking and took the lead in the establishment of the position of special rapporteur against such human trafficking. There are many such issues in the contemporary world. One of the most pressing is equality and justice for women as are the rights of the child and the rights of minorities, indigenous populations and migrants. One needs to find ways of activating the moral voice of the High Commissioner on the great moral and human rights issues of our time. Here again, the communications strategies of the Office would need revisiting. Human rights diplomacy of the High Commissioner Human Rights issues are intensely political, and at the same time they are supremely moral. Currently, at the United Nations there are serious debates about whether the Human Rights Council should discuss human rights violations in particular countries, adopt resolutions about them and engage in the presentation of developing countries in a spirit of co-operation rather than “confrontation”. The membership and practice of the former Commission on Human Rights and now the Human Rights Council have been sharply criticised. These are difficult issues for the United Nations and for the High
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Commissioner that call for the deployment of careful human rights diplomacy on the part of the High Commissioner as well as the United Nations Secretary-General. In the first place, the composition and practice of the Human Rights Council require on-going diplomacy on the part of both the High Commissioner and the SecretaryGeneral to help bring about a situation in which those who sit on the Human Rights Council and make decisions in it have moral probity and are attentive to due process. In the second place, if the United Nations is not seen to be acting meaningfully when there are situations of gross violations of human rights, the credibility of the United Nations will be shattered. But how should the United Nations calibrate its actions so that it is seen to be principled and meaningful? This is where the diplomacy of the High Commissioner can be especially helpful. In the third place, the High Commissioner should engage in diplomacy with each country of the world to help it develop or strengthen adequate and effective national protection systems. We address this issue in a separate chapter of this volume. Here we are concerned with the diplomacy of the High Commissioner. Building on the work of the human rights treaty bodies and the special procedures of the Human Rights Council, the High Commissioner and her Office should strategically analyse the national protection system of every country so that the High Commissioner can determine when it is wise and appropriate to engage in behind-the-scenes efforts to help strengthen a particular national system. Fourth, the diplomacy of the High Commissioner should be marshalled in favour of the expansion of human rights education. It is still, unfortunately, the case that human rights are not taught in primary and secondary schools in most countries of the world. This is an issue that requires massive international engagement, and the High Commissioner should lead that effort. Fifth, the use of international human rights norms and jurisprudence in national judiciaries should be broadened, and training courses for lawyers, judges and the general public should be organised and offered worldwide. There are unfortunately many countries in the world where judges do not have access to the basic international norms or jurisprudence in local languages. This is an issue on which the human rights movement as a whole should play a part. But, the movement has to be energised and led by the High Commissioner. Support for the human rights treaty bodies In the opening essay in this volume, discussing human rights challenges of the 21st century, we argued that the role of the human rights treaty bodies will be crucial in a period when there are so many political difficulties about how to deal with human rights issues. States have voluntarily accepted the human rights treaties and engage in co-operative dialogue with the expert treaty bodies. Some of them have accepted petitions procedures and submit to the human rights jurisprudence emerging from these bodies. It is of the utmost importance that the High Commissioner and the Office of High Commissioner give very high priority to support for the human rights treaty bodies. They must be provided with adequate staffing to prepare and backup their work and to work on the cases submitted before these bodies. The jurisprudence of the human rights treaty bodies will probably have the most lasting effect in shaping the universal culture of human rights,
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and there must be adequate support and staffing for dealing with petitions submitted to the treaty bodies. Unfortunately, ever since its establishment, the Office of High Commissioner has not placed support for the human rights treaty bodies high on its list of priorities, which they deserve; this is something that should change in the future. High Commissioners have had a tendency to see themselves apart from the treaty system. Yet, it is on the work of the human rights treaty bodies that the whole human rights movement must be built. Conclusion In this essay we have sought to give a sense of the role and responsibilities of the High Commissioner; to look at the structure, staffing and resources of the Office; to discuss the intellectual and moral leadership roles of the High Commissioner; and finally to discuss the need for human rights diplomacy and for support for the human rights treaty bodies. The High Commissioner is one of the most important officials in the human rights machinery of the international community, and he/she needs to set wise courses for the future as the Office consolidates itself in its second decade of existence and gears up for the challenges ahead.
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Human Rights Field Operations Michael O’Flaherty*
Introduction The United Nations (UN) has long acknowledged the nexus between issues of human rights and of the causes and the resolution of armed conflict. This recognition provides
*
Professor of Applied Human Rights and Co-Director, The Human Rights Law Centre, University of Nottingham; Member of the United Nations Human Rights Committee; and Director of the project Consolidating the Profession: The Human Rights Field Officer (<www. humanrightsprofessionals.org>). See M. O’Flaherty, ‘Human Rights Field Operations, An Introductory Analysis’, in M. O’Flaherty (ed.), The Human Rights Field Operations: Law, Theory and Practice (Ashgate, 2007); B. Ramcharan, ‘Human Rights and Conflict Resolution’, 4:1 Human Rights Law Review (2004); D. Carment and A. Schnabel, Conflict Prevention: Path to Peace or Grand Illusion (United Nations University, Tokyo, 2003); H. Thoolen, Early Warning and Prevention, in G. Alfredsson et al. (eds.), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Moller (Martinus Nijhoff, The Hague, 2001) p. 301; L. Mahony, ‘Unarmed Monitoring and Human Rights Field Presences: Civilian Protection and Conflict Protection’, The Journal of Humanitarian Assistance (2003), <www.jha.ac/articles/a122.htm>; E. Lutz et al., ‘Human Rights and Conflict Resolution from the Practitioners’ Perspective’, 27:1 The Fletcher Forum of World Affairs (2003); J. Saunders, Bridging Human Rights and Conflict Prevention: A Dialogue Between Critical Communities, Carnegie Council on Ethics and International Affairs, <www.cceia.org/viewMedia.php/prmTemplateID/1/prmID/161>; M. O’Flaherty, ‘Sierra Leone’s Peace Process: The Role of the Human Rights Community’, 26:1 Human Rights Quarterly (2004); M. O’Flaherty, ‘Future Protection of Human Rights in Post-Conflict Societies: The Role of the United Nations’, 3:1 Human Rights Law Review (2003).
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 205-217.
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the context for the ever-increasing deployment by the UN of human rights field operations in conflict and post-conflict environments. Historical review Already in 1978, the UN mission in Namibia took responsibility for election monitoring, development of electoral legislation, repatriation of refugees and release of political prisoners. However, the practice of deploying specifically mandated human rights field teams began in 1991. The initiative was in large part prompted by a post-Cold War surge of optimism regarding the UN’s capacity as a peace-builder. The first human rights mandated mission was tasked with monitoring the implementation of the San Jose Peace Agreement in El Salvador. In 1992, the UN established a mission to oversee the political transition in Cambodia, again with a human rights component. The year 1993 saw the establishment, jointly by the UN and the Organization of American States (OAS), of the first exclusively human rights-focused mission, in Haiti.
For our purposes, the term “human rights field operation” refers primarily to those types of civilian field missions that are either deployed or supported by the Office of the United Nations High Commissioner for Human Rights (OHCHR) as well as analogous missions of organisations such as the Organisation for Security and Co-operation in Europe (OSCE). Accordingly, the essay addresses issues of relevance to stand-alone OHCHR “field presences” and the civilian human rights components of UN peace missions. The focus of attention is on operations in armed conflict or post-conflict situations. For an overview of current UN programmes, see OHCHR, Annual Appeal 2008, Geneva, 2008, <www.unhchr.ch/pdf/appeal2008.pdf>. See Security Council resolution 431 (1978), UN Doc. S/RES/431 (1978), and Security Council resolution 435 (1978), UN Doc. S/RES/435 (1978). See M. Katayanagi, Human Rights Functions of United Nations Peacekeeping Operations (Kluwer Law International, The Hague, 2002); B. G. Ramcharan, ‘The United Nations High Commissioner for Human Rights: The Challenges of International Protection’, 71 International Studies in Human Rights (2002). The United Nations Observer Mission in El Salvador (ONUSAL). See R. Brody, ‘The United Nations and Human Rights in El Salvador’s ‘Negotiated Revolution’’, 8 Harvard Human Rights Journal (1995) p. 153; D. García-Sayán, ‘The Experience of ONUSAL in El Salvador’ and T. Whitfield, ‘Staying the Course in El Salvador’, in A. Henkin (ed.), Honoring Human Rights (Kluwer Law International, The Hague, 2000). The United Nations Transnational Authority in Cambodia (UNTAC). See D. McNamara, ‘UN Human Rights Activities in Cambodia: An Evaluation’ and B. Adams, ‘UN Human Rights Work in Cambodia: Efforts to Preserve the Jewel in the Peacekeeping Crown’, in Henkin, ibid.; M. Kirby, ‘Human Rights, the United Nations and Cambodia’, 67:4 Australian Quarterly (1995) p. 26. The OAS/UN International Civilian Mission in Haiti (MICIVIH). See W. G. O’Neill, ‘Human Rights Monitoring versus Political Expediency: The Experience of the OAS/UN Mission in Haiti’, 8 Harvard Human Rights Journal (1995) p. 101; W. G. O’Neill, ‘Gaining Compliance Without Force: Human Rights Field Operations’, in Chesterman (ed.), Civilians in War (Lynne Reinner, Boulder, 2001); I. Martin, ‘Paper versus Steel: The First Phase of the
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All of these first missions were realised within the framework of the UN’s political programming. They were established under the authority of, or otherwise in close consultations with, the Security Council or, less frequently, the General Assembly, headquartered in New York, and without the involvement of the organisation’s human rights component, then called the Centre for Human Rights, located in Geneva. The Centre, however, was itself starting to undertake the deployment of human rights monitors in the former Yugoslavia in support of the Commission on Human Right’s special rapporteur for that region, and in 1993 had assumed responsibility to take over the UN human rights programme in Cambodia upon the closure of the United Nations Transitional Authority in Cambodia (UNTAC). In 1994, in response to the Rwanda genocide and under the guidance of the newly appointed first UN High Commissioner for Human Rights,10 the Centre established a mission11 that by late 1995 comprised 130 international staff.12 Such missions were launched notwithstanding the Centre’s lack of relevant experience and infrastructure and were funded by voluntary contributions rather than, as was the case for the New York-led operations, from the regular UN budget.13 By the mid-1990s,14 commentators were drawing attention to a number of concerns regarding the development of human rights field operations. These included: a) the need to ensure that human rights be addressed in the design and operation of all New York-led peace missions rather than the handful that have been mentioned here; International Civilian Mission in Haiti’ and C. Granderson, ‘Institutionalizing Peace: The Haiti Experience’, in Henkin, supra note 6. A similar scheme was envisaged to support the mandate of the special rapporteur on Iraq. However, deployment to that country was not feasible. 10 The post was established by UN General Assembly resolution 141 (1993), UN Doc. A/ RES/48/141 (1993) (see Ramcharan, supra note 5). 11 Human Rights Field Operation for Rwanda (HRFOR). 12 See W. Clarance, ‘The Human Rights Field Operation in Rwanda: Protective Practice Evolves on the Ground’, 2:3 International Peacekeeping (1995); I. Martin, ‘After Genocide: The UN Human Rights Field Operation in Rwanda’, in Henkin, supra note 6; T. Howland, ‘Mirage, Magic or Mixed Bag?: The United Nations High Commissioner for Human Rights’ Field Operation in Rwanda’, 21:1 Human Rights Quarterly (1999). 13 With the exception of the Cambodia office, the core costs are met from the UN regular budget. 14 See the papers presented at meetings in 1995 and 1998 contained in Henkin, supra note 6; D. García-Sayán, ‘Human Rights and Peacekeeping Operations’, 29:1 University of Richmond Law Review (1994); D. Little, ‘Protecting Human Rights During and After Conflicts: The Role of the United Nations’, 4:1 Tulsa Journal of Comparative and International Law (1996); W. Clarance, ‘Field Strategy for the Protection of Human Rights’, 9:2 International Journal of Refugee Law (1997); I. Martin, Human Rights Monitoring and Institution-Building in PostConflict Societies: The Role of Human Rights Field Operations, paper delivered to USAID Conference, Promoting Democracy, Human Rights and Reintegration, 30–31 October 1997, on file with the present author; I. Martin, ‘A New Frontier: The Early Experience and Future of International Human Rights Field Operations’, 16:2 Netherlands Quarterly of Human Rights (1998). See also O’Neill, ‘Gaining Compliance’, supra note 8.
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b) the role of the Geneva-based High Commissioner for Human Rights and the Centre in the guidance of these missions; c) the unsustainability of the Geneva-led voluntarily funded operations; d) the effort to balance the monitoring functions of such missions with the delivery of capacity building technical co-operation; and e) the extent to which regional organisations could or would mount human rights field operations. These concerns came to be addressed within the context of a general move to operationalise the notion of human rights as a crosscutting responsibility in all the work areas of the United Nations – a concept that was articulated by the Secretary-General in his 1996 UN Reform Programme.15 In the first place, the Centre for Human Rights (renamed in 1998 the Office of the United Nations High Commissioner for Human Rights (OHCHR)) adopted a policy of seeking, as far as possible, to insert human rights components in New York-led missions rather than itself mounting entire operations. New York departments, for their part, grew increasingly willing to insert human rights components as integral parts of peacekeeping and, to a lesser extent, peacemaking operations. It was in this context that human rights programmes were located in UN missions such as those for Liberia,16 Angola,17 Sierra Leone,18 Democratic Republic of Congo19 and Ethiopia and
15 16
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K. Annan, Renewing the United Nations: A Programme for Reform, UN Doc. A/51/950 (1997). The United Nations Observer Mission in Liberia (UNOMIL). See B. Nowrojee, ‘Joining Forces: United Nations and Regional Peacekeeping – Lessons from Liberia’, 8 Harvard Human Rights Journal (1995) p. 129; A. Clapham and F. Martin, ‘Smaller Missions Bigger Problems,’ in Henkin, supra note 6. The United Nations Verification Mission III and the United Nations Observer Mission in Angola, (UNAVEM III and UNOMA). See T. Howland, ‘UN Human Rights Field Presence as Proactive Instrument of Peace and Social Change: Lessons from Angola’, 26:1 Human Rights Quarterly (2004). The United Nations Observer Mission in Sierra Leone and the United Nations Assistance Mission in Sierra Leone (UNOMSIL and UNAMSIL). See M. O’Flaherty, ‘Sierra Leone’s Peace Process’, in Centre for Humanitarian Dialogue, Politics and Humanitarianism, Coherence in Crisis? (Geneva, 2003). The United Nations Organisation Mission in the Democratic Republic of the Congo (MONUC). See ibid.
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Eritrea.20 Those UN missions that assumed transitional authority, such as in Kosovo21 and East Timor,22 also included human rights components. Within a number of missions, components were also established outside the human rights programme but with a clear overlap of interest – such as for promotion of rule of law, protection of the rights of the child and addressing gender considerations. Civilian police components also assumed clear human rights related responsibilities – as illustrated by the establishment of a policing mission in post-conflict Bosnia and Herzegovina with a predominantly human rights related mandate.23 During this period, there continued to be instances of the OHCHR establishing its own missions, such as in Colombia, Democratic Republic of Congo and Burundi. These missions had their origins in such considerations as specific initiatives of the UN Commission on Human Rights or of intended work areas, like human rights technical co-operation, which were not then seen as related to the competencies of the New York departments or for which OHCHR project funding would be required. Sometimes OHCHR programmes were established side-by-side with the human rights operations of peace missions, as in the case of the OHCHR programme in Sierra Leone that supported the latter’s Truth and Reconciliation Commission. The development of a doctrine and methodology regarding human rights field operations received a stimulus in 2000 with publication of the Report of the Panel on United Nations Peace Operations24 (the “Brahimi Report”), which undertook a thorough review of the United Nations peace and security activities. The Report emphasised the need for mission-wide team approaches to uphold the rule of law and respect for human rights.25 It also described the human rights component of a peace operation as “indeed 20 The United Nations Mission in Ethiopia and Eritrea (UNMEE). 21 The United Nations Mission in Kosovo (UNMIK). See W. Betts et al., ‘The Post-Conflict Transitional Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law’, 22:3 Michigan Journal of International Law (2001); H. Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, 95:1 American Journal of International Law (2001); H. Strohmeyer, ‘Making Multilateral Interventions Work: The UN and the Creation of Transitional Justice Systems in Kosovo and East Timor’, 25:2 Fletcher Forum of World Affairs (2001) p. 107; D. Marshall and S. Inglis, ‘The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo’, 16 Harvard Human Rights Journal (2003) p. 95. 22 The United Nations Transitional Administration in East Timor (UNTAET). See Strohmeyer, ibid.; D. Criswell, ‘Durable Consent and a Strong Transitional Peacekeeping Plan: The Success of UNTAET in Light of the Lessons Learned in Cambodia’, 2:3 Pacific Rim Law and Policy Journal (2002); B. Kondoch, ‘The United Nations Administration of East Timor’, 6:2 Journal of Conflict and Security Law (2001). 23 The United Nations International Police Task Force (IPTF). See M. O’Flaherty, ‘International Human Rights Operations in Bosnia and Herzegovina’, in Henkin, supra note 6; M. O’Flaherty and G. Gisvold (eds.), Post-war Protection of Human Rights in Bosnia and Herzegovina (Martinus Nijhoff, The Hague, 1998). 24 Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305 S/2000/809 (2000). 25 Ibid., at 6.
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critical to effective peace-building”26 and observed that the operations should engage in both human rights monitoring and capacity-building. Management models were proposed whereby the OHCHR would be a participant throughout the design and oversight of future UN peace operations.27 The publication of the Report coincided with the finalisation of a Memorandum of Understanding (MOU) between the OHCHR and the Department of Peacekeeping Operations (DPKO), which established a formal relationship between them for the design and operation of peacekeeping missions. There is no such MOU with the UN Department of Political Affairs – apparently due to the desire of the latter to maintain the flexibility of the currently informal arrangements. The Report’s proposals were first tested in 2002, with the design, under Brahimi’s leadership, of a new UN “integrated mission” in Afghanistan.28 In this case, the OHCHR supported a mission design that “mainstreamed” the human rights monitoring function and ensured a human rights capacity building programme by means of a project to be funded by the OHCHR. This design gave cause for comment29 because the mainstreaming of the monitoring function resulted in the absence from the mission of a dedicated human rights monitoring unit. Subsequent integrated missions, such as those for Iraq,30 Liberia31 and Côte d’Ivoire (Ivory Coast),32 reverted to a model of including specific human rights units within the missions,33 with the Côte d’Ivoire mission also innovatively giving access to the UN regular budget for the undertaking of capacity-building activities.34 The human rights mainstreaming process received further impetus with the 2002 report of the Secretary-General, which was titled Strengthening of the United Nations: An Agenda for Further Change.35 In this context, the OHCHR, under then High Commissioner Mary Robinson, described its own field role as being primarily that of supporting human rights actions of other parts of the UN system, and it reaffirmed its commitment to integrated post-Brahimi peace missions.36 Side-by-side with its support to the human rights components of peace missions, it also commenced the deployment 26 27 28 29 30 31 32 33 34 35 36
Ibid. Ibid., at 41. The United Nations Assistance Mission in Afghanistan (UNAMA). See M. O’Flaherty, ‘Future Protection of Human Rights’, in Centre for Humanitarian Dialogue, supra note 18. The United Nations Assistance Mission for Iraq (UNAMI). The United Nations Mission in Liberia (UNMIL). The United Nations Operation in Côte d’Ivoire (UNOCI). With regard to Iraq, human rights were first integrated in UN programming in 2002 by means of secondment of the OHCHR staff to the Office of the UN Humanitarian Coordinator for Iraq (UNOHCI) (see OHCHR, Annual Appeal 2004, p. 53). OHHCHR, Africa Region, Quarterly Reports of Field Offices, March 2004, <www.unhchr. ch/html/menu2/5/africa-mar04.doc>. UN Doc. A/57/387 (2002). B. G. Ramcharan, Acting High Commissioner for Human Rights, The Future Directions of Human Rights Field Presences, addressed to the Annual Meeting of OHCHR Field Presences, 17 November 2003, <www.unhchr.ch>.
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of human rights experts to serve as advisers within UN country teams, including conflict-affected countries such as Sri Lanka and Nepal.37 In 2003, as a further development of this idea, a UN country team, human rights capacity-building operation was established in Angola following the departure of the peace mission – with a similar operation also proposed for eventual deployment in Timor Leste.38 The years 2004 to 2006 witnessed a raised level of academic and policy-level attention to the state of UN human rights field operations. In early 2004, the present author published a paper that sought to identify the parameters of human rights field work and the principal challenges to be addressed.39 The paper recommended that the High Commissioner stimulate a comprehensive review of the sector with a view to enhanced performance of field operations and their widespread deployment on the basis of need rather than on political considerations. It was suggested that for this to be accomplished it would be necessary to go beyond the catalytic model, described above, and significantly augment the OHCHR’s resources. In May 2005, due to a request contained in the Secretary-General’s report, which was titled In Larger Freedom: Towards Development, Security and Human Rights for All,40 the then recently appointed High Commissioner Louise Arbour published a Plan of Action for the OHCHR.41 In this, she stated that her office would become more present on the ground “in a sustained manner” and that her preference was for “stand-alone” OHCHR offices rather than for the catalytic approach.42 The Plan of Action also proposed what would amount to the largest restructuring and expansion of resources in the short history of that office. The new enthusiasm of the OHCHR for the establishment of its own field operations was realised in the first months of 2005 by the opening of offices in two conflict-affected countries, Uganda and Nepal, neither of which was hosting a UN peace-mission.43 In each case, the High Commissioner negotiated with the government in question a sturdy mandate for human rights monitoring and capacity-building. Given the extent to which human rights field work is implemented by means of the insertion of human rights components in peace missions, the lack of attention to such operations in the Plan of Action is striking, dealt with in just two brief and vague paragraphs.44 This treatment may reflect what was then a growing disenchantment with the integrated-mission model among human rights policy makers; it is noteworthy that during 2004 to 2005 voices could increasingly be heard suggesting that such missions 37 See OHCHR, Asian and Pacific Region, Quarterly Reports of Field Offices, March 2004, p. 5, <www.unhchr.ch/html/menu2/5/asia-mar04.doc>. 38 OHCHR, Annual Appeal 2004, pp. 32, 33. 39 M. O’Flaherty, ‘Human Rights Monitoring and Armed Conflict, Challenges for the UN’, 3 Disarmament Forum (2004). See also M. O’Flaherty, ‘We are Failing the Victims of War’, in B. G. Ramcharan (ed.), Human Rights Protection in the Field (Martinus Nijhof, Leiden, 2006). 40 UN Doc. A/59/2005/Add.3 (2005). 41 L. Arbour, The OHCHR Plan of Action: Protection and Empowerment, Geneva, 2005. 42 Ibid., p. 15. 43 See <www.ohchr.org/english/countries/field/index.htm>. 44 Arbour, supra note 41, p. 16.
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unacceptably subordinated human rights to political considerations and that their human rights components lacked the necessary autonomy and resources.45 Similar views had also been expressed at an expert consultation meeting on human rights field presences, held at the OHCHR in November 2004.46 The UN Secretary-General by means of decisions that constitute important clarifications on policy addressed a number of these concerns. Decision No. 2005/24, Human Rights in Integrated Missions (26 October 2005),47 forthrightly reasserts the role and status of the human rights components within integrated missions: a) UN entities have a responsibility to ensure that human rights are promoted and protected through and within their operations in the field; b) commitment to human rights and the ability to give the necessary prominence to human rights should be important factors in the election of SRSGs/DSRSGs (Special Representative of the Secretary-General and Deputy Special Representative of the Secretary-General, respectively), and in the monitoring of their performance, as well as that of the mission; c) the OHCHR, as the “lead agency” on human rights issues, has a central role to play through the provision of expertise, guidance and support to human rights components. These components should discharge core human rights functions and help mainstream human rights across all mission activities; and d) separate public reporting by the mission and/or the High Commissioner on issues of human rights concern should be routine. Subsequently, in January 2006, the Secretary-General issued a note, Guidance on Integrated Missions,48 which reiterated the elements of the Decision and observed that the head of the human rights component should be a full member of the expanded UN country team. A survey of UN approaches to the human rights needs of conflict and post-conflict societies must also take account of the manner in which a number of UN agencies, including the United Nations Children’s Fund (UNICEF),49 United Nations Development Programme (UNDP)50 and Office of the United Nations High Commissioner for Refugees (UNHCR),51 have already gone some distance in integrating human rights approaches in their work. These increasingly system-wide developments demand new partnership configurations and present additional challenges for human rights field operations.
45 See OHCHR, Internal Review on Human Rights and Integrated Missions: Responses from Heads of Human Rights Components, 18 July 2005, on file with the present author. 46 Report available at <www.humanrightsprofessionals.org>. 47 On file with the present author. 48 On file with the present author. 49 UNICEF, Children Affected by Armed Conflict: UNICEF Actions, New York, 2002. 50 UNDP, Integrating Human Rights with Sustainable Human Development, New York, 1998. 51 UNHCR, An Agenda for Protection, UN Doc. A/AC.96/965/Add.1 (2002).
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Beyond the context of UN operations, there have been some regional intergovernmental initiatives: the OAS’s 1993 involvement in Haiti and, more recently, the Organisation for Security and Co-operation in Europe’s (OSCE) deployed human rights missions in Bosnia and Herzegovina, Kosovo and elsewhere, sometimes in collaboration with the UN and other international organisations.52 Since, developments at the regional level have included the inauguration of dedicated training programmes by such regional organisations as the European Union and OSCE as well as the first deployment of human rights field staff by the African Union, in the Darfur region of Sudan.53 A number of peace missions have also been assembled by specific clusters of interested states,54 such as the Temporary International Presence in Hebron, the Sri Lanka Monitoring Mission and the Joint Monitoring Mission in the Nuba Mountains, Sudan. Similarly, a number of non-governmental organisation-led peace missions have been deployed, including: the operations of the Peace Brigade International in Colombia, Indonesia and Mexico; the Non-Violent Peace Force in Sri Lanka; and the World Council of Churches’ Ecumenical Accompaniment Project in Palestine and Israel.55 These operations, while not possessing explicit human rights mandates, do have objectives, such as civilian protection, that are consistent therewith. The functions of human rights field operations It is commonly agreed that the goal of human rights field operations is the protection of the human rights of specific populations56. That goal is served by means of the carrying out of a range of functions, all of which are closely related to each other. Such functions may, depending on specific field operation mandates, include: monitoring, reporting, advocacy and intervention; human rights capacity-building, supporting rights-related work of humanitarian and development actors; participation in peace processes and support to programmes of transitional justice; and human rights sensitisation within UN operations.57 Participation in UN governance of transitional territories, though much discussed,58 is rarely applicable.
52 See O’Flaherty and Gisvold, supra note 23; the materials listed in supra note 21 regarding Kosovo. 53 See African Union, Overview of AU’s Efforts to Address the Conflict in the Darfur Region of the Sudan, 26 May 2005, Doc. CONF/PLG/2(1). 54 See L. Mahony, supra note 1 and same author, Promoting Unarmed Monitoring: Thinking Long-Term, 5 January 2004, informally distributed essay on file with the present author. 55 See Mahony, ibid. 56 See supra note 46 as well as N. Howen, ‘The Fundamental Protection Function of the Human Rights Field Officer’, in O’Flaherty, supra note 1. 57 See also M. O’Flaherty, ‘Human Rights Field Operations, An Introductory Analysis’, in O’Flaherty, supra note 1. 58 See inter alia the materials regarding Kosovo and East Timor at supra notes 21 and 22. See also A. Henkin (ed.), Honoring Human Rights under International Mandates: Lessons from Bosnia, Kosovo and East Timor (Aspen Institute, Washington DC, 2003).
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With regard to each of the work areas of human rights field operations, it is necessary to clarify overarching principles, objectives and methods – to identify the core “doctrine” of human rights fieldwork – for instance, the consideration of what might be understood to be the fundamental functions of a field operation and the basis for all other aspects of its work, its human rights monitoring and reporting work. Monitoring provides the basis for all other human rights work of a mission since programming of any kind needs to be based on reliable information. Monitoring may also contain within it a preventive function in that the very presence of monitors can deter human rights violations.59 The implementation of a monitoring mandate can prove extremely challenging. In terms of the nature of the mandate, such issues arise as: – The identification of whom to monitor. – Should both government and non-State armed groups be monitored? – How can monitoring be even-handed when the mission has varying levels of access across a given country? – Should peacekeepers themselves be subject to monitoring? – What rights should be monitored, and what is the role of a mission in terms of the monitoring of economic, social and cultural rights? – When and how should it monitor the implementation of international humanitarian law? – How should the monitoring be undertaken? Should it seek to establish personal responsibility for actions and collect court-ready evidence or instead simply map out patterns of human rights abuse? – When is it appropriate to monitor individual cases? Are these cases the actual object of the monitoring exercise or are they instead intended to serve as illustrations of broader phenomena, or is this even a valid distinction? – When should past situations be monitored/recorded, and when should the focus be on contemporary abuses? Turning to monitoring capacities, the following issues arise: – How is one to monitor a situation with the typically modest human rights team of a mission? – What can be done when the mission lacks the requisite skills to monitor certain phenomena, for instance, economic rights, sexual abuse or the rights of the child? – How can monitoring be done in a manner that does not expose victims, witnesses and monitors to harm or jeopardise programmes and operations? Missions, on a case-by-case basis, seek to respond to questions such as these. They are hampered by a lack of agreed or shared doctrine. The OHCHR did produce a human rights monitoring manual in 2001, but this manual, while containing much that is of value, does not chart a route through many of the complex challenges that a mission will confront in practice.60 59 See Mahony, supra note 1 and same author, supra note 55. 60 OHCHR, Training Manual on Human Rights Monitoring, Geneva, 2001.
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It is axiomatic to observe that monitoring data is useless unless it gets to where it is needed. The UN has had difficulties in addressing this truism. At the time of writing, OHCHR had just recently introduced a standard model for human rights reporting. With regard to the transmittal of reports, many field operations have encountered the problem that insufficient human rights information or excessively edited information is conveyed to headquarters.61 The identity of recipients of internal information has caused some controversy, and the practice of copying reports to be given to the High Commissioner for Human Rights, now more or less in place, took a number of years to evolve. There remains uncertainty regarding when and how to share internal reports with UN Member States, including at the level of the Security Council. The issue also arises at the local level in terms of what information to share with the government and with diplomats, and which parts of government and which diplomats to share it with.62 Regarding public reporting, and notwithstanding the UN decision of 2005 in its favour (referred to above), there is the question of how much data to put in the public domain, taking account of such prosaic considerations as the current restrictions on the length of UN reports.63 More importantly, the UN still lacks the sort of public information programme that can ensure that reports generate timely media attention. Instead, it is often the case that non-governmental organisations are credited with the exposure of human rights situations that the UN may have already been reporting on for some time – not in itself a problem but nevertheless diminishing perceptions of the UN. Similar findings of partial but highly incomplete doctrinal and methodological support apply also for the other functions of human rights field operations.64 The extent of the problem was highlighted by the results of a questionnaire, which the present author distributed in 2004 to 80 current and former senior staff of field missions. I asked them what they saw as their role and the extent to which their headquarters supported them in carrying out that role. The results were disturbing. Time and time again respondents complained that they had no guidance on how to carry out their main responsibilities. There were numerous complaints about a lack of guidance on how to do capacity-building work with local civil society. And many respondents wrote that they needed help urgently in order to try to insert human rights considerations into national development programmes and poverty reduction strategies. The results regarding training in human rights field skills were no less discouraging. Some 50 per cent of respondents reported that they had received no pre-deployment training whatsoever, while others complained that the training they did receive was inadequate or irrelevant to the actual situations in which they found themselves.65
61 See for example O’Flaherty, supra note 18. 62 Ibid. 63 This is a problem that may be overcome by means of the innovative OHCHR practice of publishing regular web-based informal reports of its field operations. 64 See also M. O’Flaherty, ‘Human Rights Field Operations, An Introductory Analysis’, in O’Flaherty, supra note 1. 65 The results are published at <www.humanrightsprofessionals.org>.
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Conclusion Much has been achieved in the short history of inter-governmental human rights fieldwork. Nevertheless, there are a number of challenges that require attention. In the first place, there remain work areas where little or no guidance is available, and the field operation is obliged to proceed in a trial-and-error process of experimentation. As a corollary to the lack of guidance, there is a dearth of performance indicators whereby fieldwork can be properly evaluated and whereby field operation designers, managers and personnel may be held accountable.66 At the time of writing of this essay, there are indications that the principal methodological gaps are receiving professional and research attention. The OHCHR is clearly making progress in developing standard work-tools and setting performance standards.67 The issue of professionalising human rights fieldwork is also benefiting from sustained attention within the framework of an applied research project, “Consolidating the Profession: The Human Rights Field Officer”. That project is identifying good and promising field practice around key work areas of the field officer and developing training tools. In July, 2008, it published a set of guiding principles and a statement of ethical commitments for human rights field officers that had been developed over three years in consultation with hundreds of current and former human rights field officers.68 Professionalising the sector has to be matched by consistent application in practice of human rights approaches, regardless of the nature or the location of a given armed conflict. The present author has edited a volume that seeks to address this and related issues. In that volume, Nigel White and Marco Odello argue that “the UN is the beneficiary of rights but is also subject to duties on the international plane, primarily the fundamental principles of public international law including human rights law. In addition, the framework of human rights treaties sponsored by the UN and deriving from the (General) Assembly’s UDHR in 1948 must form part of the constitutional law of the UN and be binding on it in that sense.”69 The implications of this position for the UN in general and for field operations in particular are startling: proposing a comprehensive legal framework that puts human rights at its centre. Another aspect of the normative environment for a field operation is that of the nature of its establishment and of its specific mandate. Issues such as these are considered in an essay by Daniel Moeckli and Manfred 66 See the interesting discussion of performance indicators in O’Neill, ‘Gaining Compliance’, supra note 8. 67 Interviews conducted at the OHCHR in 2006, 2007 and 2008; see also the various chapters in O’Flaherty, supra note 1. 68 All of the project outputs, including the Guiding Principles and the Statement of Ethical Commitments, are available at <www.humanrightsprofessionals.org>. They will also appear in the forthcoming volume, M. O’Flaherty and G. Ulrich (eds.), The Professional Development of Human Rights Field Officers (Ashgate, forthcoming 2009). See also ‘Annex VII, Consolidating the Profession: The Human Rights Field Officer’, in B. G. Ramcharan (ed.), supra note 39. 69 N. White and M. Odello, ‘The Legal Base for Human Rights Field Operations’, in O’Flaherty, supra note 1.
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Nowak,70 which also examines how some situations of human rights abuse attract international field operations whereas others do not and whereby there have evolved a multiplicity of mandate models. Moeckli and Nowak undertake a comprehensive review of the establishment of human rights field operations by the UN and regional organisations, noting the vast diversity and many anomalies as well as the very low incidence of operations established with a view to the prevention of human rights abuses. They argue that the inconsistent practice is a function of a number of considerations, including: the degree of pressure that States are willing to apply towards a country where abuses are occurring; the manner by which such pressure is negotiated through the institutional decision-making process; and financial considerations. Among their conclusions is the aspiration that the Human Rights Council, which replaced the Commission on Human Rights in 2006, might be capable of bringing order into the sector. Adressing the range of challenges for human rights field operations will continue to require action from a myriad of actors at the political, technical and educational, national, regional and international levels. It will only succeed if it is strongly and coherently led in a manner that integrates attention to political/policy aspects and technical/programmatic aspects. It is the UN High Commissioner for Human Rights that we must look to for that leadership.71
70 D. Moeckli and M. Nowak, ‘How Human Rights Field Operations are Deployed: Policy, Politics and Practice’, in O’Flaherty, supra note 1. 71 See Ramcharan, supra note 5.
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The United Nations Programme of Technical Cooperation in the Field of Human Rights Craig G. Mokhiber*
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should he protected by the rule of law… Preamble, UDHR
Introduction Recent years have witnessed the most dramatic period of expansion and diversification in the history of the United Nations (UN) human rights programme. In no component of that programme is this point more obvious than in the area of technical cooperation. Prior to the late 1980s, the technical cooperation programme registered a mere one or two activities per year. By 1996, that number had risen to 402. Today, the programme *
Deputy Director of the New York office for the UNHCHR The unit of the UN Secretariat responsible for the human rights programme is the Office of the High Commissioner for Human Rights (hereinafter OHCHR). Its predecessor was the UN Centre for Human Rights, which itself was preceded by the UN Division for Human Rights. For purposes of this chapter, OHCHR will be used for all general references, except where a specific organisational name appears as part of the title of a cited document or publication. As the internationally accepted lexicon of this area of human rights work has evolved, the general term “technical cooperation” has replaced earlier expressions, such as “technical assistance” or “advisory services” in reference to the full range of activities described in this chapter. This is due to the more inclusive meaning of the term “technical cooperation”, including as it does such particular activities as advisory services of experts, financial and material assistance, training and so on. The term also more adequately reflects the “cooperative” aspect, i.e. inclusive and equal partnership orientation of the UN’s programme in this field. See United Nations Action in the Field of Human Rights, ST/HR/2/Rev.3, United Nations publication, Sales No. E.88.XIV.2, at p. 342. See Commission on Human Rights, Fifty-third Session, Advisory Services in the Field of Human Rights, Technical Cooperation in the Field of Human Rights, Report of the Secretary Gen-
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 219-229.
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is active in countries across the globe, and in virtually every development sector. As the once modest and little-used programme enters a new millennium of human rights promotion, it has emerged as a central mechanism of the organisation’s human rights strategy. This development reflects, in part, the international community’s growing realisation that post facto interventions are not, in and of themselves, sufficient to meet the UN’s mandated human rights obligations. Undoubtedly, the monitoring of human rights conditions, through the various mechanisms described elsewhere in this book, has remained central to the UN’s protection mandate. Similarly, the development of more effective responses to evolving human rights crises has rightly begun to draw intense international attention. It would appear self-evident that where human dignity and human lives are at stake prevention must be seen both as a strategic priority and a moral imperative for the international community. Yet the technical cooperation programme remains one of the least known and least understood elements of UN strategy in this field. Programme approach and objectives The principal objective of the technical cooperation programme is prevention, through the strengthening of domestic human rights capacity. While the mandate of the pro
eral, E/CN.4/1997/86 (21 February 1997), at para. 16. While most often implemented in the context of preventive, i.e. future looking programmes of long-term capacity building, technical cooperation has also been employed to address existing human rights crises, and to contribute to the development of solutions to more immediate problems. This type of “applied” technical cooperation, intended to respond to immediate problems, was provided (e.g.) by the United Nations to the government of Malawi in 1993; See e.g. United Nations Centre for Human Rights, Report of the Needs Assessment Mission to Malawi, 28 August to 6 September 1993; see also United Nations Centre for Human Rights, Report of the Mission to Advise the Office of the Special Prosecutor of the Transitional Government of Ethiopia, July 1994, available from the files of the Secretariat. This seems all the more puzzling given that the technical cooperation programme is perhaps the best documented of all UN human rights activities. The programme publishes a comprehensive annual report to the Commission on Human Rights, covering all programme activities, and regularly issues various technical documents, including quarterly status reports of the Voluntary Fund for Technical Cooperation in the Field of Human Rights (see e.g. UNVFTCj QSRA/I-9); a methodological compilation entitled UN Voluntary Fund for Technical Cooperation in the Field of Human Rights: Guidelines, Formats and Procedures (UNVFTC/GFP/July 1996); and countless needs assessment, project formulation, project monitoring and project evaluation reports, all available from the Secretariat. For further study, see also United Nations, Human Rights Fact Sheet No. 3 (Rev.l): Advisory Services and Technical Cooperation in the Field of Human Rights. Finally, up-to-date information on the programme is available from the United Nations Human Rights website, accessible on the internet at <www.ohchr.org>. Technical cooperation in the field of human rights may be defined, for our purposes, as: the application of international resources and expertise to national, regional or local human rights needs and challenges, through cooperative agreements between domestic institutions
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gramme is broad, allowing for the provision of assistance in any area which is related to furthering the “aims and purposes of the United Nations in the field of human rights”, the types of assistance most commonly provided under the programme relate to institution building for the rule of law.10 In other words, the programme provides technical expertise and support11 for the strengthening of institutions, laws, policies and personnel vital to the sustained protection of human rights12 and fundamental freedoms.13 and international development partners, for the purpose of strengthening domestic capacity for the promotion and protection of human rights. Technical cooperation interventions are provided in the form of “programmes”, “projects” and “activities”. A programme is a collection of inter-related but geographically, temporally or thematically dispersed projects. A project is a planned undertaking of inter-related and coordinated activities designed to achieve specific objectives within a given budget and within a specified period of time. An activity is a project component or sub-component, such as the conducting of a training course, the delivery of advisory services, the disbursement of a grant or the provision of equipment. A/RES/926 (X) of 14 December 1955, at paras. 3(d) and 9(a). 10 This rule of law focus of the programme is not, however, the result of a conscious policy on the part of the Secretariat, but rather has emerged from the historical application of operative paragraph 3(a) of the General Assembly resolution establishing the programme. This paragraph provides that “the kind of service to be provided to each country … shall be determined by the Government concerned”. As most requests have related to rule of law institution building (e.g. training and advice to police, judges, prosecutors, parliaments, legislative drafters, etc.), programme capacities have developed most significantly in these areas. Moreover, the 1955 resolution establishing the programme expressly excludes activities “for which adequate advisory services [are] available through a specialized agency” as well as those areas which fall “within the scope of existing technical assistance programmes” (G.A. Res. A(Res(926 (X) of 14 December 1955). Thus, while, for example, significant programmes of assistance relating to health (WHO), education (UNESCO), labour (ILO) and infrastructural development (UNDP) have continued to be availab1e through the specialised agencies and programmes, rule of law assistance, as such, was not elsewhere available within the UN system. 11 Such cooperation may take the form of advisory services of experts, training and education, financial or material assistance to key institutions or the provision of information services. See Commission on Human Rights, Fifty-third Session, Advisory Services in the Field of Human Rights, Technical Cooperation in the Field of Human Rights, Report of the Secretary General, E/CNAjl997/86 (21 February 1997), at para. 4. 12 Since 1994, the programme has included explicit attention to economic and social rights as well, including through the identification of economic and social needs in country assessments and support and training in various economic and social sectors, including education, health and labour. Closer cooperation with the specialised agencies was emphasised to this end, as OHCHR concluded a series of cooperative agreements with those agencies dealing directly with economic and social sectors. In 1997, OHCHR launched a programme development initiative specifically in the area of economic, social and cultural rights, in order to set the framework for future assistance in this area, and countless programmes have since been implemented in this field. 13 Principal thematic areas include human rights aspects of peacekeeping; treaty reporting; elections; parliament; the judiciary; police and security forces; the military; prisons; consti-
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Whether directed to executive government agencies and institutions, to non-governmental organisations,14 to the independent judiciary, to e1ected parliaments or to national human rights institutions, the normative basis for all advice and assistance provided under the programme is the corpus of international human rights law itself.15 Mandate and evolution of the programme The primary mandate for United Nations’ promotional and operational activities in the field of human rights may be found in the organisation’s Charter, which identifies as one of the principal aims of the United Nations “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”.16 Article 1(3) establishes the principle that international cooperation is to be sought in “promoting and encouraging respect for
tutional development; legislative reform; administration of justice; prosecutions; national human rights institutions; civic education; national plans of action; and non-governmental organisation (NGO) development. See E/CNA/1997/86 (21 February 1997) at para. 3. 14 For most of the 40-year history of the programme, little direct support was provided to national non-governmental organisations in OHCHR’s activities. NGOs were regularly inc1uded in seminars and similar events, but the primary focus was c1early on the building of governmental human rights capacities. Under the current approach of the programme, however, increased attention is paid to the crucial role of non-governmental human rights groups, women’s organisations and trade unions, and to the importance of a strong civil society. In many States which are cooperating with the programme, OHCHR has introduced projects directly supporting NGOs, through training, the provision of information and documentation, financing of NGO projects and the organisation of fellowships. See e.g. E/ CN.4/1994/78 at pp. 37 and 38. Such projects are intended to strengthen the capacities of central actors in civil society to generate an informed and sustained national and local demand for human rights and fundamental freedoms, to support legal and institutional reforms, to carry out educational activities in the field of human rights and to provide effective advocacy on behalf of their constituencies. 15 While comparative models are sometimes employed as a means of illustrating practical implementation techniques, the UN programme does not seek to “export” any particular national approach or system. Rather, as a matter of both policy and practice, the programme endeavours to assist its national counterparts in the application of international standards to the local cultural, political, economic and legal needs, aspirations, traditions and realities. This decidedly neutral and objective normative approach has represented an important distinction vis-à-vis certain nationally-based, bilateral development aid agencies, which often draw their advice from the national experience and national legal traditions and institutions of the donor country. See, in this regard, United Nations Centre for Human Rights, Professional Training Series No. 2, Human Rights and Elections. A Handbook on the Legal, Technical and Human Rights Aspects of Elections, UN Doc. HR/P /PT /2 (New York and Geneva 1994), at para. 17. 16 Charter of the United Nations, second preambular paragraph. The Charter was signed on 26 June 1945, at San Francisco, and entered into force on 24 October 1945.
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human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion”.17 By the early 1950s, the General Assembly had already begun to experiment with human rights assistance programmes as a means of implementing these provisions.18 In 1955, in the face of growing interest in such activities, the General Assembly formally consolidated all human rights assistance, thus establishing the United Nations Programme of Advisory Services in the Field of Human Rights.19 In doing so, the General Assembly specifically authorised the Secretary-General to make provision, at the request of governments, for assistance in the field of human rights, including advisory services of experts, fellowships and scholarships and seminars. In subsequent resolutions, the General Assembly expanded the services available under the programme to include regional and national human rights training courses.20 Under those fundamental mandates, the technical cooperation programme carried out activities in countries across the world for decades. Yet, in spite of its seemingly broad mandate, the programme remained remarkably modest, both in scope and in impact.21 This may have been due to three principal factors: the political constraints imposed by the East/West divide; a prevailing State attitude which attached paramount importance to State sovereignty and viewed human rights as strictly a matter of internal affairs; and the extremely limited resources with which the programme was required to operate. In the late 1980s, the programme was dramatically transformed as these constraints were diminished. Nevertheless, as modest as the programme was, it still had the capacity to generate considerable international debate. Throughout the 1980s in particular, strong criticisms 17 Article 1(3) of the UN Charter. 18 For example, the General Assembly adopted two resolutions in 1953, authorising the Secretary-General to provide technical assistance to States seeking to safeguard the rights of women (res. 729 (VIII) of 23 October 1953) and to eradicate discrimination and protect minorities (res. 730 (VIII) of the same date), respectively. A similar resolution was adopted the following year, authorising assistance in the area of freedom of information (res. 839 (IX) of 17 December 1954). 19 Pursuant to General Assembly resolution 926(X) of 14 December 1955. 20 Regional courses were added in 1967, and national training courses in 1986. See E/ CAN/1994/78, at p. 5. 21 This is not to say that the programme was without value during these years. Indeed, countless fellowships and training activities were provided to government officials who would otherwise not have benefited from such exposure to United Nations human rights standards and the means for their implementation. Nevertheless, both in terms of the number of activities carried out under the programme and the content of and follow-up to those activities as compared to current projects carried out under the programme, “modest” would seem a fair assessment. Evidence of this may be seen in the ad hoc, “one-off ” nature of those earlier activities, as compared to today’s comprehensive country programme approach, as described below. Between 1955 and 1970, only a few governments actually requested advisory services from the programme, two in the field of elections, and others in the area of the advancement of women (see United Nations Action in the Field of Human Rights, ST/HR/2/Rev.3, United Nations publication, Sales No. E.88.XIV.2, at p. 342). By contrast, already by 1994, the programme was active in over 48 countries.
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were raised against the Commission on Human Rights, and through it the programme itself, by some who viewed advisory services as little more than an escape route to avoid international scrutiny of national human rights violations. This perception was exacerbated by several successive decisions within the Commission to remove particular countries from the monitoring procedures of the Commission, and to place them instead under the programme of advisory services. It must be said that a fair assessment of this debate reveals valid points on both sides. Opponents to this practice within the Commission rightly pointed out that ample evidence existed to make the case that in many countries which were “transferred” to advisory services gross violations of human rights continued, and therefore sustained monitoring from the international community was imperative. On the other side, defenders of the practice pointed out that some of the independent experts reporting under advisory services mandates to the Commission devoted considerable attention in their reports to the actual human rights situation in the country, such that, in fact, the monitoring function continued, and was complemented by efforts to improve the situation through attention to improving institutions. Fortunately, the situation began to resolve itself by the advent of the 1990s, as this “transfer tendency” of the Commission decreased. Indeed, the vast majority of projects under the programme are now the result of requests from governments directly to Office of the High Commissioner for Human Rights (OHCHR), and are unrelated to action within the Commission on Human Rights or its successor institution, the Human Rights Council. Furthermore, successive Secretary-Generals have made clear that the provision of advisory services and technical assistance does not reduce a government’s accountability for human rights violations, and does not exempt that government from scrutiny under United Nations monitoring procedures.22 Monitoring by special procedures of the Commission on Human Rights, and now the Council, has occurred simultaneously with the provision of advisory services.23 Between 1987 and 1997, as political will for reforms and resources for assistance increased, the programme experienced a virtual renaissance. Essential to the effective protection and promotion of human rights at the national level are two fundamental elements: (1) the political will to guarantee human rights, and (2) the means to ensure the establishment and effective functioning of a national framework which protects human rights under the rule of law. So important is this interrelationship that the absence of either element will simply render the other irrelevant for purposes of sustained protection of human rights. In the early years of the programme, national human rights reforms could not be seen as a global trend. Furthermore, with few notable exceptions, government willingness to involve the United Nations in internal institutional reforms was rare.24 So too was global agreement on human rights issues in international fora. The political will for 22 See e.g. E/CN.4/1993/61, at pp. 7 and 8. 23 Ibid. 24 Activities under the programme in the earlier years comprised global or regional events (such as high-level worldwide or regional seminars) and fellowships. Targeted national training and advisory services activities were extremely rare. See United Nations Action in
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such reforms (or, where they occurred, for international involvement in them) was, in short, the exception rather than the rule. At the same time, the principal focus of the technical cooperation programme since its inception has been the building of national institutional capacities, that is, the provision of the means for human rights protection, to States which may not have been in a position, economically, to build those capacities without international cooperation.25 But if the requisite political will for human rights reforms was less than abundant during the years of the Cold War, so too were the resources available to the programme. Thus, on both fronts, expectations for any c1early measurable impact by the programme remained necessarily low. With the end of the Cold War, and the emergence of a global trend toward democratisation and human rights reforms, however, the number of States requesting assistance under the programme, and the types of assistance sought, multiplied several-fold. New States and emerging democracies found themselves facing unprecedented vocal demands for institutional change and human rights protection, while facing at the same time critical economic hardships resulting variously from years of conflict, underdevelopment and the corruption of former regimes. New governments in Latin America, Eastern Europe and Africa, anxious for more full incorporation of their countries into the international community of States (both political and economic), appealed to the United Nations for help in strengthening of judiciaries, for the training of law enforcement personnel and for assistance in meeting reporting and implementation obligations under newly ratified human rights instruments. Concurrent with this geo-political metamorphosis came a new boost to the resources available to the technical cooperation programme. In 1987, the United Nations Commission on Human Rights,26 and its parent body, the Economic and Social Council,27 called for the establishment of a voluntary fund for advisory services and technical assistance in the field of human rights. Accordingly, the Secretary-General established, on 16 November 1987, what ultimately came to be known as the United Nations Voluntary Fund for Technical Cooperation in the Field of Human Rights.28 The purpose of the Fund was to provide additional financing for “practical activities focused on the implementation of international conventions and other international instruments on human
25 26
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28
the Field of Human Rights, ST/HR/2/Rev.3, United Nations publication, Sales No. E.88.XIV.2, pp. 341–350. See A/RES/926 (X) of 14 December 1955. Resolution 1987/38. The Commission on Human Rights was a functional commission of the Economic and Social Council (ECOSOC), which was established under Article 68 of the Charter of the United Nations. The Commission had principal responsibility for human rights issues, under the authority of ECOSOC. It was disbanded in 2006 and replaced with the Human Rights Council (see A/Res/60/251). Decision 1987/147. The Economic and Social Council is a principal organ of the United Nations, which, under Article 62(2) of the Charter, is charged with making recommendations for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all. See E/CNA/1994/78, at p. 5.
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rights promulgated by the United Nations, its specialised agencies or regional organizations”.29 The establishment of the fund brought about significantly enhanced resources for the programme, and allowed it to undertake concerted programme development initiatives, to respond to substantially more requests with meaningful technical cooperation projects, to significantly professionalise and expand its activities and to adopt a more comprehensive approach to human rights institution building.30 Notably, the former approach of providing a single, ad hoc activity to a requesting country was abandoned, in favour of longer-term projects and more sustained engagement, depending on the indications of the needs assessment and the precise nature of the project. Programme methodology Today, technical cooperation projects are subject to a standard methodology for project cyc1e management. Professional project development and management is a technical specialisation within the human rights field, and beyond the scope of this chapter. Nevertheless, it would appear important for all human rights specialists, whether academics or activists, monitors or trainers, to be familiar with the major points in the project cycle since such persons both feed into the process (e.g. when called upon to participate in a needs assessment or advisory mission) and benefit from it (e.g. when benefiting from a grant, training programme, etc.). The project cycle begins with a careful assessment of the requesting country’s particular human rights assistance needs.31 Needs assessment missions are conducted by international experts and specialised staff of the OHCHR. Experts are selected for their knowledge of international human rights standards and their domestic implementation, and their familiarity with the country or region in question. During such missions, participatory discussion are convened, and a wide range of parties is consulted in the country, including both governmental and non- governmental organisations and individuals, as well as representatives of UN agencies and other development partners in the
29 Ibid. The Voluntary Fund is administered by OHCHR, with the advice of a board of trustees, the members of which are appointed by the Secretary-General with due regard for geographic balance. 30 It must be said that this did not begin as a “rich” fund. Indeed, for years, contributions to the Fund were measured in thousands, rather than millions of dollars, unlike similar development funds which focus more on “bricks and mortar”. Still, its growth has been remarkable. The Secretary-General reported in 1994 that as of January 1994 total pledges and contributions over the seven-year tenure of the Fund amounted to “over 8 million dollars” (E/CNA/1994/78, at p. 9). This amounts to only a little over a million dollars per year, for a programme with a global assistance mandate. In 1994, for example, the programme was operational in over 48 countries, in addition to regional and international projects. But by the end of 1997 annual expenditures alone from the Fund had reached USD 5.6 million (see E/CNA/1998/92). 31 See E/CN.4/ 1997/86, at para. 26, and E/CN.4/1994/78, at p. 11.
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field. All information collected is then analysed and incorporated in to a detailed report, offering recommendations for specifically targeted technical assistance activities.32 Needs assessment is followed by project formulation. Since 1995, the programme has utilised the logical framework method of project formulation.33 Thus, the programme’s technical cooperation specialists will begin their analysis with the particular problem to be addressed; identify the long term development objective; formulate immediate project objectives that can be expected to contribute to the long-term objective; attach concrete, verifiable and quantified outputs to those objectives; set forth the inputs which are required to produce those outputs; and, finally, list the associated activities (or tasks).34 This continuous chain of activities, inputs, outputs and objectives, not only ensures a logical project formulation exercise, but also provides the basis for meaningful project monitoring and evaluation (the following two principal points in the project cycle). They are all therefore carefully recorded in the project document, which serves both as the central management tool for the project and as a contract between the development partners.35 Project implementation and project monitoring occur simultaneously. Project managers monitor activities as they are undertaken, monitor project resources to ensure their efficient use and monitor the situation on the ground, considering appropriate indicators.36 In addition, large projects undergo continuous monitoring by a project steering committee, composed of project personnel, project partners and specialists in the country. Finally, periodic project monitoring missions are undertaken to ensure that implementation is proceeding as planned, and to identify necessary adjustments to respond to (inevitably) changing conditions on the ground. The next stage of the project cyc1e is post-project (or terminal) evaluation.37 Project evaluations are carried out by teams of independent consultants with appropriate combinations of expertise in project management, human rights and the cooperating country or target group benefiting from the project. Evaluations gauge project effect, the degree to which objectives were met and the sustainability of project impact. They also provide a useful “lessons learned” benefit to the programme as a whole, allowing continuous programme development and improvement. Finally, recommendations are
32 Ibid. 33 See E/CN.4/1997/86, at para. 19. 34 See UN Voluntary Fund for Technical Cooperation in the Field of Human Rights: Guidelines. Formats and Procedures (UNVFTC/GFP/July 1996), at pp. 53 and 54. 35 Ibid. 36 Such indicators are both objective (e.g. those listed in the project document itself) and subjective (e.g. the views and opinions of project beneficiaries and partners, NGOs, government officials, UN agencies, etc.). 37 Complex or multi-component projects may also be subject to evaluation during the life of the project, e.g. where it is useful to gauge the impact of a particular component of the project.
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made for project follow-up, which if they imply subsequent projects trigger the continuation of the cyc1e.38 Trends in technical cooperation The programme continues to develop rapidly, building on the framework described above and incorporating further components as the needs of the international community dictate. The creation of the post of United Nations High Commissioner for Human Rights has proved important for the programme, as the mandate of the High Commissioner contains a strong focus on technical cooperation, and the occupants of that Office have attached a high priority to this component of the human rights programme.39 Notable as well is the increased operational presence of field offices of the OHCHR with technical cooperation mandates in countries across the globe.40 Complementing its regional41 and national activities, the programme now also includes a number of activities designed to enhance human rights capacities within the United Nations system, including training for UN peacekeepers,42 development officers and other UN staff in the field. Support for transitional justice activities has also emerged as a focus, with assistance increasingly directed to post-conflict accountability processes, truth commissions, police vetting and related activities and institutions.43 Finally, the establishment of the UN Human Rights 38 See United Nations Office of the High Commissioner for Human Rights, Summaries of Independent Evaluations of Completed Technical Cooperation Projects and Lessons Learned (VFTCjBT8/97/6 of December 1997). 39 By resolution 48/141 of 29 December 1993, the General Assembly, following from the recommendation of the World Conference on Human Rights, created the post of High Commissioner for Human Rights, and entrusted the High Commissioner with, inter alia, providing, through OHCHR and other appropriate institutions, advisory services and technical and financial assistance in the field of human rights; coordinating relevant United Nations education and public information programmes in the field of human rights; and enhancing international cooperation for the promotion and protection of all human rights. 40 The Vienna Declaration and Programme of Action (VDPA), for its part, envisages the establishment of such field offices at the request of States. See VDPA, Section II, para. 7. 41 While this discussion has focused on national activities, as the largest sector of the programme, note should also be taken of the regional activities which are carried out as well. In this regard, OHCHR regularly provides support to regional human rights institutions, and organises regional seminars and workshops to address human rights at that crucial level. For further information on this sector, see E/CN.4/1998/92, at paras. 46 and 49, and E/CN.4/1994/78, at pp. 47–49. 42 See e.g. OHCHR, Field Guide for International Police Task Force Monitors of the Peace Implementation Operation in Bosnia Herzegovina and CIVPOL Officers of the United Nations Transitional Administration in Eastern Slavonia (HR/PUB/96/1); see also Summary of Project Evaluation: GLO/96/ AH/ 15 – Strengthening Human Rights in the Former Yugoslavia, contained in OHCR Summaries of Independent Evaluations of Completed Technical Cooperation Projects and Lessons Learned, VFTC/BT8/97/6, at p. 58. 43 For a summary and analysis of these activities, see UN Docs. S/2004/616, E/CN.4/2006/93 and A/HRC/4/87.
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Council44 in 2006, with a mandate to “promote … advisory services, technical assistance and capacity building”, has further raised the profile of this programme, and with it expectations for its implementation. Thus, as the United Nations has continued to expand its operational activities, as archaic notions of human rights as a strictly internal matter have faded, as more emerging democracies and post-conflict societies have reached out to the international community for support in their reform and nation-building efforts, the importance of and demands upon this programme have increased. The human rights movement has entered a new millennium which sadly has inherited many of the cruel realities of the old. If there is hope it is in the expansion and diversification of the tools at the disposal of the international community to address and transform those lingering challenges. And the preventive and remedial tool of effective technical cooperation in the field of human rights may well prove to be among the most valuable.
44 A/Res/60/251.
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Mainstreaming Human Rights in the United Nations Zdzisław Kędzia*
The origin and articulation of the concept Mainstreaming human rights is a concept that has survived the nightmare of many short-lived ideas, the most spectacular moments of which have been their announcements. Even this fact alone might justify a look at this concept. But what is of primary importance in this case is, of course, its substantive impact on the protection of human rights. The text below attempts to give a snapshot of it. Mainstreaming human rights means, in general terms, the integration of the international human rights standards and methodologies into the work of an organisation. Three interrelated observations have given birth to the concept of mainstreaming within the United Nations (UN). Firstly, human rights had been for a long time perceived as a domaine exclusif within the Organisation, located in a relatively isolated set of bodies (the system of the Commission on Human Rights and treaty monitoring bodies) and a department of the Secretariat. While the General Assembly and Economic and Social Council maintained human rights on their agenda, other bodies and UN agencies kept their distance from this area. The most spectacular and influential here was the attitude of the Security Council, which only recently decided to recognise mass violations of human rights as its matter of concern. Secondly, the human rights goals spelt out in the UN Charter cannot be achieved without a dedicated involvement of the entire Organisation in its promotion and protection. Such an involvement is a responsibility anchored in the Charter itself. Thirdly, the accomplishment of the goals and objectives of the UN can be greatly facilitated by – or, as increasingly stressed, is impossible without – integrating
*
Professor, researcher, advisor and human rights expert. It is to be watched how the Security Council will implement the recommendations of the 2005 World Summit concerning the responsibility to protect. See paras. 138–140 of the 2005 World Summit Outcome, contained in resolution A/60/1 of the General Assembly. Cf. also B. G. Ramcharan, The Security Council and the Protection of Human Rights (Kluwer Law International, The Hague/New York, 2002).
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 231-238.
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human rights standards and methodologies into the policy development, programming and implementation work of the entire Organisation. Tracing the origin of the concept of human rights mainstreaming in the United Nations, one has to go back to the Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights in 1993. Although the notion of mainstreaming does not appear in this document, its several provisions refer to it. Particularly important are Articles 8 of the Declaration and 97 of the Programme of Action. The first reflects the consensus of the international community concerning the mutual links between human rights, democracy and development. The second recognises the important role of human rights components in peacekeeping operations and recommends that the reporting, experience and capabilities of the UN human rights programme be accordingly taken into account. However, these recommendations of the World Conference were not widely followed within the Organisation. Eventually, the concept of mainstreaming human rights made a career after the first reform report by the Secretary-General, Mr. Kofi Annan, entitled Renewing the United Nations: A Programme for Reform published on 14 July 1997. This report was prepared on the eve of the 50th Anniversary of the Universal Declaration of Human Rights and the Vienna+5 review. It would be risky to say that it is this Anniversary and follow-up process that guided the Secretary-General when he called for making human rights a theme permeating the entire work of the United Nations. This call was rather a result of his overall approach to human rights. But these events had undoubtedly created a good framework for taking the idea of mainstreaming forward and giving it a practical meaning. It is not by chance that the first signs announcing the new approach appeared in connection with the preparation for 1998. The programme documents by the United Nations Development Programme (UNDP) and the World Bank are to be mentioned in this context. Both of them declared the intention of the respective institutions to be guided by human rights in their work. In his report, the Secretary-General stated first of all that “[h]uman rights are integral to the promotion of peace and security, economic prosperity and social equity. […] A major task for the United Nations, therefore, is to enhance its human rights programme and fully integrate it into the broad range of the Organization’s activities.” Consequently, the Secretary-General unfolded a plan addressing two dimensions of mainstreaming, namely:
The UN Secretary-General Kofi Annan’s report Renewing the United Nations: A Programme for Reform set off the integration of human rights into the Secretariat and the system of UN agencies and programmes (Report of the Secretary-General, A/51/950, 14 July 1997). See also UN General Assembly resolution A/52/12 addressing this issue. The review process of the implementation of the Vienna Declaration and Programme of Action (VDPA) by UN bodies and non-governmental organisations. See papers by UNDP, Integrating Human Rights with Sustainable Human Development, and the World Bank, Development and Human Rights: The Role of the World Bank, both published in 1998. UNDP dedicated its Human Development Report 2000 to human rights and development. Report of the Secretary-General, supra note 2, paras. 78 and 79.
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a) substantive – all organisations of the United Nations were called upon to integrate human rights into their policies and programmes, and b) structural – the High Commissioner for Human Rights was invited to all the new managerial structures of the United Nations and in particular to four executive committees covering the main areas of activities of the United Nations. Under consideration was also the idea to establish a special executive committee for human rights. The view, however, prevailed that since human rights should permeate the work of the entire Organisation, it would be appropriate to ensure the representation of the High Commissioner in all the managerial structures instead of creating a separate structure for human rights. Moreover, there was a fear that the latter option would ultimately lead to a compartmentalisation of this area. This concept was visionary and sound in policy terms. It generated high expectations. Many, in particular donors, expected that development agencies would quickly take over the burden of technical assistance in the area of human rights, making this part of international cooperation more efficient. The Office of the High Commissioner for Human Rights (OHCHR) was expected to provide substantive input to this process. These plans have, however, been implemented only partially. Agencies and programmes presented highly diversified levels of interest in giving human rights a higher prominence in their programmes than just making them one of the reference points in their policy documents. For its part, the Office did not always have the capacity to provide timely input to the work of its partners. Nevertheless, the process of mainstreaming started and has continued during the years that followed. Three developments may serve as its landmarks. First, a number of agencies and programmes have published their human rights policy statements. Second, the OHCHR signed memoranda of understanding with main partners such as the UN Department of Peace Keeping Operations (DPKO), UNDP, the UN Human Settlements Programme “HABITAT”, the United Nations Population Fund, etc. These documents provided the framework for inter-agency cooperation, and in the case of DPKO established principles of cooperation in the field. Third, UN agencies and programmes started to develop a common understanding of the rights-based approach to development programming. The process leading up to that was driven by UNDP, United Nations Children’s Fund (UNICEF) and OHCHR. In the Secretary-General’s second report on the reform of the Organisation, issued in 2002, the concept of mainstreaming was strongly reiterated. Moreover, the Secretary
“The promotion and protection of human rights is a bedrock requirement for the realization of the Charter’s vision of a just and peaceful world. […] Good progress has been achieved to date in integrating human rights throughout the United Nations system. For example, human rights specialists are deployed as part of peacekeeping missions. In most humanitarian operations, the protection of refugees or internally displaced persons is a crucial aspect of the response to emergency situations. Development programmes supported by the United Nations promote human rights through information dissemination and education, as well as through support for human rights institutions, such as national human rights commissions.” Report of the Secretary-General, Strengthening of the United Nations: An Agenda for Further Change, A/57/387, paras. 45 and 48.
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General proposed an operational framework for its implementation at the country level, the so-called “Action 2 plan”. The purpose of this programme was to enhance a human rights-based interagency cooperation to strengthen/build national systems of human rights protection. A decisive impetus to mainstreaming was given by the preparatory works for the 2005 World Summit and subsequently by the Summit itself. The Secretary-General, in his report In Larger Freedom: Towards Development, Security and Human Rights for All, made human rights central to the future of the United Nations and stressed: “We will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights.” In several places of his report he referred to the impact of human rights on prevention and resolution of conflicts, as well as on peace-building. The role of human rights in making development programmes sustainable was equally articulated in his report. Consequently, the World Summit acknowledged that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and wellbeing. They are interlinked and mutually reinforcing.10 Mainstreaming in the area of peace and security While the recognition of the importance of human rights for development goes back to the 1986 Declaration on the Right to Development, the reluctance to extend this recognition to the area of peace was more persistent. Until the late 1990s human rights were perceived by the Security Council as a field that was not covered by its mandate. Interestingly, the international community was willing to accept the reference to human rights in the context of peace operations at the World Conference in 1993,11 but the Security Council preferred to use the notion of “humanitarian problems” to address human rights issues. Special frameworks have been developed to organise hearings for different human rights actors, such as special country rapporteurs and later the High Commissioner. As late as in the present century, the Security Council initiated its human rights assessments, still not without reservations made by some governments. In this context, it was essential that the 2005 World Summit stated: “We therefore reaffirm our commitment to work towards a security consensus based on the recognition that many threats are interlinked, that development, peace, security and human rights are mutually reinforcing, that no State can best protect itself by acting entirely alone and that all States need an effective and efficient collective security system pursuant to the
“The United Nations High Commissioner for Human Rights will develop and implement a plan, in cooperation with the United Nations Development Group and the Executive Committee for Humanitarian Affairs, to strengthen human rights-related United Nations actions at the country level.” Ibid., para. 51, Action 2. Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, A/59/2005, 21 March 2005. Ibid., para. 17. 10 2005 World Summit Outcome, A/RES/60/1, para. 9. 11 See Vienna Declaration and Programme of Action, para. 97.
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purposes and principles of the Charter.”12 At present, the United Nations peace operations in the following countries include human rights components: Afghanistan, Côte d’Ivoire, Ethiopia/Eritrea, Haiti, Iraq, Liberia, Sierra Leone, Sudan and Timor-Leste. OHCHR announced in its Strategic Management Plan 2006–200713 that it will work towards enabling these units to implement activities focusing on four areas: ensuring that peace processes emphasise justice and equity; preventing and redressing human rights violations; building capacities and institutions; and mainstreaming human rights into all United Nations peace-building programmes. In addition to this form of engagement, human rights are on the agenda of commissions of inquiry into human rights violations undertaken on the initiative of the Security Council, the Human Rights Council or the UN High Commissioner for Human Rights. Recently such inquiries have been carried out in, e.g., Darfur (Sudan) and Lebanon. Mainstreaming in the area of development Mainstreaming in the area of development initially consisted in integrating human rights language into the policy statements of the relevant agencies and programmes. This gave rise to the gradual appearance of human rights references and methodologies in operational documents. UNICEF led the way in this regard by adopting the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women as the normative framework for its work since its Mission Statement approved by its Board in 1996.14 Today some other agencies develop their own specific programmes in the area of human rights, such as Justice and Human Rights programme adopted by UNDP.15 The rights-based approach to programming eventually became the methodology of this process. In 2003, the UN agencies agreed upon its common understanding,16 which includes the following main elements: 1.
All programmes of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments.
12 Supra note 10, para. 72. 13 OHCHR, High Commissioner’s Strategic Management Plan 2006–2007, 2006, p. 35. 14 See more on this issue in U. Jonsson, Human Rights Approach to Development Programming (UNICEF, Nairobi, 2003) p. 4. 15 See UNDP website <www.undp.org/governance/sl-justice.htm>. See also UNDP publications Programming for Justice: Access for All. A Practitioner’s Guide to a Human Rights-Based Approach to Access to Justice, 2006; Indicators for Human Rights Based Approaches to Development in UNDP Programming: a Users’ Guide, March 2006. 16 Report from the Second Interagency Workshop on Implementing a Human Rights-based Approach in the Context of UN Reform, Stamford, USA, 5–7 May, 2003, available at <www. undg.org/documents/2290-Other_Resources_Background_Materials_-_Stamford_Workshop_Report.doc>.
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2.
3.
Human rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and in all phases of the programming process. Development cooperation contributes to the development of the capacities of ‘dutybearers’ to meet their obligations and/or of ‘rights-holders’ to claim their rights.
Among the human rights principles mentioned in paragraph 2, the following have been recognised by the UN agencies: universality and inalienability of human rights; indivisibility, interdependence and inter-relatedness of all human rights; equality and non-discrimination; participation and inclusion; accountability and the rule of law.17 Shortly afterwards, the agencies set up the organisational framework for the Action 2.18 This has provided a focus for the efforts of the UN Country Teams (UNCTs) and individual agencies and programmes at the country level. The overarching goal should be the strengthening of the national systems of human rights protection. It was agreed that while assessing a national system and programming measures to improve it in cooperation with the government and the society concerned, particular attention will be paid to: – consistency of law with international human rights standards, – effective functioning of courts, judiciary and law enforcement as well as independent human rights commissions or ombudsman, – procedures for individuals to effectively claim their rights, – good governance and accountable government institutions that promote and protect human rights, – democratic, open, transparent and participatory decision-making process, – strong civil society, including a free and independent media. UNCTs benefit from OHCHR expertise during the assessment and programming processes (including the Common Country Assessments and United Nations Development Assistance Frameworks). In some cases, OHCHR places human rights advisers within the UNCTs or makes its offices already established on the ground available to its UN partners. Human rights advisers have already been placed in Pakistan, the Russian Federation, the Southern Caucasus and Sri Lanka. OHCHR has its own offices in Angola, Burundi, Bosnia and Herzegovina, Cambodia, Colombia, Democratic Republic of the Congo, Guatemala, Mexico, Nepal, Occupied Palestinian Territories, Serbia (including Kosovo), Togo and Uganda. In addition, support to Action 2 is provided by OHCHR regional offices established, at present, in Africa (East and Southern Africa), Asia (Southeast Asia and the Pacific), the Arab Region (Middle East and the Gulf), Central Asia and Latin America. Generally, OHCHR considers that advice and support to Country Teams is most effective when the Office is present in the country and can 17 Ibid., Attachment 1. 18 See information on Action 2 on the UNDG website <www.undg.org/content.cfm?id=14>, and OHCHR website <www.un.org/events/action2/summary.html>.
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enter into direct cooperation. In this context, it is expected that the number of human rights advisers to UNCTs backed by OHCHR Headquarters will increase.19 Evaluation Despite all the progress achieved, mainstreaming of human rights still remains an unfinished job. Three basic observations reflect the present stage: – There is an uneven interest among UN agencies and programmes in integrating the human rights dimension into their policies and activities; an increasing number, in particular development agencies, adopt, however, a rights-based approach to their programming and projects; others undertake incidentally human rights relevant activities and use human rights rhetoric; one can still note a deficit of knowledge on how agencies and programmes may benefit from the rights-based approach in the implementation of their core mandates; – The initial stronger inclination to embrace human rights at the Headquarters rather than at the country level is now corrected by an increasing number of resident coordinators, UN Country Teams, and Special Representatives of the SecretaryGeneral who are integrating human rights in their programmes of work. This trend is on the rise; – Some development agencies are inclined to perceive mainstreaming as related only to capacity-building, leaving human rights protection in the narrow sense mainly to the OHCHR. Others base their protection activities on their own mandates and specific treaties or attempt to develop their own protection programmes in a rather artificial distance to human rights. This means that although mainstreaming has already been advancing for some years, from the point of view of its substance and sustainability, it can be seen as work in progress. Human rights find their way more easily into policy documents than into institutional culture and programmes. It is easier to accommodate human rights as the language of declarations than to apply them as a methodological and operational tool. It is, therefore, essential to give the concept of mainstreaming a stronger substantive dimension. Action 2 with its focus on building national systems of human rights protection and applying a rights-based approach can be a suitable strategy and tool to that end. Looking at mainstreaming in the context of the OHCHR programme, one can arrive at the following assessment: – the United Nations system and wider sharing of human rights responsibilities, in particular with regard to capacity-building by the UN agencies and programmes; – The UN human rights programme can importantly benefit from the mainstreaming thanks to a decisive increase of the UN human rights potential and impact as a result of this process:
19 Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, A/59/2005/Add.3, paras. 108 and 109.
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OHCHR must be apt to assume its role as a resource centre for the mainstreaming process, disposing over capacities to empower partners and control the quality of human rights input made by partners. To that end, as has been indicated in the OHCHR Plan of Action, the Office must build its thematic expertise and step up work on specific human rights issues. In the short to medium term, this will require a considerable increase of OHCHR capacities. The 2005 World Summit responded to this need by resolving to double the Office’s regular budget resources over the next five years.20 In the longer term, mainstreaming will, most probably, lead to some decrease of OHCHR capacities directly involved in the delivery of human rights assistance to governments and civil society since the responsibility for such assistance will be shared with the empowered partners.
20 Supra note 10, para. 124.
Part V: The Principle Organs and Other UN Agencies
22
The Security Council and Human Rights Jan Klabbers*
I Pursuant to Article 24 of the United Nations (UN) Charter the Security Council bears primary responsibility for the maintenance of peace and security. Bearing in mind that violations of human rights may lead to situations that endanger international peace, and that the enjoyment of human rights depends on a peaceful environment, most of the activities of the Security Council will somehow contain a human rights component. Admittedly, the Security Council does not, as a matter of course, occupy itself too intensely with human rights matters – these responsibilities are exercised primarily by the General Assembly and the Economic and Social Council and their subsidiary organs. Still, many of the Council’s resolutions are somehow designed to stop human suffering, and as such can be said to have something of a human rights orientation As the above already suggests, anyone trying to form a reasoned opinion on the human rights record of the United Nations Security Council will have to meet with three rather formidable obstacles. The first is this: how to establish whether or not a certain activity or resolution relates to human rights? One might well argue that a resolution urging for the greater representation of women in institutions dealing with armed conflict aims to improve the position of women and therewith contributes to human rights, but one may just as easily argue that such a resolution aims not so much to approve the position of women but rather aims to improve conflict resolution mechanisms. By the same token, is a resolution condemning terrorism a human rights friendly resolution? Or a resolution condemning violent acts during a civil war? In other words, a judgment
*
Professor of International Organisations Law, University of Helsinki; Director, Academy of Finland Centre of Excellence in Global Governance Research. Resolution 1325 (2000). More abstractly, this is sometimes referred to as establishing the “field constitution”. See D. Kennedy, A Critique of Adjudication {Fin de Siècle} (Harvard University Press, 1997).
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on the human rights record of the Security Council will owe much to the way in which human rights are conceptualised. The second obstacle is this: even if one can identify the topic of a resolution as being human rights related, does the course of action favoured by the Council indeed help the cause of human rights? In other words: can a causal relationship between a Security Council act and the improvement of the human rights situation in State X, Y or Z be established? To the extent that such a question can be answered to begin with, it is as an empirical question, akin to the one the International Criminal Tribunal for the former Yugoslavia grappled with in the Tadic case: does the creation of a war crimes tribunal contribute to international peace and security? At best, such a judgment can only be made ex post facto. The third obstacle is that the Security Council, as an entity, can affect human rights in two distinct ways: on the one hand, it can generally take action in response to human rights violations by States or other actors; on the other hand, its own activities too may come to affect human rights: a resolution imposing sanctions on a State may have very negative humans rights impacts such as food crises or involuntary displacement of individuals, while targeting sanctions at individuals would demand a fair trial of those individuals. II Even employing a very broad human rights concept, it is clear that the Security Council has not bent over backwards to improve human rights. While the UN Charter is based, in part, on respect for human rights, and the Charter enjoins the Member States to realise human rights, the Security Council’s human rights record can generously be described as chequered. The Council was created, initially, to intervene during conflicts or possible conflicts, and what the drafters of the Charter had in mind was, above all, classic inter-State conflicts. On such a conception, there was not much reason for the Council to busy itself with human rights: justice and other related things were consid
A very broad concept of human rights is used by S. D. Bailey, The UN Security Council and Human Rights (St. Martin’s Press, New York, 1994). For further reading on the Security Council and the protection of human rights, see B. Ramcharan, The Security Council and the Protection of Human Rights (Martinus Nijhoff, Leiden, 2002). See Prosecutor v. Dusko Tadic, judgment of 2 October 1995 (ICTY), reproduced in 35 International Legal Materials (1996) p. 32, para. 39. This would seem to be supported by the European Court of Justice in its long-awaited decision in case C-402/05 P, Kadi v. Council and Commission (judgment of 3 September 2008, not yet reported). For a brief discussion of the problems at issue, see J. Klabbers, ‘Kadi Justice at the Security Council?’, 4 International Organizations Law Review (2007) pp. 293–304. See also Alvarez, discussing the role of the Council as a force for good and a force for notso-good. J. E. Alvarez, International Organizations as Law-Makers (Oxford University Press, 2005). See G. Simpson, Great Powers and Outlaw States (Cambridge University Press, 2004) especially ch. 6.
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ered to be the province of the General Assembly and, under the Assembly’s auspices, the Economic and Social Council or, in specific settings, the Trusteeship Council, whereas the Security Council would mainly occupy itself with the maintenance of peace and stability, and for a long time peace and stability were generally seen as having not all that much to do with human rights. The virtual impossibility to activate the Council during much of the Cold War only strengthens this position. Indeed, the Council did not distinguish itself though its initiatives during the Cold War. During most of the 1950s, the number of resolutions adopted per year could be counted on the fingers of one or two hands, with only a single resolution adopted in 1959. And to the extent that the Council did involve itself with human rights early on, the result would come to symbolise the Council’s dilemma: manoeuvring between engagement and geopolitical calculation (or justice and order, if you will). One of the earliest resolutions adopted by the Security Council related to what was blandly called ‘”the Spanish question”, and consisted of a robust condemnation of the regime of General Franco.10 The Council set up an investigation panel, and while the panel confirmed Spain’s misbehaviour, nonetheless the Council quickly concluded that whatever the Franco regime was doing was a domestic affair, not amounting to a threat to the peace and thus not triggering the UN’s collective security system. Half a year after condemning Franco’s regime, the matter was taken off the agenda,11 and Franco would continue to rule for another three decades. The Hungarian crisis of 1956 provides a useful example of the type of problem facing the Council during the Cold War, with the shadow of the veto by one of the permanent members hovering over the decision-making. After the Soviet Union invaded Hungary, all the Council could do was direct the matter to the General Assembly (which could involve itself on the basis of its Uniting for Peace resolution). The Soviet Union’s vote against did not qualify as a veto: the resolution was treated as procedural rather than substantive.12 Much of the Council’s activities during the Cold War related to colonialism and the right to self-determination, often treated in the same breath in that typically the main candidates for utilising the right to self-determination were thought to be colonised territories.13 Thus, the independence struggle in Angola was qualified as being “likely to endanger the maintenance of international peace and security”, but without this leading to any immediate action: as the UK and France abstained (worried no doubt about their See M. Koskenniemi, ‘The Police in the Temple. Order, Justice and the UN: A Dialectical View’, 6 European Journal of International Law (1995) pp. 325–348. Resolution 132 (1959), on Laos. 10 Resolution 4 (1946). 11 Resolution 10 (1946). For useful background, see B. Conforti, The Law and Practice of the United Nations (Kluwer, The Hague, 1997) especially pp. 149 and 150. 12 See resolution 120 (1956). Useful background can be found in H. G. Nicholas, The United Nations as a Political Institution, 3rd ed. (Oxford University Press, 1967) pp. 59–61. 13 See generally J. Klabbers, ‘The Right to be Taken Seriously: Self-Determination in International Law’, 28 Human Rights Quarterly (2006) pp. 186–206.
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own empires), this was probably the farthest the Council could go.14 Likewise, Portugal’s administration in Africa was generally condemned two years later but, with France, the UK and the US abstaining, no concrete action was taken, though the right to self-determination was unequivocally affirmed.15 Famously, decisive action during the Cold War affected two issues in particular. The first of these was the South African Apartheid regime, roundly condemned by the Security Council and resulting as early as 1963 in an arms embargo.16 The situation in Southern Rhodesia would also come to occupy the Council for a while: the Council (softly) condemned British policy,17 more forcefully condemned the unilateral declaration of independence by a “racist minority”18 and urged the UK (with the UK’s approval) to quell the rebellion while also imposing an arms embargo.19 III The end of the Cold War affected the relationship between human rights and the Security Council in two fundamental ways. First, it meant that the political divisions between East and West were no longer setting the agenda. The five permanent members of the Security Council were no longer compelled to invoke or threaten to invoke their veto whenever possible: for a brief period of time, at least, it seemed that history had ended, as Fukuyama famously put it,20 and agreement was possible on taking action against human rights violations: the Security Council special meeting of January 1992 confirmed as much when suggesting that threats to international peace and security could also stem from humanitarian “sources of instability”.21 Indeed, it is possible to interpret resolution 688 (1991, on the plight of Iraqi Kurds) as an early manifestation of the position that humanitarian crises might trigger collective action. Secondly, and less obvious perhaps, the end of the Cold War also meant a liberation of human rights. Again, possibly for a brief period, human rights could occupy a prominent spot on the global political agenda without being overshadowed by considerations of Realpolitik or Cold War clientelism, or the later war on terrorism.22 The two factors combined resulted in an upsurge of Security Council activities concerning human rights. One example is election monitoring or providing electoral 14 15 16 17 18 19 20 21
Resolution 163 (1961). Resolution 180 (1963). Resolution 181 (1963). Resolution 202 (1965). Resolution 216 (1965). Resolution 217 (1965). See F. Fukuyama, The End of History and the Last Man (Free Press, New York, 1992). See UN Doc S/23500 of 31 January 1992, reproduced in 31 International Legal Materials (1992) p. 758. 22 See e.g. C. Gearty, Can Human Rights Survive? (Cambridge University Press, 2006). See also, in greater detail, M. Halme, Human Rights in Action (doctoral dissertation, University of Helsinki, 2008).
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assistance more broadly: this really took off in the early 1990s, and at one point the Council imposed sanctions on Haiti with a view to restoring democracy and reinstating the elected president, Aristide.23 Peacekeeping intensified24 and eventually could even merge into the administration of territory, most notably in Kosovo (UNMIK)25 and East Timor (UNTAET)26, and in December 2005 the UN created a special Peace-Building Commission, a joint venture of the Security Council and the General Assembly.27 Moreover, the Council would create two international criminal tribunals to address war crimes, crimes against humanity and genocide: one dealing with the conflict in the former Yugoslavia,28 the other dealing with Rwanda.29 But along with the increased activity of the Council came the possibility that the Council itself needed to be kept in check.30 Its imposition of sanctions on Libya after Libya refused to hand over two of its nationals suspected of causing an airplane to explode over Lockerbie was felt by many as inaugurating a legislative role by the Council, and where such an undemocratic and unrepresentative body aspires to create new rules, some mechanism of control is called for: many advocated the creation of some system of judicial review, or held that a rudimentary system of review is already in place.31 More concretely focusing on human rights, UN peacekeepers have been suspected of being involved in human rights violations;32 the administration of territory implies certain standards of good governance and a waiver of the traditional immunities of interna-
23 Resolution 841 (1993). For a general discussion, see T. M. Franck, Fairness in International Law and Institutions (Clarendon Press, Oxford, 1995) pp. 105–109. 24 Useful is S. R. Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict After the Cold War (St. Martin’s Press, New York, 1997). 25 Resolution 1244 (1999). 26 Resolution 1272 (1999). 27 It was set up by parallel resolutions: Security Council resolution 1645 (2005) and General Assembly resolution 60/180 (2005). See generally also O. Korhonen et al., International PostConflict Situations: The New Challenges for International Co-operative Governance (Erik Castrén Institute, Helsinki, 2007). 28 Resolution 827 (1993). 29 Resolution 955 (1994). The story of the creation of the tribunals is well-told in G. J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press, 2000). 30 For a useful general discussion, see K. Manusama, The United Nations Security Council in the Post-Cold War Era: Applying the Principle of Legality (Martinus Nijhoff, Leiden, 2006). 31 See e.g. G. R. Watson, ‘Constitutionalism, Judicial Review, and the World Court’, 34 Harvard International Law Journal (1993) pp. 1–45. For an overview of the debate, see J. Klabbers, ‘Straddling Law and Politics: Judicial Review in International Law’, in R. St. J. MacDonald and D. M. Johnston (eds.), Towards World Constitutionalism (Martinus Nijhoff, Leiden, 2005) pp. 809–835. 32 See generally C. Wickremasinghe and G. Verdirame, ‘Responsibility and Liability for Violations of Human Rights in the Course of UN Field Operations’, in C. Scott (ed.), Torture as Tort (Hart, Oxford, 2001) pp. 465–489.
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tional civil servants,33 and indeed the very activity of nation-building, a core justification for international administration, stands in a tense relationship with human rights protection.34 In addition, the sophisticated techniques for imposing sanctions on individuals or companies, developed since the early 1990s and supervised by sanctions committees,35 leaves a lot to be desired in terms of fair trial and due process of law: typically, individuals will be blacklisted on the suggestion of a government, without a hearing or the possibility to defend themselves, and without the government in question having to produce evidence beyond a reasonable doubt. Removal from the blacklist too follows a political rather than legal procedure: the individual concerned is supposed to approach his or her government which, in turn, may (or may not) decide to plead his or her case. IV In the end, the relationship between the Security Council and human rights is a complicated one, at least in part because the Council was never set up to operate in the field of human rights: it was set up as a more or less administrative body dealing in particular with peace and security, without any legislative tasks. And as long as human rights were seen to be the diametrical opposite of peace and security and the Council steered clear from legislating, human rights monitoring would be as far from the Council as, say, monitoring the movements of straddling fish stocks. But few things are carved in stone: international institutional law knows all sorts of mechanisms for expanding the roles of international organisations and their organs,36 and with the development of the role of the Council came an increasing realisation that perhaps human rights were connected to security after all. The Council can step in if human rights violations occur: the currently prevailing conception of security is broad enough to justify a finding that gross human rights violations (or the possibly resulting refugee flows) form a threat to international peace and security. The Council itself is also in the position of violating human rights in a fairly direct manner: this was almost a conceptual impossibility during the Cold War, but has rapidly materialised since the early 1990s. The policeman created in 1945 is no longer the trusted village constable (if 33 The UNMIK ombudsperson held unequivocally that in particular the exercise of police functions was irreconcilable with privileges and immunities. See Ombudsperson Institution in Kosovo, Special Report No. 1, at <www.ombudspersonkosovo.org>, visited on 7 October 2004. 34 See J. Klabbers, ‘Redemption Song? Human Rights Versus Community-building in East Timor’, 16 Leiden Journal of International Law (2003) pp. 367–376. 35 Sanctions committees have remained hitherto somewhat under-analysed. For an early study see M. Koskenniemi, ‘Le comité de sanctions (crée par la resolution 661 (1990) de Conseil de Sécurité)’, 37 Annuaire Francais de Droit International (1991) pp. 119–137. For a very useful recent study, see J. M. Farrall, United Nations Sanctions and the Rule of Law (Cambridge University Press, 2007). 36 See J. Klabbers, An Introduction to International Institutional Law (Cambridge University Press, 2002).
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he ever was);37 instead, he has become an elite SWAT officer, unrecognisable behind his armour and shield, and using every trick in the book to get his way. And that is quite a worrying thought.
37 Elsewhere I suggest that the metaphor of the Council as policeman was perhaps not all that fortunate to begin with, as one would hope that the police (unlike the Council) also engage in prevention. Perhaps “fire department” would have been a more appropriate metaphor. See J. Klabbers, ‘Reflections on the Politics of Institutional Reform’, in P. Danchin and H. Fischer (eds.), United Nations Reform and the New Collective Security (Cambridge University Press, forthcoming).
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The International Court of Justice – Monitoring Human Rights Jonas Grimheden*
Introduction The International Court of Justice (ICJ or the Court) is not the key upholder of rights of individuals or groups and maybe rightly so. While the International Court of Justice was mainly set up to rule in disputes between sovereign States, the Court is also entrusted with providing advisory opinions upon request by various United Nations (UN) organs. Additionally, the subject matter jurisdiction of the Court does not in any way exclude human rights issues. The essential limitation is rather the reactive role of the Court, as other courts, responding to requests, rather than taking initiatives. States are reluctant to use the ICJ generally, even more so in cases related to human rights law. The common understanding of human rights as being very sensitive coupled with State interests typically not being that of human rights has not made the ICJ a major forum for human rights issues. The advisory jurisdiction, however, with right of initiative by various UN organs and specialised agencies of the UN could be a more likely avenue for human rights concerns but also here there are relatively few cases that the ICJ has been asked to resolve. From a human rights perspective, it may even arguably be positive that the Court has had a lesser role on human rights, given the tendencies towards a relatively conservative *
BA, LLB, LLM, LLD, Senior Researcher at the Raoul Wallenberg Institute, Lund. I am grateful to Fredrik Danelius and late Professor Jerzy Sztucki for comments on an earlier version on this topic. I have benefited tremendously from attending lectures given by judges Bruno Simma (since 2003) and Rosalyn Higgins (since 1995, President since 2006). For a detailed description of the work of the International Court of Justice, see e.g. Rosenne’s The World Court; What it is and How it Works, 6th ed. (Martinus Nijhoff, Dordrecht, 2003). See also A. S. Muller et al. (eds.), The International Court of Justice; Its Future Role After Fifty Years (Kluwer Law International, The Hague, 1997). For cases etc., see the webpage of the Court <www.icj-cij.org>. Articles 36(3) and 96 of the UN Charter provide the basis for the general jurisdiction and the advisory mandate respectively while the Statue does so in articles 36 and 65 respectively. Statute Article 34(1) provides that only States can be parties before the Court.
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and State-oriented position of the Court. Nevertheless, the Court has had and will continue to play a role in the monitoring of human rights by way of further elaborating on relevant international law concepts and even by being given the possibility to hold States responsible for violations. There is also potential for the ICJ to make a greater contribution to human rights. The conclusions will discuss these possibilities. First, however, the role of the ICJ in contributing to the monitoring of human rights will be discussed by giving an overview of the Court and its human rights related jurisprudence. Jurisprudence The International Court of Justice, commencing its work in 1946, replaced the Permanent Court of International Justice (PCIJ, functioning from 1922–1946), to complete the set of six UN principle organs. Article 92 of Chapter XIV of the UN Charter labels the Court the principal judicial organ of the UN, and this is reiterated in Article 1 of the Statute of the ICJ. Appropriately, signalling independence, the judicial organ is located away from the other five principle organs, as was also the PCIJ, in the Peace Palace in The Hague. All UN Member States are Parties to the Statute of the Court (according to Article 93 of the UN Charter), but there is also a possibility for non-UN Members to become Parties through recommendation by the Security Council and approval by the UN General Assembly (GA). To date, 65 States have accepted the Court’s mandatory jurisdiction (through a declaration under Statute Article 36(2)), most recently Japan in 2007. Members failing to comply with a decision in cases in which they are a party can face implementation sanctions from the Security Council (Charter Article 94). The 15 judges of the Court serving in their individual capacity are elected for nine years by the Security Council and the General Assembly. All questions are decided by majority vote of the judges present while the President (or the Vice President) of the Court has the casting vote when needed. On the basis of the two types of cases the ICJ is
Article 7 of the Charter. The Statute of the ICJ, signed 26 June 1945, as was the case for the PCIJ in relation to the Covenant of the League of Nations, the Statute of the Court is an annex to and hence constitutes an integral part of the UN Charter. Article 93(2) of the Charter and Article 35 of the Statute. For an overview of the States, see <www.rwi.lu.se/tm/ThemeMaps.html> under Jurisdictions/Global/ICJ. Statute Articles 3(1), 2 and 13. One-third of the positions are made available every three years, and judges are subject to re-election. Not more than one judge from each country can be among the 15, and there is an effort to have all the major legal systems represented. The judges must be qualified for the highest judicial positions or be qualified “jurisconsults” in the home country to be eligible. Should a State party to a conflict not have a judge on the Court, a judge may be appointed ad hoc by that State. The rule is for a full court to sit unless otherwise specified. The Rules of the Court (last revised in 2005) may allow a judge or judges to be dispensed from service given that the number of judges remaining does not go below 11. For constituting a quorum, however, nine judges are enough (Statute Article 25). The full electoral procedure is defined in the Statute, starting in Article 4. Statute Article 55.
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authorised to handle, contentious cases and advisory proceedings, the Court has within its competence to make three main types of rulings: provisional measures, judgments and advisory opinions. Given the nature of human rights violations, the provisional or interim measures are particularly important for prevention. Provisional measures can be ordered by the Court pending judgment on the merits on the request of a party to the conflict. As for the inter-State disputes there are three ways of having the ICJ deal with a case: through a special agreement between the parties to submit the case; through a jurisdictional clause in for example a treaty that disputes should be referred to the ICJ;10 or, as mentioned earlier, through the Parties’ declarations of compulsory jurisdiction of the Court. Should there be doubt whether the Court has jurisdiction or not, the Court itself decides.11 Advisory opinions may be requested by the UN General Assembly or the Security Council, and other organs or specialised agencies of the United Nations can be granted authorisation from the GA (Charter Article 96) to ask for an opinion on relevant issues, as was done in the nuclear weapons cases brought before the Court by the GA and the World Health Organization in 1996.12 Over the years some 140 cases have been placed on the list of the Court. Out of these, well over 100 have been contentious cases and 24 have been advisory opinions. The contentious cases are spread fairly evenly over the years, with two to three cases per year on average, some of which are eventually struck off the list on request by the applicant. At the time of writing there are 2 cases under deliberation and an additional 13 on the list of pending cases. As for the advisory opinions, 10 came during the first decade of the Court’s existence. Since then, 14 advisory proceedings have been entertained, but out of these only one during the 21st century (Construction of a Wall case, in 2003)13, indeed an indication of an underused possibility. In the following I am offering an overview of the jurisprudence of the ICJ with significance to human rights sorted under the three headings of interim, judgments and advisory.
These are parts of proceedings in contentious cases. Statute Article 41, Articles 73–78 of the Rules of Court provides elaboration. 10 There are several hundred treaties and conventions containing such clauses. The webpage of the ICJ lists some 300. Related to human rights, jurisdictional clauses are, for example, to be found in the International Convention on the Elimination of Racial Discrimination (Article 22), the Convention on the Elimination of All Forms of Discrimination Against Women (29(1)), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (30(1)), the Convention on the Prevention and Punishment of the Crime of Genocide (IX), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (92(1)) and the International Convention for the Protection of All Persons from Enforced Disappearance (42(1)). 11 Statute Article 36(6). 12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, and Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996. 13 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004 (submitted on 10 December 2003).
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Interim14 Interim measures can serve to not only prevent irreparable damage to the enjoyment of rights but may also provide a status quo of a situation in order to enable a subsequent better review of the factual situation.15 Nicaragua sought interim measures in Military and Paramilitary Activities In and Against Nicaragua of 1984.16 Nicaragua claimed that the USA directly and indirectly worked through military and paramilitary means against Nicaragua and asked for protection for the lives of the Nicaraguan people, something the Court agreed to without further specifications. While the main subject matter of a case rarely is human rights in inter-State disputes, larger considerations are at times made when deciding on interim measures by the Court, and then human rights issues are more likely to be included. A series of cases have shown the Court’s development of a position on how broad the scope of interim measures may be. In the Frontier Dispute case (Burkina Faso/Mali) of 1986 both parties asked for provisional measures on where the borderline between the two countries ought to be drawn.17 An agreement was reached on ceasefire, but the issue of troop withdrawal remained. The Order was given by a chamber for the first time.18 The case broadened the scope of application from previous PCIJ rulings through arguing that potential irreparable damage must be prevented.19 In the Arbitral Award of 31 July 1989 case of 1990, however, the strict linkage between the issue at dispute and provisional measures granted was retained.20 Consequently the temporarily enlarged protective attitude in the Frontier Dispute was withdrawn in favour of a stricter legal view. In Passage Through the Great Belt (Great Belt case) of 1991 a seemingly practical middle ground was found between the more liberal Frontier Dispute ruling and that of the Arbitral Award case. Finland asked for provisional measures to prevent Denmark from obstructing the 14 I have relied on R. Higgins, ‘Interim Measures for the Protection of Human Rights’, 36 Columbia Journal of Transnational Law (1997). 15 This is stated by the PCIJ, which has served as the basis for subsequent ICJ rulings. Ibid., p.91. See the Denunciation of the Treaty of November 2nd 1865, Between China and Belgium (1927), Order, 25 May 1929 (Series A, No. 8). Interim measures cannot be extended farther than protecting the main claim sought by the party as was laid down in Legal Status of the SouthEastern Territory of Greenland (Norway v. Denmark), Order, 3 August 1932 (Series A/B, No. 48). Reiterated in Nuclear Tests (Australia v. France), Interim Protection, Order, 22 June 1973 and (New Zealand v. France), Interim Protection, Order of 22 June 1973. 16 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. USA), Provisional Measures, Order, 10 May 1984. 17 Provisional Measures, Order, 10 January 1986. 18 It is possible to form chambers consisting of three or more judges to deal with specific categories of cases or a specific case (Statute Article 26). 19 The damage, however, was not directly related to the disputed issue subject to eventual final judgment, enlarging the scope as established in the case concerning Belgium and China of 1927. The Chamber argued that since both parties brought the dispute before the Court, the principle of peaceful settlement should prevail, and hence interim measures should be instituted. 20 (Guinea-Bissau v. Senegal), Provisional Measures, Order, 2 March 1990.
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passage through the Great Belt with a bridge. The Court did not order interim measures but stated that it is for the other party to take into consideration the potential effects of a final judgment so as to modify or delay the project.21 In Application of the Convention on the Prevention and Punishment of the Crime of Genocide of 1993 the request for interim measures was completely in line with the question at issue. The Order included for Yugoslavia to comply with the Convention. Other human rights in need of protection according to the applicant were not covered by the provisional measures since they did not directly relate to the issue subject to final judgment. The line of argument was back to the more restrictive practice of the past.22 In Land and Maritime Boundary Between Cameroon and Nigeria of 1996 the Court further elaborated on border disputes stating that these are concerned with more than geographical lines: they are also about the life and protection of individuals. In this case the ICJ reverted somewhat to the larger consideration given to the individuals in adjudicating disputes between States.23 In 1998 the Court ordered the USA to halt execution of the death penalty of a Paraguayan citizen in the state of Virginia through interim measures.24 Paraguay had filed an application for instituting proceedings against the USA on the ground of failure to inform the accused of his right under the Vienna Convention on Consular Relations to communicate with his country’s consular officials. The Supreme Court of the United States refused to review the case mainly due to the fact that the objection of “failure to inform” not had been raised in the lower courts. The governor of Virginia disregarded a request from the US secretary of state and did not stay the execution. The US federal authorities claimed they could not intervene while the crime was a violation of state law and not of federal law. Similarly, in the well-known LaGrand case, the ICJ ordered the US to stay the execution of LaGrand.25 In neither of these two cases were the urges from the ICJ complied with. Through the LaGrand case the Court for the first time also got an opportunity to declare that provisional measures are legally binding.26 Judgments The Permanent Court of International Justice was given many cases with a direct concern for human rights, not the least minority rights, and was indeed surprisingly proactive.27 The ICJ has had the opportunity to scrutinise human rights related cases to a 21 Passage Through the Great Belt (Finland v. Denmark), Provisional Measures, Order, 29 July 1991. 22 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order, 8 April 1993. 23 Order, 15 March 1996. 24 The Vienna Convention on Consular Relations (Paraguay v. USA), Order, 9 April 1998. 25 LaGrand (Germany v. USA), Judgment, 27 June 2001; Order, 3 March 1999. 26 See also more recently Avena and Other Mexican Nationals (Mexico v. USA), Order, 16 July 2008. 27 See e.g. Rights of Minorities in Upper Silesia (Minority Schools) of 1928 concerning minority rights stemming from treaty interpretation. In Upper Silesia, a Polish area with a large German population, school children were forced to prove belonging to the German minority in
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much lesser extent. But some landmark decisions have nevertheless been made. In the well-known case often referred to as the Barcelona Traction case of 1970 it was among other things concluded that human rights include protection against denial of justice.28 Ten years later, in United States Diplomatic and Consular Staff in Teheran (Hostage case) the Court found that to wrongfully “deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights”.29 In the earlier mentioned Military and Paramilitary Activities the Court found that the methods used by the US to stem human rights violations in Nicaragua, with mining of ports, destruction of oil installations and with training, arming and equipping of the contras, “cannot afford a legal justification”.30 In a dispute between Portugal and Australia the status of East Timor was placed on the agenda in the East Timor case of 1995.31 Portugal argued that since the UN General Assembly and the Security Council had decided on the status of East Timor, it was accordingly under the rule of Portugal, while Australia claimed that it is under the rule of Indonesia. The problem arose when Australia concluded an agreement with Indonesia on oil extraction from the continental shelf off East Timor in 1989. The Court found the matter at issue not within its jurisdiction and therefore unable to adjudicate on the merits.32 Still, the Court emphasised in the very end of its argumentation that for the two parties to the dispute the territory of East Timor remains a non-self-governing territory and that its people have the right to self-determination.33 The North Atlantic Treaty Organization (NATO) air strikes against Yugoslavia in 1999 led to a set of applications to the Court. Yugoslavia (Serbia and Montenegro in the cases that went on into 2004) instituted separate proceedings against the US, UK, France, Germany, Italy, Netherlands, Belgium, Canada, Portugal and Spain, arguing that
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order to study at special German schools. The Court ruled that this membership is for the child (or the guardian of the child) to solely determine on subjective grounds. Judgment, 26 April 1928 (Series A, No. 15). Barcelona Traction, Light and Power Company, Judgment, 5 February 1970. Judgment, ICJ Reports 1980, p. 3. Military and Paramilitary Activities (Nicaragua v. USA), Judgment, 27 June 1986. East Timor (Portugal v. Australia), Judgment, 30 June 1995. The reasoning behind this was: for the Court to be able to give a ruling in the dispute, they had to settle the question whether Portugal or Indonesia was the legitimate treaty signatory on behalf of East Timor and consequently if Indonesia’s presence in East Timor was unlawful. Such a ruling would have constituted a new main subject matter where Indonesia’s situation was at stake. Indonesia had not given its consent to such an issue, which would have been required for the Court to decide on the matter. The Court dealt with self-determination also in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971. See also the PCIJ in e.g. Access to German Minority Schools in Upper Silesia, Advisory Opinion, 15 May 1931 (Series A/B, No. 40).
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the bombing was unlawful.34 The Court concluded, however, that it had no jurisdiction to hear the claims, and the cases were struck off the list.35 The Democratic Republic of the Congo (DRC) brought Uganda, Burundi and Rwanda before the Court, claiming massive human rights violations by their forces on Congolese territory. The Court concluded that Uganda had “by the conduct of their armed forces … failed to take measures to respect and ensure respect for human rights and international humanitarian law”.36 In the LaGrand case, mentioned above under interim measures, the Court concluded that the US had breached its obligations under the Vienna Convention on Consular Relations by not staying the execution of LaGrand.37 In a similar case introduced by Mexico, the Court found a breach as well, but here the Court noted that consular notification is not a human right.38 Property rights have been on the agenda of the Court. In a case brought by Liechtenstein against Germany, paintings taken during World War II were disputed, but the ICJ declared the matter to be outside of the scope of the Court.39 In a case between the Republic of Congo and Belgium regarding an arrest warrant, the Court concluded on the basis of rather conservative grounds that Belgium had to cancel the arrest warrant.40 In a pending case before the Court,41 again raised by Congo but this time against France, there is potential for a more nuanced decision.42 The case concerns proceedings against Congolese high-ranking officials, on charges of crimes against humanity and torture. Congo is asking the Court to annul the French investigation. Other cases of interest from a human rights law perspective are pending. In 1999, Croatia instituted proceedings against Yugoslavia for violations of the Genocide Convention during 1991 and 1995.43 Other pending cases concern various aspects of the
34 Legality of Use of Force, 29 April 1999. 35 Cf. the case before the European Court of Human Rights, Banković et al. v. Belgium (and sixteen other NATO member states), Application no. 52207/99, also here the case is not dealt with on the merits. 36 Armed Activities on the Territory of the Congo (DRC v. Uganda), 19 December 2005; two identically labelled cases but against other States (DRC v. Burundi and DRC v. Rwanda) were removed from the list in 2001 on the request of DRC. See also a new application of 2002 against Rwanda, where no ground for ICJ jurisdiction could be sustained. 37 LaGrand (Germany v. USA), Judgment, 27 June 2001. 38 Avena and Other Mexican Nationals (Mexico v. USA), Judgment, 31 March 2004. 39 Certain Property (Liechtenstein v. Germany), 2001, Judgment, 10 February 2005. See also the European Court of Human Rights on the same issue, Prince Hans-Adam II of Liechtenstein v. Germany, 12 July 2001, where no violation was found. 40 Judgment, 14 February 2002. 41 Certain Criminal Proceedings in France (Republic of the Congo v. France), registered 9 December 2002. 42 In Congo v. France the vote was ten to six on cancelling the arrest warrant, indicating a small majority. Several new judges have since been appointed to the Court. 43 Registered 2 July 1999.
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right to health through a clean environment.44 Added to the Court’s list of cases is one filed by Georgia against Russia, for violating CERD.45 Advisory46 A number of cases from the Permanent Court of International Justice have served to lay down much of the fundamental case law of the present Court. Already in 1923 with the German Settlers in Poland,47 the Court dealt with minority rights in an advisory opinion through determining that eviction of German settlers from Poland was counter to a minority treaty concluded by Poland in relation to the Treaty of Versailles. The PCIJ concluded that de facto discrimination is not permissible irrespective of any prohibition in form. This finding was reiterated in Treatment of Polish Nationals in Danzig of 193248 and further developed in Minority Schools in Albania of 1935.49 In Treatment of Polish Nationals in Danzig, the issue was treaty interpretation. The Polish city of Danzig50 (Gdansk) became after World War I a free city under the League of Nations. A high commissioner of the League at Danzig reported on the situation of the Polish nationals to the Council of the League who requested an advisory opinion on the status of the minorities under relevant treaties. The minority was Polish in a city dominated by Germans. The Minority Schools in Albania concerned the abolition of private schools in Albania on grounds of secularisation of the education. The measure was ruled impermissible while a treaty granted the minorities the right to set up private schools to cater to their specific needs. To abolish private schools across the board, even though not discriminatory per se, was, however, not deemed possible (eight votes to three), and the Court formulated the fundamental obligation of positive discrimination. In Consistency of Danzig Legislative Decrees of 193551 some other aspects of human rights were determined: the Court found that the principles of constitutional rule of law and non-analogy criminal liability were crucial in upholding international human 44 See Pulp Mills on the River Uruguay (Argentina v. Uruguay), registered 4 May 2006, and Proceedings Instituted by Ecuador Against Colombia (Ecuador v. Colombia), registered 31 March 2008, regarding alleged aerial spraying by Colombia of toxic herbicides over Ecuadorian territory. 45 Application of 12 August 2008. 46 This section draws on an article by S. Schwebel (ICJ judge 1981–2000), ‘Human Rights in the World Court’, 24 Vanderbilt Journal of Transnational Law, p. 945. 47 German Settlers in Poland, Advisory Opinion, 1923, (Series B, No. 6). 48 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, (Series A/B, No. 44). 49 Advisory Opinion, 1935, (Series A/B, No. 64). The case also spelled out that property rights are a part of international human rights law. 50 The free city of Danzig became well-known in 1939 after the German occupation of Poland on the grounds of protecting the German citizens in Danzig. 51 Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion, 4 December 1935, (Series A/B, No. 65).
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rights obligations. In Jurisdiction of the Courts of Danzig of 192852 the matter was whether treaties could confer rights on individuals directly as opposed to the more traditional approach that only States are subjects in international law. The Court settled for the more liberal principle. Leaving the PCIJ that was given the opportunity to give quite a large number of advisory opinions with implications for human rights, we move to the relatively meagre case law of the present Court. In the well-known Reservations to the Genocide Convention of 1951 the Court found that “the principles underlying the Convention are principles … binding on States, even without any conventional obligation” – the concept of obligation erga omnes.53 This concept was further elaborated upon in dealing with the case concerning apartheid in Namibia/South West Africa54 and the position was restated in the Barcelona Traction case.55 At the core, the Reservations case dealt with how reservations were to be dealt with given the different nature of a treaty, such as on genocide.56 With this different nature, the inter-State perspective was being supplemented and with it a need for a revised standpoint on reservations. The Court maintained, however, a rather conservative position on reservations as well as obligations to reservations and the implications of such for the formal commitments. The issue remains contested to date, with competing understandings on how to deal with reservations to human rights treaties by several entities.57 The advisory opinion on the legality of nuclear weapons is renowned.58 The Court declared for instance that the International Covenant on Civil and Political Rights was applicable also in time of war, unless derogated from (under Covenant Article 4). Continuing, the Court argued that the right to life was, however, not a derogable right. In order to determine what is not arbitrary deprivation of life during hostilities, the Court argued for the application of the lex specialis of the situation, namely international humanitarian law. The Court went on by elaborating on the scope of protection under the Covenant (“all individuals within its territory and subject to its jurisdiction”), concluding that considering the object and purpose the scope must be interpreted as meaning not only those individuals on a State’s territory but also those subject to its jurisdiction. The UN Human Rights Committee’s findings to the same effect were even referred to by the Court.59 52 Jurisdiction of the Courts of Danzig, Advisory Opinion, 3 March 1928, (Series B, No. 15). 53 Reservations to the Convention on Genocide, Advisory Opinion, 28 May 1951. 54 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, Order, 26 January 1971. 55 Barcelona Traction, Light and Power Company, Judgment, 5 February 1970. 56 The close votes by the judges on the three sets of questions that were posed to the Court indicate the controversial nature of the matter – seven votes to five. 57 Apart from the ICJ, the International Law Commission and the UN treaty bodies, e.g. the Human Rights Committee in its General Comment 24. 58 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996. 59 Cases: Lhpez Burgos v. Uruguay (52/79), Lilian Celiherti de Cusariego v. Uruguay (56/79), Montero v. Uruguay (106/81). The Court also referred to the Committee’s dealings with Israel
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In the Mazilu case of 1989 the issue concerned whether a UN appointed expert was to be considered as falling within the scope of United Nations protection. In addition it was questioned whether the family of an expert also enjoyed that protection. The case stemmed from a request by the Economic and Social Council to clarify the applicability of a certain statute. The Court found Mr. Mazilu to have the status of a special rapporteur, and thus the relevant statutes were applicable for Mr. Mazilu and indeed also for his family. The inclusion of the family was done with reference to prevailing principles of international law deriving from human rights conventions and customary international law.60 The last, so far, in the series of advisory opinions by the Court is that related to the Wall in the Occupied Palestinian Territory.61 The Court concluded that the “construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law”. The possibility of raising similar issues through advisory proceedings highlights an advantage of the Court. Where the UN treaty bodies offer no possibilities for inter-State complaints, the advisory scheme of the Court provides an opportunity to highlight serious problems. State complaints, raised by one or several States, such as that available under the European Convention on Human Rights, show by the extreme scarcity of usage that it is not an attractive option for States. A collective request through UN entities can therefore be a more viable option. Conclusions Kotaro Tanaka, (ICJ judge 1961–1970) stated that “[t]he principle of the protection of human rights is derived from the concept of man as a person and his relationship with society which cannot be separated from universal human nature. The existence of human rights does not depend on the will of a State; neither internally on its law or any other legislative measure, nor internationally on treaty or custom, in which the express
as to the scope of coverage of the Covenant in the occupied territories: “the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law” (CCPR/C0/78/1SR, para. 11). 60 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, p. 177. In 1984 the UN Commission on Human Rights elected Mr. Mazilu, of Romanian nationality and nominated by Romania, to serve on the UN Sub-Commission on Prevention of Discrimination and Protection of National Minorities. Mr. Mazilu was the following year asked to prepare a report on human rights and youth. Mazilu claimed that Romanian authorities refused to grant him a travel permit. Mazilu later added to his complaints, saying that he and his family were pressurised by the government. The Sub-Commission adopted a resolution requesting the SecretaryGeneral to approach the Romanian government on the issue and requested the Commission to urge the UN Security Council to ask for an advisory opinion, which the Council did. 61 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004.
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or tacit will of a State constitutes the essential element.”62 According to Tanaka, human rights are beyond treaty ratification and the will of States – persons simply have human rights. “A State or States [Tanaka continues] are not capable of creating human rights by law or by convention; they can only confirm their existence and give them protection.” He further adds: “Human rights have always existed with the human being. They existed independently of, and before, the State.” Withstanding this forceful position exemplified by Tanaka, the Court has come to play a minor role in the upholding of individual rights. Fundamentally, the UN Charter does not limit dispute resolution to the ICJ. This fact has led to the establishment of other mechanisms in relation to, for example, human rights, such as the UN treaty bodies. Human rights are moreover by their very nature a tool to limit the power of the State to the benefit of the people. Parties to disputes brought before the ICJ are indeed States, and the likelihood for States to bring human rights issues onto the agenda is slim. Questions regarding the enjoyment of human rights have therefore mainly come to appear incidentally in cases with a subject matter of larger interest to States or where the nationals of a country are under the protection of another State. Strategically human rights issues should therefore be raised as subsidiary matters or if possible through the advisory proceedings. The occurrence of directly human rights related cases between the World Wars, however, is noteworthy. The alternative mechanisms superseding the PCIJ and the ICJ in special areas such as human rights form to a large extent part of a post World War II development. The case law briefly described above shows the contribution made so far by the ICJ. A number of options can be seen that would increase the Court’s contribution in furthering the justiciability of human rights. Sir Robert Jennings (ICJ judge 1982–1995), then ICJ President, offered in a statement to the UN General Assembly in 1991 his views on the role of the Court: a greater usage of the Court in preventive diplomacy through adjudication in parts of disputes of a legal nature while leaving the remaining issues of a political nature to be settled by other organs.63 Advisory opinions, by serving to define the terms and scope in international human rights law, might provide an alternative resort in many contexts. Advisory opinions, not the least through many of the cases handed down by the PCIJ, have been very significant. In Jurisdiction of the Court of Danzig of 1928, for instance, the capacity of individuals to directly carry rights established by a treaty was elaborated upon. Interim measures are intended to prevent irreversible situations, including violations of human rights. In a majority of the interim orders only the main claim sought by the party is a matter of concern for the Court. Exceptions so far have been boarder disputes: the Chamber decision in the Frontier Dispute of 1986 and to some extent also the Cameroon v. Nigeria order ten years later. Even thought this larger consideration of protection has been used in a limited manner, it might be an indication of trend of the 62 Tanaka’s dissenting opinion in South West Africa, Second Phase, Judgment (second phase), 18 July 1966, p. 297. 63 A/46/PV.44, of 12 November 1991. In his response, the UN Secretary-General (de Cuellar), stated that this could be done through application of the advisory opinions. The States would beforehand more likely agree to a recommended solution than to a binding such.
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Court towards extending protection in interim measures to a larger scope than simply the main claim of a dispute. A more likely direction is, however, the more pragmatic solution opted for in the Great Belt of 1991 where the concern for the larger scope and consequences where placed on the parties. The Mazilu case of 1989 gives good insight in the way UN organs may urge a case to be brought before the Court. This avenue is certainly also one possible to be sought by non-governmental organisations (NGOs) in advocating for a cause. Since the establishment of the ICJ, NGOs have gained in importance, and a more formal possibility to raise questions before the ICJ would be worth considering. A possibility for international organisations to be party to contentious proceedings has at least been discussed extensively.64 An individual right to stand as under the European Convention on Human Rights would be an even greater step to take. As distant as this may seem, Sir Hersch Lauterpacht (ICJ judge 1955–1960) proposed already in 1950 to amend Article 34 of the Statute to broaden the jurisdiction of the Court to include also disputes between States and private and public bodies or private individuals, subject to State consent.65 Arguments for individual ius standi before the ICJ as put forth by Judge Lauterpacht have been further elaborated upon. Mark Janis has, for example, made comparisons with the European experience of individual complaints against States where he expounds on the idea of increasing the usage of the ICJ in allowing for individual complaints.66 Another related comparison could be made with the International Tribunal for the Law of the Sea where standing has been opened up beyond State Parties.67 Another reform proposal has been made by Hisashi Owada (ICJ judge since 2003), who argues for the need to consider granting the ICJ the right to judicial review, in this context the right of the Court to evaluate the constitutional (e.g. the Charter in the case of the UN) compliance of actions taken by an organisation (e.g. the Security Council for the UN).68 Other proposals of the Court concern: modifications along with possible reform of the UN Security Council; a more representative bench as for age and gender;
64 See e.g. J. Sztucki, ‘International Organizations as Parties to Contentious Proceedings before the International Court of Justice?’, in Muller et al., supra note 1. See also the proposal below by the International Law Association’s American Branch. 65 H. Lauterpacht, International Law and Human Rights (Archon Books, USA, 1968) pp. 56 et seq. 66 M. W. Janis, ‘Individuals and the International Court’, in Muller et al., supra note 1. See also in the same volume, D. P. Forsyth, ‘The International Court of Justice at Fifty’. 67 See Article 20(2) of the Statute of ITLoS <www.itlos.org>. 68 The United Nations and the Maintenance of International Peace and Security – The Current Debate in the Light of Reform Proposals, Keynote Speech at the Research Forum on International law, European Society of International Law/Graduate Institute of International Studies, 26 May 2005. For international organisations’ constitutional references to the ICJ, see e.g. ILO Constitution Articles 29, 31–34, 37, ICAO Chicago Convention Articles 84–86, UNESCO Constitution Article XIV, WHO Constitution Articles 75–76.
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and the possibility to request advisory opinions granted to international courts and tribunals, as well as the UN Human Rights Council.69 A greater role for the “World Court’, as it is at times called, is indeed possible within the present framework and through possible future reform. Much of the need, however, will more likely be covered by the specialised organs that have developed since the establishment of the ICJ. A unification of the UN treaty bodies has been on the drawing table for quite some time, and there are even exciting proposals for developing a world human rights court.70 Still, the International Court of Justice, the principle judicial organ of the United Nations, should not refrain from taking and should not be excluded from being given the possibility of a greater role in protecting and indeed promoting human rights.71
69 See e.g. the recommendations by the International Law Association’s American Branch published as ‘Reforming the United Nations: What About the International Court of Justice’, 5 Chinese Journal of International Law (2006) pp. 39–65. Specifically they are e.g. proposing: an age limit on nominated judges, not being older than 70, promotion though various ways of more female judges; a nine-year appointment of judges without the possibility of re-election; and an enlarged number of judges in line with the possible expansion of the Security Council. 70 See Martin Scheinin’s contribution in this volume; see also M. Nowak, ‘The Need for a World Court of Human Rights’, 7 Human Rights Law Review (2007) pp. 251–259. 71 In Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 7 February 1923, (Series B, No. 4), the Court decided on the relation between domestic law and international law in determining a question of nationality. The Court found that the outcome of the ruling is relative to the development of international relations. At the time of the ruling it fell within the domestic sphere, but the Court stated that with the passage of time this will change. This is a promising, early indicator of the continued dynamic development of international law with implications for human rights law.
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International Criminal Adjudication Bodies: To What Extent Can They Promote Human Rights Effectively in Post-Conflict Situations? Ilaria Bottigliero*
Introduction Although international criminal law mechanisms have come a long way in terms of fairness and effectiveness since the International Military Trials were held at Nuremberg and Tokyo, the degree to which these kinds of bodies can contribute to restoring human rights and the rule of law in the long term remains an open question. The argument that the effective enforcement of international criminal law is essential for safeguarding the rule of law, and in laying the groundwork for general respect for human rights, is intuitively appealing. It is less clear in practice, whether, and if so how and to what extent, mechanisms such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone, the Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia and the International Criminal Court (ICC) have actually contributed to the fuller enjoyment of human rights, and the scope of their potential role for the future. Many academics have advocated that international criminal law enforcement mechanisms should be strengthened by emphasising their potential role in upholding the rule of law, fair trial standards and in re-establishing respect for basic human rights and fundamental freedoms. On the other hand, certain other commentators have ex*
Dr. Bottigliero is Lecturer and Researcher at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law / Lund University Faculty of Law. On 30 May 2007, the UN Security Council, acting under Chapter VII of the UN Charter, adopted resolution 1757 (2007) authorising the establishment of the Special Tribunal for Lebanon (also known as the “Hariri Special Tribunal”) to prosecute and punish those responsible for the assassination of former Lebanese Prime Minister Rafiq Hariri, on 14 February 2005. Under the resolution, the government of Lebanon launched the Tribunal officially on 10 June 2007. Hereinafter referred to as the “Khmer Rouge Tribunal”. Among others, see A. Cassese, ‘The International Criminal Tribunal for the Former Yugoslavia and Human Rights’, European Human Rights Law Review (1997) p. 330, where the au-
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 263-274.
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pressed deep scepticism as to whether the actual workings of international criminal law can really contribute much to actual observance of human rights at the ground level.
thor discusses the ICTY’s contribution to human rights, arguing that the ad hoc Tribunal “may defend and protect human rights in two ways: (1) by vindicating the human rights of all the victims in the former Yugoslavia of war crimes and crimes against humanity, who have been subjected to ‘ethnic cleansing’ in all its manifestations such as ill-treatment, rape and murder; and (2) by fully applying the international human rights standards relating to the accused, victims and witnesses in criminal trials and setting thereby an exemplary standard for future international criminal trials”. In a very informative article entitled ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’, 49 DePaul Law Review (Summer 2000) p. 930, Michael P. Scharf maintains that “[t]he international prosecution of responsible individuals can become an instrument through which respect for the rule of law is instilled into the popular consciousness”. He recalls that during the process of establishment of the ICTY, the French delegate argued that “the Tribunal’s activities would facilitate restoration of peace in the Balkans. Through its prosecutions, the Tribunal would promote the dismantling of the institutions and a discrediting of the leaders that encouraged, enabled, and carried out the commission of humanitarian crimes” (p. 931). The same author, however, also concludes that “seven years after its establishment, the ICTY still has not obtained custody over the major war criminals most responsible for the Balkan atrocities. The failure to bring these indicted leaders to justice has severely damaged the goal of peace-building in the former Yugoslavia, subverted the credibility of the ICTY, and undermined any deterrent value the ICTY might have had both in the former Yugoslavia and around the world” (p. 979). In praise of international criminal institutions, Gabrielle Kirk McDonald maintains that, “[a]lthough far from perfect, the Yugoslav Tribunal, or the ICTY, and its sister institution, the International Criminal Tribunal for Rwanda, or ICTR, have addressed the greatest gap in international humanitarian law: the failure to enforce the comprehensive legal regime enhanced after World War II which was designed to protect basic human rights during armed conflict”. In ‘Reflections on the Contributions of the International Criminal Tribunal for the Former Yugoslavia’, Hastings International and Comparative Law Review (Winter 2001) p. 157. See among others D. Tolbert, ‘The International Criminal Tribunal for the Former Yugoslavia: Unforeseen Successes and Foreseeable Shortcomings’, 26 Fletcher Forum of World Affairs (2002) p. 8, where the author notes that, “[u]nfortunately, principally due to a failure in design and, to a lesser extent, in implementation, the tribunal’s long-term impact on the systems of justice in the area of conflict has been minimal. Even more fundamentally, as the tribunal begins to move towards the latter stages of its life as an institution, it has made scant contribution to the prosecution of war crimes and crimes against humanity – the pillars of its subject matter jurisdiction – in the courts of the states of the former Yugoslavia. Thus, the irony may be that despite the millions of dollars spent on building a judicial infrastructure in The Hague, there is virtually no effective enforcement of these important laws in the courts that ultimately matter most, i.e., the region’s domestic courts.” In his article entitled ‘Biased ‘Justice’: Humanrightsism and the International Criminal Tribunal for the Former Yugoslavia’, 47 Cleveland State Law Review (1999) pp. 551, 552, Robert M. Hayden is even more critical and states that “the ICTY delivers a ‘justice’ that is biased, with prosecutorial decisions based on the national characteristics of the accused rather than on what available evidence indicates that he has done. Evidence of this bias is found in the failure to prosecute NATO personnel for acts that are comparable to those of Yugoslavs already indicted, and of failure to prosecute NATO personnel for prima facie war crimes. This pattern of politically
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Drawing on the experience of the ICTY, the ICTR, the Special Court for Sierra Leone, the Khmer Rouge Tribunal and the ICC, the present article attempts to identify key elements that determine the degree to which international criminal adjudication bodies can effectively break the cycle of impunity and promote human rights in post-conflict situations. It is argued that unless international criminal courts and tribunals meet the key elements discussed below, their potential contribution to human rights promotion and protection is likely to remain unfulfilled. International and internationalised courts and tribunals: are they worth the effort? Important though they were, the Nuremberg and Tokyo Military Tribunals represent quite clear examples of “victor’s justice”. Many of the accused were sentenced to capital punishment without the possibility of appeal. Only Axis Power leaders and organisers were put on trial, and both Tribunals have been rightly criticised for having violated the principle of non-retroactivity of the law with respect to their exercise of jurisdiction over “crimes against humanity”, and to a lesser extent “crimes against peace”. These
driven prosecution is accompanied by the use of the Tribunal as a political tool for those western countries that support it, and especially the United States: put bluntly, the Tribunal prosecutes only those whom the Americans want prosecuted, and the United States government threatens prosecution by the supposedly independent ICTY in order to obtain compliance from political actors in the Balkans. Further, judicial decisions by the ICTY render it extremely difficult if not impossible for an accused to obtain a fair trial, while the Tribunal has also shown a lack of interest in the investigation of potential prosecutorial misconduct.” Zacklin remarks that “[a] number of problems and weaknesses have emerged in the practice of ICTY and its sister institution, the ICTR, which have seriously undermined confidence in the Tribunals and raised questions as to whether they can effectively promote respect for international justice and the rule of law. Some of these problems are structural – some administrative and financial. Some are the result of actions or inactions by the personnel of the Tribunals, while others are the result of misconceptions within victim societies as to the nature of the Tribunals.” He concludes that the two ad hoc Tribunals have been “too costly, too inefficient and too ineffective”. See R. Zacklin, ‘The Failings of ad hoc International Tribunals’, Journal of International Criminal Justice (June 2004) pp. 542 and 545. Also, some commentators have raised concern over the Tribunals’ supposed lack of respect for the “equality of arms” principle, as expressed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Among them, see S. T. Johnson, ‘On the Road to Disaster: the Rights of the Accused and the International Criminal Tribunal for the Former Yugoslavia’, 10 International Legal Perspectives (Spring 1998) pp. 181 et seq. Arguably, these crimes did not exist as fully established legal categories when World War II broke out. On the principle of legality with respect to Nuremberg and Tokyo, see L. S. Sunga, Individual Responsibility for Serious Human Rights Violations (1992) pp. 30–46. For an account of the events and legal analysis of the Nuremberg and Tokyo Military Trials, see D. W. Layton, Forty Years After the Nuremberg and Tokyo Tribunals: The Impact of the War Crimes Trials on International and National Law, panel session with Jordan Paust, Telford Taylor, M. Cherif Bassiouni, Richard A. Falk and Yasuaki Onuma, American Society of International Law Proceedings, 9–12 April 1986.
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and other deficiencies have detracted much from the legitimacy of the Nuremberg and Tokyo Tribunals. The setting up of the ICTY and ICTR as subsidiary organs of the UN Security Council represents a major advance over the Nuremberg and Tokyo Tribunals. Even the ICTY and ICTR, however, symbolise to many the imposition of political power, under the guise of independent and impartial judicial authority. Although the ICTY has scored a number of notable successes, for example in the prosecution of Plavsic, Blaskic, Kordic, Cerkez, and was in the process of trying Slobodan Milosevic whom many consider to have borne the main responsibility for the most serious international crimes in the region, the effectiveness of the ICTY has also been hampered by Serbian and Russian indifference, if not outright opposition. As for the ICTR, the Tribunal has succeeded in prosecuting and punishing a number of high-level individuals involved in the 1994 genocide, notably former Prime Minister of Rwanda’s Interim Government Jean Kambanda. Also, the ICTR has contributed much to the development of international law on rape and sexual crimes (e.g. in the Akayesu case) and on other previously uncharted fields of law, such as incitement to genocide (e.g. in the Ruggiu case). That being said, numerous commentators have questioned the ICTR’s overall effectiveness in promoting reconciliation and the restoration of human rights in the country. It must be recalled also that the ICTY and ICTR have soaked up millions of dollars. The ICTY for example, has a USD 276 million annual budget, and it employs over 1,000 staff members of 81 nationalities. The ICTR operates on a USD 269 million budget and employs over 1,000 staff from over 85 nationalities. Given the relatively few persons to have been indicted and prosecuted by these Tribunals, the exorbitant costs not only raise troubling questions of financial efficiency, but also moral and ethical ones. Would it not perhaps have been better to spend at least some of this money on projects designed for example to assist victims directly? Also, would it not have been more efficient to rely more on domestic prosecutions, perhaps by strengthening where necessary local judicial systems?
For an excellent analysis of political and legal questions related to the nature of the ad hoc Tribunals and more generally on international criminal justice, see H. Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads (Springer, 2003). See inter alia C. M. Carroll, arguing that, “[a]lthough the ICTR’s early accomplishments are significant, there are many obstacles that could stand in the way of the ICTR effectively fulfilling its mandate. The ICTR’s relationship with the Rwandan government, delays in the prosecution of suspects, and challenges to the ICTR’s legitimacy and integrity could thwart the ICTR’s efforts to achieve accountability of individual perpetrators. In addition, ongoing instability in the region could lead to the perception that the ICTR is ineffectual and unable to contribute to peace in the region.” See ‘An Assessment of the Role and Effectiveness of the International Criminal Tribunal for Rwanda and the Rwandan National Justice System in Dealing With the Mass Atrocities of 1994’, 18:163 Boston University International Law Journal (2000) p. 180. Facts from ‘ICTY at Glance’, <www.un.org/icty/glance‑e/index.htm>, and ‘ICTR General Information’ at <69.94.11.53/ENGLISH/geninfo/index.htm>, both websites visited on 11 July 2007.
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Similar questions apply to other international and internationalised tribunals such as the Special Court for Sierra Leone and the Khmer Rouge Tribunal in Cambodia. In the former instance, international negotiations for a long time seemed designed only to protect Charles Taylor – widely suspected to be among the more culpable of war crimes and crimes against humanity in the region – rather than to try to ensnare him. In the latter instance, the Khmer Rouge Tribunal struggled for almost a decade before it seemed ready to begin operations, chiefly due to Cambodia’s apparent unwillingness to comply with minimum standards relating to the administration of justice, as discussed below. Finally, a lack of interest in, and even outright opposition to, the International Criminal Court on the part of some the world’s most important players, opens serious questions over its potential effectiveness as a judicial body that is supposed to provide global justice. Additionally, some commentators have questioned the overall value of the ICC’s heavily retributive approach as compared to alternative methods of justice, such as truth and reconciliation commissions.10 All these and other defects do not necessarily mean that international criminal adjudication efforts cannot contribute substantially to the better promotion and protection of human rights in post-conflict situations. On the other hand, the contribution of international criminal justice to human rights depends upon certain basic elements, which will now be discussed.
A negotiated agreement among the African Union, the European Union, the United States and the United Nations culminated in the granting of asylum to Charles Taylor, the former president of Liberia, in Nigeria in August 2003. At the time, it was thought that this solution could contribute to bring peace to Liberia and to create the necessary climate to hold democratic elections. On 11 November 2005, however, the United Nations Security Council adopted resolution 1638, identifying Taylor’s presence in the sub-region as “an impediment to stability and a threat to the peace”. Shortly after, the new democratically elected president of Liberia, Ellen Johnson Sirleaf, insisted that Taylor had to face trial in Sierra Leone on counts of war crimes and crimes against humanity, including those committed during Liberia’s civil war. The crimes under consideration included amputations, forcible conscription of child soldiers and sexual violence against women and girls. On this basis, Taylor was transferred to the Special Court in March 2006. Subsequently, the president of the Special Court issued an order for a change in venue, and, on 20 June 2006, Taylor was eventually transferred to The Hague, where his trial began on 4 June 2007. Although his trial takes place before the Special Court for Sierra Leone and all costs are paid by the Special Court, the proceedings are actually conducted using ICC facilities in The Hague. See ICC Newsletter (May 2007). Many victims of the conflict in Sierra Leone considered it more appropriate for Taylor to face trial in Sierra Leone, rather than in The Hague. Others, however, expressed concern that Taylor’s presence in the country could pose serious security risks and could jeopardise peace in the region. 10 See generally C. Villa-Vicencio, ‘Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet’, 49 Emory Law Journal (2000); D. A. Crocker, ‘Truth Commissions, Transitional Justice, and Civil Society’, in R. I. Rotberg and D. Thompson (eds.), Truth v. Justice: The Morality of Truth Commissions (2000).
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Establishing a genuine connection with the people: comparing the ICTY and ICTR with the Special Court for Sierra Leone The ICTY and ICTR In order for international courts and tribunals to symbolise justice and to deter crimes, they must establish a genuine connection with the people affected by serious violations of human dignity. Unfortunately, more than ten years after their establishment, the two ad hoc Tribunals’ contribution to the human rights situation in the former Yugoslavia and in Rwanda is far from clear. Each institution has appeared to have had a very equivocal record in terms of popular perceptions on the ground, and this might have limited 11 considerably the Tribunals’ contribution to the reconciliation process. Arguably, the ICTY’s poor image in Serbia explains, at least partially, why Radovan Karadzic has successfully evaded apprehension for a long time,12 and Ratko Mladic is still at large, since the first indictment against them was issued in July 1995. These and certain other major war crime suspects seemed to have enjoyed sufficient, albeit waning, support from the local population and perhaps tacit toleration from authorities as well to find safe haven 13 within domestic borders. The presence of alleged war criminals in territories under the 11
Zacklin remarks on the ICTY’s inability to promote reconciliation as follows: “The strong sense of injustice and inequity among individual victims is replicated by the experience of the victim societies as a whole. The hope was that the establishment of the ICTY would promote reconciliation in the former Yugoslavia. There is little evidence to date that this is the case. Clearly, the Tribunal itself is not sufficient to promote reconciliation. Additional mechanisms, such as functioning national courts and truth commissions, are needed.” See R. Zacklin, supra note 4, p. 544. Nizich argues that the ICTY has been “woefully deficient” in “providing justice, elucidating truth and contributing toward reconciliation in the Former Yugoslavia”. She contends: “Anyone who knows the facts of, and persons associated with, the commission of war crimes and crimes against humanity in the former Yugoslavia during the past decade cannot avoid the sad fact that the ICTY has been slow and inadequate in providing justice to the victims of the Balkan wars. [...] The Tribunal is not a serious ‘issue’ in the former Yugoslavia. Until recently, some of the governments in the region ignored it, while others cooperated. But the cooperation that does exist is driven, in large part, by the need to satisfy the international community so that the respective state can continue receiving foreign aid and continued membership in international and regional institutions. The people of the former Yugoslavia view the ICTY as an amorphous body in The Hague that was created by the international community to ameliorate its own guilt. They do not believe that the Tribunal is there to provide justice to them; it is ‘someone else’s’ tribunal.” See I. Nizich, ‘International Tribunals and Their Ability to Provide Adequate Justice: Lessons from the Yugoslav Tribunal’, 7 ILSA Journal of International and Comparative Law (2001) p. 355. 12 Karadzic was finally arrested in Belgrade by Serbian security agents on 21 July 2008, 13 years after the first indictment against him was issued. 13 For example, Croat war crime suspect Ante Gotovina remained at large, most probably within Croatian borders, from 2001 until December 2005, when he was finally arrested in Spain. On several occasions, the European Union delayed negotiations with Croatia over its entry into the Union because of the lack of Croatia’s cooperation in arresting Ante Gotovina and other war crime suspects.
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Tribunal’s jurisdiction not only undermines its deterrent effect, but it is also likely to hinder the reconciliation process and prevent a return to normality, restoration of the rule of law and full respect for human rights. Closely related to the need for a genuine connection with the people affected by the violations is the fact that international criminal justice mechanisms must bring adequate redress to the victims. Only those institutions that can provide for effective victims’ reparation can truly contribute to human rights promotion in post-conflict situations. Conversely, where victims are left out, the judicial process risks becoming a distant procedural exercise that to the local population may seem irrelevant or even foreign. Unfortunately, the only form of redress directly applicable by the two ad hoc Tribunals’ competent organs has been the restitution of unlawfully taken property. Neither Statute provides for direct compensation to victims. Rather, all issues related to compensation have been left to national courts or other competent bodies. The system has been further weakened by the fact that victims have not been allowed to institute civil claims (partie civile) within criminal proceedings. Therefore, the initiative to hold a special hearing to determine matters of restitution remains an exclusive prerogative of the Trial Chamber, acting either on its own initiative, or at the request of the Prosecutor. The drafters of the two Statutes opted for this indirect approach, fearing that the Tribunals would not be able to handle what could have become a very high number of compensation claims. Unfortunately, however, given the specific nature of the crimes under consideration, it is usually very difficult, if not impossible, for victims to obtain any form of compensation through the procedure of deferral to domestic courts envisaged in the Statutes. As a matter of fact, none of the final judgments rendered to date at the ICTY and ICTR has issued a restitution order or deferred compensation matters to domestic courts. Over the longer term, the enjoyment of human rights and the spread of a human rights culture depend much on general confidence in the rule of law, and on how people perceive justice in terms of immediacy in their own daily lives. Arguably, the failure of the ICTY and ICTR to bring proper redress to the victims has contributed to the “emotional distance” of the Tribunals from the people. If ordinary people cannot feel that the international mechanisms speak to their personal sense of justice, or involve them directly in some way in the judicial process, then their confidence that the cycle of impunity has been broken will be that much less. Thus, the Tribunals’ limited impact in this regard is likely to have forfeited a valuable opportunity in contributing to the restoration of full human rights guarantees in the countries. The Special Court for Sierra Leone Unlike the ICTY and ICTR, the Special Court for Sierra Leone was set up jointly by the government of Sierra Leone and the United Nations. The Special Court has a mandate to try “those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law” committed in the territory of Sierra Leone 14 since 30 November 1996. It was actually the President of Sierra Leone Alhaji Ahmad 14 See the website of the Sierra Leone Special Court at <www.sc‑sl.org/about.html>, visited on 11 July 2007.
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Tejan Kabbah who, on 12 June 2000, requested UN Secretary-General Kofi Annan’s support to set up a judicial institution to try those responsible for crimes committed during the country’s long conflict, arguing that the crimes committed in Sierra Leone were so grave as to be “of concern to all persons in the world”. On 14 August 2000, the Security Council adopted resolution 1315 requesting the Secretary-General to start negotiations for the setting up of the Special Court, which was eventually established on 16 January 2002. In terms of crimes, the Special Court has jurisdiction, inter alia, over murder, rape, extermination, acts of terror, enslavement, looting and burning, sexual slavery, conscription of children into an armed force, forced marriage and attacks on United Nations peacekeepers and humanitarian assistance workers. A number of positive elements in the way the Sierra Leone Special Court was set up augur well for the Court’s future contribution to the better promotion and protection of human rights in the country. Like the ICTY and ICTR, the Special Court operates on a concurrent basis with national jurisdiction, with the Special Court having primacy 15 over domestic courts. Unlike the two Tribunals, however, the Special Court works on a combination of international law and Sierra Leonean Law. This has a distinct advantage because it brings the Court closer to the people and it also opens up possibilities to try individuals for crimes that were not necessarily established under international law but that were already recognised under domestic law, such as certain crimes against 16 children. Also important, the Special Court’s Statute makes a direct link between the Court’s work and the restoration of peace in the country, by referring to the Court’s competence to prosecute individuals who “have threatened the establishment of and implementation of the peace process in Sierra Leone” (Article 1). Moreover, the Court can exercise jurisdiction over peacekeepers and related personnel, on a complementary basis with the sending State and prior authorisation of the Security Council. By covering these kinds of cases, the Court is likely to become more easily recognised and accepted at the local level as an impartial institution, rather than one which targets only “selected” persons and crimes. In terms of victims’ rights, however, the Special Court’s Statute does not mention reparations or the possibility for victims to petition the Court directly. Like the ICTY and ICTR, judges can only order the restitution of unlawfully taken property, proceeds and assets to the lawful owner.17 It is also true that the Lomé Peace Agreement of 7 July 1999 envisages the establishment of an independent Truth and Reconciliation Commission, which has been working alongside the Special Court to “address impunity, break the cycle of violence, provide a forum for both the victims and perpetrators of human rights violations to tell their story [and] get a clear picture of the past in order to facilitate See Article 8 of the Statute of the Special Court for Sierra Leone, established by Agreement Between the United Nations and the Government of Sierra Leone, pursuant to Security Council resolution 1315 (2000) of 14 August 2000. 16 Article 5 of the Special Court’s Statute, for example, covers “Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): 1. Abusing a girl under 13 years of age, contrary to section 6; 2. Abusing a girl between 13 and 14 years of age, contrary to section 7; 3. Abduction of a girl for immoral purposes, contrary to section 12”. 17 See Article 19 of the Special Court’s Statute on ‘Penalties’. 15
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genuine healing and reconciliation”.18 Under the Lomé Agreement, the Commission is also empowered to “recommend measures to be taken for the rehabilitation of victims of human rights violations”.19 Although it is not clear precisely how the Truth and Reconciliation Commission will approach the question of victims’ compensation,20 the very presence of such a mechanism working in support of the victims will likely enhance the Court’s potential to contribute effectively to human rights promotion and to the country’s reconciliation efforts. Justice delayed: the Khmer Rouge Tribunal Promptness in delivering justice is another fundamental element that can make international criminal adjudication bodies more effective tools to promote and protect human rights in the aftermath of conflict. The Khmer Rouge Tribunal shows clearly how justice delayed not only causes great emotional suffering to victims, but also hinders the reconciliation process and re-establishment of basic human rights guarantees. In Cambodia, families of the victims of the brutal Khmer Rouge regime (1975–1979) still await justice, decades after the atrocities.21 At the same time, those responsible for the killing of over a million people are rapidly getting old and many have already died, including Pol Pot.22 The human rights situation in the country remains unstable, and a general climate of 18 See Article XXVI(1) of the Lomé Peace Agreement. The Truth and Reconciliation Commission was established by Act of the Sierra Leone Parliament on 10 February 2000. On the work of the Commission, see W. A. Schabas, ‘Truth Commissions and Courts Working in Parallel: The Sierra Leone Experience’, 98 American Society of International Law Proceedings (2004) pp. 189–192. 19 Ibid., Article XXVI(2). 20 According to the Final Report of the Truth & Reconciliation Commission of Sierra Leone, vol. 2, ch. 4, the reparation programme “will largely focus on the rehabilitation of the victims through the distribution of service packages and symbolic measures which acknowledge the past and the harm done to victims”. 21 On a number of occasions over several years, the United Nations suspended its cooperation with Cambodia on the establishment of a Khmer Rouge Tribunal because it had considered that the proposed Tribunal fell far short of international standards of justice. In particular, the UN concluded that Cambodian amnesty laws provided a high number of former Khmer Rouge leaders with easy escape from justice, making the Tribunal an empty exercise. The cessation of cooperation between Cambodia and the UN generated much disappointment in human rights quarters. Mr. Peter Leuprecht, then the Special Representative of the Secretary-General on human rights in Cambodia, expressed “profound regret” over the interruption of negotiations. Similarly, the UN Commission on Human Rights stressed the need for the government of Cambodia and the United Nations to cooperate on the question of Khmer Rouge prosecutions, according to international standards of justice, fairness and due process of law. 22 Pol Pot died in 1998. Ta Mok, also known as the regime’s “butcher”, died in detention in August 2006. Both Former Head of State Khieu Samphan and Former Foreign Minister Ieng Sary, widely suspected of serious crimes during the Khmer Rouge terror, were arrested in November 2007 and transferred to the Khmer Rouge Tribunal, where they are facing charges of war crimes and crimes against humanity.
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impunity has long hindered the full restoration of the rule of law, democracy and genuine reconciliation.23 At the time of writing, the Tribunal seemed to be moving finally in the right direction to begin operation – trials commenced in 2008 and are expected to continue for at least three years. Even if justice is eventually served, however, the opportunity to build upon potential synergies among international criminal justice, post-war reconciliation efforts and the strengthening of human rights seems to have been lost. In this sense, the future impact of the Tribunal to the restoration of human rights guarantees in the country appears to be rather limited.24 Striking a difficult balance between peace and justice: the ICC The ICC has the potential to play an enormous role in the promotion and protection of human rights in countries emerging from conflict situations. Where governments are unable or unwilling to provide justice for the most serious crimes – genocide, war crimes or crimes against humanity – the ICC represents a real chance to break the cycle 25 of impunity and to move forward in restoring peace and human rights. In order to 23 For a detailed recount of the human rights situation in the country, see the Report of the Special Representative of the Secretary-General for human rights in Cambodia, Y. Ghai, A/HRC/4/36, 30 January 2007. 24 Remarkably, in his latest report the UN Secretary-General Special Representative to Cambodia noted that “[t]he purpose of the [Khmer Rouge] trials, to recognize the value of and promote respect for human rights, to acknowledge the evils of impunity, and to strengthen the rule of law and the machinery of justice, will be futile unless the Government agrees to stop practices, documented in this and in previous reports of special representatives, which undermine these very objectives”. See Report of the Special Representative, ibid., p. 2. 25 Unlike the ICTY and ICTR, the ICC establishes a reparation system which is set to work both on the basis of fines and forfeitures directed against the offender, and with the support of a Trust Fund established for the benefit of the victims and their families. Victims are entitled to seek and obtain reparations directly from the Court, and they are supported at all stages of the proceedings by a Victim and Witnesses Unit. In practice, once an individual has been found guilty of one of the crimes under the ICC jurisdiction, the Court may determine the scope and extent of damages, losses and injuries suffered by the victims on the basis of principles relating to reparations, including restitution, compensation and rehabilitation. After the determination of the damages, the Court may choose to make a reparation order either directly against the convicted person or through the ICC Trust Fund. On the ICC reparation regime, see I. Bottigliero, Redress for Victims of Crimes Under International Law (2004). Also, the ICC Statute provides for basic fair trial standards and guarantees for the accused, such as the right to a fair, public and impartial hearing; the right to be informed of the charges in a language which he or she understands and speaks; the right to prepare an adequate defence; to be tried without undue delay; to be present at trial and to conduct the defence in person; to have free legal assistance assigned by the Court in case he or she does not have legal assistance; to examine witnesses; to have translation and interpretation as needed; not to be compelled to testify against himself or herself; and to have access to exculpatory evidence in the possession of the Prosecutor. On this matter see L. S. Sunga, ‘Full Respect for the Rights of Suspect, Accused and Convict: From Nuremberg and Tokyo to the ICC’, in M. Henzelin et al. (eds.), Le droit pénal à l’épreuve de l’internationalisation (2002) pp. 217–239. See also
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play an effective role in fostering human rights, however, the ICC will need to strike a balance between supporting peace and reconciliation processes on the one hand, and fighting impunity on the other. This is not an easy task, as the case of Uganda discussed below highlights. In December 2003, Uganda’s President Yoweri Museveni officially referred the situation concerning the Lord’s Resistance Army (LRA) to the ICC Prosecutor, calling for the Court’s support to apprehend major alleged criminals involved in the long-lasting civil war. Triggered by this request, the ICC Prosecutor initiated an investigation and subsequently issued a number of indictments against some of the main rebel leaders, including Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen. Shortly after these events, however, LRA rebel leader Kony decided to enter into negotiations with Uganda’s government to end the 20-year-long war, most probably 26 hoping for an amnesty in exchange for peace. Officially, the government of Uganda did not ask for any withdrawal of the warrants of arrest, which have remained fully in effect. In fact, according to the ICC’s web page, “it is the view of the Office of the Prosecutor and the Government of Uganda that justice and peace have worked together 27 thus far and can continue to work together”. Following the rebel’s opening of negotiations, however, Uganda’s cooperation with the ICC seemed to lose momentum, and the government appears to have reconsidered the question of proceeding with international criminal prosecution, as initially envisaged. Aside from procedural questions, such as whether under the Rome Statute a government can legitimately withdraw a request for ICC support once investigations are already under way, a number of more general issues emerge, concerning the crucial interrelation between the ICC as a judicial institution set up to provide global justice on the one hand, and the restoration of peace, security and human rights guarantees in a given country on the other. Should the ICC proceed with its prosecutorial efforts despite the concerned country’s open opposition and in the presence of a negotiated peace agreement which is likely to put an end to a long-lasting bloody conflict? Is it morally acceptable to “bargain” peace for immunity from prosecution? Is retribution a neces-
J. Katz Cogan, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’, 27 Yale Journal of International Law (2002). 26 At the time of writing, the rebels seem to have agreed to “resume talks” for ending the conflict if the government of Uganda meets their conditions, which include requests for: “[o]ther African mediators to attend the talks; Khartoum to join negotiations, as an assurance they will not be evicted from south Sudan; the withdrawal of Ugandan government forces from south Sudan; a safe corridor north of Juba to allow the LRA to cross the River Nile and consolidate their forces on the West bank; a 1,000-strong protection force to guarantee the security of the LRA in Juba; an allowance increase for the negotiation team; to be treated with respect by the mediation team”. See BBC News
, of 14 March 2007, visited on 10 July 2007. 27 See ‘Statement by the Chief Prosecutor Luis Moreno-Ocampo’, 12 July 2006, ICC-OTP20060712-149-En, The Hague, <www.icc‑cpi.int/pressrelease_details&id=167&l=en.html>, visited on 10 July 2007.
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sary element of justice?28 The ICC, as well as any other international judicial institution that may be established in the future, must address these issues in order to preserve the integrity of justice while at the same time supporting peace and reconciliation. Conclusions By breaking the cycle of impunity and providing justice to victims in countries emerging from conflict, international criminal justice mechanisms can play an important role in the restoration of the rule of law and respect for human rights. In order to do so, however, such bodies must fulfil certain basic requirements. We have highlighted above some of the important prerequisites that can make international criminal adjudication bodies more effective tools in restoring human rights following a period of conflict. Summing up, international criminal adjudication bodies: – must become generally recognised, understood and supported by the local population; – must administer justice promptly and fully according to international fair trial standards; – must function in line with internationally recognised standards on the rights of victims; – should support peace and reconciliation processes and work in tandem with alternative mechanisms of justice, such as truth and reconciliation commissions; – must be independent, objective and impartial as well as non-political; and – must be adequately funded. In conclusion, the experience of international and hybrid tribunals and courts since Nuremberg and Tokyo shows clearly that internationalised criminal justice can do much to symbolise an end to impunity and to prevent further violations. For international justice to fulfil its potential to strengthen human rights, it must go beyond narrow procedural formalities to embrace the elements outlined above.
28 On these and related questions, see L. S. Sunga, “Ten Principles for Reconciling Truth Commissions and Criminal Prosecutions”, in J. Doria et al. (eds.), The Legal Regime of the International Criminal Court (forthcoming 2008). On the interaction between the ICC and amnesty laws, see generally M. P. Scharf, “The Amnesty Exception to the Jurisdiction of the International Criminal Court”, 32 Cornell International Law Journal (1999) p. 507.
25
The International Criminal Tribunals William A. Schabas*
The First World War concluded with an initial effort at international justice. The Versailles Treaty formally arraigned the defeated German emperor, “for a supreme offence against international morality and the sanctity of treaties”, and pledged the creation of a “special tribunal” for his trial. Wilhelm of Hohenzollern had fled to neutral Holland, which refused his extradition, the Dutch government considering that the charges consisted of retroactive criminal law. The Versailles Treaty also recognised the right of the Allies to set up military tribunals to try German soldiers accused of war crimes. Germany never accepted the provisions. As a compromise, a handful of suspects designated by the Allies were tried by German courts in the so-called “Leipzig Trials”. The efforts at the end of the Second World War were far more productive. Major trials were held in Nuremberg and Tokyo, as well as a panoply of national initiatives. The War was also followed by a dynamic period of lawmaking featuring initiatives at codification and preliminary attempts to create a permanent court. The momentum was quickly lost, however, in the fog of Cold War tensions. It did not truly revive until 1989, with a United Nations General Assembly resolution directing the International Law Commission to consider the establishment of an international criminal court. The Commission assiduously prepared its Code of Crimes, addressing the substantive law, and a statute for the proposed international criminal court. *
Professor of Human Rights Law, National University of Ireland, Galway; Director, Irish Centre for Human Rights; Global Legal Scholar, University of Warwick; Visiting Professor, Queen’s University Belfast. Treaty of Peace Between the Allied and Associated Powers and Germany (“Treaty of Versailles”) (1919) TS 4, Article 227. Ibid., Articles 228–230. GA resolution 44/89. J. Crawford, ‘The ILC’s Draft Statute for an International Criminal Tribunal’, 88 American Journal of International Law (1994) p. 140; J. Crawford, ‘The ILC Adopts a Statute for an International Criminal Court’, 89 American Journal of International Law (1995) p. 404. For the
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 275-284.
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Meanwhile, in 1990, British Prime Minister Margaret Thatcher and United States President George Bush, both evoking the precedent of the Nuremberg trials, broached the idea of an international tribunal to deal with the Iraqi invasion of Kuwait, one that might address such crimes as aggression and hostage-taking. Pentagon lawyers prepared a report documenting crimes allegedly committed by the Iraqi president for a possible trial. The matter was “quietly dropped after the American-led coalition won the Persian Gulf war without capturing Mr. Hussein”. Then, in 1992, as war raged in the Balkans, there were calls for international justice that led to establishment of the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY). On 22 February 1993, the Security Council decided upon the establishment of a tribunal mandated to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. The draft Statute submitted by the Secretary-General was adopted without modification by the Security Council in resolution 827 on 8 May 1993. The Statute borrowed from the ongoing work of the International Law Commission, in effect melding elements of its draft Statute and Code of Crimes into an instrument that both defined the offences and established the procedure before the court. The Tribunal’s territorial jurisdiction was confined to the frontiers of the former Yugoslavia. Temporally, it was entitled to prosecute offences beginning in 1991, leaving its end-point to be established by the Security Council. In November 1994, acting on a request from Rwanda, the Security Council voted to create a second ad hoc tribunal, charged with the prosecution of genocide and other serious violations of international humanitarian law committed in Rwanda and in neighbouring countries during the year 1994. The resolution creating the International Criminal Tribunal for Rwanda (ICTR) expressed the Council’s “grave concern at the reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda”. The Council invoked the reports of the Special Rapporteur for Rwanda of the United Nations Commission on Human Rights, as well as the preliminary report of the Commission of Experts, which the Council had established earlier in the year.
International Law Commission’s discussion of the history of the draft Statute, see UN Doc. Report of the International Law Commission on the Work of its Forty-Sixth Session, 2 May–22 July 1994, A/49/10, ch. II, paras. 23–41. For Thatcher, see her television interview of 1 September 1990, in 61 British Yearbook of International Law (1990) p. 602; M. Weller, ‘When Saddam is brought to court …’, The Times, 3 September 1990. For Bush, see US Department of State Dispatch, 22 October 1990, Vol. I(8), p. 205; US Department of State Dispatch, 12 November 1990, Vol. I(11), p. 260. See also L. R. Beres, ‘Iraqi Crimes and International Law: The Imperative to Punish’, 21 Denver Journal of International Law & Policy (1993) p. 335. E. Sciolino, ‘U.S. names figures it wants charged with war crimes’, New York Times, 17 December 1992, p. 1. UN Doc. S/RES/827 (1993). UN Doc. S/RES/808 (1993). UN Doc. S/RES/955 (1994).
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A rights-based approach to accountability While the end of the Cold War may have contributed to the atmospheric conditions facilitating these developments, the changed attitude to international criminal justice owed much to evolution within the human rights movement. By the 1980s, a rightsbased approach began to emerge that took the standpoint of victims of atrocities. The human rights movement had not always been so eager to combat impunity. In an earlier time, it tended to view the criminal justice system not as a tool for the enforcement of human rights but rather as an instrument of repression by evil regimes. Human rights activists took sides, as a general rule, with the defendant and with the prisoner, and barely disguised their disdain for prosecutors and jailers. One of the defining moments in the transformation of the human rights movement was the Velasquez-Rodriguez case of the Inter-American Court of Human Rights. Manfredo Velasquez was “disappeared” by a paramilitary group widely believed to be associated with the authorities. Faced with the difficulty in proving any direct link between the killers and the State, the Inter-American Court turned to the suspicious failure of Honduran police and judicial officials to properly investigate the crime and to bring the perpetrators to justice.10 Henceforth, this “horizontal” dimension of human rights law became increasingly prominent. Again and again, in rulings of the European and Inter-American human rights courts, the European and African commissions,11 and the treaty bodies or committees established under the relevant United Nations instruments for the protection of human rights,12 it was held that the State had a positive duty to investigate crimes and to bring those responsible to justice. The engagement of the human rights movement with the exciting developments in international criminal law in the mid-1990s became apparent as the process leading to establishment of the International Criminal Court (ICC) became inexorable. The 1993 Vienna Declaration and Programme of Action had endorsed the work of the International Law Commission towards the creation of an international criminal court.13 In 1994, the United Nations General Assembly, taking the International Law Commission’s draft Statute as a basis, convened an ad hoc committee, which met twice in 1995. A fundamentally positive assessment of its work prompted the General Assembly to proceed with a series of “preparatory committee” meetings, all targeted at a diplomatic conference at which the draft Statute would be adopted.14 On 17 July 1998, at the conclusion of 10 Velasquez Rodriguez v. Honduras, 29 July 1988, Series C, No. 4. 11 D. Cassel, ‘International Human Rights Law in Practice: Does International Human Rights Law Make a Difference?’, 2 Chicago Journal of International Law (2001) p. 121. 12 I.e. Bautista de Arellana v. Colombia, No. 563/1993, UN Doc. CCPR/C/55/D/563/1993, paras. 8.3. and 10; Laureano v. Peru, No. 540/1993, UN Doc. CCPR/C/56/D/540/1993, para. 10. 13 UN Doc. A/CONF.157/24 (Part I), ch. III, para. 92. 14 See M. Cherif Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’, 32 Cornell International Law Journal (1999) p. 443; A. Bos, ‘From the International Law Commission to the Rome Conference (1994–1998)’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, Oxford, 2002) pp. 35–64.
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the Rome Conference, the Statute of the International Criminal Court was adopted.15 It entered into force on 1 July 2002, following the deposit of the 60th ratification, and the ICC became operational in the months that followed. Following the creation of the ICTY and the ICTR, there were many appeals to the Security Council to launch other ad hoc tribunals, most of them unsuccessful. For example, in 1999 a group of three experts appointed by the Secretary-General of the United Nations proposed that the Council create an international tribunal to deal with crimes committed by the Khmer Rouge in Cambodia between 1975 and 1979.16 An International Commission of Inquiry on East Timor, established by the United Nations Commission on Human Rights, found “patterns of gross violations of human rights and breaches of humanitarian law” and concluded that an “international human rights tribunal […] to try and sentence those accused” should be established.17 In August 2000, warring parties in Burundi reached a peace agreement that called upon the government to request that the Security Council establish an international criminal tribunal.18 Instead of setting up genuinely international tribunals in Cambodia and East Timor, the United Nations opted for what are sometimes called “hybrid” systems. But these are actually national courts, established by domestic legislation, and their international involvement consists of the participation of foreign judges and other officials.19 Three initiatives resulted in truly international jurisdiction. In June 2000, the government of Sierra Leone requested the United Nations to participate in the establishment of an international tribunal to deal with the civil war in that country.20 Negotiations concluded in early 2002 with an agreement between the government of Sierra Leone and the United Nations for the creation of the Special Court for Sierra Leone (SCSL). In March 2005, the United States of America presented a draft resolution to the Security Council calling for the establishment of an international criminal tribunal for Sudan.21 Instead, the Security Council decided to refer the situation in the Darfur region of Sudan to the 15 Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90. 16 Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, UN Doc. A/53/850, annex, para. 148. 17 Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc. A/54/726-S/2000/59, annex, para. 153. 18 Accord d’Arusha pour la paix et la Reconciliation au Burundi, 28 August 2000, Article 6(11). 19 L. A. Dickinson, ‘The Promise of Hybrid Courts’, 97 American Journal of International Law (2003) p. 295: “Such courts are ‘hybrid’ because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards.” The distinction between “international” and “hybrid” tribunals is made in the Secretary-General’s August 2004 report: The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, S/2004/616, paras. 40, 45, 46. 20 Letter of 12 June 2000 from the President of Sierra Leone to the Secretary-General and the Suggested Framework Attached to It, UN Doc. S/2000/786, annex. 21 UN Doc. S/PV.5158 (2005).
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International Criminal Court, in accordance with Article 13 of the Rome Statute. The February 2005 assassination of Lebanese politician Rafiq Hariri prompted an official inquiry that recommended the establishment of an international tribunal. In March 2006, the Security Council instructed the Secretary-General to proceed to negotiate an agreement with Lebanon for its establishment.22 There are now three ad hoc tribunals whose jurisdiction is limited geographically and temporally. All three are expected to complete their trials by the end of the decade. Although the creation of the permanent International Criminal Court does not foreclose the establishment of new ad hoc tribunals, it is unnecessary in the more than 100 States Parties to the Rome Statute. As for those territories not subject to the jurisdiction of the Court, there will be strong pressure on the Security Council to refer cases to it, as was the case with Sudan. Lebanon stands as an exception, but there the crimes in question involved political assassination, and they were therefore probably not covered by the subject-matter jurisdiction of the International Criminal Court. Comparing the international tribunals The three existing ad hoc international criminal tribunals and the International Criminal Court have many common features. The Special Court for Sierra Leone is the only tribunal whose subject-matter jurisdiction provisions do not include the crime of genocide. The other three may prosecute genocide under a definition whose text is based on the terms of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide.23 The Appeals Chamber of the ICTR recently stated that “reports indicating that genocide occurred in Rwanda were a key impetus for its establishment, as reflected in the Security Council resolution establishing it and even the name of the Tribunal”.24 All four tribunals may exercise subject-matter jurisdiction over crimes against humanity and war crimes. Nevertheless, the definitions of these categories of crime are different for each of the tribunals. When the war crimes texts of the statutes are compared, that of the ICTY appears to be the narrowest, but in fact the contrary is the case. Its war crimes provisions are patterned on treaty language that was drafted in the 1940s. When the ICTY Statute was adopted, in 1993, the Secretary-General said it was intended to consist of rules of inter-
22 UN Doc. S/RES/1664 (2006). On 21 November 2006 the Secretary Council approved a proposal for the tribunal and accepted the terms of reference of the tribunal. In June 2006, the Secretary-General issued a report that spoke of “a future judicial process, possibly a tribunal of an international character”. Letter dated 10 June 2006, from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2006/375. (Emphasis added.) 23 Convention for the Prevention and Punishment of the Crime of Genocide (1951), 78 UNTS 277. On the Convention generally, see W. A. Schabas, Genocide in International Law (Cambridge University Press, Cambridge, 2000); W. A. Schabas, Genozid im Völkerrecht (Hamburger Edition, Hamburg, 2003). 24 Prosecutor v. Karamera et al., 16 June 2006, Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, No. ICTR-98-44-AR73(C), para. 35.
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national humanitarian law that were “beyond any doubt part of the customary law”.25 A year or so afterward, the Secretary-General said he had “elected to take a more expansive approach to the choice of the applicable law” for the ICTR Statute.26 It authorised prosecution of war crimes committed during non-international armed conflict. This had no basis in any of the humanitarian law treaties, and at the time many experts still questioned whether it was authorised under customary international law.27 But months later, in October 1995, the Appeals Chamber of the Yugoslavia Tribunal held that customary international law recognised individual criminal responsibility for war crimes committed in non-international armed conflict. It described the reference to “laws or customs of war” in Article 3 of the Statute of the Yugoslavia Tribunal as an “umbrella clause” encompassing all “serious violations of international humanitarian law”.28 When the Rome Statute was adopted, this jurisprudential innovation was codified in Article 8. It contains four distinct categories of war crimes, two of them applicable in international armed conflict, and two in non-international armed conflict. But Article 8 of the Rome Statute lists war crimes in excruciating detail, and it quite decidedly resists recognition of all serious violations of international humanitarian law. For example, it contains no general prohibition on the use of weapons that cause unnecessary suffering or superfluous harm,29 a norm recognised by the International Court of Justice in its 1996 advisory opinion on nuclear weapons.30 The relatively limited scope of the Rome Statute can be explained by the context of its adoption. It is a negotiated treaty, not a ukase of the Security Council. But it would be expected that the most recent instrument, the Statute of the Special Court for Sierra Leone, which was finalised in January 2002, might build upon the earlier precedents, including the judgments of the appeals chambers of the two ad hoc tribunals. Instead, it reiterates the provisions of the ICTR Statute, which are drawn from common Article 3 to the Geneva Conventions and Additional Protocol II, and adds a few provisions based upon language from Additional Protocol I. The curious result of all of this is that it is the ICTY Statute, which was chronologically the first of the four statutes, as interpreted by its Appeals Chamber, that has the broadest provision concerning war crimes. 25 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, para. 34. 26 Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), UN Doc. S/1995/134, para. 12. 27 See the authorities cited by Judge Li in Prosecutor v. Tadić, 2 October 1995, No. IT-94-1-AR72, Separate Opinion of Judge Li on the Defence Motion for Interlocutory Appeal on Jurisdiction. 28 Prosecutor v. Tadić, 2 October 1995, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1-AR72, para. 143. 29 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, Article 8(2)(b)(xvii)–(xx), 8(2)(e) and 8(2)(e)–(f). See R. S. Clark, ‘Methods of Warfare that Cause Unnecessary Suffering are Inherently Indiscriminate’, 28 California Western International Law Journal (1998) p. 379. 30 Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General Assembly for an Advisory Opinion), I.C.J. Reports 1996, p. 226.
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The definitions of crimes against humanity – each of the four somewhat different – in a sense trace the evolution of the customary law definition of the crime. The first text, Article 5 of the ICTY Statute, was drafted in 1993 at a time when many international lawyers still believed that customary law imposed a nexus between crimes against humanity and armed conflict. The ICTY provision requires that crimes against humanity be “committed in armed conflict, whether international or internal in character”. Without much doubt, the drafters of the ICTY Statute believed that to prosecute crimes against humanity in the absence of armed conflict would violate the maxim nullum crimen sine lege.31 But in its first major ruling, the ICTY Appeals Chamber held that this requirement of armed conflict was inconsistent with customary law.32 In the meantime, the Security Council had authorised the ICTR to prosecute crimes against humanity even when committed in peacetime. The broader view of crimes against humanity was subsequently endorsed in Article 7 of the Rome Statute of the International Criminal Court and is repeated in the relevant provision of the SCSL Statute. But while the Security Council abandoned the nexus with armed conflict in defining crimes against humanity in the ICTR Statute, it added another contextual element: “national, political, ethnic, racial or religious grounds”. Although these are absent in the ICTY Statute, the Secretary-General’s report to the Security Council on the establishment of the ICTY described crimes against humanity as acts committed “on national, political, ethnic, racial or religious grounds”.33 His views were echoed by three members of the Security Council in the debate on the draft Statute.34 But no similar requirement was imposed in Article 7 of the Rome Statute, and, one year after its adoption, the ICTY Appeals Chamber said that this “discriminatory element” was not part of customary law, except for the category of crimes against humanity known as “persecution”.35 One of the minor differences between the SCSL Statute and the text on which it was based, the ICTR Statute, is the absence of a discriminatory element in the definition of crimes against humanity. For a crime against humanity to be committed, the civilian population must be the object of a “widespread or systematic attack”. This requirement is set out explicitly in the ICTR and SCSL statutes. Although not specified in the text of its Statute, the ICTY
31
32 33 34 35
See the Secretary-General’s report: “Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.” Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993), para. 47. Prosecutor v. Tadić, 2 October 1995, No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para, p. 141; Tadić, 15 July 1999, No. IT-94-1-A, para. 251; see also Prosecutor v. Kordić et al., 26 February 2001, No. IT-95-14/2-T, para. 23. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, para. 48. UN Doc. S/PV.3217 (25 May 1993). Prosecutor v. Tadić, 15 July 1999, No. IT-94-1-A, para. 297. See also Prosecutor v. Akayesu, 1 June 2001, No. ICTR-96-4-A, para. 464.
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judgments have also imposed such a condition.36 The Secretary-General’s report to the Security Council on the establishment of the ICTY described crimes against humanity as “inhumane acts of a very serious nature […] committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”.37 The “widespread or systematic attack” language is also reflected in Article 7(1) of the Rome Statute and forms part of customary international law. The Rome Statute describes the attack as being pursuant to a “State or organisational plan or policy”. The early decisions at both tribunals were divided as to whether a State or organisational plan or policy was an element of crimes against humanity. In Kunarac, the ICTY Appeals Chamber held that the policy component was not an element of crimes against humanity at all “at the time of the alleged acts”. In support, the Appeals Chamber referred to a number of authorities, including the Israeli courts in Eichmann.38 Of particular interest is the apparent contradiction between the Appeals Chamber’s view of the requirements of customary international law and the text of the Rome Statute, which in earlier rulings the ad hoc tribunals have sometimes cited as an authoritative codification of customary international law.39 But Article 10 of the Rome Statute states it shall not “be interpreted as limiting or prejudicing in any way existing or developing rules of international law …”. Some of the early prosecutions before the ICTY dealt with relatively low-level perpetrators, but as the institution matured, it focussed increasingly upon the leaders and organisers of atrocities. The ICTR was rather more focussed on the “big fish” from the beginning, but this may be only because it was fortunate enough to take some of them into custody. Eventually, the Security Council expressed displeasure with the apparent lack of priorities in prosecution policy, and directed the tribunals to concentrate on “the most senior offenders of crimes which most seriously violate international public order”.40 The Rules of Procedure and Evidence were amended to allow the judges to refuse authorisation of an indictment that did not concern “the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal”.41 These issues were confronted more directly, and at the outset of activities when the SCSL was established. It was instructed to prosecute only “those who bear the greatest responsibility” for serious violations of international humanitarian law. At the very least, there is an 36 Prosecutor v. Mrksić et al., 3 April 1996, No. IT-95-13-R61, Review of Indictment Pursuant to Rule 61, para. 30; Prosecutor v. Tadić, 15 July 1999, No. IT-94-1-A, para. 311; Prosecutor v. Kordić et al., 17 December 2004, No. IT-95-14/2-A, para. 106; Prosecutor v. Blaškić, 29 July 2004, No. IT-95-14-A, para. 98. 37 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993), para. 48. See also Prosecutor v. Tadić, 10 August 1995, No. IT-94-1-T, Decision on the Defence Motion on Jurisdiction. 38 Prosecutor v. Kunarac et al., 12 June 2002, No. IT-96-23/1-A, para. 98. See also Prosecutor v. Blaškić, 29 July 2004, No. IT-95-14-A, para. 120; Prosecutor v. Kordić et al., 17 December 2004, No. IT-95-14/2-A, para. 98. 39 Prosecutor v. Furundžija, 10 December 1998, No. IT-95-17/1-T, para. 228. 40 UN Doc. S/PRST/2002/21. See also UN Doc. S/RES/1503 (2004), preamble. 41 Rules of Procedure and Evidence, UN Doc. IT/32 (as amended 6 April 2004), Rule 29(A).
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implied assumption that offenders of lesser importance are to be dealt with by domestic courts, in some cases pursuant to universal jurisdiction,42 or by alternative accountability mechanisms such as truth and reconciliation commissions.43 The International Criminal Court does not explicitly target prosecutions in this manner. Indeed, it is predicated on the Court fulfilling a subsidiary role to the justice system of States. The Court may not prosecute a case unless the State concerned is “unwilling or unable genuinely” to proceed.44 Otherwise, as the preamble insists, “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. Nevertheless, the Court may refuse to take up a case that is not of “sufficient gravity”.45 In the Court’s first judicial interpretation of these terms, a Pre-Trial Chamber held that the gravity threshold “is intended to ensure that the Court initiates cases only against the most senior leaders suspected of being the most responsible for the crimes within the jurisdiction of the Court”.46 Rarely are such individuals the actual perpetrators of violent crimes, in the sense of ordinary criminal law. As a result, the tribunals have developed principles that facilitate the prosecution of leaders and organisers. The most potent is the concept of “joint criminal enterprise”, which is an approach to complicity of persons engaged in an activity with a common and illegal purpose by which all participants may be found guilty of crimes committed by their partners to the extent such acts were reasonably foreseeable. It was first expressed in a 1999 judgment of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia,47 and soon featured in virtually all of the indictments of the three ad hoc tribunals. The statutes themselves do not speak of joint criminal enterprise, and it was only by an exercise of rather liberal interpretation that the judges were able to justify this. Their principal authority was Article 25(3)(d) of the Rome Statute, which makes explicit what is said to be implied in the equivalent provisions of the tribunals for Yugoslavia, Rwanda and Sierra Leone. All of the tribunals are also authorised to prosecute on the basis of “superior responsibility”, by which a military or civilian commander may be convicted for the acts of a subordinate that ought to have been prevented or punished. Early in the work of the ad hoc tribunals it was thought that this would prove to be fundamental to successful prosecutions, but it has turned out to be of little significance, largely because of the extraordinary role of joint criminal enterprise. Only a handful of offenders have been convicted on the basis of superior responsibility, and their sentences have been very short, confirming its inconsequential role.48 42 Ibid., Rule 11 bis. 43 See e.g. Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2001/95. 44 Rome Statute, Article 17(1). 45 Rome Statute, Article 17(1)(d). 46 Prosecutor v. Dyilo, 10 February 2006, Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58, No. ICC-01-04-01/06, para. 50. 47 Prosecutor v. Tadić, 15 July 1999, IT-94-1-A, para. 193. 48 Prosecutor v. Strugar, 31 January 2005, No. IT-01-42; Prosecutor v. Hadžihasanović et al., 15 March 2006, No. I T-01-47-T; Prosecutor v. Orić, 30 June 2006, No. IT-03-68-T.
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All four tribunals exercise a jurisdiction that is concurrent with that of national courts. The ICTY and ICTR have “primacy” over national courts of any country, whereas the SCSL has primacy only over the courts of Sierra Leone. By contrast, the “complementary” relationship of the International Criminal Court with national tribunals means that its judges are to refuse to exercise jurisdiction where the domestic system is not “unwilling or unable genuinely” to proceed with investigation and prosecution.49 The procedural aspects of the tribunals as well as their rules of evidence are subjects of great complexity that cannot be developed in this limited space. Briefly, they represent a hybrid of national systems, drawing on principles and practices of both adversarial and inquisitorial regimes. Thus, while the strategic direction of the case is very largely left to the discretion of the parties, an approach typical of adversarial and common law systems, there is considerable room for judicial oversight, a feature of inquisitorial and Romano-Germanic procedure. The penalty provisions of the four tribunals are laconic in the extreme. The three ad hoc tribunals may impose a sentence of detention whose minimum and maximum length is unspecified. In practice, most of the ICTR sentences have been to terms of life imprisonment. The ICTY, on the other hand, has confined itself to specified terms of imprisonment, many of them very lengthy. On only one occasion did an ICTY Trial Chamber sentence an offender to life imprisonment, but this was changed on appeal to 40 years.50 The ICC may sentence offenders to a term of 30 years and, “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”, a term of life imprisonment. The absence of capital punishment reflects the dramatic evolution in national practice and in international human rights law on this question since Nuremberg, in 1946, when 11 Nazis were hanged.51 The international criminal tribunals have quickly established themselves as an important component of the international legal landscape. Their contribution to promotion of the rule of law in post-conflict societies is considered to be very significant. They provide justice for victims, and assist in creating an historical truth, an international consensus about the factual underpinnings of conflict and atrocity. They are praised by international human rights institutions, including the non-governmental organisations, which view them as being central to the struggle against impunity.
49 See J. T. Holmes, ‘The Principle of Complementarity’, in Roy Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (Kluwer Law International, The Hague, 1999) pp. 41–78; B. S. Brown, ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals’, 23 Yale Journal of International Law (1998) p. 383; A. G. Karibi-Whyte, ‘The Twin Ad Hoc Tribunals and Primacy over National Courts’, 9 Criminal Law Forum (1998-1999) p. 55. 50 Prosecutor v. Stakic, 22 March 2006, No. IT-97-24-A, para. 428. 51 On the use of the death penalty for international crimes, see W. A. Schabas, The Abolition of the Death Penalty in International Law, 3rd ed. (Cambridge University Press, Cambridge, 2003).
26
The Normative Impact of Human Rights on Programming in the UNDP Patrick van Weerelt and Zanofer Ismalebbe*
We will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without the respect for human rights.
The promotion and protection of human rights and the application of the human rightsbased approach (hereinafter HRBA) to development programming have gained considerable prominence in the work of the United Nations since the UN reforms initiated by the Secretary-General in 1997. Not only is there growing recognition of the crucial links between human rights violations, poverty, exclusion, vulnerability and conflict, there is also increasing acknowledgement of the vital role human rights play in mobilising social change, transforming State society relations and removing barriers faced by the poorest people in accessing services. The United Nations Development Programme (UNDP) issued its policy of integrating human rights with human development in January 1998. Since then human rights have emerged as a key area of the organisation’s development activities. The 2000 Human Development Report stressed that human rights and human development share a common vision and a common purpose – to secure the freedom, well-being and dignity of all people everywhere; a memorandum of understanding was concluded with the Office of the High Commissioner for Human Rights (OHCHR), and a UNDP/OHCHR programme called HURIST (Human Rights Strengthening) was developed to implement the policy at the global level. Additional developments have been the establishment of
*
Human Rights Adviser (UNDP Headquarters, New York) and Human Rights Focal Point (UNDP, Geneva), respectively. The views expressed are those of the authors, and should not be attributed to UNDP. Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, A/59/2005, 21 March 2005. DAC Network on Governance, Action-Oriented Policy Paper on Human Rights and Development, DCD/DAC/GOVNET(2006)4/REV1-draft.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 285-290.
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the UN-wide electronic human rights knowledge network, called “HURITALK” and the adoption of several practice and guidance notes. Significant progress has thus been made by the UN’s global development network. Operationalising the theoretical framework has proven to be more challenging than anticipated, however, and in looking back at approximately ten years of UNDP engagement on the subject matter, three distinct phases can be identified. Interestingly enough these phases seem to indicate a graduation process through three of the four levels of engagement described by Peter Uvin in his book Human Rights and Development. Human rights and development (1997–2002) UNDP’s first phase is probably best summed up as a process of linking human rights and development. Although UNDP developed a fairly comprehensive policy, activities were limited in scope and predominantly focused on governance related institutional processes. Supporting ratification processes was felt to be an appropriate entry point, and UNDP committed to ensure that its development programmes would not become vehicles for human rights abuses. Moreover, UNDP (in partnership with OHCHR) started staff training by organising five regional workshops for UN resident coordinators/UNDP resident representatives and senior government counterparts, whilst extensive support was given to the development of national human rights action plans and the strengthening of the human rights capacities of UNDP country offices through programming support and the provision of United Nations Volunteers human rights specialists. Country offices were also encouraged to disseminate widely international human rights instruments and other key human rights documentation, and cooperation with the Office of the High Commissioner for Human Rights was formalised through a memorandum of understanding in 1999. As stated before, activities did, however, predominantly remain promotional in nature, and, as a result, limited “normative impact” was felt in broader UNDP programming processes. Monitoring and documenting the human rights situation was considered outside the scope of UNDP’s activities.
Human Rights Talk (HURITALK) is the first UNDP Knowledge Network to be developed UN-wide, and includes now human rights practitioners from several specialised agencies, funds, programmes and from the Secretariat and Peacekeeping Missions. Which are official UNDP policy documents pertaining to human rights. See Poverty Reduction and Human Rights – A Practice Note, June 2003, and Human Rights in UNDP – Practice Note, April 2005. P. Uvin, Human Rights and Development (Kumarian Press, Bloomfield, CT 2004). Uvin described the phases as: rhetorical incorporation; political conditionality; positive support; and a rights-based approach to development. UNDP, Integrating Human Rights with Sustainable Human Development – A UNDP Policy Document, 1998. Regional Workshops were organised in Cote d’Ivoire, Sri Lanka, Namibia, Kazakhstan and Jordan.
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It must be acknowledged though that the conclusion of the memorandum of understanding as well as the publication of the UNDP Human Development Report of 2000 did significantly change UNDP’s qualitative attitude to human rights in development. Mary Robinson, the former UN High Commissioner for Human Rights, encouraged UNDP and its then administrator to reflect further upon the intrinsic as well as the instrumental value of human rights for sustainable human development in the UN system, and the now familiar HRBA language was introduced in UNDP meetings, albeit without too much conceptual rigor. Human rights in development (2002–2005) Whereas the focus of the first phase was predominantly “promotional” in nature, phase 2, entitled “human rights in development” was characterised by policy and tool development as well as field-testing of new methodologies specifically designed to bring out the human rights elements in development programming. The focus went from the external to the internal, and from the sectoral governance-related areas to the “holistic” programming process (or from doing the “rights-thing” to a focus on “doing the rightthing”). The biggest advance was made when UNDP together with United Nations Children Fund (UNICEF) and OHCHR organised a meeting in Stamford to develop further the conceptual and practical implications of applying a HRBA, and to harmonise the different interpretations of a HRBA in the UN system. The outcome is what is now often referred to as the UN Common Understanding of a Human Rights-Based Approach to Development Cooperation (hereinafter UN Common Understanding), a framework definition of the HRBA. It is meant to guide the implementation of the HRBA to development programming by all UN entities, and emphasises the purpose of development cooperation for the UN, the use of human rights principles and standards to guide programming and the methodology to be followed in national capacity development. The key tenets of the UN Common Understanding are: 1. All programmes of development cooperation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments. 2. Human rights standards contained in, and principles derived from, the Universal Declaration and other international human rights instruments guide all development cooperation and programming in all sectors and all phases of the programming process and development cooperation. 3. Programmes of development cooperation contribute to the development of the capacities of “duty-bearers” to meet their obligations and of “rights-holders” to claim their rights.
Report – Second Interagency Workshop on Implementing a Human Rights-Cased Approach to Development, 5–7 May 2003, Stamford, Connecticut. The document is available at <www.undp.org/governance/cdromhr/homepage.html>.
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The value of the UN Common Understanding has been significant in terms of policy alignment, capacity development and tool development, but internalisation of the conceptual and methodological value remained limited within the organisation. Despite UN-wide endorsement for the UN Common Understanding, for example in the guidelines for the Common Country Assessments (CCA) and the United Nations Development Assistance Framework (UNDAF) processes, the HRBA was primarily regarded as a parallel “event” rather than an intrinsic part of the larger programming process as a whole. This was not only highlighted by the findings of the UNDP MultiYear Funding Framework Report 2004, which stressed that “UNDP needed to be more proactive in adopting a human rights-based approach in its work”,10 but also by the external evaluators of the HURIST programme who, in August 2005, noted that “UNDP corporately never really confronted what it takes to go from traditional development programming to the application of a HRBA”, and that “this rendered efforts to go from ‘policy to practice’ rather difficult …”.11 In retrospect, and despite its shortcomings, phase two, like phase one, was pivotal in the evolution of UNDP’s engagement. Due to a strong focus on the “value-added” of human rights-based programming, even if carried out on a “parallel track”, the conceptual clarity and rigor was significantly enhanced, and communication of the messages of human rights in development became more comprehensive and comprehensible for people working in the organisation, particularly those working at country level. Besides internal absorption capacity, it is also important to note that UNDP does not operate in a vacuum. UNDP’s readiness and capacity as an organisation is one thing, and obviously progress is directly related to the institutional space that is given to ideas, concepts and methodologies. But to be fair to the efforts of UNDP, that is only part of the issue when working in the UN system. The external enabling environment is of equal importance. And if objectively reflected upon, this “external enabling environment” has played a major role in the initial lukewarm reception to the approach, but at the same time seems to be the driving factor in pushing the UNDP to phase 3, the one in which it may fully follow through on its intentions to apply a HRBA to programming. The human rights-based approach to development programming (2005– …) In the 2005 World Summit Outcome Document, UN Member States unequivocally and unanimously stressed their support for the further mainstreaming of human rights throughout the UN system:
10 Available at <www.undp.org/execbrd/word/dp03-32.doc>. 11 HURIST Evaluation, May–August 2005. The external evaluation was carried out with two specific objectives: a) To assess HURIST activities and practices against the objectives as set out in the revised programme document; and b) To outline a forward looking vision of where UNDP ought to go to implement its 2005 practice note on human rights.
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We resolve to integrate the promotion and protection of human rights into national policies and to support the further mainstreaming of human rights throughout the United Nations system …12
This support was further echoed in both the call of the 2005 Summit to further strengthen the linkages between the normative work of the United Nations system and its operational activities,13 as well as in the mandate of the new UN Human Rights Council in which the Council has been tasked to “also promote the effective coordination and the mainstreaming of human rights within the UN system”.14 Implications of this last mentioned mandate might, in the future, be significant for the UN system as a whole, and for the UNDP in particular. Parallel with developments taking place within the UN system, numerous bilateral and multilateral partners have also moved towards integrating human rights into their policies and programming,15 and this is further enhancing a supportive programming environment. Illustrative in this regard are the efforts made in the Organisation for Economic Co-operation and Development/Development Assistance Committee to update its 1997 policy related to human rights mainstreaming,16 as well as the creation of a Justice and Human Rights Trust Fund by the World Bank Group, with a particular emphasis on mainstreaming human rights into poverty reduction strategy processes. The external enabling environment has thus significantly changed from ten years ago, and the process of linking norms and programming is now considered (at least in theory) to be the rule rather than the exception. These changes are genuinely impacting on the UNDP. Not only does the UNDP’s User Guide17 specifically call for the application of a HRBA to programming, but, at the time of writing, UNDP is in the process of launching its third generation Global Human Rights Strengthening Programme (GHRSP, 2007–2010). This programme, specifically aimed at contributing to its corporate strategy to integrate human rights into its policies, programmes and processes will provide meaningful guidance to the application of a HRBA to UNDP programming processes. It has the full internal political support of the organisation, and promises to become the much-needed catalyst to internalise fully the value of human rights. 12 General Assembly, 2005 World Summit Outcome, A/Res/60/1, 24 October 2005, para. 126, available at <www.un.org/summit2005/documents.html>. 13 2005 Outcome Document, GA/A/60/L.1, para. 169. 14 General Assembly, Human Rights Council, A/Res/60/251, para. 3, available at <www.ohchr. org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf>, visited on 15 September 2006. 15 OECD, Integrating Human Rights into Development – Donor Approaches, Experiences and Challanges (OECD, Paris, 2006). 16 Within the OECD/DAC GOVNET Human Rights Task Team, an Action-Oriented Policy Paper has been drafted to: a) Update the DAC position on human rights and development, to reflect changes in the international context and donor experiences over the past decade; b) Highlight new challenges with integrating human rights into development; and c) Set out principles and recommendations for future actions that DAC members will support. 17 The User Guide is a tool to provide UNDP staff with a single place to find all relevant information about UNDP operations.
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Moreover, and linked to the widespread support the new GHRSP has received within the organisation, efforts will be put into inscribing the HRBA to development programming into the new Strategic Plan 2008–2011 as a key element of capacity development to enhance development effectiveness. For this to succeed, the external environment will, once again, be of prime importance. After all, it is up to the Member States represented in the UNDP Executive Board to determine the course of action for and direction of the UN’s development network. Given present development policy discussions, there is reason for optimism. If the international community does indeed aspire to place human rights at the heart of the UN’s global mission of peace and development, UNDP will be ready to act!
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The International Labour Organization and Human Rights: Access to the ILO Lee Swepston*
Jakob Möller dedicated his professional life, in the many years I knew him at the United Nations, to the very idea of widening the protection of international human rights through improved access to the system. It therefore makes me feel somewhat less awkward than one often does in such homages to speak of how this is done in a sister organisation to the one in which he worked, and which forms part of the same system. History and structure of the International Labour Organization The International Labour Organization (ILO) is the oldest of the UN system organisations dealing with human rights. Established in 1919 at the same time as the League of Nations, the ILO formed half the international system at the time. It was established to protect the rights of individuals and their organisations, in a particular but very wide field. It has taken a technical approach to the rights of workers, and has usually preferred to express its aim as the pursuit of social justice rather than of human rights. However, events in the last decade or so have forced it “out of the closet” into becoming a more assertive party to human rights deliberations at the national and international levels. History. As the industrial revolution took hold, so did public awareness of harsh working conditions and of the need for their regulation. As this social regulation began to take form, both industrialists and trade unions became concerned that exploitation of workers in other countries could undermine the profitability of international trade on the one hand, and the growth of the concept of workers’ rights on the other. The establishment of the International Labour Organization was included in the Peace Treaty to conclude World War I, and its first constitution was Part XIII of the Treaty of Versailles of 1919. *
Former Chief, Equality and Human Rights Coordination Branch, International Labour Office, Geneva. The author retired from the ILO in 2007, and is now consultant, teacher, and visiting professor at the Raoul Wallenberg Institute.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 291-300.
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At its first Conference that same year, the ILO began the task of adopting international labour legislation in the form of conventions and recommendations. Among them were instruments on child labour and protection of women in the work place, and in the next few years it adopted standards on forced labour, migrant workers and safety and health, inter alia – all subjects which continue as active concerns of the human rights movement today. As World War II was winding down, the ILO adopted the Declaration of Philadelphia in 1944, which restated and modernised its aims, and was incorporated into the Constitution in 1946. The Declaration expanded the field of action of the ILO, based on the relationship between labour and economic, social and financial questions. Its renewed mandate was stated in the Declaration in terms of human values and aspirations, prefiguring the human rights language the nascent United Nations was soon to adopt: “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity”. The ILO became the first specialised agency of the United Nations system in 1945. Structure. The ILO has a unique structure among international organisations. It is an inter-governmental organisation, but its decision-making bodies are tripartite. This means that all ILO bodies, with only a few exceptions, are composed of representatives of workers and employers as well as governments. It makes the ILO the only inter-governmental body in which governments do not have all the votes, and in which non-governmental organisations (NGOs) are given a formal role in deciding on the organisation’s policies. This is an important aspect of the “access” focus of this article. International labour standards and human rights. The ILO was created to adopt international standards to improve the situation of working people. It adopts conventions – binding on countries which ratify them – and recommendations, which have the force of declarations and indications of best practice. Since the ILO’s establishment in 1919, it has adopted 188 conventions (as of 2008) which have garnered some 7,500 ratifications by Member States. Accompanying them are 196 recommendations. The original ILO Constitution had taken the position that “universal and lasting peace can be established only if it is based upon social justice”, and that it was for this reason that working conditions had to be improved. In the Declaration of Philadelphia the ILO moved into human rights territory by stating its aims in terms of human values and aspirations: “all human beings, irrespective of race, creed or sex, have the right to pursue their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity”. The standards adopted in the years following 1945 were the basis for the labour-related provisions in the two human rights covenants adopted by the United Nations in 1966 to translate the Universal Declaration into more binding form.
ILO Constitution, Declaration of Philadelphia, II(a). These include the Committee of Experts, described below, and the Finance Committee of Government Representatives of the International Labour Conference. ILO Constitution, Preamble.
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What the ILO has come to consider as its fundamental human rights standards are those covering four basic subjects. Although these concepts are covered in more or less detail in many ILO standards on specific questions, there are eight conventions generally held to embody the “core principles” of the ILO on these questions: – Freedom of Association and Protection of the Right to Organize, 1948 (No. 87) Right to Organize and Collective Bargaining, 1949 (No. 98) – Forced Labour, 1930 (No. 29) Abolition of Forced Labour, 1957 (No. 105) – Equal Remuneration, 1950 (No. 100) Discrimination (Employment and Occupation), 1958 (No. 111) – Minimum Age, 1973 (No. 138) Worst Forms of Child Labour, 1999 (No. 182) Each of these Conventions has 148 ratifications or more – with Convention No. 29 being the most ratified at 172 (as at 17 June 2008), and Convention No. 182 has already been ratified by 165 States in less than ten years. This gives them great authority as they approach universal ratification. As indicated, these are only the most prominent instruments in the ILO’s human rights arsenal. There are a number of other standards on different aspects of almost all these questions. For instance, there were ten earlier conventions regulating age of admission to employment in different sectors, adopted between 1919 and 1972, which were all revised and modernised by Convention No. 138. On discrimination, many ILO standards take an approach of non-discrimination as the focus or as an aspect of their approach – on women, disabled workers, workers with family responsibilities, migrant workers, indigenous and tribal peoples, and many others. In addition, many other subjects covered by ILO standards have implications for human rights in the broader sense of the term. The Universal Declaration of Human Rights and the UN’s two international covenants on human rights bring into the human rights ambit such subjects as safety and health at work, the right to a fair and reasonable wage, access to social security, etc. Without going into detail here, the ILO has adopted standards on most aspects of working life, including many that fall within the coverage of these UN standards. A truly integrated approach to human rights requires a wider look at all the questions that affect a decent life, and the ability to provide for oneself and one’s family an existence worthy of human dignity – what the ILO today calls the Decent Work Agenda. It is sometimes difficult to convince human rights activists that they can make a more practical contribution to protecting human rights if they examine the number and quality of labour inspectors than if they make a general complaint of violation of human rights. It is almost always less glamorous – and almost always more effective.
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The supervision of ILO standards The ILO has a uniquely thorough and influential supervisory system. When a convention has been ratified, a government is required by Article 22 of the ILO Constitution to send periodic reports to the International Labour Office. At the same time, it is required by Article 23(2) of the Constitution to send copies of these reports to the most representative organisations of employers and of workers in the country. These organisations have the right to make their own comments on these reports – and they do so regularly. The present reporting volume is about 2,000 government reports a year, and some 300 supplementary comments are made by employers’ and workers’ organisations. Governments’ reports and the supplementary information available are examined by the Committee of Experts on the Application of Conventions and Recommendations, a body of 20 independent experts drawn from all economic and social systems. It issues an annual report that includes a large number of observations, or published comments. These are supplemented by a much larger number of direct requests, which are not published but are sent directly to governments. The Committee’s report containing its observations is submitted to the International Labour Conference, where it is discussed by a tripartite Conference Committee on the Application of Standards. This Committee selects a certain number of observations to discuss, and invites governments to appear before it to account for themselves (about 25 at each session). Most supervision of standards in the ILO takes place as part of this regular examination of reports, but the ILO Constitution also allows for two kinds of complaints procedures. Under Article 24 of the Constitution, organisations of employers and of workers may make representations that a government has not taken measures to ensure the satisfactory observance of a convention it has ratified. This leads to an examination by a tripartite committee of the Governing Body, and a report detailing any problems in observance and recommendations for improvement, if necessary. Article 26 of the Constitution allows for complaints to be filed by governments of other countries that have ratified the same convention, by delegates to the International Labour Conference and by the Governing Body itself. A complaint is examined by a special Commission of Inquiry. These Commissions hold hearings in Geneva, visit the country concerned for on-the-spot investigations and publish their findings in a special edition of the ILO’s
A detailed description of the ILO’s supervisory machinery can be found on the ILO website at <www.ilo.org>. The Constitution provides at Article 22 that they shall be annual. In practice, in order to accommodate the growing number of ratifications, reporting frequency has been modified several times, and reports are now due at intervals of between one and five years. Though not published separately by the ILO in “hard copy”, direct requests are available on the ILOLEX database, along with observations, the texts of conventions and recommendations and of the Constitution, reports of the Committee on Freedom of Association (see below) and other supervisory materials. ILOLEX is available on the ILO website mentioned above. The report of the Conference Committee is available as part of the Proceedings of the International Labour Conference, which is also available on the ILO website.
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Official Bulletin. Both kinds of complaints are followed up by the Committee of Experts after the procedure is concluded. Special procedures have been established for freedom of association. By agreement with the United Nations Economic and Social Council in 1950, the tripartite Governing Body Committee on Freedom of Association examines complaints of violations of constitutional principles of freedom of association and the right to collective bargaining from workers’ and employers’ organisations and – theoretically at least – from governments. This does not depend on the ratification of the related ILO conventions, a nearly unique facility in international law. The Fact-Finding and Conciliation Commission on Freedom of Association (FFCC) is a more formal procedure for examining the same category of complaints, and depends on the consent of the government concerned to proceed. It is similar to the Commission of Inquiry in its workings. The FFCC even has the peculiarity that it can be applied against a State that is not a Member of the ILO if the country concerned agrees to this. Article 19(5)(e) of the Constitution provides the ILO with another facility. It provides that Member States may be required to report even on non-ratified conventions. This provision has been used since 1946 to request reports for what are known as “General Surveys”. These extremely useful studies by the Committee of Experts constitute a useful review of the way certain instruments are applied in the absence of ratification, as well as a review of whether the instruments concerned require revision. Under Article 23(2) of the Constitution, workers’ and employers’ organisations may submit their comments also on reports filed under Article 19, another possibility for non-governmental organisation access to the ILO’s supervisory possibilities. This panoply of supervisory procedures has been highly effective, especially compared to other supervisory bodies in the international system. A high rate of reporting, acceptance by virtually all States invited to appear before the Conference Committee and a large number of complaints examined by the Committee on Freedom of Association attest to a general respect for the procedure. It is also effective in securing modifications of law and practice in Member States in a high number of countries, and is generally well respected. The ILO reinforces its supervisory activity by ensuring that its technical cooperation is closely based on its standards, and that no technical assistance is given which would be contrary to those standards. The system also suffers weaknesses, and work is in progress to strengthen it. In 1998 the ILO adopted the Declaration of Fundamental Principles and Rights at Work, which recognises that all Member States have an obligation to promote and to realise in good faith the fundamental principles underlying the Conventions referred to as fundamental – see above – even in the absence of ratification of these instruments. The follow-up procedure has also resulted in the establishment of programmes of analysis and technical assistance to States.
The ILO currently receives some 65 per cent of reports due by the time of the annual meeting of the Committee of Experts, rising to some 85 per cent by the annual conference. At the same time, the Committee notes in each annual report a certain number of cases where governments have persistently failed to meet their reporting obligations in time – usually states encountering great internal difficulties.
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NGO access to ILO procedures Some critics point to the lack of access to the ILO’s procedures by non-governmental organisations other than employers’ and workers’ organisations and to the absence of individual complaints procedures as weaknesses. But there are no present plans to review these issues. In a very important sense, NGOs enjoy far more access to the ILO than to any other inter-governmental organisation. This article has outlined above the tripartite nature of the ILO, meaning that non-governmental organisations of employers and workers have half the votes in the plenary sessions of the annual Conference – thus, both for the adoption of new standards and for adoption of the reports of the Conference Committee on Standards. In committees of the Conference, including the Committee on the Application of Standards, ILO rules give workers, employers and governments one-third of the voting power each, so that non-governmental delegates actually outvote governments. Outside the formal decision-making bodies of the ILO, these organisations also enjoy unparalleled access to the ILO’s machinery. Mention has been made of the requirement for governments to send copies of their reports to workers’ and employers’ organisations, and of the right of these organisations to submit their own reports. They also have the right to submit representations under Article 24 of the Constitution, and, in their capacity as delegates to the Conference, they can submit the more formal complaints under Article 26 of the Constitution (for instance, the Commission of Inquiry concerning allegations of massive forced labour in Myanmar referred to above). Just as important, ILO rules and standards give employers’ and workers’ organisations a prominent role at the national level in the implementation and supervision of ILO standards. Many conventions require governments to consult these organisations on their application, or even to involve them formally in implementing bodies at the national level. An important ILO convention – Tripartite Consultation (International Labour Standards), 1976 (No. 144), so far ratified by 122 countries – increases the level of consultation and participation of these organisations in national decision-making on what to do about ILO standards, including whether to ratify or denounce them and how to implement them. Other NGOs. Nevertheless, many NGOs other than workers’ and employers’ organisations complain of restricted access to the ILO. For most of the ILO’s history, this has been of limited significance because of its concentration on workers’ rights and labour subjects. These traditionally have drawn little attention from other NGOs, more interested in higher-profile human rights issues connected mostly with civil and political rights. However, the world has changed, and with it the ILO’s interest for many other NGOs. The question of trade and labour rights has had a great deal to do with this as attention to the exploitation of workers by child labour or bonded labour and other abuses grows.
Virginia Leary, for instance, otherwise a great supporter of the ILO, has been critical of it for not allowing greater access to non-occupational NGOs. See supra note 2.
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This has led the ILO to redefine its traditional “technical” working methods, to enter the arena previously dedicated to civil and political rights, and to adopt some of the techniques usually reserved for those domains. It has also changed because of the undeniable fact that workers’ and employers’ organisations are less representative in some developed countries than they once were, with the loss of membership in trade unions. In developing countries, on the other hand, their numbers are often booming with the freedom newly acquired at the fall of dictatorships and with entry into the market economy. Employers’ organisations at the national level, for their part, tend these days to be less representative of the national economy than in earlier years, with the growth of multinational corporations and the breakdown of national economic borders. Even governments often have less control over national economies with globalisation of the economy and changes in economic patterns, as well as the establishment of regional economic bodies such as the European Union, North American Free Trade Agreement and Mercado Común del Sur (MERCOSUR – in English: Southern Common Market). What access do NGOs other than employers’ and workers’ organisations have to the ILO? It is quite appreciable, though different from what they enjoy at the UN. The ILO Special List. Consultative status with the ILO is limited to a few international employers’ and workers’ organisations, which have more access than the same term implies in the United Nations, for instance. The ILO has another kind of status, called “inclusion on the Special List of NGOs”, for all other non-governmental organisations. This List is available for international NGOs other than occupational ones, which share the values and goals of the ILO. Inclusion is by decision of the Governing Body, and it entitles NGOs to receive information and to be invited to ILO meetings on request. Right to intervene. Under the Standing Orders of the ILO Conference, NGOs may attend sessions of the Conference as observers if they have requested and received an invitation from the Governing Body.10 NGOs attending the session have the right to intervene in a committee with the permission of the chairman and the two vice-chairmen (i.e., the spokespersons for the employers’ and workers’ members in the committee). This is used rarely as few non-occupational NGOs attend the ILO Conference, and those that do almost never request the floor. The principal exception until now was the Conference sessions in 1988 and 1989 when the Indigenous and Tribal Peoples Convention (No. 169) was adopted. In that case special arrangements, which have been described elsewhere,11 were made to allow representatives of the groups concerned to take an active part in the discussions. 10 ILO, Standing Orders of the International Labour Conference, Article 2(3)(j). A practical point for those who wish to attend is that the request will have to be in the hands of the Office well before the Governing Body session in the March preceding the conference session concerned – and the previous November would be even better. 11 See e.g. L. Swepston, ‘A New Step in International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989’, 15:3 Oklahoma City University Law Review (1990) p. 677; and ILO, Guide to Convention No. 169, 1997.
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Briefly, the Conference noted that this was a special case in which the ILO’s traditional NGO partners did not represent the interests of the group whose situation was being examined, and made space in its procedures for them to participate. This was done by a combination of the formal procedures in the Standing Orders, and an accommodation through more informal means. Notable in this respect was the close working relationship established between the indigenous peoples’ caucus and the Workers’ Group of the Conference Committee concerned, by which the workers submitted directly to the discussions the amendments to the text proposed by the indigenous caucus. The result was probably the most direct participation by NGOs that has ever taken place in the adoption of international standards.12 Another exception was the discussions in 1998 and 1999 leading to the adoption of Convention No. 182, in which NGOs expressed a lively interest, setting the stage for the ILO’s continued close relationship with non-occupational NGOs in carrying out technical assistance for working children in many countries. Information. Another kind of access is via information, both providing and receiving it. The ILO’s supervisory processes are numerous, detailed and (mostly) public. NGOs can gain a great deal of information from the reports of the Committee of Experts, the Conference Committee on Standards and the Committee on Freedom of Association. Other sources, such as the reports of committees on representations and complaints, can also provide both valuable information and authority to press for changes when the situation in countries has been found not to live up to the requirements of ILO standards. NGOs can then use this information also with such bodies as national courts – especially when ratified international treaties have force of law in the country. Information and findings from ILO supervision is also useful to UN and regional supervisory bodies. In spite of the ILO’s regular submission of information to the United Nations, the UN “treaty bodies” do not always take into account all the information submitted to them. Their members work under pressure, and with a minimum of secretariat assistance. NGOs working on the situations which these bodies are examining will often find much ammunition for their causes in the ILO’s reports on the same subjects, and can help to bring this to the attention of the UN bodies. The same applies to the Human Rights Council and its subsidiary bodies, which often discuss situations more or less directly related to ILO standards – child labour, discrimination, forced labour and slavery, migrant workers, indigenous and tribal peoples, and others. It is all too rare that the representatives of foreign ministries, which usually form delegations to these meetings, are aware of the work in the ILO, which comes under the aegis of another ministry; governments have as much of a problem with their own internal coordination as they have with the duplication and overlapping they criticise within the UN system. NGOs that bring the work of the ILO and the rest of the UN system to the attention of UN human rights bodies are making a real contribution to the consistency of international hu12 This merits a longer examination than is possible here. Briefly, different levels of access are available for NGOs in discussions at the United Nations, but not actual participation in voting or in framing amendments. This can, in exceptional cases such as the adoption of ILO Convention No. 169, be much higher at the ILO – but also much rarer.
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man rights law, and more often than not are promoting the aims they were established to defend. The same considerations also apply to regional human rights bodies, to which NGOs sometimes enjoy considerable access. NGOs can also submit information to the ILO. Their direct access is limited because they have no standing to bring a complaint or to have the information they provide taken publicly into account by the ILO, as it does with employers’ and workers’ information. There are several ways around this, though. One is to form an alliance with a trade union or employers’ organisation, and persuade that organisation to submit information directly to the ILO. This means that the union or employers’ organisation endorses the NGO information and submits it as its own. This can take one of two forms. First, the workers’ or employers’ organisation could submit it as a comment under Article 23(2) of the ILO Constitution – i.e., to refute or supplement a government report. It would then be considered by the Committee of Experts, and the government concerned asked to comment on it. Eventually it could be considered by the Conference Committee if it is included in an observation. This mode is usually a more rapid way of bringing problems to the ILO’s attention than using one of the formal complaints mechanisms, and is more likely to be acceptable to workers’ and employers’ bodies. The second way is nevertheless for the information from the NGO to be submitted as a representation by the employers’ or workers’ organisation under Article 24 of the Constitution. A third way resembles the way in which NGOs have traditionally worked at the United Nations, that is by feeding information to delegates at the ILO Conference when situations are being discussed in the Committee on the Application of Standards. All these means have been used successfully in recent years to bring to the ILO’s attention matters that are not within the direct interest of trade unions but which they are glad to bring to the ILO. Finally, ILO bodies frequently take account of information submitted by NGOs to UN bodies. There is another, more direct way of submitting information to the ILO. As indicated, lack of access really means only lack of standing to begin a procedure – and the ILO does not function principally as a complaints-driven supervisory body. However, if objective information relevant to the application of a convention is made available to the ILO – a new law or regulation, a court judgement, government statistics that the ILO has not learned of from other sources – this can have a great effect on the ILO’s analysis of a situation. The International Labour Office does not assess the value of such information on the basis of its source, but simply on the basis of whether it is accurate and objectively verifiable. The ILO secretariat often has the occasion to explain to NGOs that accusations of violation of standards, from any source, which rely on general accusations and on broad assertions, are of little use to a supervisory system which is rigorously based on evaluation of law and practice. Objective and verifiable information, on the other hand, will always be useful, and will always be used. NGOs sometimes have direct access. Even the most concrete rules have exceptions. In the ILO’s case, there are two major ones. When the ILO is examining a complaint under Article 26 of the ILO Constitution via a Commission of Inquiry, the Commission calls witnesses. Practice through the years has been that the Commission may request any knowledgeable person or body to pro-
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vide information, including NGOs other than occupational ones. Even if these organisations cannot initiate complaints, they can take part in their examination by gathering and submitting detailed and objective information to their proceedings. This has been used particularly in association with a complaint instituted in 1996 as concerns forced labour in Myanmar, which since then has been pursued vigorously by the ILO in several forms. Another way for NGOs to work with the ILO is to take part in its practical activities of assistance to the most excluded sectors of the population. In Geneva, we tend to only see the NGOs that act as advocacy groups in the international system. In some of the least developed countries, NGOs do the practical work at the national and community levels that government is unable, or sometimes unwilling, to do – advocacy in courts, direct assistance to children and the poor or political mobilisation of disadvantaged groups such as ethnic minorities or indigenous and tribal peoples. The ILO often works closely with these NGOs in “the field”, especially when the trade unions and employers’ organisations do not work actively in those areas. This in turn informs the ILO of the attitudes and priorities of such organisations, and provides the access that partners always enjoy – to influence the ways of working and of thinking of outside development agencies. This is particularly the case for the International Programme on the Elimination of Child Labour (IPEC), the ILO’s largest technical assistance programme – which now works in nearly 90 countries. The same technique is also used by the Project for the Promotion of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), albeit on a smaller scale. Future prospects for increased access As indicated above, NGOs have remarkable access to the ILO, and significant limitations on this access in many situations. Yet, international advocacy NGOs complain of lack of ability to intervene at will in ILO meetings, and the absence of individual complaints procedures. Quite frankly, neither of these subjects is on the ILO’s agenda for discussion. What we have seen instead is increasing sophistication of NGOs about the benefits they can gain from working with the ILO, and a growing recognition that it is not the United Nations. Thus, some of them are learning to work with the ILO in ways that draw on its strengths and compensate for its weaknesses. The ILO’s traditional partners, the employers’ and workers’ representatives, are very reluctant to grant increased access to other NGOs to the ILO’s proceedings. It is sometimes difficult to get approval from the Governing Body for meetings that involve NGOs other than these, or to involve them in discussions. They have grown to know that non-occupational NGOs are indispensable partners on the ground, but do not want to compromise their exclusive access to the ILO’s procedures. Thus the NGOs that wish to work with the ILO will have to adapt, at least for the moment, to the existing ILO’s procedures. If they do, they will learn that although their access is different from what they are assured at the United Nations, it is no less effective.
28
Role of UNESCO in Human Rights Implementation Bhaswati Mukherjee*
Introduction The protection and promotion of human rights and fundamental freedoms is an intrinsic element of the UN Educational, Scientific and Cultural Organisation (UNESCO) Constitution, which was adopted in London on 16 November 1945. Its Preamble notes: “The wide diffusion of culture, and the education of humanity for justice and liberty and peace are indispensable to the dignity of men.” Moreover, Article 1 of the Constitution states that the purpose of UNESCO is “to contribute to peace and security by promoting collaboration among nations through education, science and culture in order to further universal respect for justice, for the rule of law and for human rights and fundamental freedoms, which are affirmed for the peoples of the world without distinction of race, sex, language or religion by the Charter of the United Nations”. It is often overlooked that UNESCO was actively involved in the elaboration of the Universal Declaration of Human Rights and also assisted in drafting the two international covenants, which today provide the basic framework for all human rights jurisprudence. UNESCO, thus, has a mandate provided by its Constitution to contribute to the promotion of all human rights and a special responsibility with regard to certain rights in education, culture and cultural diversity and freedom of expression and opinion. The role of UNESCO in standard setting UNESCO has adopted about 60 standard setting instruments relating to human rights. The recent and perhaps most controversial treaty is the Convention on the Protection *
Ambassador/Permanent Representative of India to UNESCO. Some of which include: the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005); Universal Declaration on Bioethics & Human Rights (2005); Convention for the Safeguarding of the Intangible Cultural Heritage (2001); Recommendations Concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace (2001); Universal Declaration on the Human Genome and Human Rights (1997);
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 301-306.
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and Promotion of the Diversity of Cultural Expression, which was adopted by the General Conference at its 33rd session in 2005. These conventions, declarations and recommendations mainly address the right to education, the protection of moral and material interest resulting from scientific, literary or artistic production and the right to take part in cultural life and protect cultural diversity and world heritage. UNESCO has conducted research in order to clarify the role of these rights and to suggest measures for their implementation. It has an acknowledged role in the field of human rights education. It has also tried to integrate a human rights based approach into all phases of its programme of competence. Indeed, the Medium-Term Strategy 2002–2007 defines the promotion and protection of human rights as one of the priorities of the Organisation. A few words about the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expression. Its negotiations reveal an ideological divide between the perspective that culture and therefore cultural goods and services need to be submitted to market forces, like all other commercial goods and services, and the insistence from developing countries as well as the European Union that cultural diversity and all issues that flow from it, including cultural goods services, need to be cherished, nurtured and protected. For over 60 years, nurturing cultural diversity had never been the subject of an international instrument or a recognised human right. It was only part of the different rights embodied in the Universal Declaration. Thus, this Convention marks a turning point in the new approach to rights in this millennium. The monitoring mechanism of these standard setting instruments is based, as with other human rights instruments, on a State reporting procedure, as established in Article 4(6) and Article 8 of its Constitution. Reports by States Parties are examined by a 30 member Committee on Conventions and Recommendations, presently chaired by Brazil’s Ambassador/Permanent Representative to UNESCO. As with the human rights mechanisms in Geneva, Member States have tried to address the reporting burden on States Parties. Indeed, the Committee on Conventions and Recommendations is presently examining a number of options to reform these reporting mechanisms, keeping in mind similar efforts being made in Geneva. Several transitional measures have been recommended to the Executive Board. These measures are applicable only to the conventions and recommendations entrusted to the Committee on Conventions and Recommendations.
Declaration on Race and Racial Prejudice (1978); Recommendation Concerning Education for International Understanding, Cooperation and Peace and Education Relating to Human Rights and Fundamental Freedoms (1974); Convention Concerning the Protection of the World Cultural and Natural Heritage (1972); Recommendation Against Discrimination in Education (1960); and Convention Against Discrimination in Education (1960). More specifically, it was adopted on 20 October 2005. It follows the Universal Declaration on Cultural Diversity of 2 November 2001. 31 C/4, paras. 90–92. Article 4(6) states that “[t]he General Conference shall receive and consider the reports sent to the Organization by Member States on the action taken upon the recommendations and conventions or, if it so decides analytical summaries of these reports”. 165 EX/Decision 6.2 of the Executive Board.
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UNESCO’s communication procedure The main mechanism for the protection of human rights within UNESCO’s areas of competence is the communication procedure established in 1978. This provides for the examination of cases and questions submitted to UNESCO by individual petitions on alleged violations of human rights within its sphere of competence. The communication procedure, as with the 1503 procedure followed in Geneva, is strictly confidential. It, however, has important divergences from the 1503 procedure, which will be discussed subsequently. The good offices of the Director General The Director General may also, through the right of intersession vested in him, personally undertake humanitarian representations for individuals who have allegedly been victims of human rights violations in UNESCO’s fields of competence and whose cases call for urgent consideration. The role of the Committee on Conventions and Recommendations in human rights implementation in UNESCO: the confidential complaints procedure The Committee on Conventions and Recommendations is a subsidiary organ of the Executive Board. It has a dual mandate – on one hand, it deals with all questions relating to the implementation of UNESCO’s standard setting instruments entrusted to it by the Executive Board and, on the other, it oversees the confidential UNESCO procedure for handling complaints of alleged violations of human rights in its fields of competence, mainly education, science, culture and information. It was established through Executive Board decision in 1978. Between 1978 and 2003, out of the 508 cases recognised admissible, 315 cases were settled. The second part of its mandate was no doubt prompted by UNESCO’s desire to protect its core areas of competence, notably the promotion of freedom of expression and the rights of journalists, artists and others who may be at risk in non-democratic, non-pluralistic societies. With regard to this second aspect of its terms of reference, a procedure has been established whereby any communication received by the Director General which would appear to be covered by the provisions of 104 EX/Decision 3.3 is examined and acknowledged by the Secretariat, which also draws the attention of the author to the conditions governing admissibility and asks the author to fill out a form and to confirm that he/she agrees to the examination of his/her communication. As soon as an affirmative answer is received from the author of the communication, a letter is sent by the Director General of UNESCO to the concerned government with a copy of the communication
104 EX/Decision 3.3 by the Executive Board. 19 C/Resolution 12.1 104 EX/Decision 3.3 Paragraph 14(a) of 104 EX/Decision 3.3.
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informing it that any reply it may wish to make will be brought to the attention of the Committee and that a representative of the government concerned may attend meetings of the Committee in order to provide additional information or answer questions on either the admissibility or the merits of the communication. After allowing a reasonable timeframe of usually three months for the government’s response, the Secretariat transmits to the members of the Committee the text of the communications that have been dealt with together with the summary of the case and information regarding the response of the government. The Committee then meets in private session to examine these communications. Its first task is to determine whether the conditions governing admissibility have been met. If the information furnished by the author of the communication is not adequate, the Committee can ask the representative of the government concerned to supply further information. If the Committee considers that such information is required before it can rule on the admissibility of a communication, it can keep the communication pending on its agenda. If it declares a communication admissible, the Committee pursues its examination as far as possible with a view to resolving the issue in an amicable manner so as to promote human rights and fundamental freedoms. The conditions regarding admissibility have been carefully considered before adoption. A communication can only be considered admissible if it meets the following conditions: – The communication must not be anonymous. – The communication must originate from a person or a group of persons, who, it can be reasonably presumed, are victims of an alleged violation or any person, group of persons or organisation having reliable knowledge of these violations. – The communication must concern violations of human rights falling within UNESCO’s competences in the fields of education, science, culture and information. – The communication must be compatible with the principles of the Organisation, the UN Charter, the Universal Declaration, the International Covenants on Human Rights and other international instruments in the field of human rights. – The communication must not be manifestly ill founded and must appear to contain relevant evidence. – The communication must be neither offensive nor an abuse of the right to submit communications. – The communication must not be based exclusively on information disseminated through mass media. – The communication must be submitted within a reasonable timeframe. – The communication must indicate whether an attempt has been made to exhaust available domestic remedies with regard to the facts that constitute the subject matter of the communication and the result of such an attempt if any. – Communications relating to matters already settled by the States concerned in accordance with the human rights principles set forth in the Universal Declaration and the international covenants shall not be considered.
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Such detailed admissibility criteria are quite unique in the human rights context and follow the mood of the house, i.e. amicable solution. Reference has been made earlier to the divergences of this procedure from the 1503 procedure. The historical context in which this procedure was adopted must be kept in mind. In the context of the Cold War, it was essential that the alleged victims would benefit from this procedure, i.e. that the Committee in taking a decision would not worsen the human rights and fundamental freedoms of the alleged victims. In fact, paragraph 7 of 104 EX/Decision 3.3 clearly states: “Considering that, in matters concerning human rights within its field of competence, UNESCO, basing its efforts on moral considerations and its specific competence, should act in a spirit of international cooperation, conciliation and mutual understanding, and recalling that UNESCO should not play the role of an international judicial body.” The message is clear. This is not the International Court of Justice or an international arbitration panel. This is a mechanism for advancing cooperation, reconciliation and conciliation in the best interests of the alleged victims. Unlike the 1503 procedure, country specific resolutions or appointments of special rapporteurs/thematic rapporteurs do not follow them up. In fact, in some cases which have already been under the consideration of a thematic rapporteur, the Committee has achieved remarkable success due to its unique method of functioning. In adopting this approach, however, UNESCO has naturally followed the established human rights norms that questions of massive, systematic or flagrant violations of human rights and fundamental freedoms – including those perpetrated as a result of policies of aggression, interference in the internal affairs of States, occupation of foreign territory and implementation of a policy of colonialism, genocide, apartheid, racism, national and social oppression – falling within UNESCO’s fields of competence shall be considered by the Executive Board and General Conference in public meetings. The Committee on Conventions and Recommendations at work The Committee, through a series of competent Chairmen and with the help of a dedicated Secretariat, has generally avoided the over politicisation manifest in many of the human rights mechanisms in Geneva. Governments are eager to cooperate and sometimes travel long distances with large delegations to provide full and up-to-date information. It is a source of particular satisfaction that as result of the Committee’s interventions in many cases the alleged victim has resumed enjoyment of his/her human rights and fundamental freedoms. In that event, the Committee usually decides to adopt the following prototype decision: Following the examination of this communication, the Committee decided: a) To thank the representative of the Government concerned for his attendance and cooperation; b) To note with satisfaction the release of …; and c) To strike this communication from its list.
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Some reflections on the future of this mechanism The Committee on Conventions and Recommendations is conscious that this mechanism should not duplicate existing mechanisms elsewhere, especially those in Geneva. Moreover, with the passage of time, the pattern of communications has shifted from one continent to another. This has political sensitivities, and the Committee is conscious that the pattern of communications should not strengthen a perception of bias or reinforce, in any way, the so-called “clash of civilisations”. The conditions regarding admissibility are, therefore, being re-examined, and consideration is being given on whether a Working Group on Communications, consisting of a few members of the Committee, should be established to examine the communications in order to determine their admissibility. This would have brought this procedure in conformity with the 1503 procedure. However, the Committee has yet to debate this change, which in effect would take away from the Director General of UNESCO and its Secretariat their right to determine the admissibility criteria. The way forward Much is being said in the context of the UN High Level Panel to explore how the UN system could function more effectively on “system wide coherence”. It is, however, important to recall that a specialised agency such as UNESCO has a unique role of continuing relevance in all its core mandates. One need only consider the historic resolution by the General Conference10 that reaffirmed “UNESCO’s universal calling” and recalled that, “in the fields of its competence, UNESCO must in particular, by study of the historical, philosophical, sociological and legal conditions on which human rights are dependant, seek to promote and safeguard civil and political rights as well as economic, cultural and social rights”. After all, UNESCO was founded in order to further universal respect for justice, rule of law and for human rights and fundamental freedoms. Ultimately, its aim and purpose is to bring to all its Member States the ideological longings so beautifully articulated by the famous Indian Poet Rabindranath Tagore before India achieved independence. What Tagore wrote is still relevant for human rights implementation: Where the mind is without fear and the head is held high; Where knowledge is free; Where the world has not been broken up into fragments by narrow domestic walls; Where words come out from the depth of truth; Where tireless striving stretches its arms towards perfection; Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit; Where the mind is led forward by thee into ever-widening thought and action – Into that heaven of freedom, my Father, let my country awake.
10 General Conference 6.113.
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The World Bank Inspection Panel Laurence Boisson de Chazournes*
Public participation, the World Bank Inspection Panel and the international decision-making process The World Bank Inspection Panel (hereinafter “the Panel”) was established by the Board of Executive Directors (hereinafter “the Board”) of the World Bank (hereinafter “the Bank”) in September 1993. It is an unprecedented mechanism in the world of international organisations insofar as it provides a means of supervising the Bank’s operations. It enables institutional and non-institutional actors to bring complaints against the Bank through an investigatory mechanism.
*
Professor and Head of Department, Department of Public International Law and International Organisation, Law Faculty, University of Geneva, Switzerland. The Panel was created by the adoption of two identical resolutions emanating from the Executive Board of the International Bank for Reconstruction and Development (IBRD No. 9310) and the International Development Association (IDA No. 93-6) (see I. F. I. Shihata, The World Bank Inspection Panel: In Practice, 2nd edition (Oxford University Press, Oxford/New York, 2000) pp. 271–277 and pp. 373 et seq. The text of these resolutions is also available at <wbln0018.worldbank.org>, visited on 6 June 2006). In 1996 and 1999, the Board of Executive Directors issued further clarifications for the application of the resolutions establishing the Panel (see ‘Review of the Resolution Establishing the Inspection Panel’, 17 October 1996, and the ‘Conclusions of the Board’s Second Review of the Inspection Panel’, 20 April 1999, reproduced in Shihata, supra within this footnote, pp. 320–328). The “World Bank Group” is made of five institutions: the International Bank for Reconstruction and Development (IBRD), established in 1944; the International Finance Corporation (IFC) and the International Development Association (IDA), established in 1956 and in 1960, respectively; the International Center for the Settlement of Investment-Related Disputes (ICSID) and the Multilateral Investment Guarantee Agency (MIGA), set up in 1965 (Washington Convention) and 1985 (Seoul Convention), respectively.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 307-312.
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Borrower States are obviously privileged partners of the Bank, as the vast majority of loan operations are made with them or with related entities. Notwithstanding this, within the context of the preparation and implementation of operational activities, other actors may even if they are not a party to the transactional operations wish to intervene in order to put forward their point of view in relation to the development of Bank-financed operations. Such is the case for non-governmental organisations (NGOs), be they local, national or international, or groups of people that have an interest in a project financed by the Bank. The concept of public participation is at the heart of the Panel procedure. In particular, it aims at taking due account of the interests of local populations in borrowing countries and ensuring means for access to justice. This principle, which blossomed at the end of the 1980s, has become a key concept in efforts to ensure that projects are effectively implemented and that they produce expected results. In this context, the possibility of having requests brought by groups of persons living in borrowing countries who allege that they are affected by a project financed by the Bank was conceived as a means of placing under scrutiny the Bank’s compliance with its own operational policies. This process is innovative since it gives civil society a place at the core of the international decision-makers’ considerations, and paves the way for ensuring accountability for the Bank’s decisions. This procedure also acts as an institutional bridge between the Bank’s executive organ, i.e. the Board, and the ultimate beneficiaries of the financed project. Thus, the Panel makes contact possible between the Board and affected individuals. The Panel: a sui generis dispute settlement procedure The Panel is a subsidiary body of the Board. Established by the Board and entrusted with the task of examining the Bank’s activities in light of the policies elaborated by the former, the Panel is an autonomous body whose independence is guaranteed in various ways. It has been established to ensure better quality in the projects financed by the Bank through an investigation procedure. It has jurisdiction over the operational activities of two of its affiliates: the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA) (the two affiliates are hereinafter included in the term “the Bank”). The Panel’s jurisdiction only extends to the Bank’s activities. The borrower States’ behaviour does not fall within its jurisdiction. Admittedly, the distinction between Bank’s behaviour and that of the borrower is likely to raise
However, there are some World Bank grant-programmes that provide funds to non-States entities, such as foundations or associations. On the significance and status of the World Bank Operational Policies, see L. Boisson de Chazournes, ‘Policy Guidance and Compliance Issues: The World Bank Operational Standards’, in D. Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford University Press, Oxford/New York, 2000) pp. 289–292. On the guarantees securing the Panel’s independence, see paras. 2–10 of the resolution establishing the Panel.
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problems in practice because of the permeable nature of the relationship that prevails between the Bank and its borrowers. The Panel procedure is characterised by flexibility and the fact that it is non-judicial in nature. The procedure is both preventive and curative. The Panel may be seized in a “preventive” manner during a project’s preparation phase in order to lodge a complaint in respect of potential damages (e.g. as was the case in the Arun Valley project). It may also be seized during the implementation phase of a project when the contemplated (and potentially damaging) activities have not yet begun. The Panel may be seized in a “curative” sense as well when the damage has already occurred, be it during the project’s preparation or implementation phase. Such is the case, for instance, when groups of persons must be displaced before a project (or part of a project) begins. Once initiated, the Panel procedure has several phases, and it is restricted by time limits. A political dimension is added to the technical and factual assessment of the circumstances evoked by the complaint. Indeed, the investigation cannot be undertaken on the Panel’s own initiative; it must have been previously approved by the Board. Similarly, the Board will have to adopt the recommendations and conclusions of the Panel at the end of the investigation before they can result in any effects, notably insofar as management and Bank staffs are concerned. The country concerned by a request for an investigation is informed that the request has been lodged, and the Panel takes that country’s opinion into account in the course of its inspection. If the Panel wishes to visit the concerned country, it must obtain its prior approval. In 1999, under cover of the diplomatic formula “gentlemen’s agreement”, the Board committed itself to clarifying its role by accepting that field visits would be authorised if the Panel deemed them to be necessary: The Board recognizes that enhancing the effectiveness of the Inspection Panel process through the above clarifications assumes adherence to them by all parties in good faith. It also assumes the borrowers’ consent for field visits envisaged in the Resolution. If these assumptions prove to be incorrect, the Board will revisit the above conclusions.
The Panel’s recommendations at the conclusion of any investigation must be approved by the Board before they can have any effect. The Panel’s conclusions may shed light on weaknesses in the Bank’s functioning, compelling the Bank to correct its behaviour by means of action plans. Undertaking such a procedure may also reveal deficiencies attributable to the borrower country. However, as previously said, such behaviour does not formally belong to the procedure before the Panel, and it is therefore in parallel to the latter that borrower countries may have to decide on a future course of action in concert with the Bank. Any such action, nonetheless, remains external to the review
See L. Boisson de Chazournes, ‘The World Bank Inspection Panel: About Public Participation and Dispute Settlement’, in T. Treves (ed.), Civil Society, International Courts and Compliance Bodies (TMC Asser Press, The Hague, 2005) p. 193. See A. Umaña Quesada, The World Bank Inspection Panel: The First Four Years (1994–1998) (World Bank Publications, Washington DC, 1998). See ‘Conclusions of the Board’s Second Review of the Inspection Panel’, supra note 1.
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process before the Panel and is not subject to supervision by the Panel. However, a concession was made in 1999 in terms of extending the Panel’s powers to the Bank and State actions after its recommendations had been approved. It was not, however, granted a general oversight role in the development and implementation of action plans; it was only granted jurisdiction to allow it to assess the nature of the consultations undertaken with affected populations during the preparation of an action plan between the borrower and the Bank. Lodging a complaint with the Panel The favoured method of seizing the Panel is based on complaints by private persons who consider that they have been adversely affected by a project. The crucial issue is to identify the individuals who may lodge a complaint. It cannot be a country’s entire population but groups of private persons living in the project zone (or representatives of persons living there) and who run the risk of suffering damage by activities related to Bank-financed projects. They must allege and prove, on the one hand, that the Bank has not followed its own operational policies and procedures, and, on the other hand, that this has provoked, or may provoke, material adverse effects. They must have previously expressed their concerns to Bank representatives and be unsatisfied with the results. According to paragraph 12 of the resolution establishing the Panel, NGOs can submit requests to the Panel as the local representatives of an “affected party” if they prove that the concerned populations have duly entitled them to do so. International NGOs may also play the role of “another representative in the exceptional cases where the party submitting the request contends that appropriate representation is not locally available”. The Board must approve this mode of representation during their evaluation of the request for inspection brought to their attention by the Panel. This implicitly means that, in such circumstances, the Board would assess a country’s domestic situation, including the extent to which fundamental freedoms, such as freedom of association and freedom of assembly, are respected. Paragraph 12 of the resolution establishing the Panel also gives the right to a World Bank Executive Director or the whole Board to seize the Panel. On one occasion, the Board asked the Panel to conduct an investigation into a project in China.10 The request for investigation had in fact been initiated by international NGOs, thus raising the problem of the Board’s authorisation for doing so. In order to obviate this issue, and because the Chinese representative had agreed to this arrangement, the Board asked the Panel to undertake an investigation. In this situation, one is not within the context of a given group of persons’ specific interests having been affected. What is at issue here is the ability of representatives of the Bank’s main decision-making body to verify the quality of See para. 12 of the resolution establishing the Panel. See also ‘Review of the Resolution Establishing the Inspection Panel’, supra note 1. 10 See Board, Proposed Decision on Request for Inspection: China Western Poverty Reduction Project: Credit No. 3255 CHA and Loan No. 4501 CHA, INSP/R99-6/2, 7 September 1999. See also Panel, Report: The Qinghai Project: A Component of the China: Western Poverty Reduction Project: Credit No. 3255 CHA and Loan No. 4501 CHA, 28 April 2000.
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the projects financed by the Bank. They are, therefore, acting in the name of a collective interest covering both the interests of private persons affected by a project and those of the Bank. Once a claim has been lodged, private persons are no longer formally involved in the procedure. Their access to information is the same as that of any person external to the Bank. Nevertheless, the Panel may question them and take their views into account. The Panel, in addition, has the ability to do so with any person of its choice. Individuals, groups of persons and national and international NGOs may also transmit documents and reports related to an investigation to the Panel.11 This practice resembles the submission of amicus curiae that operate in other dispute settlement forums. Conclusion: specific features of the Panel procedure and subsequent practice The novelty of the Panel procedure is more striking when one ponders, for instance, the external disputes in which international organisations are involved and the difficulty of finding forums competent to receive claims for accountability from these organisations.12 Of course, one must remember that the Panel is not a contentious dispute settlement procedure. And it is by no means a mechanism challenging or asserting the Bank’s legal responsibility greater than that of the borrower countries or their decision-making bodies. Nonetheless, in the event of dysfunction within the system, the Panel procedure enables problems to be “objectivised” by way of a control mechanism and may result in a correction of the Bank’s behaviour for the benefit of the affected populations. Following the example of the Bank, regional development banks, such as the InterAmerican Development Bank (IADB) and the Asian Development Bank (AsDB) have set up mechanisms to allow concerned peoples to challenge alleged violations of their policies. Indeed, the IDB and AsDB set up similar procedures and reviewed them at the turn of the 21st century.13 It is interesting to note that in the revision process emphasis was placed on the need for consultations and a problem-solving procedure prior to recourse to compliance review. The European Bank for Reconstruction and Development (EBRD) created its own mechanism, which has been operational since April 2004. The Independent Recourse Mechanism (IRM) consists of a “system of processes and procedures designed to provide a venue for an independent review of complaints or grievances from groupings that are, or likely to be, directly and adversely affected by a Bankfinanced project”.14 Finally, in 2004, the African Development Bank (AfDB) approved R. E. Bissel, ‘Recent Practice of the Inspection Panel of the World Bank’, 91:4 American Journal of International Law (1997), pp. 743 et seq. 12 On this issue, see L. Boisson de Chazournes, C. Romano and R. Mackenzie (eds.), International Organizations and International Dispute Settlement: Trends and Prospects (Transnational Publishers, New York, 2002). 13 For a comparison of the three institutions, see Shihata, supra note 1, pp. 491–500. See also The IDB Independent Investigation Mechanism, 2001, <www.iadb.org >, visited on 6 June 2006 and AsDB Accountability Mechanism, 2003, <www.adb.org>, visited on 6 June 2006. 14 See EBRD, Independent Recourse Mechanism as Approved by the Board of Directors on 29 April 2003, Annex 1, para. 2, <www.ebrd.org>, visited on 6 June 2006. 11
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the creation of its own compliance review mechanism, which includes a problem solving and a compliance review procedure. 15 Moreover, in 2000, two affiliates of the World Bank Group, namely the International Finance Corporation (IFC) and the Multilateral Investment Guarantee Agency (MIGA), established a Compliance Advisor/Ombudsman (CAO). A significant characteristic, when compared to other models, is that this mechanism only deals with private sector projects. The IFC and the MIGA have opted for a body fulfilling both advisory and compliance functions as well as an ombudsman role.16 The innovative aspects of the Panel procedure must not allow one to forget that this mechanism’s endogenous aspects are linked to the peculiarities of the Bank within which it was established. The Bank structure together with the types of activities it conducts has strongly influenced the shape of the mechanism. The Panel’s experience – 32 claims have been declared eligible as of May 200617 – shows that the implementation of this investigation procedure has contributed to improving the quality of Bank-financed operations. It has also enforced corrective measures, premised largely on the contribution of local populations. It has also allowed for the establishment of a series of mechanisms and procedures within the Bank to ensure supervision of the quality of operations during the preparation and implementation of projects. The Panel procedure also sheds light on new trends in the contemporary legal order, especially on the need to build public spaces enabling relationships between partners destined to work side-by-side. The World Bank has joined this emerging trend by establishing the Panel as well as by taking part in the implementation of other innovative mechanisms with respect to the international decision-making process.
15 See African Development Bank, ADB/BD/WP/2004/60, 30 June 2004. 16 Its function, mandate and the applicable procedural requirements are to be found on the IFC website at <www.ifc.org/cao/index.html>, visited on 6 June 2006. 17 As of October 2006, out of 42 requests received the Panel registered 37. Out of the 37 registered requests the Panel found 3 to be not eligible (the reasons being that harm did not exist or it was not related to a Bank-financed project). Out of the 34 Requests found eligible the Panel recommended an investigation in 21 cases.
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Monitoring the Human Right to Adequate Food at Country Level Maarten Immink and Margret Vidar*
Introduction Monitoring the realisation of economic and social rights has long been seen in terms of identifying suitable indicators, which could then be reported on by governments to national human rights institutions, and more often to international treaty monitoring bodies. In practice little difference was normally perceived between monitoring the realisation of the right and monitoring the status of the object of that right, such as the right to adequate food and food security. In the context of current discussions about human rights-based approaches to development and to socio-economic issues, some differentiation between food security and the right to food is beginning to be made, both in terms of the substance of monitoring and the monitoring process itself. At the same time, it is useful to differentiate between monitoring undertaken by representatives of institutions that have responsibilities for the realisation of the right and those of independent human rights bodies. This chapter explores these developments and explains the current thinking about the practical aspects of monitoring the realisation of the right to adequate food at country level. It does not address the parallel efforts of the United Nations Rapporteur on the Right to Food.
*
The authors work for the Right to Food Unit of the Food and Agriculture Organization (FAO) of the United Nations. Maarten Immink is also a former coordinator of the Food Insecurity and Vulnerability Information and Mapping Systems (FIVIMS) Secretariat at FAO. All opinions expressed here are those of the authors and do not necessarily reflect the position of the FAO. Much of the content of this chapter is drawn from work currently underway within the Right to Food Unit of the FAO in follow up to the adoption of the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security. Professor Jean Ziegler, Special Rapporteur on the Right to Food (since 2000). See UN Docs. A/58/330, A/57/356, A/56/210, A/HCR/4/30 and E/CN.4/2006/44.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 313-323.
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Roots of right to food monitoring The beginnings of the FIVIMS initiative The 1996 World Food Summit established the global goal of hunger eradication with the specific goal to halve the number of hungry people from 840 million to 410 million by 2015. It was also recognised that coherent and effective policies and action programmes are needed that aim at achieving these goals. To ensure that policies and programmes indeed are effective, it is essential that policy decision makers, planners and programme managers have adequate information that indicates: (a) who the food insecure and hungry are; (b) where they are located; (c) why they suffer from hunger and are vulnerable to food insecurity; and (d) what coping and survival strategies food insecure and vulnerable groups employ. In addition, monitoring information should also cover the effects of policies and programmes on the vulnerability to food insecurity among resource-poor population groups. Given the multi-causality of food insecurity and malnutrition, this involves information from many different sectors. The World Food Summit recognised that there are numerous institutional, technical and financial constraints with respect to in-country information systems, even if data availability is often not the major problem. In response, the Food Insecurity and Vulnerability Information and Mapping System (FIVIMS) was established as an inter-agency initiative to strengthen food insecurity and vulnerability information and mapping systems at global and national levels. The Secretariat of the FIVIMS initiative was established at the Food and Agriculture Organization (FAO). The right to food guidelines The World Food Summit reaffirmed the right to adequate food and the fundamental right to be free from hunger, and called for clarification of the rights related to food and ways of implementing them. This led to increased work on the right to adequate food within FAO itself as well as to the adoption of General Comment 12 on the right to adequate food by the Committee on Economic, Social and Cultural Rights and other developments regarding the human right to food.
Rome Declaration on World Food Security, included in FAO, Report of the World Food Summit – 13–17 November 1996 (Rome, 1997), Part One. FAO, Guidelines for National FIVIMS: Background and Principles (Rome, 2000). Objective 7.4 of the World Summit Plan of Action, in FAO, supra note 2. Committee on Economic, Social and Cultural Rights, General Comment 12, The Right to Adequate Food, E/C.12/1999/5. On the full history, see I. Rae et al., ‘History and Implications for FAO of the Guidelines on the Right to Adequate Food’, in W. B. Eide and U. Kracht (eds.), Food and Human Rights in
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The 2002 Declaration of the World Food Summit: Five Years Later invited the FAO Council to establish an Intergovernmental Working Group to elaborate, in a period of two years, voluntary guidelines on the right to adequate food. In November 2004, the FAO Council adopted the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, hereafter referred to as the Right to Food Guidelines. The entire process represents the first time that Member States themselves worked together to draft such a document for any one of the economic, social and cultural rights. The FAO Secretariat prepared a number of background papers on specific right to food topics during the process, one of which dealt with monitoring. Direct technical support was provided by the Secretariat of the FIVIMS initiative to the preparation of that paper. The Right to Food Guidelines are intended to provide practical guidance and advice to States in establishing priorities and in identifying ways to implement measures towards the full realisation of the right to adequate food. The Guidelines address a range of activities and issues that States should consider in the implementation of the human right to adequate food and contain three sections. Section I explains the objective of the Right to Food Guidelines, refers to relevant international instruments, and explains what food security and the right to adequate food mean, using the analytical framework10 of obligations to respect, protect and fulfil. Section II of the Right to Food Guidelines addresses the enabling environment, assistance and accountability measures that should be taken to implement the right to food, and consists of 19 specific Guidelines.11 Section III refers to international measures, actions and commitments and addresses: international cooperation; unilateral measures; the role of the international community; technical cooperation; international trade; external debt; official development assistance; international food aid; partnerships with non-governmental organisations Development, Volume II: Evolving Issues and Emerging Applications (Intersentia, Antwerp/ Oxford, 2007). FAO, ‘International Alliance Against Hunger’, Declaration of the World Food Summit: Five Years Later, in Report of the World Food Summit: Five Years Later (Rome, 2002), Part One. FAO, Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (Rome, 2005). See also Report of the Council of FAO, Hundred and Twenty-seventh Session, Rome 22–27 November 2004, FAO Document CL 127/REP, Appendix D. FAO, Monitoring the Implementation of the Right to Adequate Food, FAO Document IGWG RTFG/INF 8, March 2005. 10 See Committee on Economic, Social and Cultural Rights, supra note 5. 11 The 19 Guidelines concern: 1. Democracy, good governance, human rights and the rule of law; 2. Economic development policies; 3. Strategies; 4. Market systems; 5. Institutions; 6. Stakeholders; 7. Legal framework; 8. Access to resources and assets; 9. Food safety and consumer protection; 10. Nutrition; 11. Education and awareness raising; 12. National financial resources; 13. Support for vulnerable groups; 14. Safety nets; 15. International food aid; 16. Natural and human-made disasters; 17. Monitoring, indicators and benchmarks; 18. National human rights institutions; 19. International dimension.
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(NGOs), civil society organisations (CSOs) and the private sector; promotion and protection of the right to adequate food; and international reporting. In practice, many of the Right to Food Guidelines represent intermediate steps that require transformation of their normative contents into practical tools for development planning, policy formulation and the establishment of legal and institutional frameworks. Programme and project design requires further normative explanations, tools and manuals as well as capacity strengthening of duty bearers, i.e. the specific State institutions responsible for the realisation of the right to adequate food and for monitoring progress and compliance. Why monitor the right to food? The right to food is recognised in most countries by reason of their ratification of international treaties. It is further enshrined in national constitutions and domestic legislation of a number of countries, and reiterated in national public policy documents. Compliance therefore needs to be monitored. Box 1 GUIDELINE 17: Monitoring, Indicators and Benchmarks 17.1. States may wish to establish mechanisms to monitor and evaluate the implementation of these Guidelines towards the progressive realization of the right to adequate food in the context of national food security, in accordance with their capacity and by building on existing information systems and addressing information gaps. 17.2. States may wish to consider conducting “Right to Food Impact Assessments” in order to identify the impact of domestic policies, programmes and projects on the progressive realization of the right to adequate food of the population at large and vulnerable groups in particular, and as a basis for the adoption of the necessary corrective measures. 17.3. States may also wish to develop a set of process, impact and outcome indicators, relying on indicators already in use and monitoring systems such as FIVIMS, so as to assess the implementation of the progressive realization of the right to adequate food. They may wish to establish appropriate benchmarks to be achieved in the short, medium and long term, which relate directly to meeting poverty and hunger reduction targets as a minimum, as well as other national and international goals including those adopted at the World Food Summit and the Millennium Summit. 17.4. In this evaluation process, process indicators could be so identified or designed that they explicitly relate and reflect the use of specific policy instruments and interventions with outcomes consistent with the progressive realization of the right to adequate food in the context of national food security. Such indicators could enable States to implement legal, policy and administrative measures, detect discriminatory practices and outcomes, and ascertain the extent of political and social participation in the process of realizing that right. 17.5. States should, in particular, monitor the food-security situation of vulnerable groups, especially women, children and the elderly, and their nutritional status, including the prevalence of micronutrient deficiencies. 17.6. In this evaluation process, States should ensure a participatory approach to information gathering, managem ent, analysis, interpretation and dissemination.
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The importance of monitoring the protection and realisation of the human right to adequate food for everyone is fully recognised in the Right to Food Guidelines. Guideline 17 (Box 1) deals with monitoring, indicators and benchmarks, and should be seen in conjunction with related Guidelines that address right to food assessments (Guideline 3.2), institutional aspects (Guideline 5.2), stakeholder participation in monitoring (Guidelines 6.1, 10.3 and 18.1) and disaggregated vulnerability analysis for different population groups (Guideline 13.2). Most international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights, establish explicit reporting obligations to a treaty monitoring body, such as the Committee on Economic, Social and Cultural Rights. These reporting obligations provide an additional reason why it is necessary to monitor the realisation of human rights. The primary reason for monitoring, however, must relate to the rights as such and the rights holders. It is clear that monitoring should provide the information necessary for duty bearers and rights holders alike to assess the extent to which human rights are being realised. The concept of “progressive realisation” of certain aspects of human rights, recognised in the Right to Food Guidelines and the International Covenant on Economic, Social and Cultural Rights, also brings to the forefront the need for periodic reviews to assess whether indeed progress has been made. Right to food monitoring Right to food and food security Food security, according to the World Food Summit, exists when “all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life”.12 The normative content of the right to adequate food is very similar, except, of course, for the notion of legally binding State obligations to respect, protect and fulfil this right that are inherent in human rights.13 Food security and right to food concern primarily those who suffer from undernutrition and malnutrition, including obesity. However, there are other dimensions, related to choice, culture and dignity which are not necessarily manifested in inadequate nutritional status. Furthermore, a human rights-based approach is as concerned with the process by which people’s rights are realised as with the final outcomes. Rights-based approach to monitoring Monitoring food security, applying FIVIMS-type approaches, is increasingly convergent with monitoring the right to adequate food. Both approaches are concerned with outcomes such as reductions over time in hunger and in the number of people who suffer from inadequate access to safe and nutritious food and/or who are vulnerable 12 Supra note 2. 13 Committee on Economic, Social and Cultural Rights, supra note 5.
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to food insecurity and malnutrition. However, food security monitoring with FIVIMS approaches is not explicitly based on human rights principles in general or the right to adequate food in particular. FAO’s work on monitoring the right to adequate food, while drawing on FIVIMS approaches, introduces additional elements that focus on assessing legal and institutional frameworks and on processes by which measures related to the right to adequate food are implemented, linked to obligations and responsibilities of duty bearers. The monitoring process itself should also be compliant with human rights principles and approaches. The Right to Food Unit at FAO has adopted a working definition of human rights-based monitoring, as follows: Rights-based monitoring within a country consists of periodic collection, analysis and interpretation, and dissemination of relevant information to assess the progress in the realisation of the right to adequate food among all members of society, and whether this is achieved in ways compatible with human rights principles.
Expanding on this definition, we can distinguish several levels of rights-based monitoring: (a) Monitoring the degree to which the human right to adequate food has been fulfilled in society. Who is enjoying the right to adequate food, and who is not? (b) Monitoring the impact of national, local and community measures designed to contribute to the progressive realisation of the right to adequate food. (c) Monitoring the political, legal, economic, socio-cultural and institutional processes involved in the implementation of measures that are expected to contribute to the realisation of the right to adequate food. (d) Monitoring the monitoring process itself, i.e. is it conducted in ways that are consistent with human rights principles and approaches? The first two levels thus monitor final results and outcomes, whereas the second two monitor whether implementation processes are consistent with human rights principles. It should be noted that rights-based monitoring is not uniquely related to the right to adequate food, but to monitoring all human rights. Rights-based monitoring encompasses approaches that fully incorporate human rights principles in monitoring the formulation, funding and implementation of relevant policies, programmes, projects and community activities. Information resulting from rights-based monitoring provides guidance for the adoption of measures to ensure better implementation of measures towards making the human right to adequate food a reality, specifically targeting the food insecure and vulnerable, in ways that are fully consistent with human rights principles and approaches. This means, inter alia, that such implementation processes are participatory, accountable, non-discriminatory, transparent, dignified, empowering and observe the rule of law. Thus, processes of implementing the right to adequate food measures should ensure equity in terms of resource distribution, and should not discriminate against any individual or group on the basis of race, sex, religion or any other prohibited reason, and should guarantee transparency in public affairs and administration and ensure popular participation in
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the formulation, implementation and evaluation of public policies and programmes. Assistance should be administered in ways that respect human dignity. The monitoring information, and its analysis and interpretation, should foster accountability and respect for the rule of law, and should increase knowledge among the food insecure and vulnerable about their right to adequate food, and about ways of claiming that right (as well as other rights). Monitoring the right to adequate food complements more conventional monitoring of food security in a number of ways, including the following: – assessing whether norms, standards and principles of international human rights treaties and instruments are incorporated and implemented in national policies, and in development strategies and programmes; – identifying gaps in achievement of human rights norms and of targets and benchmarks, and attempting to understand the causes of non-achievement; – increasing transparency in decision making and implementation of food security and nutrition policy and programme measures; – empowering rights holders by helping them to become rights claimants, using monitoring information as an instrument in that process; – strengthening accountability of State duty bearers for the allocation of public resources and for delivery of public services; and contributing an understanding of the reasons for inefficient allocation of public resources and for poor performance in service delivery; – including the regulation and enforcement of standards regarding the actions of non-State actors that impact on the enjoyment of the human right to adequate food; – assessing the legal and institutional frameworks that condition the realisation of the human right to adequate food; – focusing on food insecure and vulnerable groups and on the underlying causes of food insecurity, vulnerability and malnutrition, for efficient targeting of relevant and effective actions; – drawing attention to breaches of non-discrimination standards in policies and programmes as well as their outcomes, by means of appropriate disaggregation of data and by conducting causal analysis; – turning monitoring into a participatory, inclusive and empowering process. Challenges to monitoring the right to food Monitoring the right to adequate food will not easily happen in many countries. There are a number of challenges that may be found at country level and that will need to be overcome. Some of these are inherent in relevant in-country information systems, particularly in developing countries. Governmental institutions, donor agencies and even academia tend to be fragmented along sectoral lines. This poses a barrier to developing an integrated monitoring framework. Fragmented institutional responsibility for food security often leads to fragmented monitoring responsibilities and places undue burden on inter-institutional information sharing.
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An institutional culture of human rights monitoring is lacking in many countries. One reason may be that there is a lack of political commitment to human rights. Another reason may be that civil servants, at all levels of the government bureaucracy, lack competence to deal with social and economic issues as human rights issues. A third reason may be that the lack of commitment to monitoring allows duty bearers to avoid being held accountable. When no monitoring information is generated to indicate levels of performance and compliance, their performance cannot be questioned or challenged. Decentralised decision making strengthens democracy by giving people at the local level more of a chance to influence policy decisions. This means that there is a need for monitoring information to be generated at local and community levels. But this is precisely where capacity is most often the weakest, and also where resources for capacity strengthening are usually the most limited as needs at national levels are given higher priority. The development, implementation and maintenance of solid information systems requires considerable human, financial and organisational resources, which frequently are not sufficiently available in developing countries. This results in heavy dependence on donor funding and international technical assistance, drawing into question the sustainability of in-country information systems and long-term monitoring. Other challenges are more specific to human rights and the right to adequate food. Government officials and others poorly understand the true meaning and significance of “the right to adequate food”, and what is required to make it a reality. Duty bearers do not always fully understand or appreciate State obligations aimed at making this right a reality. The concept of the right to adequate food is often equated with direct provision of food to all who do not have adequate access. When rights holders also have this expectation, then it is thought that civil unrest might erupt among people who demand food from the government. So, it makes a big difference how authorities understand compliance with the right to adequate food, and how they act upon their understanding of compliance. Public officials may also not be fully aware of the basic international human rights standards and of what is really required of them in practical terms. Specific institutions may be identified as having the primary responsibilities for the human right to adequate food. However, they may not necessarily have the capacity to implement fully policies and tasks derived from human rights obligations as they lack the necessary authority and the human, organisational and financial resources. All this makes it difficult to hold public officials accountable when monitoring their performance. Role of human rights institutions A distinction can be made between institutions and organisations that have a responsibility to generate monitoring information, and those institutions or organisations that represent independent monitoring bodies. The first group includes institutions with responsibilities for the development and implementation of policy and programme measures, such as government ministries and public agencies. National statistical offices have specific responsibilities related to the generation, analysis and dissemination of information. Human rights institutions fall of course into the second category, and normally rely on information generated by the institutions of the first category. Access
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to the information by human rights institutions can be based on legal provisions or they can be of a more informal nature relying in part on goodwill. For example, the South African Human Rights Commission has a constitutional mandate to monitor human rights, and can, if necessary, subpoena any information it needs from government ministries and public agencies.14 Another model is an institutional network to monitor the right to adequate food, with some members distinguished as primary or leading monitoring institutions or organisations, and others as associated institutions, such as academic institutions, that may undertake specialised and highly technical tasks, the results of which feed into the overall monitoring function. Guideline 19 of the Right to Food Guidelines recognises the importance of human rights institutions and recommends that their mandate should include monitoring the progressive realisation of the right to adequate food and that they should operate in conformity with the 1991 Paris Principles.15 As regards the specific attributes and responsibilities of human rights institutions and organisations entrusted with monitoring human rights, a checklist has been developed by FAO. The institution should have: (a) A clear mandate for monitoring the right to adequate food. This mandate should be endorsed at the highest level (for instance, by parliament) or explicitly stated in the constitution (as is the case in South Africa, for example) or enshrined in specific legislation. (b) Adequate and identifiable human and financial resources to undertake the monitoring tasks. (c) An internal organisation that facilitates that monitoring information outputs easily reach key stakeholders at all levels in both the government and in non-governmental sectors, to effectively influence decision making, planning and programming. (d) A high level of credibility vis-à-vis both duty bearers and rights holders; it should be seen as objective and independent, free from political influence. (e) Effective access to all relevant information, and rely on existing information networks in both the government and non-governmental sectors. It should have both the mandate and the capacity to verify the validity of the information received from all sources. (f) Advisory committees that represent specific expertise in both technical and human rights aspects needed to monitor the right to adequate food. (g) A good communications and advocacy strategy in place when its mandate demands for pro-actively promoting the realisation of the right to adequate food. Rightsbased monitoring information should likewise be designed to input into the communications and advocacy strategy.
14 FAO, ‘Implementing the Right to Adequate Food: The Outcome of Six Case Studies’, in The Right to Food Guidelines – Information Papers and Case Studies (Rome, 2006). 15 United Nations, ‘Principles relating to the status and functioning of national institutions for protection and promotion of human rights’, endorsed by Commission on Human Rights resolution 1992/54 and General Assembly resolution A/RES/48/134.
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The national legal framework should be conducive to the protection and promotion of the right to adequate food and the realisation of all human rights. This framework essentially consists of the country’s constitution, laws and regulations, customary law and institutions in place for the respect, protection and fulfilment of human rights. These should form the basis for rights holders to draw upon to claim their right to adequate food relying on legal provisions, recourse mechanisms, jurisprudence and institutional remedies. Assessing and then monitoring changes in the legal framework is an important way of contributing to turning rights holders into rights claimants, and of sparking discussion and dialogue about needed changes to make the legal environment more conducive to the realisation of the right to adequate food. Courts can play a monitoring role in the sense of assessing whether a particular administrative decision, policy or piece of legislation violates the right to adequate food. In turn, court proceedings can be monitored for cases filed, cases resolved and their outcome with regards to both quantity and quality. In practice, however, not many cases concerning the right to food are submitted to courts.16 Capacity strengthening for right-based monitoring Within a human rights framework, capacity strengthening should target rights holders and duty bearers. This directly involves strengthening the capacity for rights basedmonitoring and joining both technical and human rights expertise. It also means creating capacity at grass-roots levels for meaningful participation in monitoring processes. To establish country plans for capacity strengthening for monitoring the right to adequate food, two initial assessments are needed: (a) Role and capacity analysis, to understand the obligations of institutions to monitor and promote the right to adequate food, and assess their respective capacities to undertake rights-based monitoring, and (b) Analysis of existing information systems and networks to determine what the information gaps are relative to monitoring information needs by decision makers, implementers and rights holders. The Right to Food Unit at FAO, in collaboration with FIVIMS, FAO technical units, incountry partners and others, is working to contribute to capacity strengthening to monitor the right to adequate food in ways that are consistent with human rights principles. A methodological toolkit is being developed for in-country use, and e-learning modules are in preparation based on this toolkit. The toolkit aims at being highly practical and to provide the most current and relevant methodological and operational information related to rights-based monitoring. In most cases, the methods included are methods that are already being applied for more general monitoring and evaluation purposes. But it is explained how these methods can be used as tools in rights-based monitoring. No recipes are presented but instead methodological options are discussed. Information
16 A notable exception is People’s Union for Civil Liberties (PUCL) v. Union of India and Others, Writ Petition (Civil) No. 196 of 2001. See <www.righttofoodindia.org/>.
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regarding specific methods are summarised, and references to easily accessed sources of technical and methodological documentation are provided. Strengthening in-country capacities and the mainstreaming of rights-based monitoring needs to go hand-in-hand with efforts to raise public awareness and understanding of what the right to adequate food means, especially what it means in practice and within different country settings and realities. Only when the level of public understanding has been raised, at least minimally, among both rights holders and duty bearers is the mainstreaming of rights-based monitoring possible and meaningful. At the same time, the monitoring of the right to adequate food can provide information and inputs towards raising the understanding of what the right to adequate food means and motivate stakeholders to act upon that information. Conclusions Persons representing a broad range of disciplines are participating in the development of monitoring tools that are based on human rights principles. A great deal of relevant information to assess and monitor the right to adequate food at country level is often available, but may not be easily accessed. The technical and institutional constraints outlined above equally pertain to monitoring food security, nutrition and poverty. This is where a close partnership with FIVIMS and other information networks is important since these are dedicated to strengthening in-country information systems, assisting countries to overcome those constraints. Monitoring of the right to adequate food needs to build on existing and emerging methodologies, including those that are developed by FIVIMS and its partners. Important progress is being made in a number of countries. The renewed commitments to the realisation of the human right to food, as witnessed by the adoption of the Right to Food Guidelines, the Millennium Declaration and other documents, present opportunities to address the root causes of powerlessness, exclusion and exploitation. Strengthened monitoring mechanisms, institutions and capacities can make an important contribution to empowering the undernourished to claim their rights and effectively hold duty bearers accountable. Such efforts need to go hand-in-hand with efforts to raise public awareness and understanding of what the right to adequate food means, especially what it means in practice and within different country settings and realities. This will greatly facilitate mainstreaming rights-based monitoring of the human right to adequate food.
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The Role of UNHCR in the Monitoring and Implementation of Human Rights Standards for Refugees and Other Persons of Concern Christoph Bierwirth*
Introduction The “multifaceted linkages between refugee issues and human rights” as well as the “complementary nature of international refugee and human rights law” govern the dimensions of the Office of the United Nations High Commissioner for Refugees (UNHCR) engagement in monitoring and ensuring respect for the human rights of refugees and other persons of concern. Among the many aspects where linkages between human rights and UNHCR’s work are evident are the following: a) Human rights violations are among the major root causes of displacement, and the UN human rights machinery is particularly relevant in providing valuable country of origin information (COI) which assists UNHCR and States in identifying international protection needs and provides persuasive arguments promoting protection.
*
The author is presently working as Snr. Protection Officer at the UNHCR Branch Office Tbilisi, Georgia; he previously served as Senior Liaison Officer (Human Rights) in the Protection Operations and Legal Advice Section of the Division of International Protection Services at the UNHCR Headquarters, Geneva. The views expressed in this chapter are his personal ones which are not necessarily identical to those of UNHCR. UNHCR, Executive Committee Conclusion No. 95 (2003), (k). See also Human Rights and Mass Exoduses: Report of the Secretary-General, A/58/186, 25 July 2003. UNHCR, Executive Committee Conclusion No. 95 (2003), (l). For information on the development of UNHCR’s approach towards the use of human rights for refugee protection, see B. Gorlick, Human Rights and Refugees: Enhancing Protection Through International Human Rights Law, New Issues in Refugee Research, Working Paper No. 30, Sweden, October 2000, <www.unhcr.org/research/RESEARCH/3ae6a0cf4.pdf>; and Amnesty International, The UN and Refugees’ Human Rights, AI Index: IOR 30/02/97, 1 October 1997.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 325-345.
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b) International refugee and human rights law, which are complementary in nature, underpin all of UNHCR’s work; the role of the latter is particularly important in situations where the 1951 Convention Relating to the Status of Refugees (in the following CSR51) or its 1967 Protocol do not apply. c) Treaty Bodies and Special Procedures monitoring human rights are essential partners for UNHCR in enhancing the protection of refugees, internally displaced persons (IDPs) and others of concern. UNHCR’s mandate determines both the basic direction and the limitations of UNHCR’s engagement in the monitoring and implementation of human rights standards for persons of concern. There can be no targeted engagement by UNHCR in the monitoring of human rights where there is no linkage to UNHCR’s mandate as it has dynamically evolved over time. This mandate includes the provision of international protection for refugees, a role in the protection of stateless persons and in the prevention and reduction of statelessness and increasingly, though subject to certain conditions, responsibilities with regards to conflict induced internally displacement situations taken under the “Cluster Leadership” initiative of the Inter-Agency Standing Committee (IASC). Refugee protection is human rights protection which must be ensured in situations where the authorities of the country of origin, which are primarily responsible for the protection of their citizens, have failed, either because they are unable or unwilling to guarantee the protection of their citizens’ fundamental rights.
Article 5 CSR51 clarifies accordingly that “[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention”. For examples see C. Bierwirth, ‘The Protection of Refugee and Asylum-Seeking Children: The Convention on the Rights of the Child and the Work of the Committee on the Rights of the Child’, 24:2 Refugee Survey Quarterly (2005) pp. 98 and 99. The protection of IDPs is fully based on international human rights and humanitarian law and may benefit from application of international refugee law standards in analogy. See V. Türk, ‘UNHCR’s Supervisory Responsibility’, 14:1 Revue Québécoise de droit international (2001) pp. 135−158, at page 138, who explains that consequently the understanding of the term “international protection” “has evolved generally over time from the idea of international protection as a surrogate for consular and diplomatic protection to including gradually broader notions of human rights protection. Today, the institution of international refugee protection, whilst unique in the international legal system, is embedded in the broader international human rights protection regime and also generally linked to effective forms of international cooperation.” See UN General Assembly resolution 3274 (XXIX), 10 December 1974, as well as UN General Assembly resolution 50/152, 9 February 1996. See Report of the United Nations High Commissioner for Refugees, Supplement No. 12, 2006 (A/61/12), paras. 36 and 37.
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Human rights monitoring as a tool for UNHCR in the exercise of its international protection function Human rights monitoring and its relevance for refugee status determination (RSD) Any exercise of UNHCR’s specific international protection functions requires a clear understanding of whether the individual concerned is a refugee. Accordingly, the power to determine whether an individual meets the refugee criteria under UNHCR’s Statute and the CSR51 is a competence inherent to UNHCR’s mandate. In addition, the supervisory functions provided for in Article 35 CSR51 allow UNHCR to review States’ refugee determination practices and the interpretation of Article 1 CSR51. As it is for States to implement the CSR51 and to grant the status and rights foreseen therein, UNHCR does not need to comprehensively engage in the processing of individual cases in countries where government RSD procedures are in place and considered in general to be effective. Determination of refugee status under UNHCR’s Mandate is conducted primarily in countries not Party to the CSR51, in State Parties with no national asylum systems in preparation of resettlement or in addressing specific protection gaps.10 Monitoring of the human rights situation in a country of origin, as in any country, is primarily a task for the UN human rights machinery, namely, where the respective State has undertaken treaty obligations, for the respective treaty bodies and, more generally, for the Special Procedures of the Human Rights Council.11 The extent to which the intended “Universal Periodic Review” to be undertaken by the newly created Human Rights Council will be able to compile detailed, valuable country of origin information (in the following COI) remains to be tested. Where UNHCR conducts independent Mandate RSD, it depends heavily, but not exclusively, on the output provided by the UN human rights machinery in order to identify international protection needs. Where RSD procedures are conducted by States, UNHCR assists these States by disseminating and drawing attention to particularly relevant country of origin information, including that obtained by the monitoring efforts of other UN partners. A variety of tools, in particular the RefWorld website and regularly updated CD-ROMs, “Writnet Papers”, country background notes and eligibility guide
In 70 countries, UNHCR limits its involvement to the exercise of its supervisory functions under Article 35 CSR51, while a more formal UNHCR involvement takes place in the national Refugee Status Determination (RSD) procedures of 28 countries (for details, see table in UNHCR, Measuring Protection by Numbers, November 2006, p. 9). 10 Presently, UNHCR is conducting Mandate RSD in 78 countries rendering decisions for some 60,000 people in 2005 (see Report of the United Nations High Commissioner for Refugees, supra note 8, para. 14). Twenty-five of the States where UNHCR conducts mandate RSD are non-signatory States to the CSR51 (see UNHCR, supra note 9, Chapter VII ‘Refugee Status Determination’). 11 These procedures are presently under review (see UN General Assembly resolution 60/251, 3 April 2006, para. 6, followed by the decision of the Human Rights Council, A/HCR/1/L.6, 29 June 2006, para. 1, “extending exceptionally for one year ... the mandates and the mandateholders of all the Commission’s Special Procedures”).
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lines, are available to serve this purpose. The latter documents complement descriptive COI compiled primarily from public domain resources with specific conclusions and recommendations as to the international protection needs of individuals fleeing the particular country concerned as well as on legal issues raised in the specific country context. Similarly, UNHCR may offer amicus curiae submissions to courts that express the organisation’s position on the international protection needs of an individual or group as well as on underlying legal issues. When there is insufficient COI available from other sources and in particular where UNHCR has a presence in the country of origin, the organisation may, by default, engage in efforts to obtain its own COI. Such efforts will only be conducted to the extent that is possible, without undermining or endangering the refugee protection operation in the country concerned. Similar considerations will also govern the decision on whether COI information collected by UNHCR will only be used internally or may be made available to the authorities of third States, to courts or publicly. UNHCR’s wellestablished cooperation with the Office of the High Commissioner for Human Rights (OHCHR), the Special Procedures and the treaty bodies can help these partners take up issues relevant in the context of conducting of RSD by States and UNHCR and thereby increase the COI value of reports, conclusions and other documents produced by the UN human rights machinery. Monitoring as a tool for contingency planning As for other humanitarian actors, functioning early warning mechanisms and forwardlooking contingency planning are essential for timely and effective responses. UNHCR, including through its New York Office, liaises closely with other UN agencies and in particular with the Humanitarian Co-ordinator with a view to exchanging information and identify evolving human rights crises which may lead to displacement. UNHCR’s wide field presence puts the office in a unique position to contribute to the overall UN early warning efforts. In this context, for instance, the Office cooperates with the Secretary-General’s Special Advisor on the Prevention of Genocide. In addition to ongoing reporting, UNHCR Offices are required to highlight key human rights developments in the annual internal protection reports12 and to draw conclusions with a view to contributing to early warning and identifying risks of future escalation of conflicts and possible displacement resulting. Monitoring as an inherent component of protection delivery International protection cannot be advanced without full knowledge and understanding of existing protection gaps and underlying causes. The monitoring of the human rights situation of refugees in the country of asylum and of other persons of concern in their 12 Offices shall also refer to most relevant reports and assessments issued during the reporting period, e.g by the Security Council, the Commission on Human Rights, Human Rights Council and respected non-governmental organisations (NGOs) such as Human Rights Watch (HRW) and Amnesty International (AI).
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country of stay therefore forms an integral and essential part of UNHCR’s exercise of its international protection mandate. This task extends beyond the supervisory functions attributed to UNHCR under Article 35 CSR51.13 Monitoring is an imperative component of UNHCR’s work and a precondition for targeted protection interventions as well as for a rights-based design and implementation of assistance programmes. Protection gaps cannot be identified without clear standards against which the situation on the ground can be measured.14 In relation to displaced persons, such standards derive from both international refugee and human rights law and are – in situations of armed conflict – further complemented by international humanitarian law. International human rights and refugee law therefore provide the foundation for protection standards and indicators which UNHCR has developed in recent years and which form an integral part of UNHCR’s internal reporting mechanisms. Based on this understanding, UNHCR, in cooperation with the European Commission, has initiated the Strengthening Protection Capacity Project, which led to the development of a Protection Gaps Framework for Analysis.15 Absence of a State reporting mechanism under the 1951 Convention The CSR51 pre-dated the major international human rights instruments by decades. It does not foresee a regular reporting mechanism by States,16 nor does it provide for any regular review mechanism building on such reports or further information and “shadow reports” provided by non-governmental organisations (NGOs)17 or other external sources. This deficit has sometimes been criticised and has led to proposals to consider the appointment of a Special Rapporteur on Refugees. 13 Türk, supra note 6, p. 144. 14 Ibid., p. 164, elaborating that “UNHCR’s supervisory responsibility is a specific emanation of the UNHCR’s international protection function that is directly linked to ensuring a principled application of existing treaty obligations. The rationale behind this role is that supervision by an international organization is indispensable for a functioning, predictable and credible framework of international cooperation and to ensure the proper functioning of such a system.” 15 See Protection Gaps Framework for Analysis, Enhancing Protection of Refugees, Strengthening Protection Capacity Project (SPCP), 2006, <www.unhcr.org/protect/PROTECTION/ 41fe3ab92.pdf>. 16 Erika Feller, at the XXVIII Round Table on Current Problems of International Humanitarian Law (San Remo, 3 September 2004) recalled the historical developments: “The fact of UNHCR’s creation and its specific role in relation to the Refugee Convention and others besides, was an effort by the international community to create a strengthened implementation capacity. UNHCR was one of the first treaty implementation bodies to be set up. It was, some would say, a rather cautious effort”, <www.unhcr.org/admin/ADMIN/42b7e2b92.html>. 17 However, numerous of globally-acting, international NGOs, such as Amnesty International, Human Rights Watch and Jesuit Refugee Services, frequently prepare reports related to refugees and other persons of concern to UNHCR, which are studied and considered very seriously and on occasions have led to adjustments of UNHCR’s situation-specific protection strategy and programmes.
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The present mechanism nevertheless has a number of advantages. UNHCR’s efforts to monitor States’ adherence to the CSR51 is not confined by strict reporting schedules, nor does it suffer from non-submission of reports or a notorious backlog, as experienced by treaty bodies. The monitoring framework provided by the CSR51 allows direct and continuous interaction with States and prompt interventions in situations where grave violations of international obligations, such as refoulement, have occurred. More importantly, it also allows interventions where such violations are about to occur and where such violations may still be prevented by timely action. The direct nature of UNHCR’s monitoring work, while suffering from the absence of regular transparent public review, opens a broad variety of communication, intervention and response options and leaves room for compromise and diplomatic solutions. The unification of both the monitoring and the support function under one agency allows UNHCR to pair monitoring and resulting interventions with concrete prompt offers for practical support. These support options may range from legal advice, facilitation of access to courts and involvement with the judiciary18 to technical and other assistance to affected States, humanitarian assistance to persons concerned, and contributing to the solution of a specific refugee crisis by evacuation or (emergency) resettlement. UNHCR thereby can offer a comprehensive and coherent solution-oriented support package and avoid a “preaching approach”, as well as the challenges and risks of a disconnect between monitoring work and the international response.19 There remain, however, some indisputable disadvantages of the present system,20 namely, the absence of any regular self-reflection by States, which is an intentional sideeffect of treaty-based reporting obligations,21 as well as a lack of a regular systematic dialogue with States on their observation of international legal obligations vis-à-vis refu18 See E. Feller, The Role of the Judiciary in the Protection of Refugees, Council of Immigration Judges Annual General Meeting, London, UK, 1 November 2006. 19 Such challenges may be faced where there is a dualism between monitoring and support functions, as observed in other areas of human rights (e.g. with regards to children’s rights, between the monitoring role of the Committee on the Rights of the Child and the support function of United Nations Children Fund (UNICEF), which has effectively mitigated this theoretical risk by a highly developed human rights-based approach to programming). See UNICEF, Human Rights for Children and Women: How UNICEF Helps Make Them a Reality, <www.unicef.org/publications/pub_humanrights_children_en.pdf >. 20 Walter Kälin (see W. Kälin, ‘Supervising the 1951 Convention relating to the Status of Refugees, Article 35 and Beyond’, in E. Feller et al. (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, Cambridge, 2003) p. 617) takes a differentiated view when observing that, as a result of the hybrid character of UNHCR’s supervisory function, “UNHCR independence must necessarily be limited. UNHCR’s ‘operationality’ namely, its daily protection work on the ground as a partner both of governments and of refugees often facilitates the carrying out of its supervisory role. At the same time, a tension between the two functions will arise whenever a State or a group of States resends supervision by UNHCR in a particular case.” 21 The value of the preparation of State reports as a tool for reflection on national implementation has been highlighted by the Committee of Economic Cultural and Social Rights, see General Comment No. 1, paras. 1, 3 and 8.
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gees. Such systematic dialogue would allow UNHCR inter alia to demonstrate the global nature of applicable standards more transparently and the consistency of its approach. As a substitutional measure and acknowledging the value of a regular stock-taking exercise, some parliaments, such as in Poland, have established reporting obligations at national level. Any future effort to address this gap must not undermine the UNHCR supervisory role under Article 35 of the CSR5122 and should maintain the advantages of the present system, which is characterised by ongoing direct dialogue with States through UNHCR’s representations established in most countries of asylum and the possibility for swift reaction. It was hoped that the regular debate on the Agenda for Protection23 and its implementation would initiate more frequent systematic reporting by States on the development of their asylum system and challenges faced during the debates at UNHCR’s Executive and Standing Committee meetings. This hope has unfortunately not been satisfied as only very few countries make use of this approach in practice. UNHCR will carefully observe the work of the newly created Human Rights Council, especially the instigation of the Universal Periodic Review mechanism with a view to analysing its effectiveness and considering whether a similar initiative could usefully be suggested within the Executive Committee. The role of treaty bodies in monitoring the situation of refugees in countries of asylum As the United Nations High Commissioner for Human Rights noted in her Plan of Action attached to the UN Secretary-General’s report “In larger freedom: towards development, security and human rights for all”: “The United Nations human rights treaty system is one of the organization’s great achievements. ... All States are party to at least one of the seven treaties and more than 75 per cent of States are party to four of more, including the two covenants.”24 Notwithstanding a number of problems faced under the current treaty body system, caused inter alia by lack of delayed or inadequate reporting by States, the backlog of reports pending before the treaty bodies and inconsistencies in the working methods of the treaty bodies approaches, 140 State reports are annually reviewed by the treaty bodies.25 These existing reporting obligations and their review by 22 See also Kälin, supra note 20, p. 651, who argues that any possible new monitoring mechanisms “should be the responsibility of the State Parties to the Convention”. He therefore develops some key requirements of a future monitoring mechanism, namely, independence and expertise, objectivity and transparency, inclusiveness, operationality, complementarity (p. 652), and ultimately proposes a mixed system “using fact finding by independent experts and policy reviews by member States” (p. 657). 23 A/AC.96/965/Add. I, 26 June 2002, available at <www.unhcr.org/excom/EXCOM/3d3e61b84. pdf>. 24 See the Plan of Action submitted by the United Nations High Commissioner for Human Rights, A/59/2005/Add.3, p. 22, para. 95. 25 See Report on the Working Methods of the Human Rights Treaty Bodies Relating to the State Party Reporting Process, submitted to the 5th Inter-Committee meeting of the Human Rights
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human rights treaty bodies offer the opportunity to address the situation of refugees and other displaced populations as an integral element of human rights reporting by States, in the absence of refugee specific reporting obligations of States under the CSR51. This potential to cooperate with treaty bodies has been explicitly acknowledged by UNHCR’s Executive Committee, which has encouraged “States, as appropriate, to address the situation of the forcibly displaced in their reports to the United Nations Treaty Monitoring Bodies, and suggest[ed] that these bodies may, in turn, wish to reflect, within their mandates, on the human rights dimensions of forced displacement”.26 Following a selected and targeted approach, UNHCR is presently involving itself by way of submission of confidential comments, or participation in pre-sessional working groups for about 40–50 per cent of the State reports under review.27 This contribution by UNHCR is reflected in the treaty bodies’ annual reports,28 summaries on treaty bodies’ work prepared by OHCHR29 and, more importantly, has led treaty bodies to take up displacement issues more frequently and consistently in their Concluding Observations and Recommendations. Positive developments have been noted with regard to all treaty bodies as to their sensitivity vis-à-vis displacement issues.30 However, different approaches as to the length and level of detail of their Concluding Observations and Recommendations impact on the specificity, direct applicability and suitability for operationalisation of the Recommendations made by the treaty bodies in relation to displaced populations. The Committee on the Rights of the Child (CRC) takes the most elaborate approach, making clear linkages between the implementation of the Convention on the Rights of the
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Treaty Bodies and 18th meeting of the Chairpersons, HRI/MC/2006/4, 17 May 2006, p. 18, table 4. UNHCR, supra note 2. This involvement finds its legal basis in a number of provisions governing the procedures and working methods of the different treaty bodies. While more recent international instruments address the role of agencies in the convention text, other treaty bodies address these issues in their rules of procedures or working methods. In organising and timing its input, UNHCR has to take into account the still highly variable working methods. See e.g. Report of the Committee on the Elimination of Racial Discrimination, 68th session (20 February−10 March 2006) and 69th session (31 July−8 August 2006), A/61/18, p. 10, which states: “UNHCR submits comments to the members of the Committee on all States parties whose reports are being examined when UNHCR is active in the country concerned. These comments make reference to the human rights of refugees, asylum seekers, returnees (former refugees), stateless persons and other categories of persons of concern to UNHCR. UNHCR representatives attend the sessions of the Committee and report back on any issues of concern raised by Committee members. ...” See Report on the Working Methods of the Human Rights Treaty Bodies relating to the State Party Reporting Process, supra note 25, pp. 27–30. See S. Persaud, UNHCR, Protecting Refugees and Asylum-Seekers under the International Covenant on Civil and Political Rights, <www.unhcr.org/research/RESEARCH/ 4552f0d82. pdf>.
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Child and international assistance,31 as well as offering very concrete operational suggestions, such as the introduction of mobile registration teams to address deficits in birth registration and issuance of birth certificates.32 Improved birth registration can effectively contribute to the prevention and reduction of statelessness.33 Particularly close cooperation also took place between UNHCR and the Committee on the Rights of the Child in the drafting of General Comment No. 6 on the Treatment of Unaccompanied and Separated Children Outside of Their Country of Origin. Among the recent General Comments/Recommendations prepared by other treaty bodies to which UNHCR has contributed and which are of particular importance for UNHCR are the work of the Human Rights Committee on the scope of obligations under the 1966 International Covenant on Civil and Political Rights (ICCPR), clarifying in particular the applicability of rights under the Covenant to non-citizens, including refugees,34 and attributing an extra-territorial dimension and non-refoulement obligations to certain Covenant rights35 as well as the Committee on the Elimination of Racial Discrimination’s General Recommendation No. XXX on discrimination against non-citizens36 and No. XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system.
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Among the recent examples is the Concluding Observations on Algeria (CRC/C/15/Add.269, 12 October 2005, para. 73, available at <www.ohchr.org/english/ bodies/crc/docs/co/CRC. C.15.Add.269.pdf >), wherein the Committee recommended “that the State party take all feasible measures to ensure full protection and care as well as access to health and social services and to education of Western Saharan refugee children living in the refugee camps in Algeria and in this respect continue its cooperation with, among others, the Office of the United Nations High Commissioner for Refugees (UNHCR) and the United Nations World Food Programme (WFP)”. Similar approaches can be found with regard to Azerbaijan (CRC/C/AZE/CO/2, 17 March 2006, para. 60); Bosnia Herzegovina (CRC/C/15/Add.260, 21 September 2005, para. 62); Ecuador (CRC/C/15/Add.262, 13 September 2005, paras. 62 and 64), wherein the Committee recommends “that the State Party seek international cooperation with, and assistance from, inter alia the United Nations High Commissioner for Refugees and ...” (emphasis added). See Concluding Observations on India, CRC/C/15/Add.228, 26 February 2004, para. 39. More generally on the Committee’s work, see Bierwirth, supra note 5, p. 98. More generally on these issues, see J. E. Doek, ‘The CRC and the Right to Acquire and to Preserve a Nationality’, 25:3 Refugee Survey Quarterly (2006). See General Comment No. 31, para. 10. See General Comment No. 31, para. 12, explaining that Article 2 ICCPR “entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed”. A/60/18, 1 October 2004, pp. 98–108.
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The role the Special Procedures in monitoring the situation of refugees in countries of asylum The mechanisms established by the Commission on Human Rights,37 now integrated into the work of the newly established Human Rights Council, to address either specific country situations or thematic issues in all parts of the world are generally referred to as “Special Procedures”. Currently, 28 thematic and 13 country mandates are in place. The Special Procedures are provided with personnel and logistical assistance by the OHCHR which supports them in the discharge of their mandates.38 As is the case with treaty bodies, displacement issues can be, and have been, mainstreamed into the work of the Special Procedures. One of the mandates, the one assigned to the Representative of the Secretary-General (RSG) on the Human Rights of IDPs is directly linked to UNHCR’s evolving mandate on this category of displaced persons. The RSG is regularly and comprehensively briefed prior to his departure on country visits or missions and in turn offers debriefings on his findings to UNHCR staff in the field and at Headquarters, which may entail concrete suggestions as to the adjustment of strategies and programmes. Frequently, logistic support is offered to assist the RSG during his missions. Similar cooperation, though to different degrees and levels of intensity, has been developed with other Special Rapporteurs, including the Special Rapporteur on Violence Against Women, the Special Rapporteur on Torture, the Special Rapporteur on Trafficking, the Special Rapporteur on Education and the Working Group on Arbitrary Detention. UNHCR is regularly and systematically reviewing the work and output of the Special Procedures as to displacement issues being addressed and their direct or indirect relevance to UNHCR’s work and has established a system of disseminating relevant information within UNHCR. Appreciation of UNHCR’s cooperation with Special Procedures and treaty bodies by the Commission on Human Rights UNHCR involvement in the work of the treaty bodies and Special Procedures forms an integrated and integral part of UNHCR’s international protection efforts. This has been explicitly acknowledged by the former Commission on Human Rights which has welcomed with appreciation the ongoing contributions of the United Nations High Commissioner for Human Rights, the United Nations High Commissioner for Refugees and the Representative of the Secretary-General on human rights of internally displaced persons to the work of the Commission, its special procedures and to other international human rights bodies and mechanisms, and invites them to exchange relevant information on mass exoduses and displacements with all United Nations bodies, including human rights treaty bodies, acting 37 On the development of UNHCR cooperation with the Commission on Human Rights and its subsidiary bodies, see Gorlick, supra note 3, pp. 19–24. 38 A list of the current Special Procedures and the mandate holder as well as further background info can be found at <www.ohchr.org/english/bodies/chr/special/>.
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within their mandates, and invites the United Nations High Commissioner for Refugees to address the Commission at each of its future sessions.39
Presently, both the Special Procedures as well as the entire treaty body system are under review and an intensive debate has been ignited by the proposal by High Commissioner for Human Rights Ms. Louise Arbour to replace the present treaty body system with a unified standing treaty body.40 While this proposal meets some hesitation41 and raises a number of legal and practical issues, it has definitely had a positive impact as it led to increased efforts by all treaty bodies, individually and cooperatively, for reform and to address the indisputable shortcomings of the present system. From a UNHCR perspective, it is important to note that the challenges of speciality do not only arise with regard to different specific human rights treaties, but also with regard to cross-cutting issues like displacement. It is important that whatever form the treaty monitoring system will take in the future, this should not lead to a reduction in the attention being given to the human rights situation of displaced populations. UNHCR’s internal monitoring and reporting on the situation of persons of concern UNHCR’s direct monitoring of the situation of refugees and other persons of concern is primarily conducted through an internal annual non-public reporting mechanism. The obligation of each office to submit an Annual Protection Report is the Office’s most comprehensive and systematic means to update information of the situation of refugees and other persons of concern regularly and systematically. The format of the Annual Protection Report is presently under review with a view to enhancing the structure and comprehensive nature of reporting by offices and allowing better comparison of country situations and horizontal research and analysis on specific issues. The annual Note on International Protection introduced during the June session of the Standing Committee is UNHCR’s main tool to share and discuss with government partners updated information and concerns over trends observed. Information on the protection situation and challenges is also included in other major reports, such as the annual report of the High Commissioner to the General Assembly, and regular UNHCR publications, such as The State of the World’s Refugees. The preparation of a comprehensive global overview titled Measuring Protection by Numbers is a new UNHCR initiative which aims to define and
39 Commission on Human Rights, Human Rights and Mass Exoduses, resolution 2005/48. 40 See Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, HRI/MC/2006/2, 22 March 2006. 41 See e.g. Chairperson’s Summary of a Brainstorming Meeting on Reform of the Human Rights Treaty Body System, which can be found in the Annex to the Letter Dated 14 September 2006 from Their Permanent Representative of Lichtenstein to the United Nations Addressed to the Secretary-General, A/61/351, 18 September 2006.
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quantify protection achievements and challenges worldwide and provoke substantive dialogue between States.42 In addition to the preparation of the Annual Protection Report, the Annual Country Operations Planning Exercise as well as country reporting are tools for periodic and systematic stocktaking. At the field level UNHCR monitoring of the situation of refugees and other persons of concern is conducted directly and indirectly with the support of partners, including implementing partners. Where such partners are currently not available or not sufficiently empowered to ensure sufficient monitoring, UNHCR strives to build and advance related capacities at national and local levels. Where this is not possible due to the nature of the political environment, increased direct monitoring efforts must be undertaken. Direct access of UNHCR to persons of concern and their access to UNHCR are an essential requirement for effective monitoring and is in itself a primary monitoring criterion. Dynamic evolution of monitoring responsibilities: no humanitarian involvement without inherent protection and related monitoring components UNHCR’s involvement in return operations and its increasing responsibility for internally displaced persons (since it took up responsibility for leading the protection cluster within the enhanced “collaborative approach” regarding IDPs agreed upon in the framework of the IASC have led to increased responsibilities for and involvement of UNHCR in the monitoring of specifically defined populations within their countries of origin. Human rights law and principles set the primary standards and parameters governing the monitoring of their situation. The complex intertwining of different human rights also becomes evident in the context of return operations where the right to return must be sustainably secured through the “return of rights”.43 Where protection responsibilities are expanded, the scope for UNHCR’s engagement in monitoring the human rights situation of persons of concern has to be adjusted accordingly. As “protection of human rights is intrinsic to effective humanitarian action”,44 there can be no humanitarian engagement, whatsoever, by UNHCR in relation to a specific category of persons without an inherent protection element constituting an integral dimension of such engagement. This requires that monitoring and response to human rights concerns be integrated into any such humanitarian effort.
42 The document, which had been provisionally released, will soon be available on the UNHCR website. 43 See, for detailed analysis of the situation of post-conflict Bosnia Herzegovina, C. B. Philpott, ‘From the Right to Return to the Return of Rights: Completing Post-War Property Restitution in Bosnia Herzegovina’, 18:1 International Journal of Refugee Law (2006) pp. 30–80. 44 Inter-Agency Standing Committee (IASC), Human Rights Guidance Note for Humanitarian Coordinators, Chapter 2: Human Rights and Humanitarian Action: Some of the Meeting Points, June 2006.
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Addressing protection gaps and contributing to the implementation of human rights States not only have a primary responsibility to respect, protect and fulfil the human rights of refugees and others of concern to UNHCR, with regard to many rights they are also the sole actor with the capacity to secure the right and ensure protection. This is most evident with regards to the competence to grant asylum which requires a territory upon which asylum is granted. The granting of asylum hence remains within the exclusive jurisdiction of States.45 While humanitarian measures can mitigate deficits in the protection and fulfillment of rights by States, and humanitarian agencies may temporarily even substitute certain State functions serving the enjoyment of social, economic and cultural rights, there can be no effective protection of persons of concern without a clear commitment from the host State. Protection focus of UNHCR UNHCR’s increased involvement in monitoring the human rights situation of persons of concern does not change the humanitarian and non-political nature of UNHCR’s involvement46 and does not make UNHCR a human rights monitoring agency per se. “Refugee protection is not concerned with attributing international responsibility for persecution.”47 It does not, for example, imply any prospects for redress or reparation. For UNHCR active engagement in human rights monitoring is not an end in itself, but solely a tool, which is inherent to, and in its objectives and extent confined by, the humanitarian and non-political character of UNHCR’s mission, as well as by UNHCR’s international protection mandate which relates to a “dynamic and action oriented function”.48 In this respect, UNHCR’s role must be clearly distinguished from those bodies which have an explicit mandate to monitor and report on human rights in general or in relation to a specific country or theme, as do, for example, the High Commissioner for Human Rights, her Office, the treaty bodies and the Special Procedures under the Human Rights Council, which may at times be judgmental.49
45 Similarly, while UNHCR may assist States in the registration of refugees or conduct registration of its own, and may subsequently issue some form of documentation, the recognition of such documentation requires consent by the host State. Convention travel documents resulting in inter-State obligations inter alia as to re-admission can only be issued by States, and UNHCR can only support such issuance by technical assistance. 46 See UNHCR Statute, para. 2. 47 K. Landgren, ‘The Future of Refugee Protection: Four Challenges’, 11:4 Journal of Refugee Studies (1998) p. 420. 48 See UNHCR, Executive Committee Conclusion No. 89(LI) 2000, para. 2; UN General Assembly resolution 55/74, 12 February 2001, para. 8. 49 See E. Feller, ‘UNHCR and Human Rights’, The Universal Protection of Human Rights: Translating International Commitments into National Action, Special Issue of Österreichische außenpolitische Dokumentation (1997) p. 200, paras. 5 and 23.
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The “protection delivery orientation” of UNHCR’s mandate, different from a (stand alone) human rights monitoring and reporting role, allows the organisation flexibility in how protection challenges, including human rights deficits related to persons of concern, can be addressed.50 Human rights concerns may but do not have to be denounced as such. They can be addressed in a strictly non-judgmental manner as a humanitarian issue, if this is assumed to be more effective to make de facto progress towards protection objectives.51 Scope of UNHCR’s responsibility to address human rights violations against persons of concern Violations of the human rights of persons of concern, of which UNHCR becomes aware, or situations which put such persons at risk of falling victims to serious human rights violations, including refoulement, cannot be ignored and must be addressed as the exercise of UNHCR’s international protection mandate “is obligatory, not discretionary in its character”.52 However, unlike the work of treaty bodies, the scope of remedial action taken by UNHCR is not confined by any treaty or specific formalities. The review of available measures and the selection of the most effective and appropriate protection tool (or combination of tools) is at the discretion of UNHCR. UNHCR has nevertheless to exercise its discretion wisely, taking into account all specific protection needs and available protection options and carefully weighting their “pros and cons”, as to the advancement of the protection of the individual(s) concerned, as well as of the protection situation more generally. To the extent possible, national protection mechanisms should be exercised. Depending on the type of right challenged, such protection measures may include prompt informing of the police/security bodies, arrangement (directly or through implementing partners) of medical/psychological care for victims/survivors, relocation within a camp or a country, accommodation in safe houses, legal counselling and assistance, (co-) funding of court procedures, direct interventions with the government at different levels. Where national protection mechanisms fail, or are insufficient, international mechanisms may be applied. Options include: sharing information with the Special Procedures of the Human Rights Council (whether on a particular individual case, on a developing pattern of human rights abuses or a particularly serious human rights violation); sharing concerns with the treaty bodies in the context of their review of country reports; 50 UNHCR, Note on International Protection, A/AC.96/930, 7 July 2000, paras. 10–29, lists in a non-exhaustive manner a number of activities that form particular components of its protection work. 51 Similarly, the question on whether UNHCR should go public on a specific protection challenge will primarily be decided on whether such going publicity can contribute to enhancing protection, either in the specific case and/or, more generally, by raising awareness on UNHCR’s position on a specific issue. 52 E. Feller, “Operationalising Protection”– Statement to the Executive Committee of the High Commissioner’s Programme (Geneva, 5 October 2005), <www.unhcr.org/admin/ADMIN/ 4343ff484.html>.
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suggesting and supporting (where such are available and accepted by the government); and use of individual complaints procedures.53 In case of refugees facing imminent risks of serious human rights violations, including the risk of refoulement, emergency resettlement or evacuation can be a very effective means to address their protection needs urgently. UNHCR’s role in securing the human rights of refugees and other persons of concern Respect for, protection and fulfillment of the human rights of refugees and other persons of concern is primarily the responsibility of States. UNHCR is a stakeholder in the protection of the human rights of persons of concern, but its role is subsidiary in nature. While there is an ongoing responsibility to monitor the human rights situations of persons of concern, an affirmative duty to act, intervene, support State structures and civil society’s efforts on behalf of refugees and, as a last resort, to provide direct assistance only arises in situations where States fail in their protection duties vis-à-vis persons of concern to UNHCR and are unable or unwilling to provide them with the necessary assistance. Any involvement of UNHCR in providing international protection and assistance to refugees and others of concern does not result in a delegation of human rights responsibilities from the State to UNHCR. Substitution by UNHCR of certain protection and assistance functions which are, in principle, the responsibility of States should therefore always be of a temporary nature. Such direct engagement by UNHCR should not undermine the ultimate goal of strengthening States’ capacities to fulfil comprehensively their obligations vis-à-vis persons of concern.54 Creating and expanding humanitarian space Cooperation between UNHCR and human rights actors can play an important role in creating and expanding humanitarian space and establishing an environment which allows UNHCR to exercise effectively and efficiently its international protection mandate. Cooperation obligations deriving from international human rights law complement the
53 For more information, see O. Andrysek, ‘Gaps in International Protection and the Potential for Redress through Individual Complaints Procedures’, 9:3 International Journal of Refugee Law (1997) pp. 392–414. See also J. Fitzpatrick (ed.) Human Rights Protection for Refugees, Asylum Seekers and Internally Displaced Persons: A Guide to International Mechanisms and Procedures (Transnational Publishers, New York, 2002). 54 The urgency of needs and the severe consequences of delayed assistance as well as the realities of failed or incapacitated States sometimes requires UNHCR to engage in substitutional efforts ranging from food assistance to organising education in camps. As the SecretaryGeneral on the human rights of internally displaced persons correctly notes, “[e]ven in such cases, however, the aim must be not to substitute but to strengthen national efforts for protecting and assisting the internally displaced” (E.CN.4/2006/717/Add.1, para. 49) (emphasis added).
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States’ commitment to cooperate with UNHCR under Article 35 CSR5155 and their more general obligations to cooperate with the UN under Article 5656 of the UN Charter.57 Recalling that States have the primary responsibility for the protection of any individual on their territory or under their jurisdiction, the concept of the international community’s “responsibility to protect” has now been explicitly recognised in the outcome document adopted by the September 2005 UN Summit.58 While this particular term has only recently come into common use subsequent to the report of and the discussion on the Secretary-General’s High Level Panel on Threats, Challenges and Change, the underlying concept is not completely new, but rooted in the Charter and vision underlying the UN. The Charter refers to the achievement of “international cooperation in solving international problems of an ... humanitarian character” and to “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”.59 The concept of a responsibility to protect, if fully embraced, offers a potentially most valuable framework for addressing prevailing human rights deficits, including those faced by persons of concern to UNHCR, 60 by a variety of means and not least by humanitarian action. The international community’s responsibility to protect can only be translated into protection realities if clear tasks are assigned,61 if these tasks are properly fulfilled by 55 Whereby contracting States “undertake to cooperate with the Office of the United Nations High Commissioner for Refugees … and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”. This wording clarifies that the undertaking to cooperate is not limited to the implementation of the 1951 Convention, but refers to “any and all of the functions of the High Commissioner’s Office, irrespective of their legal basis” (Kälin, supra note 20, p. 617, with further reference to A. Grahl-Madsen, Commentary on the Refugee Convention 1951 (UNHCR, Geneva, 1997) p. 254). 56 Which reads: “All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.” 57 This duty extends to UNHCR in its capacity as one of the subsidiary organs of the General Assembly, see Kälin, supra note 20, p. 619; see also UN General Assembly resolution 428(V), 14 December 1950, which called upon governments to “cooperate with the United Nations High Commissioner for Refugees in the performance of his functions ... ”. 58 A/RES/60/1, 24 October 2005, paras. 138−140, devoted to the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 59 UN Charter, Article 1(3), which must be read in conjunction with Articles 55 and 56. 60 On the link between this responsibility and the complementary protection concept, see E. Feller, The Responsibility to Protect – Closing the Gaps in the International Protection Regime and the New EXCOM Conclusion on Complementary Forms of Protection, presentation by Erika Feller, Director of International Protection, UNHCR, to the “Moving On: Forced Migration and Human Rights” Conference, NSW Parliament House, Sydney, Australia, 22 November 2005, <www.unhcr.org/admin/ADMIN/43a692122.html>. 61 This is explicitly acknowledged in the Report of the Secretary General’s High Level Panel, Delivering as One, 9 November 2006, para. 22, which notes that “[a]s a result of the increase in intrastate conflict, there are more than 25 million internally displaced persons, compared with 10 million refugees. The humanitarian system must evolve further to address this growing problem. A clear allocation of responsibility within the UN system is needed …”
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those entrusted, and if effective oversight is maintained on the functioning of the system in its entirety. The UN has a decisive role to play in assigning responsibilities, and international organisations, including humanitarian agencies, are the key actors through which the international community can exercise its responsibility. Such complementary responsibility of the international community does not, however, delegate original responsibilities from the State to the international community and agencies acting on its behalf. Human rights can and should be used as a normative framework, governing the interaction between States and humanitarian actors such as UNHCR. In relation to economic, social and cultural rights, a clear reference to the role of international assistance is made in Article 2(1) of the International Covenant on Economic, Social and Cultural Rights. A number of treaty bodies, including the Committee on Economic, Social and Cultural Rights62 and on the Rights of the Child,63 have explicitly addressed the issue and referred to States’ obligations to seek international cooperation and assistance as an element inherent to their human rights obligations. The scope of human rights-based State obligations to invite, accept and facilitate international, and in particular humanitarian, assistance deserves further doctrinal development. Such future efforts must build on, and be consistent with, other developments in international law, including international criminal and humanitarian law. They must, for example, take into account that “intentional starvation as a method of warfare” constitutes a war crime,64 which thereby sets a clear parameter towards securing humanitarian access. This concept has been considered in depth in relation to the protection of IDPs by the RSG on the Human Rights of IDPs, Walter Kälin. In his Framework for national responsibility, which constituted an addendum to his report to the Human Rights Council, he explained: When Governments do not have the capacity to provide for the security and well-being of their displaced populations, they should, as an exercise of responsible sovereignty, invite or accept international assistance and work together with international as well as regional organizations in addressing the protection and assistance needs of the displaced and identifying durable solutions to their plight.65 62 In its General Comment No. 3, para. 13, the Committee has explained that “the phrase ‘to the maximum of its available resources’ was intended by the drafters of the Covenant to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance. … Article 23 also specifically identifies ‘the furnishing of technical assistance’ as well as other activities, as being among the means of ‘international action for the achievement of the rights recognized …” (emphasis added). 63 See its General Comment No. 6, para. 16, wherein it inter alia expresses that “States are expected to accept and facilitate assistance offered within their respective mandates by UNICEF, UNHCR and other agencies (art. 22(2)) in order to meet the needs of unaccompanied and separated children”. 64 See Article 8(2)(b) (xxv) of the Rome Statute of the International Criminal Court. 65 E/CN.4/2006/71/Add.1, para. 44, (emphasis added). He adds: “Another sign of national responsibility therefore is cooperating with, and giving safe and unimpeded access to, regional and
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This dimension of human rights obligations would also be a suitable topic to be addressed by way of preparing a joint General Comment of treaty bodies, if ever treaty bodies could agree to such an approach with a view to enhance the consistency and coherence of their work. UNHCR’s human rights commitments and resulting rights-based approaches to operations and programming Neither UNHCR nor other humanitarian organisations are party to any international human rights treaties. Yet there is an increasing consensus that human rights underpin all humanitarian action66 and that the protection of human rights is intrinsic to effective humanitarian action.67 It was not least the common understanding of the need to further develop understanding on how human rights could and should best govern all dimensions of the United Nations’ efforts including its humanitarian action which lead the General Assembly to refer to “mainstreaming of human rights within the United Nations system” as one of the tasks explicitly assigned to the newly created and upgraded Human Rights Council.68 The Special Procedures also give increasing attention to mainstreaming human rights into the United Nations system and to the human-rights-related responsibilities of international organisations. UNHCR’s human rights obligations have a number of roots. Created by States, UNHCR is bound by the human rights obligations which are shared by all of its founders, namely by customary and in particular peremptory international human rights norms.69 UNHCR is further bound by the commitment of the United Nations to promote and protect human rights, as enshrined in Article 1(3) of the Charter and in resolutions of the General Assembly as well as conclusions of the UNHCR Executive Committee which, while constituting soft law for States, are of binding character for UNHCR where they relate to its mandate and functions. Explicit commitments by UNHCR, such as those expressed in the UNHCR Policy on Refugee Children, wherein UNHCR had
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international organizations seeking to undertake efforts on behalf of the internally displaced”, (emphasis added). See for example IASC, Protecting Persons Affected by Natural Disasters: IASC Operational Guidelines on Human Rights and Natural Disasters, General Principle III, which states: “Organizations providing protection and assistance to persons affected by natural disasters accept that human rights underpin all humanitarian action. In situations of natural disaster they should therefore respect the human rights of persons affected by disasters at all times and advocate for their promotion and protection to the furthest extent.” See IASC, Human Rights Guidance Note for Humanitarian Co-ordinators, p. 2, which further highlights: “Once underway, complex crisis can, by their very nature, be understood in part as human rights emergencies since they constitute a deprivation of the fundamental rights of the victims to life.” General Assembly resolution 60/251, 3 April 2001, OP 3. See also Yearbook of the International Law Commission, vol. 2, United Nations, New York, 1982 p. 56, and A. Clapham , Human Rights Obligations of Non-State Actors (Oxford University Press, Oxford, 2006) p. 68.
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adopted the Convention on the Rights of the Child as the “normative frame of reference for UNHCR’s action”,70 serve to further clarify the extent to which human rights underpin UNHCR’s work and govern our operations. UNHCR’s commitment towards the concept and application of a human rights-based approach to programming71 is well reflected not only in the terminology now introduced in guidelines, handbooks72 and training manuals73, but also in the development of human rights-based standards and indicators74 which govern UNHCR operations. These UNHCR specific efforts are embedded in broader efforts to harmonise understanding of the concept undertaken for example during a May 2003 inter-agency workshop on “Implementing a Human Rights-based Approach to Development in the Context of UN Reform” and resulting in a common understanding on rights-based programming, subsequently developed and endorsed by the United Nations Development Group, of which UNHCR has been a member since 2003.75
70 UNHCR Policy on Refugee Children, 1993, para. 17. 71 This approach can build on a decade old efforts (see Report of the Secretary-General, Renewing the United Nations: A Programme for Reform, A/51/950, in which the Secretary-General called on all agencies of the UN to integrate human rights in their activities within the framework of their respective mandates). The debate on the term and concept of “human-rightsbased operations and programming” concept is still ongoing and controversial. While the debate focused the application of the term in the development context and in relation to economic, social and cultural rights, it should not be confined to these fields. 72 The UNHCR Handbook for the Protection of Women and Girls (provisional release June 2006) adopted the term “rights- and community-based approach”. 73 Human Rights and Refugee Protection, Self-Study Module 5, vols. I and II, 15 December 2006. 74 See for example UNHCR, Practical Guide to the Systematic Use of Standards and Indicators in UNHCR Operations, 2nd ed., February 2006, available at <www.unhcr.org/statistics/ STATISTICS/40eaa9804.pdf>. See also UNHCR, Tool for Participatory Assessment in Operations, 1st ed., May 2006. 75 This Common Understanding on Rights-Based-Programming achieved consensus as follows: – All programmes of development cooperation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments. – Human rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and in all phases of the programming process. – Programmes of development cooperation contribute to the development of the capacities of duty-bearers to meet their obligations and of ‘rights-holders’ to claim their rights. (The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies, available at <www.undg.org/documents/6959-The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding among_UN.pdf>).
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Despite the principled consensus reached on the concept, the detailed consequences of such approach may require further reflection, in particular considering the particularities and principles governing humanitarian work, namely the principles of humanity, impartiality and neutrality. It must also be recalled that UNHCR’s operations were rights-based and rights-centred from the very beginning of its work as “the underlying broader international framework of international protection predates the establishment of UNHCR”,76 which further received, almost from the time of its creation, an updated international instrument, the 1951 Convention, subsequently modified by the 1967 Protocol.77 In consequence and given its international protection mandate and the explicit supervisory function of the organisation as foreseen in Article 35 CSR51, UNHCR was fortunate in that it did not have to undergo adaptation challenges faced by those agencies whose work was enhanced by the adoption of an international human rights instrument long after their creation. These particularities and the fact that UNHCR’s assistance activities cannot be seen in isolation from its international protection mandate must be kept in mind when translating the commitment towards a rights-based approach into UNHCR’s operations in the field.78 UNHCR’s manuals and guidelines assist staff in the field in translating human rights standards into the Office’s operations.79 Assistance complements protection and is indeed a form of providing protection. There cannot be any UNHCR assistance activities which are not firmly embedded in its (core or expanded) international protection mandate.80 Assistance programmes therefore 76 See Türk, supra note 6, p. 138. 77 Historically it may also be recalled that the almost simultaneous creation of UNHCR and of the CSR51 was clearly intended by the international community to depart from previous assistance-focused efforts taken under United Nations Relief and Rehabilitation Administration (UNRRA) and International Refugee Organization (IRO). The new focus gave primary attention to the provision of legal protection by defining clear responsibilities of refugee hosting States, which were in principle obliged to meet all the assistance needs of all the refugees on their respective territory. Only later, when refugee challenges and crisis moved beyond Europe, did assistance and related programme activities receive renewed importance. 78 This is reflected in General Assembly resolution 832 (IX), International Assistance to Refugees within the Mandate of the United Nations High Commissioner for Refugees, 21 October 1954, which provided UNHCR for the first time with an explicit broad legal framework for its assistance activities. The mandate was subsequently consolidated and expanded to cover IDPs. See e.g. General Assembly resolution 33/26, 29 November 1978, in which the High Commissioner was requested “to intensify his efforts to assist refugees and displaced persons of concern to his Office, especially with a view to providing urgent humanitarian assistance to the large and increasing numbers in need in Africa, Asia and Latin America”. 79 See e.g. UNHCR, UNHCR Guidelines on Formal Determination on the Best Interests of the Child, Provisional Release May 2006. 80 Similarly, Programme 21, Protection of and Assistance to Refugees, of the UN Medium-Term Plan for the Period 2002–2005, A/55/6/Rev.1, expressed: “Assistance is one aspect of international protection and is a means of facilitating it. It is rooted in and grows out of the protective nature of UNHCR’s work. In its operational activities, UNHCR seeks to integrate protection and humanitarian assistance ...”
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have to be designed and consistently implemented in a manner which strives to enhance the protection of persons of concern to the Office. At the same time, UNHCR must always remain sensitive to the direct and indirect human rights consequences of all its activities, not only for persons of concern, but also for others, including affected populations in host States or relatives of refugees who remain in the country of origin. Based on the understanding that human rights underpin all UNHCR’s work, and its commitment to protect the human rights of persons of concern, the Office cannot promote, actively engage in or otherwise contribute to or approve policies or activities which constitute or could lead to human rights violations by States.81 Where progress towards ensuring the protection of persons of concern falls short of full compliance with human rights standards, the commitment to uphold human rights and to a rights-based approach does not prevent UNHCR from making use of any opportunities to improve protection. In its interventions and public statements, UNHCR would, however, have to be very clear that such protection does not constitute, nor should be read as, a change of applicable standards and should not be interpreted as endorsement of any deviation from such standards. The many existing threats to the enjoyment of their rights by refugees and others of concern and the many imaginable complex human rights dilemmas UNHCR may face in its work will make the task of upholding the human rights of persons of concern an ongoing challenge.
81 See also supra note 36, which takes a similar approach.
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Chapter VI: Selected Issues
32
Human Rights Education Anette Faye Jacobsen*
A definition of human rights education may be narrow or comprehensive. The former can be as brief as: teaching and learning about human rights. The latter, on the other hand, encompasses elements of education policy and pedagogical approaches which influence the institutional context, the curriculum, the teaching methods and the teaching material. Below follows a brief overview of the different aspects of what might be summarised as the current comprehensive human rights education discourse. Human rights education in international instruments Human rights education is embedded in the human rights obligations that (most) States have undertaken to fulfil. In some cases through very broad normative requirements, in other (few) instances demanding quite precise actions from governments. Thus, when a State chooses to commit itself to regional and international human rights treaties, it will often follow that education for and about human rights must have some place in its formal education systems. Article 26(2) of the Universal Declaration of Human Rights reads: “Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.” A similar wording can be found in Article 13(1) of the UN Covenant on Economic, Social and Cultural Rights, as well as in the Convention on the Rights of the Child, Article 29(1)(b). These descriptions, however, are rather broad and vague, and do not specifically oblige governments, for instance, to include human rights in the curricula of schools. Nevertheless, Article 42 of the Convention on the Rights of the Child stipulates: “State Parties undertake to make the principles and provisions of the Convention widely known by appropriate and active means, to adults and children alike.” This is a more *
Ph.d., special adviser, Danish Institute for Human Rights.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 349-353.
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concrete and specific provision that furnishes human rights activists with good arguments for including information on the Convention on the Rights of the Child in the school curricula, as well as in training programmes for relevant professional groups such as welfare officers, teachers, police staff, etc. Professional groups are the focus of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Article 10 provides: “Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.” Here is a clear obligation on States Parties to secure information and education on an important aspect of human rights protection for specific professional groups. There can be no doubt that the prohibition against torture must be explicitly embraced in basic or in-service training programmes of all relevant occupations. Major political initiatives for human rights education The termination of the Cold War marked a strong rise in interest and demand for training and education in human rights. New democracies in many regions of the world often wished to reform the education sector, including curricula and syllabi, to re-define tasks for the judiciary, the press, civil servants, etc., thus, consequently, building up a need of new knowledge and skills relating to human rights. This was the background for some high-profile initiatives in the early 1990s to endorse and develop human rights education at all levels. The Vienna Declaration and Programme of Action emanating from the World Conference on Human Rights in 1993 had a whole chapter devoted to emphasising the need for human rights education. Also, in 1993, the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a World Plan of Action on Education for Human Rights and Democracy at its congress in Montreal. The following year, the United Nations proclaimed a Decade for Human Rights Education (1995–2004). The newly established UN High Commissioner for Human Rights was charged with the coordination of activities under the Decade. The follow-up efforts to these significant political programmes were to a large extent influenced from civil society organisations and activists who had been engaged with developing human rights education in accordance with the comprehensive concept mentioned above. And thus the broad understanding of human rights education was gaining acknowledgement and new influence channels through the UNESCO and UN programmes that followed. In relation to the Decade, the UN developed a Plan of Action with descriptions of objectives, tasks, contents, methods of human rights education, etc. to be deployed at the national, regional and international level. The Plan of Action also indicates a model for development of national mechanisms to secure the infusion of human rights into all relevant sectors of the national educational systems, including non-formal education.
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Goals, target groups and approaches The Decade Plan of Action expressed some of the cornerstones of the comprehensive understanding of human rights education, in a brief form. Some of these will be dealt with in more detail below. Overall, goals for human rights education in general and for the Decade in particular are to strengthen respect for human rights for all, to promote tolerance and peace and to enable all persons to participate effectively in a free society. Such extensive tasks will require a wide range of strategies. Some initiatives must address the general public. This can be done, over some years, via the school system and, in particular in countries and regions where the formal educational structure is less developed, through non-formal training programmes. Others will seek to enhance human rights practices more directly by training key actors administering the implementation of human rights, including the police, judges, lawyers, prison staff, welfare personnel, civil servants, the armed forces, teachers, etc., and by ensuring that respect for human rights covers also the weakest and most vulnerable groups through programmes for refugees, the disabled, indigenous peoples, minorities, street children and so on. The Decade Plan of Action states as one of its Guiding Principles that “(i)n order to enhance their effectiveness, human rights efforts for the Decade shall be shaped in such a way as to be relevant for the daily lives of learners, and shall seek to engage learners in a dialogue about the ways and means of transforming human rights from the expression of abstract norms to the reality of their social, economic, cultural and political conditions”. This guiding principle is one of the very few general rules on human rights education strategies. The point is that good human rights education (and this probably goes for all good education) must be responsive to local conditions, traditions and challenges. Furthermore, programmes should be developed to approach specific groups in their own language, in the broadest sense of the word: Style and examples must build on social and cultural customs and practices of the target group; information should point to concrete, current problems in their own community or professional life. Suggestions for improvements must be designed for and reachable within the actual context of the target group. This may sound fairly obvious, but very often human rights education is not undertaken along such lines. Frequently, for example, human rights educators fill their training programmes with an account of the Universal Declaration on Human Rights and other similar international instruments. For most non-specialists, these documents are written in an obscure language describing abstract and principles for the whole of mankind – all of which leads the learning process away from the pedagogical principles and intended practice. The lessons that can be drawn from the guiding principle are that each and every education programme should be carefully designed in accordance with its specific target and objectives. This means that, ideally, content, training methods and materials are prepared or adjusted for every new human rights education or training activity. This takes much effort and specialised knowledge in relation to the target groups. For example, a human rights course for police staff should relate to national statutes and regulations, focus on local traditions and current problems when giving examples and
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be realistic with respect to internal managing hierarchies and resources when recommending improvements. The need for contextualising human rights education programmes does not exclude international, regional or transnational projects and cooperation. In fact, there is a steady flow of exchanges of “best practices”, “lessons learned” and inter-institutional projects easily accessible for all in command of the major European languages (cf. reference list below) Methods and materials Within the comprehensive understanding of human rights education, the content of the curricula is seen as closely related to the pedagogical methodology. The obvious logic behind this relationship is expressed in some of the well-known phrases among (human rights) educators: How you teach is what you teach, or you cannot teach freedom of expression if you as a teacher do not allow your students to express themselves freely. The Decade Plan of Action does not say anything explicitly on methods of training. However, as one of the general guiding principles provides: “Human rights education under the Decade shall seek both to impart skills and knowledge on learners and to affect positively their attitudes and behaviour …” UNESCO’s World Plan of Action on Education for Human Rights and Democracy of 1993 states: “The process of developing and delivering human rights education and training must be viewed in itself as an exercise in democracy in keeping with the participation of target groups. This can be done by practicing the principle of equality and by developing participatory and inclusive learning contexts and curricula, genuinely responsive to the real needs of people. Educational processes and methodologies must be models for what the plan wishes to achieve in society as a whole.” Similar recommendations can be found in a commentary from the Committee of the Rights of the Child relating to the aims of education (General Comment 1 (2001)). Regarding human rights education, the Committee states that “children should also learn about human rights by seeing human rights standards implemented in practice, whether at home, in school, or within the community”. These objectives imply methods which go beyond the most traditional pedagogy with its inclination to teacher-centred learning culture. A mode of instruction which is still employed in large parts of the world today. There is extensive literature on human rights education employing a participatory approach. However, very often such methods are hard to apply in educational settings with classes comprising large numbers of students, with scarcely trained teachers, and a tight curriculum – a situation which is the rule rather than the exception in many third world countries. And, as if this was not enough, one often finds deep cultural and social gaps between trainers and learners in human rights education: Between NGO activists and human rights specialists that most often come from well-educated, urban, internationally-oriented social segments, and many of their targets that may represent a much more traditional background. This is particularly the case when addressing the most vulnerable and least privileged groups that are often a high priority in human rights education programmes.
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There is an evident need for research on human rights education. It is a common rule to evaluate educational projects. However, evaluations rarely reach beyond measuring an immediate output and impressions from the participants of the projects. A thorough assessment of effects and impact of human rights educational projects would take a more long-term effort. Nevertheless, it would definitely provide us with more solid knowledge on the quality and relevance of the current approaches to human rights education, tell us more about whether and how we actually manage to bridge the many gaps in the training processes, and thus contribute to a more advanced platform from where to reach further. References The UN High Commissioner for Human Rights is establishing a database on human rights education and training under the World Programme for Human Rights Education, which is the successor initiative for the Decade for Human Rights Education (2005–ongoing). The site is intended to include institutions working with human right education, programmes and materials. Information about the database is available at <www.unhchr.org>. UNESCO has a portal with documents from the Decade for Human Rights Education and other UN and UNESCO programmes and initiatives relating to human rights education during the last decade. Available at <www.portal.unesco.org/education>. A large compilation of online material and other resources dealing with human rights education can be found at <www.hrea.org/erc> and <www.umn.edu/humanrts/edumat>.
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United Nations Permanent Forum on Indigenous Issues: A Multifaceted Approach to Human Rights Monitoring Elsa Stamatopoulou*
Introduction At the time that the first human rights monitoring procedures of the United Nations (UN) Commission on Human Rights were created in the late 1960s, it was clear in the minds of States that there was a distinction between human rights monitoring and promotion of human rights. In these four decades, the international human rights system, especially the system developed by the United Nations, has adopted a more comprehensive approach. Today, the “naming and shaming” connected to human rights monitoring is combined with human rights institution building, human rights information, education and training and the ability for States to seek the technical assistance of the United Nations. In addition, human rights monitoring has to be seen against the backdrop of increasing efforts of the UN system to integrate human rights in development work and humanitarian and peace operations, which in turn make monitoring relatively easier since it can be done within an all encompassing operational framework. It is against this background that I propose to place the human rights aspects of the mandate of the UN Permanent Forum on Indigenous Issues (UNPFII). Despite the fact that the UNPFII is not a human rights monitoring body in the strict sense, I maintain that the UNPFII plays an important role in this area and has a much greater potential. The second fundamental consideration, when examining the human rights mandate of the UNPFII, is that the Permanent Forum is itself the result of the long and systematic efforts of the international movement of indigenous peoples since the 1970s, a movement born and bread in the human rights movement. Thus, human rights have been an integral part of the Permanent Forum on Indigenous Issues since its inception, and the Forum, thanks to the just mentioned efforts of indigenous peoples, has to this day remained the supreme UN authority for indigenous issues. The first part of this article briefly examines the historical interface of indigenous peoples with the international community, the United Nations in particular, that led *
The author works at the Secretariat of the United Nations. The views expressed in this chapter do not necessarily represent those of the United Nations.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 355-367.
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to the creation of the UNPFII. The second part analyses the mandate and practice of the UNPFII in the area of human rights and its links to other international human rights mechanisms. Finally, the conclusion identifies challenges and opportunities in the Forum’s discharge of its human rights mandate. History of Indigenous Issues at the International Level Which Led to the Creation of the UN Permanent Forum on Indigenous Issues In 1923, Cayuga Chief Deskaheh travelled to the League of Nations in Geneva as the representative of the Six Nations of the Iroquois to plead for the cause of his people. He waited one year working for recognition by the League, which was not received, and then went back to his home. A few months before his death in 1925, Chief Deskaheh made a speech by radio in Rochester, New York. The following is an excerpt: “This is the story of the Mohawks, the story of the Oneidas, of the Cayugas – I am a Cayuga – of the Onondagas, the Senecas, and the Tuscaroras. They are the Iroquois. Tell it to those who have not been listening. Maybe I will be stopped from telling it. But if I am prevented from telling it over, as I hope I do, the story will not be lost. I have already told it to thousands of listeners in Europe. It has gone into the records where your children can find it when I may be dead or be in jail for daring to tell the truth. I have told this story in Switzerland. They have free speech in little Switzerland. One can tell the truth over there in public, even if it is uncomfortable for some great people. … I am the speaker of the Six Nations, the oldest League of Nations now existing … It is a League which is still alive and intends, as best it can, to defend the rights of the Iroquois to live under their own laws in their own little countries now left to them, to worship their Great Spirit in their own way, and to enjoy the rights which are as surely theirs as the white man’s rights are his own.”
Maori religious leader W. T. Ratana made a similar journey to protest the breaking of the Treaty of Waitangi, which gave Maori ownership of their lands, concluded with the Maori in New Zealand in 1840. Ratana first travelled to London with a large delegation to petition King George but was denied access. He then sent part of his delegation to the League of Nations in Geneva, and arrived there later himself in 1925; even here the delegation was denied access. It is clear that the history of indigenous peoples “knocking” at the door of the institutions of the international community of “nations” is old. Indigenous peoples’ sense of themselves as sovereign nations, in parity with the other nations of the world, has always been very strong. The fact that States, the colonising powers, concluded treaties with many indigenous peoples is a testimony that those who “invented” international law viewed indigenous peoples as sovereign. There has been a vigorous and dynamic interface between indigenous peoples –numbering more than 370 million in more than 70 countries – and the UN, an interface that, difficult as it is, has produced at least three things:
See the website of the Secretariat of the UN Permanent Forum on Indigenous Issues, <www. un.org/esa/socdev/unpfii/en/history.html>.
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a) increased awareness of indigenous peoples’ concerns and rights; b) recognition of indigenous peoples’ invaluable contribution to humanity’s cultural diversity and heritage, in part, due to their traditional knowledge; and c) increased awareness of the need to address the problems of indigenous peoples through policies, laws and budgets. Along with the movements for decolonisation and human rights as well as the women’s movements, the indigenous movement has been one of the four strongest civil society interlocutors of the United Nations since 1945. The situation of indigenous peoples in many parts of the world continues to be critical: – Indigenous peoples face systemic discrimination and exclusion from political and economic power. – They continue to be over-represented among the poorest, the illiterate and the destitute. – They are displaced by wars and environmental disasters. – The weapon of rape and sexual humiliation is also turned against indigenous women for the ethnic cleansing and demoralisation of indigenous communities. – Indigenous peoples are chased out of their ancestral lands and deprived of resources of survival, physical and cultural. – They are even robbed of their very right to life, simply killed when they are in the way of those who pursue other political and economic agendas. In more modern versions of market exploitation, indigenous peoples see their traditional knowledge marketed and patented without their consent and participation. Out of the 6000 some languages spoken today, more than 4000 are estimated to be spoken by indigenous peoples. Specialists predict that up to 95 per cent of the world’s languages are likely to become extinct or are threatened with extinction by the end of the century; one can therefore imagine what the percentage of indigenous languages this statistic represents. Indigenous issues at the United Nations until 1993 In 1957, the International Labour Organization (ILO) began investigations of forced labour of “native populations” and adopted a legal instrument, Convention No. 107, titled “Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries”. This Convention was later criticised as assimilationist by the indigenous movement.
For an analysis of the interface of the indigenous peoples’ movement with the UN until 1993, see E. Stamatopoulou, ‘Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic’, 16:1 Human Rights Quarterly (February 1994) pp. 58–81. United Nations Development Programme (UNDP), Human Development Report: Cultural Liberty in Today’s Diverse World, 2004, p. 6.
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In 1972, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities launched a study on the problem of discrimination against indigenous populations, known as the “Martinez Cobo Study” due to the name of the special rapporteur appointed to prepare it. The Study began at the time of the start of the indigenous movement, a time witnessing increased involvement of Native Americans with the civil rights movement in the USA and the birth of an American Indian movement in that country. This framed the nascent international indigenous movement in human rights terms – a landmark that has characterised the movement ever since. The movement was firmly established in the 1970s, and the first international meeting among indigenous leaders took place in Geneva, Alaska and Sweden in 1977. Even the methodology of the Study was adapted so as to include indigenous input, and 37 monographs on specific countries were created. The Final Study was published from 1982 to 1984, and it is the most voluminous and time-consuming UN human rights study to date. Augusto Willemsen Dias, a Guatemalan jurist, was the first UN official to deal with indigenous peoples’ rights, and he was the major author of the Study and showed extraordinary commitment, courage and unwavering integrity. He is considered the “father” of the Working Group on Indigenous Populations. The study created a momentum that, together with the advocacy of the indigenous movement, led to the 1982 establishment of the first UN mechanism on indigenous peoples’ issues, i.e. the Working Group on Indigenous Populations of the Sub-Commission. The Working Group was composed of five experts with a mandate to review recent developments regarding the human rights of indigenous populations, and to develop international standards. In 1983, in an unprecedented breakthrough, the Working Group decided to allow participation in its work by representatives of indigenous communities/peoples/nations, i.e. even those who did not have consultative status with the UN Economic and Social Council, which was an absolute requirement for the participation of non-governmental organisations (NGOs) at the UN until then. From some 15 NGOs participating in 1983, about 1,000 indigenous representatives participated at the Working Group during its peak times. Native American leaders were there from the beginning, along with leaders from Guatemala, Canada, Australia, India and other countries. In 1984, the UN established a Voluntary Fund for Indigenous Populations to assist indigenous grassroots organisations to travel to Geneva to the Working Group. In 1989, the ILO adopted Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, to replace the criticised Convention No. 107. In 1993, the Working Group completed a Draft Declaration on the Rights of Indigenous Peoples, a document held in high esteem by indigenous peoples since it was created with their participation and expressed indigenous peoples’ aspirations. The year 1993 was proclaimed the International Year of the World’s Indigenous People, with the goal “to strengthen international cooperation for the solution of problems faced by indigenous communities in areas such as human rights, the environ
H. Hannum, ‘New Developments in Indigenous Rights’, 28 Virginia Journal of International Law (1988) p. 652. The Final Study is contained in UN Doc. E/CN.4/Sub.2/1986/7 and Add. 1–4.
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ment, development, education and health”. Rigoberta Menchu, an indigenous leader from Guatemala, was named Goodwill Ambassador for the International Year by the Secretary-General. It is important to underline that it is through the human rights angle that indigenous issues received significant international attention since it is known that human rights has a political edge that catches States’ attention because of the critique of governmental practices that the human rights debate entails. Indigenous Issues at the UN after 1993 At the World Conference on Human Rights in 1993, indigenous representatives were numerous and well organised. Those of us that were in Vienna will not forget the “S” campaign, where indigenous representatives filled the Plenary Hall of the Conference holding big signs with the letter “S” – a reminder to those attending that they see themselves as “peoples” and not just a “people”, i.e. peoples with group identities claiming their right to self-determination. However, they did not yet achieve the acceptance of the “S” in Vienna. What they achieved were various proclamations, including the following: a) States were urged to ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them. b) There was a recommendation to the General Assembly to proclaim an International Decade of the World’s Indigenous People. c) The UN was asked to consider the establishment of a permanent forum for indigenous people in the UN system. Two international decades of the world’s indigenous people The First Decade, launched in 1994 and completed in 2004, adopted the special theme “Partnership in Action” and was meant to raise awareness about and integrate indigenous issues in inter-governmental and, by extension, governmental agendas. A Voluntary Fund was established for the Decade, which funded small community projects. Despite its noble intentions, it is fair to say that the Decade failed to capture in its implementation the “big picture”, and did not achieve the mainstreaming of indigenous issues in terms of resources. On the other hand, it did promote public awareness and helped support many community empowering projects. It is also fair to say that the aspiration expressed by the World Conference on Human Rights for international co-operation funds to be devoted to indigenous-related programmes saw little implementation. A
General Assembly resolution 46/128, 46th session, UN Doc. A/RES/46/128 (1992). In fact, the women’s movement realised this around the end of the 1980s (about two decades after the indigenous movement had started doing so) and launched a campaign to integrate women’s rights as human rights in the international agenda. At the World Conference in Vienna, women united under the slogan “women’s rights are human rights” and achieved significant results. Vienna Declaration and Programme of Action, UN Doc. A/CONF/157/24.
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major goal of the first Decade, namely the establishment of the UN Permanent Forum on Indigenous Issues, materialised in 2000, when, following a recommendation of the Commission on Human Rights, the Economic and Social Council adopted resolution 2000/22 establishing the Forum. A Second Decade of the World’s Indigenous People was started in 2005. The five objectives of the Decade’s Programme of Action capture the articulation of the Forum’s major messages: a) promoting non-discrimination and inclusion of indigenous peoples in the design, implementation and evaluation of international, regional and national processes regarding laws, policies, resources, programmes and projects; b) promoting full and effective participation of indigenous peoples in decisions which directly or indirectly affect their lifestyles, traditional lands and territories, their cultural integrity as indigenous peoples with collective rights or any other aspect of their lives, considering the principle of free, prior and informed consent; c) redefining development policies that depart from a vision of equity and that are culturally appropriate, including respect for the cultural and linguistic diversity of indigenous peoples; d) adopting targeted policies, programmes, projects and budgets for the development of indigenous peoples, including concrete benchmarks, and particular emphasis on indigenous women, children and youth; and e) developing strong monitoring mechanisms and enhancing accountability at the international, regional and particularly the national level regarding the implementation of legal, policy and operational frameworks for the protection of indigenous peoples and the improvement of their lives. The Declaration on the Rights of Indigenous Peoples In 1995, the Commission on Human Rights established a Working Group to further elaborate on the Draft Declaration transmitted to it by the Working Group on Indigenous Populations and the Sub-Commission. The negotiations were difficult and indigenous representatives again participated actively in the process. There were two main interlinked problems for States in proclamations of indigenous rights: the right to self-determination and the issue of lands, territories and resources, especially natural resources. The Declaration is imbued with an elaborate legal articulation of human rights that come from these two ideas. The issue of retribution and restitution of historical injustices and distribution of resources in society is fundamental. The Declaration clearly recognises individual and group rights in various domains, such as in the choice of modes of economic and social development, administration, education, health and others. At a historic decision during its first session in June 2006, the Human Rights Council, the body that succeeded the Commission on Human Rights in the same year, adopted the Declaration.10 UN Doc. A/60/270. 10 The Declaration was adopted by resolution 2006/2 of the Human Rights Council; see the report of the Council, A/HRC/1/L.10.
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The Permanent Forum on Indigenous Issues played an important advocacy role for the adoption of the Declaration when, at its fifth session in May 2006, the Forum expressed its conviction that a declaration on the rights of indigenous peoples will be an instrument of great value through which to advance the rights and aspirations of indigenous peoples. The Forum, therefore, recommended the adoption, without amendments, of the Draft Declaration by the General Assembly during its 61st session in 2006. The Forum also stated that this would represent a major achievement for the Second International Decade of the World’s Indigenous People.11 The Forum is explicitly mentioned in Article 42 of the Declaration, which states that “[t]he United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States, shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration”. Following the adoption of the Declaration by the General Assembly on 13 September 2007, the Forum will be expected to articulate the ways in which it will carry out its obligations under the Declaration. Special Rapporteur on the Human Rights of Indigenous Peoples: monitoring In 2002, the Commission on Human Rights decided to establish the Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People to examine the situation worldwide on the basis of communications received and country-specific visits. Special Rapporteur Rodolfo Stavenhagen, a well-known Mexican anthropologist, has been presenting annual reports to the Commission on Human Rights and, since 2006, the Human Rights Council and the General Assembly.12 As will be mentioned below, there exists special co-operation between the UNPFII and the Special Rapporteur. Creation of the Permanent Forum on Indigenous Issues and its human rights mandate and practice A seven-year process of international consultation after the Vienna Conference of 1993 led to the establishment of the Permanent Forum on Indigenous Issues in 2000 by Economic and Social Council resolution 2000/22. The Forum has a unique and unprecedented composition – namely, eight of its members are nominated by governments and eight by indigenous peoples’ organisations. The Forum has a broad mandate, namely, to: discuss economic and social development, environment, health, human rights, culture and education; advise the Economic and Social Council and the UN system on all matters pertaining to its mandate; promote the co-ordination and integration of indigenous issues in the UN system; raise awareness; and elaborate reports on indigenous issues. This high-level body in the UN’s hierarchy demonstrates the increasing political engagement of States in co-operation with indigenous peoples to address a multiplicity of issues. More than 1,000 indigenous participants from all parts of the world attend 11 Report of the fifth session of the UNPFII, E/2006/43, para. 68. 12 The Special Rapporteur’s reports may be accessed on the website of the Office of the High Commissioner for Human Rights, <www.ohchr.org>.
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the annual sessions of the UNPFII in NewYork, in addition to some 70 countries and roughly 35 inter-governmental entities. The mandate of the UNPFII, thus, clearly includes discussing human rights and providing advice in this area to the UN system, through the Council; raising awareness and promoting coordination; and the mainstreaming of indigenous peoples human rights in the UN system. In fact, the specific human rights mandate of the Forum, as articulated in the Council’s resolution, is unique in the United Nations as regards indigenous peoples. The Forum has pursued its human rights mandate proactively as a body that, through its systematic advice, aims at making a “culture change” in the UN system and beyond. This change should be catalytic in terms of policies, laws, budgets and overall practices of the UN system, and have an impact at the national and local level. The Forum has approached its mandate by looking at the big picture and realising that in order to see an end to discrimination and marginalisation and make real change in the lives of indigenous peoples it is necessary to mobilise all relevant actors, i.e. the intergovernmental system, governments and civil society at large, including non-governmental organisations, the private sector and academia. The Forum’s broad approach is obvious if one examines the way the Forum formulates its recommendations annually. It would be too narrow a perspective on the Forum’s mandate to target only the UN system and not address the other actors who impact the situation of indigenous peoples. It would also be too narrow a perspective because the operational arm of the UN in the areas of development, peace and security and the humanitarian field deploys essentially in developing countries, and it would be unreasonable to have the Forum address itself only to the situation of indigenous peoples in the developing world and exclude the indigenous peoples of the developed world. This point is true for the human rights aspect of the Forum’s mandate as well. The question is how the Permanent Forum’s human rights mandate fits in the panoply of the UN’s human rights tools and methodologies of the last six decades. These international tools, developed mainly through the Commission on Human Rights, international human rights treaties, the High Commissioner for Human Rights and UN field operations, consist of the following: a) human rights standard-setting; b) human rights monitoring, through the human rights treaty bodies, the extraconventional mechanisms of the Human Rights Council, including the Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People and UN field missions; c) studies and reports of comparative law and practice on new or emerging human rights issues that require special attention, clarification and/or research and the development of international human rights policies, guidelines or standards; d) technical assistance and co-operation for the development or enhancement of national laws, institutions and capacities that will promote and protect human rights; e) an open public forum for an international discussion of human rights themes or specific country situations and giving international visibility to such situations;
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f) resolutions/decisions on human rights, expressing the views and concerns of the international community, raising awareness and harnessing action on a number of human rights subjects or country situations. An overview of the Forum’s first five sessions (2002–2006) shows that this new body has approached the human rights aspect of its mandate in a number of ways, which are still developing. Indigenous organisations that have attended the annual sessions in the Forum have been proactive and have effectively utilised the high visibility of the Forum to expose human rights violations in various parts of the world. The Permanent Forum has been supporting the work of the Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People. The Forum annually engages in a public dialogue with the Special Rapporteur. This dialogue also gives the Special Rapporteur the opportunity to hear statements from indigenous peoples’ organisations on specific human rights issues as well as statements from States. At least one public meeting of the Forum is devoted to this dialogue, adding value to the Special Rapporteur’s work since such an opportunity is not available within the Human Rights Council. In addition, the Special Rapporteur and the Forum are informed of human rights issues through concise and comprehensive statements on the situation of human rights in the various regions prepared and presented by the regional and sub-regional indigenous caucuses participating at the Forum’s sessions. The UNPFII has, thus, also provided a public forum for the discussion of human rights issues of concern to indigenous peoples. The Forum has expressed concern over the allegations of atrocities and human rights violations against indigenous peoples in a number of countries: two countries were mentioned in the report of the second session; four countries in the report of the third session; and at the fifth session the Forum referred to the plight of indigenous peoples in two countries as a result of nuclear testing in the Pacific and recommended that UN human rights mechanisms examine the situation.13 The Forum has also promoted the mainstreaming of indigenous issues in the existing UN human rights mechanisms through its recommendations and by inviting special rapporteurs and chairpersons of human rights bodies to make presentations at its sessions, including the Special Rapporteur on Violence Against Women, the Chairperson of the Committee on the Rights of the Child, the Chairperson of the Working Group on Indigenous Populations and others. The Forum has encouraged the holding of a number of human rights-related seminars by the Office of the High Commissioner for Human Rights and its secretariat.14 Forum members systematically attend and contribute to the human rights specific seminars organised by the Office.
See the reports of the Forum’s respective sessions to the Economic and Social Council, E/2004/43, para. 54 and E/2006/43, para. 75. 14 For example, at its fifth session, the Forum requested the organisation of an international expert group meeting on the Convention on Biodiversity, benefit sharing and the human rights of indigenous peoples, E/2006/43, Draft Decision I. 13
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In 2003, confronted with allegations of gross violations of the human rights of indigenous peoples in the Democratic Republic of Congo, the Forum’s Bureau met with the President of the Security Council to bring the situation to his attention and appeal for the Council’s urgent action. This constitutes an important precedent that follows the trend towards a systematic interface of UN human rights mechanisms with the Security Council. In 2005, after hearing of the dramatic situation of displaced, nomadic indigenous people, the Forum decided to have a confidential dialogue with the representatives of that country and convey the deep concern of the UNPFII. In 2006, this confidential dialogue continued with a delegation of that government which travelled to meet with the Forum during its sixth session. Finally, the Forum has actively promoted the implementation of the human rights based approach in development operations. In fact, the Forum has been one of the most vocal advocates of this approach in the UN system, supporting the efforts of the Office of the High Commissioner and others, especially as articulated in the Common Understanding of the Human Rights Based Approach to Development (HRBA) adopted by the UN system.15 The Forum’s analysis of the Millennium Development Goals (MDGs) and their meaning for indigenous peoples provided another significant opportunity for the Forum to promote the HRBA and to promote the integration of the human rights of indigenous peoples. Recommendations issued in 2005 and 2006 by the Forum included, for example, the right of indigenous peoples to full and effective participation in governance mechanisms related to the MDGs and the right of indigenous children to be educated in their mother tongue and related rights of participation of indigenous representatives in decisions on education. In addition, the Forum has asked for the integration of the HRBA in the MDGs country reports and other poverty reduction strategies in countries with indigenous peoples. The Forum was presented with various desk reviews prepared by its secretariat and the ILO on the extent to which indigenous peoples and their issues are included in the UN’s Common Country Assessment and UN Development Assistance Framework in various countries, as well as in poverty reduction strategy papers and MDGs country reports. Given the lack of coverage or inadequate coverage, the Forum has been suggesting to indigenous organisations that they contribute to this monitoring and inform the Forum accordingly.16 This idea of the Forum has the potential of a tremendous increase in the monitoring capacity of the Forum as regards the human rights based approach to development since information from agencies, States and indigenous organisations can be analysed together in order to address the challenges at hand. In addition to the above-mentioned ways in which the Forum is discharging its human rights mandate, it is also clear from the Forum’s recommendations that human rights are integrated in and cutting across the Forum’s overall work, whether the Forum discusses economic and social development, environment, health, education and culture or considers its annual special themes. Thus, human rights were clearly integrated in the recommendations on the special themes on indigenous children and youth, in15 See the website of the Development Group Office, <www.undg.org/content>. 16 See the report of the fifth session of the Permanent Forum, E/2006/43, para. 26.
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digenous women and indigenous peoples and the MDGs. In sum, the Forum follows a multidisciplinary and multifaceted approach to the promotion and protection of the human rights of indigenous peoples. Conclusion: challenges and opportunities for the Permanent Forum on Indigenous Issues’ work on human rights The Permanent Forum’s challenges in discharging its human rights mandate are as real as those of other international human rights bodies. Despite the fact that the Forum’s mandate includes human rights, there is certainly a continuing reticence on the part of States to allow too much “breathing space” for human rights monitoring, whether in the Forum or elsewhere. The reaction the Forum received from the governments it criticised in its 2004 report to the Economic and Social Council is one testimony to this continuing difficulty.17 Nevertheless, within the context of political difficulties, the Forum has discharged its human rights mandate with courage and vision. In the changing architecture of the UN human rights system, including the establishment of the Human Rights Council in 2006 to replace the Commission on Human Rights and related changes, the Forum is now called upon to play a special and creative role in the field of human rights. While there is no doubt that the Human Rights Council must undertake its responsibilities fully vis-à-vis the human rights of indigenous peoples and that the human rights mechanisms must not neglect to monitor, investigate and expose violations of indigenous peoples’ rights, it is unclear whether and in what form explicit attention to indigenous peoples will be given in the Council.18 The mandate of the Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People is well recognised and established, and this will presumably lead to the continuation of this procedure in the Council. Placing the question of human rights in a historical perspective, one recalls the marginalisation for decades of women’s human rights issues by the UN’s human rights mechanisms, an anomaly that was exposed by the women’s movement at the World Conference on Human Rights in Vienna in 1993 under the slogan “women’s rights are human rights”. Since 1993, much has been achieved in terms of the attention that human rights bodies and mechanisms are paying to the human rights of women.19 After 35 17 E/2004/43, para. 52, where it is stated that “[o]n the basis of information received at its third session, the Forum expresses its deep concern about the alleged atrocities and human rights violations committed against the indigenous peoples concerned in Colombia, the Sudan, Ethiopia and Indonesia, notably West Papua and Maluku, and atrocities committed against indigenous peoples in other parts of the world. It urges the entire United Nations system, including the relevant bodies, to take appropriate action.” 18 Proposals of indigenous peoples have included the creation of a special working group of the Council to deal with indigenous peoples’ rights as well as the inclusion of a permanent item on same on the Council’s agenda. 19 For an analysis of the emergence of women’s human rights in the UN’s human rights system, see E. Stamatopoulou, ‘Women’s Rights and the United Nations’, in J. Peters and A. Wolper (eds.), Women’s Rights Human Rights: International Feminist Perspectives (Routledge, New York/London, 1995) pp. 36–48.
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years of indigenous issues having been featured prominently in the international human rights agenda and the visibility, partnerships and solidarity that the indigenous movement has created around this agenda, it will be impossible to significantly diminish the human rights angle of the UN’s work on indigenous issues. In addition to the practice it has already established, the Forum still has a large part of its human rights mandate to explore in future years, in ways that will add value to the works of the Human Rights Council, the human rights treaty bodies and of the High Commissioner for Human Rights. Some of the areas the Forum has been approached to respond to remain to this day unexplored, including interventions on specific cases of egregious violations of human rights, standard-setting and work methods that would allow the Forum’s analysis of human rights issues to go deeper with regard to monitoring and promoting the implementation of the Declaration on the Rights of Indigenous Peoples. When the Forum receives an appeal concerning a specific case of a gross violation of human rights, the Forum’s Bureau should be empowered to analyse the situation in consultation with the Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People, and if it deems it appropriate consider an intervention vis-à-vis a government in order to correct the situation. The moral authority of the Forum as the highest UN body in the area of indigenous issues would be well served by such an approach. The Forum should also have the competence to invite States in a periodic dialogue to discuss their implementation of the Declaration. This could take the form of inviting written submissions from States, which can then be discussed at the Forum in a comprehensive and constructive manner. Such dialogues could help identify areas where the assistance of UN agencies may be useful in order to build national capacities in various areas that would help in the promotion and respect of indigenous peoples’ human rights. In this regard, the work of the Committee on the Rights of the Child under the Convention on the Rights of the Child could serve as particular inspiration. The Forum could also build much more systematically on its co-operation with the UN system to monitor the implementation of the human rights based approach to development by various UN agencies. One way this could be pursued is a periodic, in-depth dialogue with individual UN agencies based on reports and well-prepared research that will include the inputs of indigenous communities where the agencies deploy their programmes. Such dialogues would contribute to raising awareness and capacity-building within the agencies and would help in the building of partnerships with indigenous peoples and the donor community. Given the unique composition of the Permanent Forum and the principle of consensus under which it operates, international standard-setting could also be explored by the Forum. International guidelines and other types of instruments and eventually a treaty on the rights of indigenous peoples could be part of this long-term agenda. International human rights standard-setting at the UN has taken place mostly through the Commission on Human Rights, but other international bodies, including the Commission on the Status of Women, the Committee on the Elimination of Discrimination Against Women, the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, the ad hoc committees at the General Assembly
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and others, have, at times, contributed significantly to these efforts over the decades. In order to prepare, in substance, for such standard-setting work, the Forum will need to develop upon its research capacity. The Forum has already launched research work by mandating various members to prepare papers on challenging subjects, including one mandated at the fifth session on the extent to which customary laws should be reflected in international and national standards addressing traditional knowledge.20 Standard-setting work could be pursued by the Forum independently, if mandated by the Economic and Social Council, but also in co-operation with the Human Rights Council. Closer co-operation and co-ordination among various UN bodies, exchange of expertise and a multidisciplinary approach, especially in the human rights field, are clearly in the spirit of the UN reform witnessed in the last few years, and the Forum has an important contribution to make in this direction due to its rich and broad mandate. As far back as1993, Rigoberta Menchu, an indigenous leader from Guatemala and the Goodwill Ambassador for the International Year of the World’s Indigenous People, had the following to say: The international struggle of indigenous peoples has been of vital importance, especially during the past decade, by virtue of the space opened for the issue within the United Nations system. Indigenous peoples and the Member States of the United Nations have faced challenges in tackling the issue of the rights of indigenous peoples. Nevertheless, the passage of time and the steady effort have made it clear that progress has been achieved.
This statement is equally valid today, except that the space opened for indigenous issues in the UN has been widened through the existence of the Permanent Forum. The challenge is to move beyond international institutional developments, which have been extraordinary until now, and bring real change in the lives of indigenous peoples and in the respect and promotion of their human rights.
20 E/2006/43, para. 172.
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34
Minorities at the United Nations Asbjørn Eide*
Introduction A substantial part of the human rights violations that have come to the attention of the United Nations (UN) are related to some kind of group conflict, and yet the United Nations was for many years singularly ill equipped to deal with these issues. Only in recent years has the attention become more commensurate to the need. At the time of writing, however, it is uncertain how the new Human Rights Council (which replaced the Commission on Human Rights in 2006) will carry the issue forward. During early years, the majority of UN members were hesitant to recognise and address minority rights. There are no references to minority rights in the Universal Declaration of Human Rights. A safety valve was created in 1947 through the establishment of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, but its initial efforts to fulfil its mandate met during many years a “cold shoulder” at the level of the Commission and the Economic and Social Council. One rather weak provision on the subject, proposed by the Sub-Commission, was inserted in Article 27 of the International Covenant on Civil and Political Rights (ICCPR): “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” This remains the main provision in conventional international law on the rights of minorities. It is individualistic in its orientation (“persons belonging to”) and passive in terms of State obligations (“shall not be denied the right”). In spite of *
Emeritus at the Norwegian Centre for Human Rights; member from 1981 to 2003 of the United Nations Sub-Commission on Promotion and Protection of Human Rights and from 1995 to 2004 the Chairman of the United Nations Working Group on the Rights of Minorities. The history of minority protection and the evolution within the United Nations is discussed in P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, 1991).
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 369-374.
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this, it has been interpreted widely enough to establish a platform, however modest, for group claims. The Human Rights Committee has developed its jurisprudence regarding Article 27 in a number of cases under the Optional Protocol to the Covenant. In 1971, the Sub-Commission appointed Francesco Capotorti as Special Rapporteur to undertake a study on the implications of Article 27 of the Covenant. The resulting study, which was completed in 1977, remains the most thorough UN report on the subject. His study had three main recommendations: to adopt more detailed standards to supplement Article 27; to develop new international methods for implementation; and to adopt bilateral or regional arrangements. The Commission on Human Rights started in 1979 an effort to draft a declaration on the rights of minorities, but it only obtained momentum in 1990 as a result of the emerging ethnic conflicts in Central and Eastern Europe. The Minority Declaration was finally adopted in 1992 (see below). In 1990, the Sub-Commission initiated a study on peaceful and constructive approaches to situations involving minorities entrusted to the present author. The final report was presented to the Sub-Commission in 1993. It explored good guidelines for constructive relationships between the different groups in society. Peaceful resolution of conflicts required an emphasis on at least three levels: ensuring more effectively the rights of the individual human being; recognising and protecting the existence and identity of minority groups; but also taking fully into account the concerns for public order in society as a whole. There may be conflicts between these different concerns; the task was, and is, to seek an appropriate balance between them. The study proposed the establishment of a working group within the United Nations to promote the implementation of the 1992 Minority Declaration, which was endorsed by the Sub-Commission in 1994 and then adopted by the Commission on Human Rights in 1995. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities The Declaration, in its Article 1, calls on States to protect the existence and the identity of minorities and to encourage conditions for the enjoyment of that identity. The Declaration represents a clear trend towards greater recognition of the multi-cultural composition of national societies. Under its Article 2, persons belonging to minorities shall have the right to enjoy their own culture, profess and practice their own religion
UN Doc. E/CN.4/Sub.2/384/Add.1–6 (1977). F. Capotorti, The Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (Centre for Human Rights, Geneva, 1991). Ibid. See UN Doc. E/CN.4/1988/36 and the Final Report of the Commission’s Working Group con tained in UN Doc. E/CN.4/1992/48. A. Eide, Peaceful and Constructive Approaches to Situations Involving Minorities, UN Doc. E/CN.4/Sub.2/1993/34 and Add.1–4. Add. 4 contains the recommendations of the study. General Assembly resolution 47/135, adopted 18 December 1992.
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and use their own language. Not only shall they not be denied the right to do so, as was already set out in Article 27 of the ICCPR, Article 4 of the Declaration requires States to take positive measures to create conditions enabling persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs. Article 2(3) of the 1992 Minority Declaration recognises the right of persons belonging to minorities to participate effectively in decisions on the national and, where appropriate, on the regional level concerning the minority to which they belong or the regions in which they live. The Declaration further requires that national development policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities (Article 5(1)). Programs of co-operation and assistance among States should also be planned and implemented with due regard to the legitimate interests of persons belonging to minorities (Article 5(2)). These Articles are of great importance for groups concentrated in particular regions of the country. The tendency by dominant elites dominating the political centre of the State have in the past often exploited the natural and even the human resources of the periphery at the cost of the weaker, marginalised groups, which is something that has caused numerous conflicts. Article 5 is intended as a constraint against such centralistic polices. International development agencies should pay particular attention to the need to protect the vulnerable groups when development projects are to be implemented. States should also take, in line with Article 4(5) of the Minority Declaration, appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development of their country. This requires that development projects in regions where ethnic groups live compactly together should be carried out in such a way that they reflect the interests and the values of the groups living there. The Working Group on Minorities The Sub-Commission’s Working Group on Minorities was mandated to review the promotion and practical realisation of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and to examine solutions to problems involving minorities, including the promotion of mutual understanding between and among minorities and governments. A further task was to recommend further measures as appropriate for the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities. Four categories of observers have been encouraged to participate: government observers, who could provide the Working Group with information on steps taken to promote the principles of the Declaration since one function of the Working Group was to share experiences on that matter; observers representing the United Nations and regional bodies and agencies, who could provide the Working Group with information on their activities in the field; observers representing international and national non-governmental organisations that deal with minority issues as part of their mandate; and scholars and professional researchers attached to academic institutions involved in research in the field of minorities and group accommodation, who could provide the Working Group with scientific insight into the issues it was exploring
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The issues relating to minorities and to group conflicts within States deeply affect the work of several of the UN specialised agencies and other UN bodies. The impact of these conflicts on the flow of refugees and internally displaced persons is obvious, and affects the work of the United Nations Development Programme (UNDP), International Committee of the Red Cross (ICRC), World Health Organization (WHO) and others. The issues connected to education and culture, and many other aspects relating to minorities, are of particular concern for the UN Educational, Scientific and Cultural Organization (UNESCO) and have been recognised as such for quite some time. The situation of the children of vulnerable and marginalised minorities is of concern to a wide range of agencies, in particular the UN Children’s Fund (UNICEF). Great benefit has been achieved by improving contacts and the reciprocal flow of information between the agencies, the High Commissioner for Human Rights and the Working Group. Several of the agencies have provided the Working Group with written information of considerable usefulness for the latter’s work. The Working Group has served as a forum for dialogue and the exchange of ideas, information and experiences that led to proposals for constructive group accommodation and further measures to promote and protect the rights of minorities. It examined steps taken at the national, bilateral, regional and global level; the causes of problems affecting minorities; issues relating to forcible displacements of populations and the return of persons who have been displaced; the facilitation of dialogue between and among minorities and governments; the question of prevention and early warning mechanisms; and patterns of media presentation and the role of the media in promoting mutual tolerance and understanding. Much emphasis is placed on the need for appropriate, multicultural education, not only for minorities but also for majorities. The first session of the Working Group was held in 1995, and it met annually for one week until 2005. In connection with the decision by the Commission on Human Rights that an Independent Expert on Minority Issues should be appointed (see below), the time was reduced to one session of three consecutive working days annually during the time of the annual session of the Sub‑Commission. The Working Group was from now on required to focus on its interactive dialogue with relevant non‑governmental organisations and on conceptual support of, and dialogue with, the Independent Expert, who participates as an observer. The Independent Expert on Minority Issues In 2005, by its resolution 2005/79, the Commission on Human Rights requested the United Nations High Commissioner for Human Rights to appoint an independent expert on minority issues. The mandate was set for a period of two years. The mandate given was to promote the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; to identify best
It faces the special health problems of minorities in a number of ways, including their own approaches to medical treatment. Report of the Working Group on Minorities at Its First Session, 28 August 1995 to 1 September 1995, UN Doc. E/CN.4/Sub.2/1996/2.
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practices; and to explore possibilities for technical co-operation by the Office of the United Nations High Commissioner for Human Rights with governments in order to advance minority protection. The Expert was requested to apply a gender perspective in his/her work. It was envisaged that the Expert should co-operate closely with existing relevant United Nations bodies, mandates and mechanisms as well as regional organisations, and to take into account the views of non-governmental organisations on matters pertaining to his/her mandate. Information should be sought from all relevant sources. The Expert was requested to communicate with States concerning the implementation of the Declaration on the Rights of Minorities, where appropriate. The High Commissioner appointed Ms. Gay McDougall from the United States, who submitted her first report in January 2006,10 where she spells out her interpretation of the mandate. For the promotion of the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, she has identified five broad areas of concern relating to minorities, providing a legal and conceptual framework for her work: protecting a minority’s existence; protecting and promoting the right of minority groups to enjoy their collective cultural identity; rejecting forced assimilation; ensuring effective non-discrimination and equality; and ensuring effective participation of members of minorities in public life. She has selected two main thematic priorities. One is to increase the focus on minority communities in the context of poverty-alleviation strategies, taking into account that discrimination is often linked to disproportionate levels of poverty. The other is to increase the understanding of minority issues in the context of promoting social inclusion and ensuring stable societies. Since exclusion, discrimination and racism directed at minority groups fuel social unrest in every region of the world, minority rights and policies of inclusion play a vital role in promoting political and social stability. She has emphasised three areas of importance for promoting inclusion and equality: One area is problems related to policing and maintenance of security in multi-ethnic societies. Police engagement with minority communities can either ignite or quell social unrest; good practices in that regard should be identified. A second area is problems related to arbitrary denial of citizenship to persons belonging to certain minority groups, noting that such denial can lead to exclusion, discrimination and unrest. The third area is the question of equal access to quality education. One aspect is to end discriminatory practices of segregating disadvantaged minority children in inferior schools; another is to ensure that school curricula include teaching about the cultures, history and contribution of minorities to the wider society. The Special Advisor on the Prevention of Genocide Some of the worst cases of past genocide have been directed against minorities. Based on Security Council resolution 1366/2001, the UN Secretary-General appointed a Special Adviser on the Prevention of Genocide. Juan E. Méndez of Argentina currently holds the post. The mandate refers not only to genocide in the strict sense but also to mass murders and other large-scale human rights violations, such as ethnic cleansing. His 10 UN Doc. E/CN.4/2006/74.
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role is a preventive one. He collects information on occurrences of gross violations and provides early warning to the Secretary-General and through him to the UN Security Council. The hope is that if pertinent information is available at a stage where the patterns of violations are still only sporadic and have not become massive and systematic, the international community may be able to intervene constructively. The future of minority protection at the United Nations At the time of writing, the future course of the UN work on minorities is uncertain. There are still no known outcomes of the ongoing reforms, following the abolition of the Commission on Human Rights and its replacement by the Human Rights Council. The Sub-Commission and its working groups as well as the special procedures are under discussion. The issues concerning minority protection are too serious, however, to be left unattended. It can be assumed that some mechanisms will be established, and most likely they will be modelled on what actually exists. Whether or not the Sub-Commission in its present form is maintained, a permanent Working Group on Minority Issues should be created. It should continue the efforts to promote implementation by States of the Minority Declaration. The three major concerns for minorities should at all times be in focus: to prevent discrimination and ensure equality between persons belonging to minorities with the majority; creating or maintaining conditions under which the minorities can preserve and develop their identity; and ensuring that persons belonging to minorities can participate effectively in public life and in social, economic and cultural life, particularly in areas affecting them. The function of the Independent Expert should ideally also be made permanent, and the Expert should work closely with the Working Group. Together, they should pursue thematic issues such as those suggested by the present Independent Expert: issues relating to policing in ethnically mixed areas; issues related to denial or allocation of citizenship where ethnic issues are involved; and issues related to access to education as well as the balancing between multicultural and intercultural education. In a broader sense, the Working Group and the Independent Expert should encourage international efforts to enhance dialogue and broaden understanding among civilisations, cultures and religions. It is essential that the Working Group be composed of independent experts with proven expertise in minority issues, be it through scholarly publications and/or direct work for or with minority groups and institutions. Whether it should be a sub-group of an independent advisory body replacing the Sub-Commission or whether it should report directly to the Human Rights Council depends on the overall structure chosen by the Council. In addition, it should be expected (and provided for in budgets) that particularly relevant rapporteurs or independent experts appointed by the Council would participate regularly in the Working Group.11
11
E.g. experts or rapporteurs on minority issues, racism and racial discrimination, freedom of religion or belief and peoples of African descent.
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Monitoring the Rights of the Internally Displaced Maria Stavropoulou*
Introduction In his concluding remarks to the 2001 edition on monitoring mechanisms, which he co-edited, Gudmundur Alfredsson noted that “for pushing governments towards compliance, the reliance has been on the embarrassment factor rather than enforceable obligations”. It seems to me he must have read the minds of those who have worked since the early 1990s to advance the rights of the internally displaced. The Guiding Principles In 1997, in an article on monitoring the rights of the internally displaced included in the 2001 edition on monitoring mechanisms, I explained the drafting history and the rationale of the Guiding Principles on Internal Displacement (hereinafter “the Guiding Principles”), which had just been issued. The Guiding Principles were a comprehensive attempt to include in one concise document the rights that the internally displaced must enjoy at any time. They were based on studies compiling and analysing applicable legal norms, which were determined to be significant because they address best the greatest
*
Maria Stavropoulou has worked for the United Nations and UNHCR since 1993. None of the views expressed in this article necessarily represent the views of the organisations she is associated with. The author wishes to thank Walter Kaelin and Roberta Cohen for their comments on this chapter. G. Alfredsson, ‘Concluding Remarks: More Law and Less Politics’, in G. Alfredsson et al. (eds.), International Human Rights Monitoring Mechanisms (Kluwer Law International, 2001) p. 925. W. Kaelin, Guiding Principles on Internal Displacement, Annotations, The American Society of International Law and The Brookings Institution Project on Internal Displacement, Studies in Transnational Legal Policy No. 32, 2000, Appendix I, p. 79. The text can also be found in UN Docs. A/Res./53/144 and E/CN.4/1998/53/Add.2.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 375-383.
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needs of the internally displaced. In turn, these needs were identified on the basis of field reports and the field experience of experts from different humanitarian agencies. The Guiding Principles provide clarity to governments, non-governmental organisations and the internally displaced themselves. As the current Representative of the Secretary-General on the Human Rights of Internally Displaced Persons Walter Kaelin recently observed, “the Guiding Principles go beyond a simple compilation and restatement of those human rights and humanitarian law guarantees that are applicable to situations of internal displacement. They provide a fully-fledged framework for identifying protection needs and for planning, implementing and monitoring protection activities.” Ten years later, the Guiding Principles have fulfilled the most optimistic hopes of their drafters as to what could be achieved with their adoption. They have been subjected to further academic scrutiny and analysis, have been widely disseminated to humanitarian workers and are used to design programmes for the internally displaced. They have been recognised by governments, have been translated into more than 40 languages and have formed the basis for national and even regional legislation. The Guiding Principles are generally viewed as a “compact, usable document” for better protection of internally displaced persons. Importantly, they provide a yardstick for monitoring the rights of the internally displaced and a tool for measuring progress. Monitoring by the Representative on the Human Rights of Internally Displaced Persons While work on the translation, dissemination and promotion of the Guiding Principles was taking place worldwide, the mechanisms through which the rights of the internally displaced could actually be monitored within and outside the United Nations (UN)
Kaelin, supra note 2, Appendix II: Internally Displaced Persons, Compilation and Analysis of Legal Norms Part I, p. 90 and Appendix II: Internally Displaced Persons, Compilation and Analysis of Legal Norms: Legal Aspects Relating to the Protection Against Arbitrary Displacement Part II, p. 249. W. Kaelin, ‘The Role of the Guiding Principles on Internal Displacement’, in Forced Migration Review, Supplement (October 2005) p. 8. See also W. Kaelin, ‘The Guiding Principles on Internal Displacement as International Minimum Standard and Protection Tool’, 24:3 Refugee Survey Quarterly (August 2005) p. 29. Kaelin, supra note 2. See General Assembly resolution 60/168, UN Doc. A/RES/60/168, 7 March 2006, op. paras. 8, 9. UNHCR, The State of the World’s Refugees: Human Displacement in the New Millennium, 2006, Chapter 7: Internally Displaced Persons, p. 165. The African Union has decided to draft a legal instrument to enhance the protection of internally displaced persons as a result of armed conflict. See <www.afriquenligne.fr/news/africa-news/ethiopia:-un-hails-au-drafttreaty-to-protect-idps-200805295305.html>, visited 19 June 2008. R. Cohen, ‘Recent Trends in Protection and Assistance for Internally Displaced People’, in Internally Displaced People, A Global Survey, Global IDP Survey and Norwegian Refugee Council, 1998, p. 4.
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system also expanded dramatically. In my contribution to the 2001 edition on monitoring mechanisms, I reported that up until the early 1990s there was scant mention of displacement issues within UN human rights forums. I also reported that, once appointed, the Representative of the Secretary-General on Internally Displaced Persons undertook field missions to countries with large populations of internally displaced persons. However, in the early years of his mandate, the number of missions that were possible for the Representative to undertake per year was restricted to only a few and follow-up to his conclusions and recommendations was limited due to the few resources available to him. Ten years later, the number of visits to different countries and also the readiness and capacity of the Representative to report on the situations in different countries has expanded significantly. In 2005, for instance, the Representative visited six countries (Sudan, Nepal, Serbia and Montenegro, Croatia, Bosnia and Herzegovina and Georgia) and issued reports on all.10 However, he also undertook “working visits” (to Sri Lanka, Thailand and Turkey)11 which while emphasising building relationships rather than detailed monitoring assessments also have a monitoring impact. In 2006, and by the time of the writing of the present article, the Representative had undertaken missions to the Ivory Coast and Colombia and working visits to Turkey, Nigeria and Uganda. In addition, the Representative is engaged in ongoing monitoring and is swift in reporting and intervening on displacement situations as they arise.12 In his 2006 report, for instance, the Representative described many situations where he intervened, often in conjunction with other “special procedures” of the Commission on Human Rights, on a scale that could not have been even foreseen a decade ago.13 This readiness and ability for such interventions would not have been possible had not a number of initiatives been launched, which were largely instigated and coordinated by the previous and current Representatives and their affiliated institutions (in particular the Brookings Institution Project on Internal Displacement in collaboration with the City University of New York, the Johns Hopkins School of Advanced International Studies and currently the University of Bern). The Project, for instance, has been at the forefront of promoting the dissemination and application of the Guiding Principles at the national level. It has worked with civil society groups around the world to strengthen their capacity to monitor the human rights of internally displaced persons, and as a result local groups in many different countries are now monitoring and publishing relevant reports. Moreover, the Project’s publications have promoted national monitoring. M. Stavropoulou, ‘Monitoring the Rights of the Internally Displaced’, in Alfredsson, supra note 1, p. 340. 10 See <www.ohchr.org/english/issues/idp/visits.htm>, visited 5 August 2006. 11 See W. Kaelin, Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, UN Doc. E/CN.4/2006/71, para. 16. 12 See <www.brookings.edu/idp>, visited 3 August 2006, for a recent joint statement of the Representative and other UN experts calling on all parties involved in the summer 2006 conflict between Lebanon and Israel to fully respect and protect the rights of the civilian populations. 13 See Kaelin, supra note 11, paras. 29–33.
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In 1998, the Norwegian Refugee Council, a non-governmental organisation associated early on with the mandate of the Representative, set up the Internal Displacement Monitoring Centre (IDMC), which has become a major resource on all internal displacement issues,14 in particular, conflict-induced displacement.15 The Centre, which is located in Geneva, runs an online database providing comprehensive information and analysis on internal displacement in some 50 countries. The services of the IDMC include news alerts as well as country reports. In my opinion, the IDMC appears to have a liberal approach to what information it collects and presents. The Centre’s “information policy” states that “every effort [is made] to present information in an objective, unbiased and fair manner. All information submitted to the database unless otherwise stated is considered public. The database will not knowingly publish inaccurate information and will make all reasonable attempts to verify information and ensure reliable information sources… The IDMC respects information providers’ preferred use of information and makes all efforts to publish sensitive information in such a way as not to threaten the security of individuals or organizations.” Starting in 1998, the Norwegian Refugee Council and later on the IDMC have published every year a comprehensive report on internal displacement in different countries in the world.16 Governments, universities and research centres, aid organisations and UN departments and agencies contribute to this publication. The annual survey contains tables with estimated numbers of internally displaced persons in different countries. Given the enormous complexity involved in gathering accurate data and statistics on persons displaced within their own countries, who may not have moved far from their own homes, or who may overlap with returning refugees, who may not have returned to their own homes, this is an achievement in itself. More importantly, however, this annual survey contains a thematic overview highlighting the implementation (or lack thereof) of the different Guiding Principles as well as regional surveys that provide a succinct overview of the situation in each region “affected” by internal displacement. The regional surveys do not report on the implementation of the Guiding Principles as such. Nevertheless, the annual survey is a valuable “scan” of the phenomenon of internal displacement in the world. In my opinion, it is also unprecedented in the area of human rights monitoring along “thematic” lines. In some countries, the IDMC follows up on the recommendations made by the Representative
14 See <www.internal-displacement.org>, visited 8 August 2006. The IDMC was previously called the “Global IDP Project” and the relevant annual publication the “Global IDP Survey”. 15 Other international non-governmental organisations, such as the Women’s Commission on Refugee Women and Children, Human Rights Watch and Refugees International, regularly cover internal displacement issues in their reports. 16 Internally Displaced People, A Global Survey, supra note 8. For the most recent publication, Internal Displacement, Global Overview of Trends and Developments in 2005, see <www.internal-displacement.org>.
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of the Secretary-General on the Human Rights of Internally Displaced Persons17 and issues special reports. The IDMC also carries out training activities to enhance the capacity of local actors to respond to the needs of internally displaced people, and has developed a set of training materials, in particular on the use of the Guiding Principles. The Centre co-operates with and provides support to local and national civil society initiatives, from which it also draws information about the situation in different countries. Monitoring by other UN human rights mechanisms In the 2001 edition on monitoring mechanisms, I noted that by 1997 many country rapporteurs had started paying increasing attention to the internally displaced in the countries covered by their mandates, while in the absence of a useful normative framework on internal displacement treaty bodies had not yet done so.18 Indeed, as a very helpful report19 of the High Commissioner for Human Rights covering the decade from 1994 to 2004 concludes, “the Commission and Sub-Commission have produced a substantial body of normative material concerning refugees and internally displaced persons, both in the form of resolutions and in the numerous reports and studies these bodies have sought from various human rights mechanisms”.20 In these are included the three reports of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, notably Special Rapporteur Awn Shawkat Al-Khasawneh’s final report on the human rights dimension of population transfer, the 13-point draft declaration appended to the final report, which contains principles of importance to internally displaced persons, notably, the right to return and the right of restitution or compensation,21 and, more recently, the reports of the Special Rapporteur on the Right to Housing, and the principles developed under his mandate on development-based evictions and displacement.22 Importantly, the Office of the High Commissioner for Human Rights has itself invested increasingly in staff resources dedicated to the monitoring of internal displacement situations. The Office reported, for instance, that in 2004 it deployed human rights monitors to Darfur, Sudan in order to monitor displacement there, and in other coun-
17 See for example Internal Displacement, Global Overview of Trends and Developments in 2005, ibid., p. 60. 18 Stavropoulou, supra note 9, p. 341. See also M. Stavropoulou, ‘Displacement and Human Rights: Reflections on UN Practice’, 20:3 Human Rights Quarterly (August 1998) p. 541. 19 Report of the High Commissioner for Human Rights on Human Rights and Mass Exoduses, UN Doc. No. E/CN.4/2005/80/Add.1, 31 January 2005. 20 Ibid., para. 80. 21 E/CN.4/Sub.2/1997/23, 27 June 1997. 22 Report of the Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, UN. Doc. No. A/HRC/4/18 (5 February 2007) Annex 1, available at , visited 19 June 2008. See also the “Pinheiro” Principles on Housing and Property Restitution for Refugees and Displaced Persons (E.CN.4/Sub.2/2005/17).
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tries such as Afghanistan, Burundi, Colombia and Liberia monitors devoted substantial attention to internally displaced persons’ issues.23 Furthermore, in the past ten years, human rights advocates have analysed, in some detail, the potential impact that particular human rights treaty bodies can have, both at the international and at the regional levels, on monitoring the rights of internally displaced persons. One commentator suggested, for instance, that the Guiding Principles could be used by UN treaty bodies in the drafting of general comments or the review of State reports.24 Indeed, the UN Human Rights Committee has lately referred to the Guiding Principles in its concluding observations on the reports of two countries.25 In one of his recent reports,26 the Representative of the Secretary-General observed that internally displaced persons in many instances are not aware of the international human rights protection mechanisms available to them to vindicate their human rights. The Representative, as a consequence, commissioned a guide setting out the major human rights protection mechanisms that exist at regional and international levels,27 which was launched in June 2006. Monitoring by UN agencies In addition to the human rights mechanisms dedicated to internal displacement described above, other UN departments and agencies have become increasingly involved in operations that aim to provide the internally displaced with protection, i.e. monitor their rights, directly or indirectly. In the early 1990s, heated debates were taking place as to whether a new agency should be created and assigned overall responsibility or whether the United Nations High Commissioner for Refugees (UNHCR) should be entrusted with this mandate;28 in the end, general consensus formed around the idea of the establishment of “collaborative arrangements among UN agencies”. Such arrangements have been generally entrusted to the non-operational Emergency Relief Coordinator and the UN Department of Humanitarian Affairs, later replaced by the Office for the Coordination of Humanitarian Affairs (OCHA), but they were often criticised for lim23 Report of the High Commissioner for Human Rights on Human Rights and Mass Exoduses, supra note 19, paras. 46, 47. 24 J. Fitzpatrick, ‘Paper Presented at the International Colloquy on the Guiding Principles on Internal Displacement, Vienna, Austria, September 20–23, 2000’, in J. Fitzpatrick, Human Rights Protection for Refugees, Asylum-Seekers and Internally Displaced Persons: A Guide to International Mechanisms and Procedures (Transnational Publishers, 2002) p. 546. 25 See Human Rights Committee, Concluding Observations on Kosovo (Republic of Serbia) (unedited version, restricted, on file with author), UN Doc. CCPR/C/UNK/1, 25 July 2006, para. 14 and Human Rights Committee, Concluding Observations on the United States of America (unedited version, on file with author), 87th Session, 10–26 July 2006, para. 26. 26 See Kaelin, supra note 11, para. 12. 27 See Guide to International Human Rights Mechanisms for Internally Displaced Persons and Their Advocates, <www.brookings.edu/fp/projects/idp/2006_guidebook.htm>. 28 For a detailed overview, see R. Cohen and F. M. Deng, Masses in Flight (The Brookings Institution, 1999) pp. 126 et seq.
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ited effectiveness.29 In addition, a series of studies in 2004 found lack of awareness and application of the inter-agency policy on internally displaced persons and resulting gaps in their protection.30 In 2004, an inter-agency Internal Displacement Division within the OCHA was created,31 which consists of international staff seconded by various international agencies. Its mandate is to liase with the Inter-Agency Standing Committee (IASC) and to provide support to inter-agency operations in the field providing assistance and protection to the internally displaced.32 While the IDD may be limited in its actual capacity to monitor the rights of the internally displaced around the world, it has encouraged greater active participation of the IASC country teams in monitoring the rights of the internally displaced. In his latest report33 to the Commission on Human Rights, the Representative of the Secretary-General welcomed the co-operation he had received from the IASC country teams and resident humanitarian coordinators in preparing for his field missions and in the follow-up provided to his mission reports. More recently, this “collaborative approach” has been further clarified by clearly defining initiatives, roles and responsibilities along “clusters”.34 As far as the “cluster” for protection is concerned, the UNHCR is to play the leading role in conflict-induced internal displacement situations. With a long history of monitoring the rights of refugees, it is expected (and hoped) that the UNHCR will bring predictability to monitoring and adequately defending the rights of the internally displaced.35 Indeed, in the July 2006 crisis in Lebanon, the UNHCR assumed responsibility for protecting the internally displaced and other persons of its concern, spelling out clearly that the agency’s main objective was to ensure the physical and material safety of the vulnerable and ensuring
Ibid., p. 148. Report on Human Rights and Mass Exoduses, supra note 19, para. 43. See <www.reliefweb.int/idp/index.htm>, visited 3 August 2006. The International Committee of the Red Cross (ICRC), whose mission is to protect victims of war and internal violence, has a recognised mandate to provide protection and assistance to internally displaced persons in such circumstances, and it has done so throughout its history. The ICRC is a standing invitee to the Senior Network on Internal Displacement and the IASC forums. It has actively participated in the drafting of the Guiding Principles. Its particular mandate and key protection mode of operation, however, which is based on confidential bilateral representations, limits the usefulness of its monitoring for other actors (see A. Aeschlimann, ‘Protection of IDPs: An ICRC View’, Forced Migration Review, Supplement (October 2005) p. 27 and see also, on the same topic, ICRC, Internally Displaced Persons, Symposium, Geneva, 23–25 October 1995, 1996). 33 Kaelin, supra note 11, para. 40. 34 Ibid., para. 38. See also D. McNamara, ‘Who Does What?’, Forced Migration Review, Supplement (October 2005) p. 6. 35 For an initial evaluation of the “cluster approach” by the UNHCR itself, see Standing Committee of UNHCR, 36th meeting, UNHCR’s Expanded Role in Support of the Inter-Agency Standing Response to Internal Displacement Situations, UN Doc. EC/57/SC/CRP/18, 8 June 2006. 29 30 31 32
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that beneficiaries have access to assistance and other basic rights in a non-discriminatory manner.36 Monitoring by regional and national human rights bodies and nongovernmental organisations, and conclusion37 Parallel to the expansion of capacities to monitor the rights of the internally displaced at the international level, as described above, regional human rights bodies have also paid increasing attention to them as well. For instance, the Council of Europe has issued recommendations that refer to the Guiding Principles, with a view to enhancing their implementation,38 and the African Commission on Human and People’s Rights has also engaged a special rapporteur on refugees, asylum seekers and also internally displaced persons.39 In many countries national human rights institutions are also engaged in actively monitoring the rights of the internally displaced, especially once governments recognise internal displacement to be a human rights issue.40 International and national non-governmental organisations play an important role as well, as they do in the monitoring of any human rights situation. Following the war in Bosnia and Herzegovina, a Human Rights Chamber was established in Sarajevo, in which Jakob Möller served as a judge between the years 1996 to 2003. This Chamber, established pursuant to the Dayton Accords of 1995, dealt with 36 UNHCR, UNHCR’s Emergency Assistance to Displaced People and Other of Concern in Lebanon and Neighbouring Countries, Supplementary Appeal, July 2006. See also UNHCR, Questions and Answers on UNHCR’s Expanded Role in Support of the Inter-Agency Response to Internal Displacement (Cluster Approach) (on file with author). 37 The Brookings-Bern Project on Internal Displacement has frequently taken the lead in promoting national and regional monitoring. For instance, the “Framework for National Responsibility”, currently being translated into many languages, is a tool for government officials, international agencies and non-governmental organisations to monitor the extent to which governments are carrying out their responsibilities toward internally displaced persons (see E. Mooney, ‘National Responsibility and Internal Displacement: A Framework for Action’, Forced Migration Review, Supplement (October 2005) p. 11). In addition, the national and regional seminars held by the Project and the Representative from 1998 to the present have successfully promoted monitoring at the national and regional levels. 38 Committee of Ministers of the Council of Europe, Rec. (2006) 6, adopted on 5 April 2006. 39 See B. T. Nyanduga, ‘Addressing IDP Protection in Africa’, Forced Migration Review, Supplement (October 2005) p. 24. 40 The Asian national human rights institutions have been very active (see for example <www. asiapacificforum.net/training/idp/brookings-bern/index.htm>). The Asia Pacific Forum of National Human Rights Institutions has also issued common guidelines for national human rights institutions to address internal displacement in the context of natural disasters. For earlier reference, see L. Obregon and M. Stavropoulou, ‘In Search of Hope: The Plight of Displaced Colombians’, in R. Cohen and F. M. Deng, The Forsaken People (The Brookings Institution, 1998) p. 424, on the early role of the Defensoria del Pueblo (Ombudsman) in Colombia.
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some 15,000 displaced Bosnians, many of whom were able to return to their homes and receive a measure of compensation. Finally, one of the most powerful actors in monitoring internal displacement is the internally displaced themselves, which is why the Guiding Principles on Internal Displacement can be an important tool in empowering them and their organisations in defending their own rights.
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Voluntary Reporting: The Global Compact Radu Mares*
Introduction The presentation of the United Nation’s (UN) Global Compact (hereinafter “GC” or “Compact”) in a book dedicated to monitoring mechanisms requires an urgent clarification: the GC itself is not a monitoring mechanism meant to deliver corporate accountability. Still, the Compact is an important hub in a broader network of initiatives dealing with responsible business practices and corporate accountability. Furthermore, the GC has reporting requirements that have recently been strengthened. The initiative began as a personal initiative of Secretary-General Kofi Annan in 1999, as an attempt to address imbalances of economic globalisation; his aim was to enrol companies in a renewed push by the United Nations to achieve its goals of peace, development and poverty-reduction. By inviting businesses to the table, the UN has embarked with the Global Compact on a controversial journey through uncharted territory. The article begins with a description of the initiative itself. The provisions of the Compact regarding corporate reporting will be detailed as well as the GC’s relationship with the Global Reporting Initiative (GRI), which is a scheme dedicated solely to sustainability reporting. After that some broader observations on corporate reporting from a human rights perspective will follow.
*
PhD, Senior Researcher at Raoul Wallenberg Institute of Human Rights and Humanitarian Law in Lund, Sweden. M. P. Pedersen, ‘The UN Global Compact, A Triple-win Partnership’, in McIntosh et al., Learning to talk – corporate citizenship and the development of the global compact, (Greenleaf Publishing, 2004) pp. 183-194; J. G. Ruggie, ‘The Theory and Practice of Learning Networks, Corporate Social Responsibility and the Global Compact’, 5:2 The Journal of Corporate Citizenship (2002) pp. 27-36. This is necessarily brief and confined to the subject of this article. For a more comprehensive view, please refer to <www.unglobalcompact.org>.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 385-397.
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The Global Compact With over 5,500 companies and stakeholders from over 130 countries by October 2008, the Compact is the most high-profile initiative at the international level dedicated to advancing responsible business practices and/or corporate social responsibility (CSR). The UN Secretary-General Kofi Annan proposed the idea in his address to the gathering of top business executives and politicians at the 1999 World Economic Forum in Davos. The Compact was formally launched at the UN Headquarters in New York in 2000. The GC is open to the participation of all main stakeholders. Currently there are around 3,000 companies that have signed up, from both developed and developing countries. Civil society organisations and trade unions are also involved. For promoting its principles, the GC relies on the specific expertise of six UN agencies. Governments have lent legitimacy to the GC through a series of resolutions passed in the UN General Assembly authorising the continued engagement of the UN with the private sector, including through the Global Compact initiative. The Compact asks companies to respect and support, within their sphere of influence, a set of ten core principles in the areas of human rights, labour standards, the environment and anti-corruption. To achieve its objectives, the GC has used from the beginning several mechanisms: policy dialogues, learning, country/regional networks
<www.unglobalcompact.org/AboutTheGC/index.html>, visited on 3 October 2008. Secretary-General Proposes Global Compact on Human Rights, Labour, Environment, in Address to World Economic Forum in Davos, Press Release, SG/SM/6881 (1999), <www.un.org/ News/Press/docs/1999/19990201.sgsm6881.html>, visited on 3 October 2008. The Office of the UN High Commissioner for Human Rights (OHCHR), the International Labour Organisation (ILO), the UN Environmental Programme (UNEP), the UN Industrial Development Organisation (UNIDO), the UN Development Programme (UNDP) and United Nations Office on Drugs and Crime (UNODC). The UN General Assembly adopted a series of resolutions entitled Towards Global Partnership: General Assembly resolutions 55/215 (2000), 56/76 (2002), 58/129 (2003), 60/38 (2005). The last one is available at <www.unglobalcompact.org/docs/news_events/9.1_news_archives/2005_12_16/ResolutionDec_14_05.pdf>, visited on 3 October 2008. Regarding human rights, businesses should support and respect the protection of internationally proclaimed human rights, and make sure that they are not complicit in human rights abuses. In respect of labour standards, businesses should uphold the freedom of association and the right to collective bargaining, the elimination of forced labour, the abolition of child labour and the elimination of discrimination in employment. Concerning the environment, businesses should support a precautionary approach, promote greater environmental responsibility and encourage the development and diffusion of environmentally friendly technologies. The anti-corruption principle was added later, in 2004. Policy dialogues on topics such as: the role of the private sector in zones of conflict (2001 and 2004), business and sustainable development (2002), HIV/AIDS (2003), supply chain management and partnerships (2003), transparency and the fight against corruption (2004). Around 60 such networks currently exist. United Nations Global Compact Network Report – Deepening the engagement of participants at the local level (United Nations Global Com-
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and projects (local partnerships).10 The emphasis herein is on one of these four mechanisms, namely learning coupled with reporting requirements (“Communications on Progress”). The “learning approach” of the Global Compact The trademark of the Compact is its learning approach: “Global Compact initiative is inspired by a belief in the capacity, indeed the necessity, for collective learning among business, labour, civil society … The Global Compact is neither an instrument for monitoring companies nor a regulatory regime to legislate corporate behaviour.”11 The Compact reaches out to companies, helps them to build internal capacity and offers opportunities to connect with other businesses and stakeholders to move towards consensus and practical action. The Compact aims to disseminate the good practices and experience that leading businesses have accumulated.12 The vision behind the Compact has generated intense exchanges between the GC Office and non-governmental organisations (NGOs) (participating in the Compact or not) about the very nature of the GC. One of the concerns of NGOs has been that of “bluewash”: if the Compact is voluntary and dedicated to learning, the UN should at least refrain from granting legitimacy by association to companies that promise but fail to abide by its principles. Therefore, GC should monitor its members and exclude the unworthy. Georg Kell, executive head of the GC, has explained that the Compact is not meant as “a membership program that conveys recognition”13 and therefore does not require monitoring and measurement; it is not a club of the worthy with high exclusionary thresholds. The initiative is rather an open house that does not aim to ostracise immediately the unworthy but attempts to meet them where they are and help them improve their act. The GC has shown remarkable conceptual clarity about what it is and what it is not, and consistently kept with its initial vision: it stimulates change not through coercion but through learning and creating opportunities. This distinction is necessary for clarifying the non-regulatory emphasis of the GC, but in practice, the Compact’s approach does not exclude degrees of coercion. The latter, as will be shown below, can be built in the GC itself or developed in other arenas. Regarding in-built coercion against poor pact Office, 2007), <www.unglobalcompact.org/docs/news_events/8.1/LNReport_FINAL. pdf>, visited on 3 October 2008. 10 Corporate Citizenship in the World Economy – The Global Compact, Global Compact Office, United Nations, 2004, <www.unglobalcompact.org/docs/about_the_gc/2.0.1.pdf>, visited on 3 October 2008. 11 Global Compact, Report on Progress and Activities, 2002, p. 17, <www.iccwbo.org/home/global_compact/ProgressReport%20July%203.pdf>, visited on 3 October 2008. 12 General Assembly resolution 60/38 (2005) “[e]ncourages the Global Compact Office to promote the sharing of best practices and positive action through learning, dialogue and partnerships”. 13 G. Kell, ‘The Global Compact: Selected Experiences and Reflections’, 59:1–2 Journal of Business Ethics (June 2005).
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performers, the GC had to perform a delicate balancing act, in the absence of which either the entire Compact collapses because of lack of legitimacy or loses numerous corporate participants that see more risks than incentives of joining. The results of that balancing act were the “integrity measures”, including the Communications on Progress (COP).14 The degree of corporate accountability resulting from this mechanism will be discussed after presenting the COP and the Global Reporting Initiative. Communications on Progress Under the COP requirement, participating companies are expected to describe actions taken in support of the Global Compact. The reports are to be issued annually. The policy was introduced in 2003 and strengthened progressively. Back in 2002, as a condition to be publicly acknowledged as a participant in the Compact, companies had merely to “submit, on an annual basis, an example of their efforts to uphold and implement one or more of the principles”, which would then be posted on the Global Compact website.15 In 2003, the GC set a deadline (June 2005) to submit reports “about their progress in implementing the Global Compact principles”.16 Currently, according to GC guidelines, a COP should include three elements: (a) statement of continued support for the Global Compact; (b) description of practical actions taken to implement the GC principles and partnership projects supporting UN goals; and (c) measurement of outcomes or expected outcomes using, as much as possible, indicators such as the Global Reporting Initiative Guidelines.17 Description of practical actions must refer to both systems (policies and management systems) and practical actions taken to live up to the commitment made.18 In terms of the coverage of the ten principles of the Compact, companies with limited resources are allowed to address fewer principles in their first COP submissions; however, participants are expected in time to implement and report on all ten princi14 Another measure allows for a “complaint of systematic or egregious abuse”. The GC will use good offices and/or refer the complaint to other UN bodies; sanctions for non-cooperation with the GC can result in sanction, such as being labeled inactive or completely removed from the list of participants. Global Compact, Note on Integrity Measures, 2007, <www.unglobalcompact.org/AboutTheGC/integrity.html>, visited on 3 October 2008. 15 Global Compact, supra note 9. 16 The COPs applied to the 977 participants that have been in the Global Compact for at least two years. 62 per cent of the 977 companies have not complied with the requirement by the deadline. ‘GC Participants Disclose Actions in Support of Universal Principles – Vast Majority of Largest Companies Actively Communicating Progress’, 1:3 Compact Quarterly (July 2005), <www.enewsbuilder.net/globalcompact/e_article000428398.cfm?x=b7M9Tc5,b4Q3w tmp,w>, visited on 3 October 2008. 17 Global Compact, Guidelines for “Communication on Progress”, 2008, <www.unglobalcompact.org/docs/communication_on_progress/COP_Policy.pdf>, visited on 3 October 2008. 18 Global Compact, A Practical Guide to Communication on Progress – Advice for Global Compact Participating Companies Preparing their Communication on Progress, undated, , visited on 3 October 2008.
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ples.19 Overall, though, “there is no expectation that SMEs [Small and Medium-Sized Enterprises] will be able to provide as much depth and breadth to their COPs as MNCs [Multinational Corporations]”.20 There is no requirement for the COPs to be independently verified by auditors or the GC itself. The Office of the GC “expresses no opinion on the accuracy of the statements contained in the COPs …; such matters are for the participants’ own stakeholders to assess”.21 The COP is to be shared with stakeholders included in either of the following forms: as part of the annual financial report; annual sustainability report (in print or electronic form); or a stand-alone report that is made available through other public communication channels (e.g. websites, newsletters, intranets, company notice boards, included with payroll). In addition, the COP is to be made available on the Global Compact website.22 The purpose of the COP requirement is “to ensure and deepen the commitment of Global Compact participants, safeguard the integrity of the initiative and to create a rich repository of corporate practices that serves as a basis for continual performance improvement.”23 It is “a tool to exercise leadership, facilitate learning, stimulate dialogue and promote action”.24 To achieve its purpose, the COP requirement is accompanied by a range of incentives and sanctions. In terms of “carrots”, companies can aspire to the more demanding class of “Notable COP”.25 The GC identified as such those communications that appeared as “emerging best practices in communicating progress”.26 They could provide guidance for meeting the requirements and expectations behind the COP policy. There were 130 COPs included in this category by July 2006 and 204 by September 2007. In terms of sanctions, a company failing to communicate progress will be labelled “non-communicating” on the GC website. Should a participant fail to submit a COP for two years, that participant would be labelled “inactive”, and not be permitted to attend GC events nor be authorised to use the GC name and logo.27 All that is necessary to return to active participant status is the submission of a valid COP. 19 Global Compact, Frequently Asked Questions on Communicating Progress, <www.unglobalcompact.org/COP/FAQ.html>, visited on 3 October 2008. 20 Global Compact, supra note 18. 21 Global Compact, supra note 19. 22 Global Compact and Global Reporting Initiative, Making the Connection – Using the GRI’s G3 Reporting Guidelines for the UN Global Compact’s Communication on Progress, 2006, <www.globalreporting.org/NR/rdonlyres/517427B5-AC1D-438F-938C C2CDC52439CB/0/ UNGCGRI_MakingTheConnection.pdf>, visited on 3 October 2008. 23 Global Compact, Communication on Progress Overview, 2006, <www.unglobalcompact.org/ CommunicatingProgress/index.html>, visited on 3 October 2008. 24 Global Compact, supra note 17. 25 Notable COP program, UN Global Compact Office, 2007, <www.unglobalcompact.org/docs/ communication_on_progress/Notable_COPs.pdf>, visited on 3 October 2008. 26 Global Compact and Global Reporting Initiative, supra note 22. 27 Global Compact, supra note 14.
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In October 2006, the GC labelled 335 participants inactive for failure to submit COPs;28 by July 2008 630 companies were delisted.29 The main reasons for this failure have been, on the one hand, a lack of corporate capacity to comply with the COP requirements, especially for smaller enterprises, to which the GC Office intends to respond with capacity-building measures, and, on the other hand, an intention to freeride in the first place, which the GC now discourages through the use of sanctions. Kell noted that “[w]hile the delisting of companies is regrettable, it … helps protect the integrity of the initiative as a whole, while also protecting the engagement of seriously committed companies”.30 Networking and Global Reporting Initiative Coupled with the learning approach is the Compact’s approach of networking and deliberately delegating tasks. The GC cooperates with a myriad of other organisations and initiatives and thus deliberately spins-off the tasks of monitoring corporate behaviour and verifying corporate reports to other actors in the network. For the purposes of this article, the most relevant initiative in the GC network is the Global Reporting Initiative (GRI), which has received express acknowledgement at the 2002 World Summit on Sustainable Development.31 The GRI was started in 1997 by the UN Environmental Programme and the CERES (Coalition for Environmentally Responsible Economies). It became an independent organisation in 2002. The GRI is a global, multistakeholder effort that draws on representatives from business, accountancy, investment, environmental, human rights, research and labour organisations.32 The GRI issued its Sustainability Reporting Guidelines in 1999, revised them in 2002, and the latest are dated October 2006.33 They contain a multitude of economic, environmental and social indicators on which companies can report. “The purpose of these Guidelines, and the GRI framework as a whole, is to capture an emerging consensus on 28 Interview with G. Kell, in B. Baue, ‘Global Compact Puts 335 Companies in Deep Freezer Until They Communicate on Progress’, Social Funds, 11 October 2006, <www.socialfunds. com/news/article.cgi/article2132.html>, visited on 3 October 2008. 29 630 Companies Delisted as Part of Integrity Measures, Global Compact Press Release, 25 June 2008, <www.unglobalcompact.org/newsandevents/news_archives/2008_06_25.html>, visited on October 3, 2008. 30 Ibid. 31 States “[e]ncourage voluntary initiatives, including environmental management systems, codes of conduct, certification and public reporting on environmental and social issues, taking into account such initiatives as the International Organization for Standardization (ISO) standards and Global Reporting Initiative guidelines on sustainability reporting …” (UN, Report of the World Summit on Sustainable Development Plan of Implementation, 2002, para. 18 a) at p. 15). 32 <www.globalreporting.org>, visited on 3 October 2008. 33 Global Reporting Initiative, Sustainability Reporting Guidelines, 2006, <www.globalreporting.org/Services/ResearchLibrary/GRIPublications>, visited on 3 October 2008.
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reporting practices. This provides a point of reference against which reporting organisations and report users can approach the challenge of developing effective and useful reporting practices.”34 The GRI has recognised that sector-specific guidance should be developed to complement the general Guidelines. In this way, the GRI responds to the limits of a one-sizefits-all approach to reporting.35 The Guidelines’s centre of gravity is tilted toward standardisation of reporting indicators to enable comparability by a multitude of social actors rather than contextual definitions agreed by the company with its local stakeholders. Thus, GRI is designed to work at the level of the organisation rather than at site level. A protocol36 provides guidance that helps larger companies to define the boundary of their reports, i.e. the entities in the corporate network on which they should gather information and report. This is particularly important for multinational companies. The GRI does not itself verify the truthfulness of corporate reports; this is for external assurance providers. GRI confines itself to lay down some key qualities that external verification should exhibit. Furthermore, GRI says that companies must declare the extent to which their reports follow the Guidelines and choose among three levels ranging from beginners to advanced reporters. This is the “GRI Application Levels” system through which companies can also ask the GRI to check their self-declared application level.37 The GRI will “assess the degree to which the frameworks have been applied without judging the quality of the submission”.38 The GRI is the most significant effort under way aimed at increasing the quality of CSR reporting. The Global Compact’s COPs explicitly recommend the GRI Guidelines as a template for reporting.39
34 Global Reporting Initiative, Sustainability Reporting Guidelines, 2002, p.9. 35 The Global Reporting Initiative has developed Sector Supplements for 13 industries among which Financial Services, Automotive, Mining and Metals, apparel and footwear, non-governmental organisations, and Public Agency. Global Reporting Initiative, Sector Supplements, <www.globalreporting.org/ReportingFramework/SectorSupplements>, visited on 3 October 2008. 36 Global Reporting Initiative, Boundary Protocol, 2005, <www.globalreporting.org/NR/rdonlyres/CE510A00-5F3D-41EA-BE3F-BD89C8425EFF/0/BoundaryProtocol.pdf>, visited on 3 October 2008. 37 Global Reporting Initiative, Application Levels, <www.globalreporting.org/GRIReports/ApplicationLevels>, visited on 3 October 3 2008. 38 Global Compact and Global Reporting Initiative, supra note 22. 39 A new tool – OneReport COP Publisher – has been made available recently to GC companies preparing their first COPs; it references the GRI guidelines as well. It is a web-based tool that simplifies the process of preparing and publishing a COP, <www.one-report.com/cop>, visited on 3 October 2008.
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Learning through reporting For the reporting company, there are benefits from reporting. A set of benefits comes from “learning by doing”. The process of collecting and analysing information for reporting purposes creates for top managers a better picture of where business risks and opportunities lie. It was observed that “[w]hile the report is certainly a means to communicate externally, surprisingly a good portion of its value comes from raising awareness and building alignment internally”.40 Besides these aspects that can facilitate decision-making (internal aspects), reporting can improve credibility with stakeholders (external aspects). Indeed, transparency is a form of accountability that stakeholders often demand. In terms of learning, the GC approach contributes the most to lesser-advanced companies. These businesses have in the GC a platform they can join to learn from leading companies. In this way, the GC facilitates the production of public goods. Thus, the GC facilitates the growth and dissemination of expertise that is particularly needed when action at trade association level is absent and/or when industry discussions with stakeholders are missing. The Compact allows a business to join for sharing their dilemmas and knowledge with other businesses and stakeholders and for taking concerted practical action. Corporate accountability in the Compact If there is an area of consensus between supporters of voluntary approaches that promote the sharing of expertise, including through CSR reports, and those who favour a strong regulatory framework for multinational enterprises (MNEs), then that area regards the importance of corporate transparency. While the GC is an example of the former, the Corporate Responsibility Coalition (made up of NGOs) considers that the framework of company law needs change and therefore calls for a European-wide approach to enact mandatory sustainability reporting: “[C]ompanies should be legally required to report against a comprehensive set of key social, environmental and economic indicators, alongside their legally required financial reports.”41 Transparency is an important element of accountability. For example, corporate accountability has been defined as being made up of “transparency”, “responsiveness” to stakeholder concerns, and “compliance” with standards to which a company is voluntar-
40 T. O’Brien, Vice-President of Corporate Relations, Ford Motor Company, in KPMG Global Sustainability Services, KPMG International Survey of Corporate Responsibility Reporting, 2005, p. 23, <www.kpmg.com/NR/rdonlyres/66422F7F-35AD-4256-9BF8 F36FACCA9164/0/ KPMGIntlCRSurvey2005.pdf>, visited on 3 October 2008. 41 Action Aid, Amnesty International, CAFOD, Christian Aid, The Corner House, Friends of the Earth, Global Witness, New Economics Foundation, Tax Justice Network and WWF, A Big Deal? Corporate Social Responsibility and the Finance Sector in Europe, 2005, <209.238.219.111/Big-Deal-Dec-2005.pdf>, visited on 3 October 2008.
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ily committed and rules and regulations that it must comply with for statutory reasons.42 Civil society groups have severely criticised the GC for not promoting more forcefully the accountability of its participants, and the UN for going ahead with the GC instead of pushing forward the accountability of businesses. The Compact has responded to these concerns with “integrity measures”, of which the COPs are the most important. The COP requirement has generated what the GC called the “initiative’s paradox”: The Global Compact is a voluntary initiative. It creates space for its signatories to explore complex issues, find innovative solutions and share experiences among themselves. To have credibility in meeting demanding objectives, the Global Compact cannot remain all voluntary. There must be peer pressure and peer support to ensure a broad adherence to the simple rule that companies must communicate their progress.43
The GC as an organisation works at cross currents to preserve its credibility: on the one hand, it has to provide incentives for companies to participate voluntarily and provide the public goods of learning, and, on the other hand, it has to allay the concerns of stakeholders that it is nothing more than an illegitimate, window-dressing scheme through which the UN associates itself with irresponsible companies and proves impermeable to concerns about corporate accountability. The communications requested by the GC are first and foremost meant for the learning vector, and to preserve a level of credibility for the GC institution with the public regarding its actual contribution to UN goals. The accountability vector of companies participating in the Compact, an initiative in which participation is voluntary, is an accessory that grows from the other two vectors. Some observers are uncomfortable with this accessory character of the accountability element,44 but it is inherent in a voluntary engagement strategy; only if the voluntary forum becomes the main “game in town” and the opt-out costs for business are significant can the accountability vector develop in its own right as a condition for membership (with stringent reporting requirements about the content and independent assurance of reports). This, however, is far from being the case for the time being. In order not to create internal incompatibility, one cannot lose sight of the voluntary nature of the strategy and of the accessory character of the accountability vector. The challenge is, of course, to preserve the strength of the institution and of its capacitybuilding potential and to plant the seeds of accountability, which might be handled more adequately in other settings. To carry a nuanced assessment of GC’s potential, one needs
42 The Sigma Project, SIGMA Guidelines, Putting Sustainable Development into Practice – A Guide for Organisations, 2003, <www.projectsigma.com/Guidelines/SigmaGuidelines.pdf>, p. 14. 43 Global Compact, Leading the Way in Communication on Progress – Inspiration and Perspectives from United Nations Global Compact Participants, 2006, <www.unglobalcompact.org/ docs/communication_on_progress/4.3/leading_the_way.pdf>, visited on 3 October 2008. 44 Debate: UN Global Compact – Is the Compact raising corporate responsibility standards?, Ethical Corporation, 10 May 2008, <www.ethicalcorp.com/content.asp?ContentID=5898&n ewsletter=24>, visited on 3 October 2008.
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to be sensitive to how the forces working to build CSR capacity also deliver the seeds of accountability. Co-evolution of CSR and regulatory frameworks: a role for governments The Compact emphasises the practicalities of creating substantive and procedural standards of responsible business behaviour, and the accompanying capacity to work with these standards. The delivery of these public goods through corporate voluntarism is a major achievement. The next and unavoidable step for the Compact and the CSR movement is to scale-up the impacts achieved so far, including the credible sharing of CSR experiences. There are various channels for scaling-up. One channel relies on persuasion of more and more businesses to join the CSR movement. CSR practitioners have been involved in a major effort to persuade more companies to join one of the CSR initiatives available. Global Compact also employs this channel by striving for an extended membership. A second channel relies on trade associations and uses their self-regulatory potential. If such industry bodies voluntarily subscribe to CSR principles, member companies may find support or be pressured into implementing CSR. Examples can be found in many industries such as the toy and diamonds industries. A third channel for scaling-up responsible business practices relies on governmental intervention, whether through policies or law. On the one hand, policies could take the form of clarifying expectations (soft law), providing forums for stakeholders and financial support for various stakeholders. On the other hand, laws can come in various degrees of coercion. Transparency regulations are one of the less interventionist. The reason for this has to do with the type of enforcement that accompanies these disclosure regulations. While the State ensures that companies issue reports that comply with legally specified conditions, it is private enforcement by interested stakeholders that actually holds a company accountable for its impacts. Reports, and the laws mandating them, are of an enabling kind; still, they can remain inconsequential if stakeholders ignore them or fail to act upon that information. If States choose to draw on the enforcement potential of private actors, enforcement will be provided by a variety of stakeholders acting in a decentralised fashion. These stakeholders often need the support of governments in a variety of ways among which transparency has an indispensable role. According to Tietenberg and Wheeler one standard precondition for decentralised processes to work efficiently is for the decision-makers to have full information.45 This presents an immediate role for States. As the California Global Corporate Accountability Project wrote: Rather than rely only on command-and-control methods, a new policy agenda should … help to empower investors, consumers, company managers, affected communities, advocacy groups, and workers who are seeking to encourage and reward better company performance. 45 T. Tietenberg and D. Wheeler, Empowering The Community: Information Strategies For Pollution Control, October 1998, p. 4, <www.worldbank.org/nipr/work_paper/ecoenv/ confpap. pdf>, visited on 3 October 2008.
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Our findings suggest that an immediate role for government is to improve the quality and quantity of public information about the impacts of corporate activity. Information is a public good and is key to making markets work. Information must be generated, standardized, provided, managed, verified, and disclosed to the public to fulfill its central role in making markets work efficiently and in encouraging ethical corporate behavior.46
Scaling-up CSR through governmental intervention is controversial and would be rejected by CSR proponents that conceive CSR as an intrinsically voluntary exercise.47 However, the number of CSR practitioners who acknowledge the limits of CSR and the imperative to scale it up is increasing. While one would expect differences of opinion regarding what exact type of policies and even regulations are preferable, the role of government has been increasingly acknowledged in the CSR community. John Ruggie, one of the architects of the Compact and currently the UN Special Representative on human rights and business, asked: “How do we reach the tipping point, beyond which change becomes irreversible? At the risk of sounding like a heretic, I would contend that private governance arrangements, no matter how successful, can take us only so far. They will remain relatively small islands of progress unless their achievements are rooted in, and generalized through, the sphere of public authority.”48 On another occasion, John Ruggie noted: A learning model has no direct leverage over determined laggards. They require other means, ranging from legislation to direct social action … The hope and expectation is that good practices will help to drive out bad ones through the power of dialogue, transparency, advocacy and competition. The accumulation of experience itself is likely to lead gradually to a desire for greater codification.49
Disclosure laws can draw on the benchmarks created through learning, by schemes such as the Global Compact, and formalised in comprehensive reporting templates, by the GRI for example. The laws would provide the legal incentive or obligation for businesses to report (GC cannot do that) and set the general parameters of disclosure, while the
46 California Global Corporate Accountability Project, Beyond Good Deeds: Case Studies and a New Policy Agenda for Corporate Accountability, 2002, p. xix, <www.corporate-accountability.org/docs/good_deeds_full.pdf>, visited on 3 October 2008. 47 European Commission, Implementing the Partnership for Growth and Jobs: Making Europe a Pole of Excellence on Corporate Social Responsibility COM(2006) 136 final (Brussels, 2006) <www.coess.org/documents/com_2006_0136.pdf>, visited on 3 October 2008. 48 J. G. Ruggie, The Global Compact and the Challenges of Global Governance, Annual Meeting, Global Compact Learning Forum, 11–13 December 2002, p. 3, <www.unglobalcompact.org/ content/NewsEvents/SpeechesStatements/ruggie_berlin.pdf>, visited on 3 October 2008, (italics added). 49 J. G. Ruggie, ‘The Theory and Practice of Learning Networks, Corporate Social Responsibility and the Global Compact’, 5:2 The Journal of Corporate Citizenship (2002), p. 33, <www. greenleaf-publishing.com/pdfs/jcc5rugg.pdf>, visited on 3 October 2008, (italics added).
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experience accumulated through CSR initiatives can help with specifying the content of the law. A report coming from the GC states: Regulators are invited to shape legal frameworks in a predictable and transparent way as this will support integration in financial analysis. Regulatory frameworks should require a minimum degree of disclosure and accountability on environmental, social and governance issues from companies, as this will support financial analysis. The formulation of specific standards should, on the other hand, rely on market-driven voluntary initiatives. We encourage financial analysts to participate more actively in ongoing voluntary initiatives, such as the Global Reporting Initiative, and help shape a reporting framework that responds to their needs. We believe that regulatory frameworks should require a minimum degree of disclosure and accountability on ESG issues, but rely on market-driven voluntary initiatives to formulate detailed standards.50
This interaction in the lawmaking process highlights the complementarity that can exist between CSR initiatives and regulation. It also allows more nuanced assessments of the importance of the Global Compact and its network in planting seeds of accountability. The learning approach of the GC could eventually offer, on the one hand, inspiring examples of viable business models that have managed to reconcile profitability with CSR and, on the other hand, specific benchmarks to separate responsible from unacceptable business practices. Each of these products may influence two types of transparency regulations.51 The first type would be regulations that ask companies to account for and report on their broader economic, social and environmental impacts. Because what is “material” and what is a “reasonable” investor may not always be clear-cut, there is a “grey zone” where shareholders’ and stakeholders’ information-needs overlap. Numerous arguments elaborate the “business case” of CSR, which is based on the understanding that a good CSR performance benefits the corporations in some way. That would automatically make relevant to investors information about how corporate management handles its social and environmental impacts. This broader accounting aims to ensure the longterm success of a business that is able to identify and manage previously obscured risks and opportunities. The principal example has been the Business Review in the United Kingdom, a sensible revision of company law that has been thoroughly discussed in that country since 1998.52 The law enlarges the area of overlap between the public interest and corporate self-interest. The UK serves as the prime example that highlights the com50 The Global Compact, Who Cares Wins – Connecting Financial Markets to a Changing World, Recommendations to better integrate environmental, social and governance issues in analysis, asset management and securities brokerage, 2004, pp. iv and 33, <www.unglobalcompact.org/ docs/news_events/8.1/WhoCaresWins.pdf>, visited on 3 October 2008 (italics added). 51 For a more detailed treatement see R. Mares, The Dynamics of Corporate Social Responsibilities (Martinus Nijhoff Publishers/Kluwer Law International, 2008) pp. 177–220 and 245–278. 52 Department of Trade and Industry (DTI), Company Law Review, <www.dti.gov.uk/bbf/colaw-reform-bill/clr-review/page22794.html>, visited on 3 October 2008.
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plexities involved in promoting through binding regulations a more comprehensive understanding of what business success is and correspondingly what information prudent investors actually need in the 21st century. The experience accumulated though CSR can assist regulators ready to deliberately make strides in the “grey zone” and promote more sustainable models of business. The second type of transparency laws seeks to directly protect public interests, not to rationalise them in terms of business self-interest. These are the so-called “right-toknow” regulatory approaches. They aim to benefit various stakeholders (e.g. employees, local communities, ethical investors and so on), while the previous type of regulations concentrates on the information-needs that shareholders (i.e. reasonable investors) have in order to evaluate strictly the commercial success of a company. Such disclosure regulations do not promote an understanding of the company as a commercial, revenuegenerating entity but as an entity that (dis)regards its social and environmental impacts and that complies or does not comply with certain standards that stakeholders deem important. Right-to-know regulations place first the interests of various stakeholders rather than the interests of the company itself. This type of regulation has been successfully employed in the environmental protection area. Empowered with new data on the pollutants discharged by a manufacturing plant, communities living in its vicinity have been able to protect more effectively their interests. The Toxics Release Inventory (TRI) is a pioneering disclosure program introduced in 1986 in the US.53 The TRI is a publicly available database of the Environmental Protection Agency that contains information on toxic chemical releases reported annually by certain industry groups as well as federal facilities. The law’s goalis to empower citizens, through information, to hold companies and local governments accountable in terms of how toxic chemicals are managed.”54 The Global Compact itself is unlikely to explore in depth the links between CSR and law for fears of alienating the business community and jeopardising its core function (learning). In addition, there is an insufficient understanding about how regulatory regimes could support and scale-up the CSR gains obtained by the GC network and the CSR movement in general. Laws could be designed to reveal various degrees of intervention and coercion, especially when coupled with private enforcement. Eventually, there will be adopted legally binding instruments regarding corporate obligations in the area of human rights, including reporting obligations. This will happen because of relentless pressure from civil society as much as because of the learning stimulated by Global Compact.
53 TRI was established under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) and expanded by the Pollution Prevention Act of 1990. 54 <www.epa.gov/tri>, visited on 3 October 2008.
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Terrorism and Human Rights Monitoring Iain Cameron*
In this essay, I will give a brief overview of the types of issues involving terrorism that have arisen before human rights monitoring bodies. There is no universally accepted legal definition of the term “terrorism”. The label of terrorism serves to de-legitimise those who use such methods. Fundamental political disagreement over how to define terrorism has meant that States have tended to focus on specific types of terrorism – hijacking, attacks against diplomats, etc. However, there is now a more or less generally accepted legal definition in Article 2 of the Financing of Terrorism Convention which refers to the specific acts criminalised by the various multilateral conventions on terrorism and “[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act”. “Terrorism”, thus, covers a multitude of different phenomena and different groups, from small “single issue” factions using force in one State to secure limited changes in government policy in it to well-armed, organised and financed entities in *
Iain Cameron is Professor in Public International Law at the University of Uppsala. His research interests lie in human rights, international criminal law and civil liberties. He was an expert adviser to the Badinter Commission and to a number of Swedish government commissions of inquiry proposing legislation. Since 2006 he has been a member of the Commission on Democracy through Law (Venice Commission) of the Council of Europe. C. Warbrick, ‘The Principles of the ECHR and the Response of States to Terrorism’, European Human Rights Law Review (2002) pp. 287, 288. There are 13 global multilateral treaties dealing directly with specific acts of terrorism and nine regional treaties dealing with terrorism as a whole or particular aspects of it. See <www. untreaty.un.org/English/Terrorism.asp>. As of 1 January 2007, there were 160 parties to the Convention, . Cf. the definition employed in the EU Framework Decision on Terrorism, OJ L 164, 22 June 2002, which does not exclude acts in armed conflicts.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp.399-406.
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control of territory behaving as a quasi-government and aiming for the control of the State or the creation of a new State. Generally speaking it is a conceptual error to argue that terrorists “violate” human rights. Terrorists kill and injure innocent people, but terrorist acts are more properly seen as very serious crimes. Human rights in international law are exercisable by individuals and groups vis à vis the State. A possible exception to this is a terrorist group in effective and continuing control of territory, which conceivably is bound by fundamental principles of humanitarian law, although unless the group in question later becomes the government, enforcing such rules will be extremely difficult in practice. The types of issues that arise before human rights monitoring bodies thus concern State measures that allegedly violate human rights in combating terrorism. Here it should be noted that States, in addition to whatever duties they accept under treaties, have duties under customary international law to combat terrorism, in particular, not to assist in the commission of terrorist acts in other States’ territories. Since the 11 September 2001 attacks on the US, the Security Council has added to these duties by adopting binding Chapter VII sanctions-resolutions requiring all States, inter alia, to freeze financial assets of named terrorist suspects (blacklisting), to criminalise and effectively prevent
For a discussion, see Report of the Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism, E/CN.4/2006/98. See for example L. Zegveld, Accountability of Armed Opposition Groups in International Law (Cambridge University Press, Cambridge, 2002); Article 10 of Responsibility of States for Internationally Wrongful Acts, GA resolution 56/83 (2002), dealing with “backdating” of responsibility for an entity that achieves governmental/State power; C. Tomuschat, ‘The Applicability of Human Rights Law to Insurgent Movements’, in H. Fischer et al. (eds.), Krisensicherung und Humanitärer Schutz [Crisis Management and Humanitarian Protection], Festschrift für Dieter Fleck (Berliner Wissenschafts-Verlag, Berlin, 2004) pp. 573–591; and J. M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law, Volume I: Rules (Cambridge University Press, Cambridge, 2005) p. 299. See Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Between States in Accordance with the Charter of the United Nations, GA resolution (XXV), 1970; GA resolution 3314 (XXIX), Definition of Aggression, 1974; and ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), ICJ Report 1986, p. 1. Resolutions 1267, 1333 and 1390, 16 January 2002, subsequently amended by a number of other resolutions. These resolutions themselves create special human rights difficulties as they deny basic rights of due process. For discussions, see B. Fassbinder, Targeted Sanctions and Due Process, study commissioned by the UN Office of Legal Affairs, 18 February 2006; I. Cameron, ‘UN Targeted Sanctions, Legal Safeguards and the ECHR’, 72 Nordic Journal of International Law (2003) pp. 159–214; and I. Cameron, The ECHR, Due Process and UN Security Council Counter-Terrorism Sanctions, report to Council of Europe, 6 February 2006, <www.coe.int/t/e/legal_affairs/legal_cooperation/public_international_law/Texts_&_Documents/2006/I.%20Cameron%20Report%2006.pdf>, visited 16 September 2006.
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the financing of terrorism and to prevent terrorists from obtaining nuclear, chemical or biological weapons and their means of delivery. Terrorism is, undoubtedly, a major problem for the international community, and one that deserves effective action to prevent and counter it. However, the emphasis the international community, led by the US, has given to the struggle against terrorism has raised human rights issues, e.g. the US imprisonment of terrorist suspects in a legal limbo in Guantanamo Bay,10 the related attempts to weaken or avoid the prohibitions in the Geneva Conventions against mistreatment of terrorist suspects,11 the UK derogation from Article 5 of the European Convention on Human Rights (ECHR) in order to justify depriving suspects of their liberty12 and the alleged US practice, connived in by other States, concerning the “rendition” of terrorist suspects to regimes where they can be tortured for information.13 The United Nations (UN) General Assembly, regional bodies and later the Security Council have emphasised that human rights obligations are to be strictly complied with by States in dealing with terrorist threats.14 It is a fundamental feature of the rechtsstaat that effective measures against terrorism can be achieved within the law and with respect for human rights. The rechtsstaat must, as the Israeli Supreme
Resolution 1373, 28 September 2001. Resolution 1540, 28 April 2004. Mention should also be made of resolution 1624, 14 September 2005, not adopted under Chapter VII, encouraging States to criminalise incitement to commit acts of terrorism. 10 The legal position of Guantanamo Bay detainees was clarified by the US Supreme Court in Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). For a discussion of the problems caused by the advent of terrorists that are not proxies of sponsor States and that operate as “nomadic networks” with global or regional rather than separatist goals, see for example D. Jinks, ‘September 11 and the Laws of War’, 28 Yale Journal of International Law (2003) p. 1. 11 See for example the Amnesty International criticism, Military Commissions Act of 2006 – Turning Bad Policy into Bad Law, 29 September 2006 and Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin Addendum: Mission to the United States of America, A/HRC/6/17/ Add.3 22 November 2007. 12 Both the Council of Europe Commissioner on Human Rights (Opinion 1/2002, Doc. Comm. HR(2002)7) and the Parliamentary Assembly (PA resolution 1271 (2002)) criticised this. The House of Lords ruled in A et al. v. Secretary of State for the Home Department, [2004] UKHL 56, that the detention provisions introduced in furtherance of the derogation under the AntiTerrorism, Crime and Security Act 2001 (ATCSA) violated the ECHR. The response was to introduce “control orders” providing for a form of house arrest. The House of Lords ruled that these are not a deprivation of liberty but that one must be able to review in each case whether the procedure for imposing them was fair. See Secretary of State for the Home Department v. MB and AF, [2007] UKHL 46. 13 For the legal position, see Venice Commission Opinion No. 363/2005 on the International Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners. 14 Among the many reminders of this, see Parliamentary Assembly of the Council of Europe resolution 1271 (2002), Combating Terrorism and Respect for Human Rights; GA resolution 57/27, Measures to Eliminate International Terrorism, 15 January 2003; and Security Council resolution 1624.
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Court put it, fight with one hand behind its back.15 But, if it does not do so and if it fails to obey its own rules, then it loses its legitimacy. It is easy to “whittle” away hard-won rights in a series of measures designed to make more effective the struggle against terrorism, but when total effectiveness is achieved, you no longer have a rechtsstaat left to defend. Severe measures have undoubtedly been taken in many States in the world in the name of anti-terrorism, both before and after 11 September 2001. In clamping down on political dissent, ruling elites can exacerbate or create the very problem they supposedly wanted to avoid, thereby encouraging a vicious spiral of terrorism from desperate groups and counter-terrorism from the security forces.16 The problem for human rights, and for human rights monitoring bodies, is that even a democratic State that feels its very existence is threatened is prepared to push its antiterrorism measures to the limit of what is permissible. At the same time, a State considers that it is the best judge of its own security. National security is the area where States are least inclined to be receptive to international criticism and least inclined to make meaningful changes to national laws and practices. Thus, whatever the political complexion of the State, anti-terrorist measures can raise issues under many of the civil and political rights listed in the major universal and regional human rights treaties, not simply those rights containing explicit “security” or “public order/prevention of crime” limitation clauses.17 For example, special investigative powers (bugging, video surveillance, telecommunications interception, data matching, etc.) raise issues of privacy;18 racial/ethnic profiling of suspects can involve discrimination; the use of lethal force in counter-terrorism operations raises issues under the right to life;19 the use of anonymous judges, special courts and secret intelligence material in the deportation of suspects and criminal and civil proceedings raises issues
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HC 5100/94, Public Commission Against Torture in Israel v. Government of Israel, 53(4) PD 817 845 (1999) (President Aharon Barak). Recall the preamble to the Universal Declaration of Human Rights (UDHR), UN Doc. A/811, 1948, where it is stated, inter alia, that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law …”. See for example, as regards ECtHR case law, Fox, Cambell and Hartley v. UK, 30 August 1990, A/182, para. 32; for excerpts from relevant regional and ICCPR case law, see UN High Commissioner for Human Rights (OHCHR), Digest Of Jurisprudence of the UN and Regional Organisations on the Protection of Human Rights While Countering Terrorism, 2004. For discussions, in general, of the case law of the ECtHR on national security, see I. Cameron, National Security and the ECHR (Iustus/Kluwer, Uppsala/The Hague, 2000). See further Weber and Saravia v. Germany, No. 54934/00, 29 June 2006 and Liberty and other organisations v. UK, No. 58243/00, 1 July 2008. Both the HRC and the ECtHR have interpreted planning requirements into the right of life, so as to minimise the loss of life (see in particular McCann et. al. v. UK, 27 September 1995, A/324). The ECtHR has, moreover, insisted on the enactment and enforcement of a proper legal and administrative framework regulating the use of lethal force by the security forces (see Makaratzis v. Greece, No. 50385/99, 20 December 2004).
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of fair trial;20 speech crimes such as offences criminalising the “glorification of terrorism” involve the freedoms of expression, assembly and association;21 and special powers of arrest and detention can infringe the rights to life, liberty and security of person.22 Effective remedies before a national authority may not exist in practice. In the present short essay, it is not possible to cover all the substantive issues in the relevant case law. I am content with noting some of the procedural and practical problems that monitoring bodies have encountered, drawing most of my examples from the case law of the European Court of Human Rights (ECtHR) and the Human Rights Committee (HRC). To begin with, all international systems of human rights monitoring are subsidiary to the national protection mechanisms. Here, national legislatures have the primary responsibility in setting acceptable boundaries, and national courts have a leading role to play in drawing the balance between effectiveness and legal security (rechtssicherheit). But the security of the State may, at a time of panic, seem to be the overriding goal, capable of justifying anything.23 Even in a democracy, if the legislature lets itself be railroaded by real or perceived public opinion into adopting overly severe measures, e.g. under the specter of terrorists with access to weapons of mass destruction, then unless they have the formal authority and moral courage to exercise powers of constitutional review the national courts are not going to be able to do much in practice to protect human rights, and nor can the international monitoring bodies. Another problem built into all systems of monitoring of civil and political rights is structural. Where the root causes of terrorism are structural, based on e.g. poverty, serious inequalities in society or systematic discrimination or disenfranchisement of a minority, then simply making sure that the machinery of justice is operating reasonably well will naturally not end terrorism but simply reduce the abuses in suppressing it. Minimising terrorism requires an integrated approach, e.g. putting money into removing the causes of terrorism at the same time as fighting its symptoms. The SecretaryGeneral has proposed such a policy,24 but it seems doubtful whether States are willing to put the necessary funding into it to make it work.
20 See for example, as regards “faceless judges”, Marlem Carranza Alegre v. Peru, HRC No. 1126/2002, 17 November 2005; as regards special courts, Incal v. Turkey, 9 June 1998, para. 58 and Kavanagh v. Ireland, HRC No. 819/1998; as regards deportations, Al-Nashif et al. v. Bulgaria, No. 50963/99, 20 June 2002; and as regards secret material in criminal trials, Haas v. Germany, No. 73047/01, 17 November 2005. 21 Cameron, supra note 18, pp. 385–394. For a recent example of such legislation, see Sections 1 and 2 of the UK Terrorism Act 2006. 22 Cameron, supra note 18, pp. 277–287. 23 “Security is the most vital of all interests. On it we depend for our immunity from evil, and for the whole value of all and every good, beyond the passing moment” (J. S. Mill (H. B. Acton (ed.)), Utilitarianis: On Liberty: Considerations on Representative Government (Dent, London, 1991) p. 56. 24 See Uniting Against Terrorism: Recommendations for a Global Counter-Terrorism Strategy, A/60/825, 27 April 2006.
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A related point is that the elaboration of international standards and the documenting of abuses through human rights monitoring is only the first part of the job in changing a “culture of impunity”, i.e. a deep-rooted practice of placing security forces above the law. This requires not only repealing laws granting exceptional powers but also commitment to deeper change, and large sums of money, inter alia, to train and pay better soldiers, policemen, prosecutors, judges and prison officers. Local and international pressure must also be applied. Local non-governmental organisations must be able to work in providing information to the monitoring bodies. International non-governmental organisations must be able to encourage and assist their local counterparts and focus media attention on monitoring bodies’ reports, making it difficult for democratic States to ignore them. Rich and powerful States, such as the European Union States and the USA, must engage in a combination of a “carrot and stick” approaches, strengthening and rewarding those sections of the client State that wish to exercise better control over the security sector and criticising and pressuring those that do not. They must also make a long-term commitment to assist, technically and financially, the training and reform of the security and justice sectors. Where, however, the commitment rich and powerful States have to reform takes second seat to “effectiveness” in anti-terrorist measures, non-democratic regimes or unaccountable security elites in half-democratic States can largely ignore the human rights monitoring. Human rights monitoring that is based on individual complaints naturally requires someone to complain. The accident of litigation means that some potential issues, for a variety of reasons (lack of awareness of one’s legal rights, resignation on the part of the victim, cost of litigation, poor legal advice, etc.), never make their way through the mill of domestic courts and the admissibility procedures to a judgment on the merits. And by the time a complaint has been ruled upon much harm can have already been caused. Moreover, a judgment or a decision is in casu. Admittedly, where a judgment entails finding a law or widespread practice as being in violation of a human right, it will have implications for many other people in a similar position.25 But, even assuming that a State takes the necessary corrective measures stemming from a judgment, it is by no means that all the undesirable aspects of a State’s anti-terrorism policies can come under the scrutiny of a civil/political monitoring body such as the HRC or the ECtHR: the complaint obviously forms the procedural framework for the body’s monitoring. An inter-State complaints mechanism exists under the International Covenant on Civil and Political Rights (ICCPR) and the ECHR, but States are very reluctant to jeopardise good relations by complaining about each other. The Parliamentary Assembly of the Council of Europe encouraged States to bring inter-State complaints against Russia because of the brutality of its anti-insurgency campaign in Chechnya; no State has so far brought such a case, and it was 2005 before the first judgments were delivered by the ECtHR.26 The lack of a proactive, investigative competence is especially obvious where a
25 See now, as regards the ECtHR, Committee of Ministers resolution (2004) 3, on judgments revealing an underlying systemic problem, <www.coe.int/T/E/Human_rights/ib62e_web. pdf > and Broniowski v. Poland, No. 31443/96, 22 June 2004. 26 See in particular Isayeva v. Russia, No. 57950/00, 24 February 2005.
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State has made a derogation,27 although there are other mechanisms by which pressure can be brought to bear to secure information, at least, on what anti-terrorist measures have been taken and why. The Secretary-General of the Council of Europe used his powers to require information on the application of the ECHR in 2001, following reports of widespread gross human rights violations by Russian forces in Chechnya. The UN Charter-based machinery can allow thematic or special rapporteurs to investigate serious rights violations proprio motu. The European Commissioner for Human Rights, likewise, has a proactive competence, and the European Committee against Torture (ECT) can similarly make onsite investigations on the basis of e.g. newspaper reports or non-governmental organisations’ allegations. However, a State can block or undermine the usefulness of such visits in a variety of ways. Another problem is extraterritorial anti-terrorist acts of the State taken against terrorist suspects. For example, the US contends that the ICCPR is inapplicable to acts outside the territory of the State parties. However, the case law and concluding comments of the HRC indicate that there is State responsibility for extraterritorial acts.28 The same applies under the case law of the ECtHR, although there is a special problem in cases where the State denies that its security forces were, in fact, present in an area where an alleged violation has taken place.29 Here, the ECtHR, in line with its previous case law,30 sets a high burden of proof on the applicant, requiring that he or she must show “beyond a reasonable doubt” that State agents were responsible for the act complained about (e.g. the death or disappearance of a close relative). Both the HRC and the ECtHR also insist that a State cannot absolve itself from responsibility by deporting or extraditing a terrorist suspect to a country where he or she could be subject to ill treatment.31 27 Derogation provisions can be found in the ECHR (Article 15), the ICCPR (Article 4) and the American Convention on Human Rights (Article 27). The African Charter has no derogation provision. 28 See the views adopted by the HRC, e.g., in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, Nos. 52/1979 and 56/1979, 29 July 1981, paras. 12.3 and 10.3 respectively. See also Concluding Observations on Israel (1998), CCPR/C/79/Add.93, “the Covenant must be held applicable to the occupied territories and those areas of Southern Lebanon and West Bekaa where Israel exercises effective control” and General Comment No. 31: Article 2 of the Covenant: the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/74/CRP.4/Rev.6 (2004). See further ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, paras. 155–157. 29 See for example Öcalan v. Turkey, No. 46221/99, 12 May 2005 and Issa et al. v. Turkey, No. 31821/96, 16 November 2004. 30 See for example Ireland v. UK, 18 January 1978, A/25 and İpek v. Turkey, No. 25760/94, 17 February 2004, para. 109. 31 Chahal v. UK, No. 22414/93, 15 November 1996. In Mamatkulov and Abdurasulovic v. Turkey, Nos. 46827/99 and 46951/99, 4 February 2005, the ECtHR accepted that diplomatic assurances could remove the risk of torture. A different and, in my view, better approach was taken by the UN Committee Against Torture in Ahmed Hussein Mustafa Kamil Agiza v. Sweden, Decision CAT/C/34/D/233/2003, 24 May 2005. The ECtHR in the later case of Saadi v. Italy No. 37201/06, 28 February 2008, took a much more sceptical view of the value of diplomatic
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The standard of proof illustrates another problem that many human rights monitoring bodies encounter: they have a limited fact-finding capability. This is particularly serious in terrorist cases, where there can be a dispute as to the real facts, e.g. as to how a suspicious death came about and who is responsible. An onsite investigation and the hearing of witnesses may be desirable. However, the HRC has an exclusively written procedure. The HRC has, thus, modified the onus of proof in situations where the respondent State has sole access to the material that would tend to prove, or disprove, the complainant’s allegations.32 And it has had recourse to onsite and other material gathered by other UN bodies in order to help prove, or disprove, the complainant’s allegations. The ECtHR has a limited capability to engage in fact-finding onsite, but its fact-finding is severely limited by financial and practical constraints. The ECtHR has also lessened the onus of proof as regards secret anti-terrorist measures, holding that a person has standing to complain of a violation if it can be shown that there is a “reasonable likelihood” that he/she has been the victim of such practices.33 A way of avoiding difficult issues of proof as regards alleged violations of the right to life has been developed by the ECtHR by its insistence on a proper investigation by the security forces. This entails “some form of independent and public scrutiny capable of determining whether the force used was or was not justified in a particular set of circumstances”.34 Where a person has “disappeared”, it is almost invariably the case that there is no independent investigation of this.35
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assurances regarding a terrorist suspect. Moreover, it reaffirmed the Chahal approach that it is sufficient that there be general (in this case, from NGOs) evidence that there is widespread torture in the State to which deportation would occur, rather than specific evidence that the particular applicant would be tortured. See for example Baboeram-Adhin et al. v. Suriname, HRC No. 146/1983, 4 April 1985, para. 14.2. See for example Hilton v. UK, 12015/86, 57 DR 108 (1988). See for example Kaya v. Turkey, 19 February 1998, para. 86. Furthermore, the ECtHR has insisted on the prosecution of a soldier or policeman who is suspected of having used excessive force, for example, McShane v. UK, No. 43290/98, 28 June 2002. For discussion of the Turkish cases under Article 2, see Cameron, supra note 18, pp. 261–265, 383–394. For more detail on the investigation requirement, see Warbrick, supra note 1, pp. 293–295. For a ECtHR case where the State was found responsible, despite denials, for the killing of applicants’ relatives, see Khashiyev and Akayeva v. Russia, Nos. 57942 and 57945/00, 24 February 2005.
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Monitoring Human Rights Obligations and the Fight against Terrorism: Whose Obligations? And Monitored How? Martin Scheinin*
Who has human rights obligations in the fight against terrorism? States It is self-evident that the notion of human rights obligations primarily refers to States as duty-bearers, also in the context of the fight against terrorism. Human rights treaties are written to protect individuals in relation to States, they are adopted and ratified by States, and their monitoring mechanisms are geared towards States. There are, however, important and even difficult questions of law that relate to those State obligations. They relate, for instance, to the territorial scope of human rights obligations of States, and to the substantive contents of these obligations, including in respect of the legitimate power to derogate from certain treaty provisions during a state of emergency, or to impose permissible restrictions on certain rights. These issues will not be discussed in this article. Here, focus will be on the question: who else but States might have human rights obligations relevant in the context of terrorism, and the fight against it? *
Professor, Åbo Akademi University; UN Special Rapporteur on human rights and counterterrorism. There is a wave of recent scholarship in the issue of the territorial scope of human rights obligations. For a collected volume that maps the issue in respect of a number of human rights treaties and also international humanitarian law, see F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (Instersentia, Antwerp/Oxford, 2004). For the position of the Human Rights Committee, acting under the International Covenant on Civil and Political Rights, see General Comment No. 29 (72) of 2001, reproduced in UN document HRI/GEN/1/Rev.8, pp. 225–232. Although there is no general comment on permissible restrictions as such, the Human Rights Committee has developed its position in General Comment No. 27 (67) on freedom of movement, adopted in 1999 and reproduced in UN document HRI/GEN/1/Rev.8, pp. 213– 218. For discussion on human rights monitoring of counterterrorism measures by States, see Iain Cameron’s chapter in this volume.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 407-420.
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Terrorists? The emphasis on States’ human rights obligations in the discussion about human rights in the fight against terrorism poses two important challenges. An issue of legitimacy The first challenge pertains to the sphere of politics and morality and is about the legitimacy of those who are trying to keep up the banner of human rights in the era of international terrorism. Is the human rights movement credible in the eyes of the general public, and effective as an actor, if it continues to focus on how States violate human rights when they counter terrorism? Human rights people may appear as “whiners”, ignoring real security threats and the need to take decisive action because of them. Within intergovernmental organisations such as the United Nations (UN) and the European Union (EU), counterterrorism professionals and experts all too often are deciding the route and pulling the sledge, while human rights people are whining, i.e. causing marginal delays and adjustments in the outcome, on the basis of a defensive strategy and without initiatives of their own. In this situation and again looked at through the eyes of the public, it makes common sense when authoritarian governments blame the terrorists for violating human rights, and it often does not make common sense when human rights groups blame the government for not meeting their positive obligations under the right to life when a rebel group blows up a bus full of schoolchildren. An issue of public international law However, in addition to the legitimacy challenge, there is also an issue of public international law when the question is posed whether terrorists violate human rights. This question is related to a broader change in the doctrine of subjects of international law. Is this change so fundamental that it would allow public international law to address acts of terrorism as human rights violations? The Commission on Human Rights resolution that established the mandate of the present author as UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism does not apply the terminology of human rights violations when referring to acts of terrorism. Nevertheless, on other occasions inter-governmental bodies may have used such language. Partly build
For a useful mapping of the various issues, see A. Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press, Oxford, 2006). According to the preamble of Commission on Human Rights resolution 2005/80, acts, methods and practices of terrorism in all its forms and manifestations are activities “aimed at the destruction of human rights”. See e.g. resolution 2004/44 by the same Commission on Human Rights. In the preamble, the Commission expresses serious concern “at the gross violations of human rights perpetrated by terrorists”.
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ing on the tradition of international humanitarian law to include norms that are binding for all parties to an armed conflict, irrespective of their legal status, international human rights law is seeking ways and means to identify and implement “fundamental standards of humanity” that would be binding upon States and other actors alike. At the background of this process there is a conviction that every human being is entitled to the full respect of his or her human rights and fundamental freedoms, in respect of which not only States but also other actors must not act in a way that would render nugatory the rights in question. This would be true, in particular, with respect to those rights and freedoms that belong to the category of fundamental standards of humanity, representing the traditions of humanitarian law and human rights law and applicable in respect of all actors in all circumstances, including during states of emergency or armed conflict. The fact that acts of terrorism are aimed at and result in the destruction of human rights calls for intensified work by the international community to promote awareness of the existence and contents of fundamental standards of humanity, and for the creation of mechanisms for their effective implementation, also in respect of non-State actors. Intergovernmental organisations The basis for obligations in doctrine Primarily in the context of international development cooperation there is a fairly well developed discussion in the doctrine on whether international financial institutions, such as those constituting the World Bank Group, have human rights obligations, including in the field of economic, social and cultural rights.10 Despite this discussion that has been going on for a number of years already, there is no common understanding as to the international law theory upon which to build the idea of international financial institutions and other intergovernmental organisations having human rights obligations. Candidates for such a theory include the following: (a) Customary international law. Intergovernmental organisations have human rights obligations because not only States but all actors and in particular those that have been elevated to the rank of subjects of international law are bound by general, i.e. customary, international law. Many of the human rights treaties that may be ratified by States alone reflect norms of customary international law, legally binding irrespective of formal rati
Reference is made to the Turku (Åbo) Declaration of Minimum Humanitarian Standards (1990), available as UN document E/CN.4/1995/116. The current discussion under the heading of fundamental standards of humanity is pursued on the basis of reports by the Secretary-General, e.g. UN document E/CN.4/2006/87. See also UN document E/CN.4/2006/98, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, in particular paras. 67–71. 10 S. Skogly, The Human Rights Obligations of the World Bank and the International Monetary Fund (Cavendish, London, 2001).
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fication by a specific State. The asset of this explanation for human rights obligations of intergovernmental organisations is that no basis in treaty law needs to be established for holding the entities in question legally bound. A weak point, however, is that the elevation of human rights norms into norms of customary international law does not necessarily change the fact that the substantive content of those norms mainly pertains to the relationship between an individual and a State. (b) Obligations under the United Nations Charter. As the United Nations Charter includes several references to human rights (Preamble and Articles 1(3), 13(1)(b), 55(c), 62(2), 68 and 76(c)), there is strong legal support for the contention that in addition to UN Member States also all UN organs, specialised agencies and other intergovernmental organisations with a treaty link to the UN have human rights obligations. In particular, Article 1(3) of the Charter declares promoting and encouraging respect for human rights as one of the purposes of the United Nations, and, according to Article 55(c), the United Nations shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. (c) Delegated powers. A third theory is based on the position of States as the original subjects of international law. Intergovernmental organisations created by States can only exercise powers that were delegated to them by States, and States can only delegate powers that they possess. Hence, the human rights obligations of Member States would always constitute legally binding limits on the competencies of the organisation. A further application of this theory is that when participating in the decision-making of an intergovernmental organisation, States are bound by their human rights obligation. Hence, an organisation could never lawfully make decisions that would contradict the human rights obligations of the majority of its members (or voting power). An example of the application of this theory is that the operation of the World Bank is legally bound by the provisions of the International Covenant on Economic, Social and Cultural Rights as more than three quarters of the votes belong to States that are Parties to that treaty.11 (d) Acquired rights. Finally, the existence of human rights obligations of intergovernmental organisations can be based on the ideas that States exercise sovereignty over a certain territory and human rights obligations devolve with territory. In particular, the Human Rights Committee acting under the International Covenant on Civil and 11
R. Hennessy, ‘Defining States’ International Legal Obligations to Cooperate for the Achievement of Human Development: One Aspect of Operationalising a Human Rights Based Approach to Development’, in M. Scheinin and M. Suksi (eds.), Human Rights in Development Yearbook 2002: Empowerment, Participation, Accountability and Non-discrimination: Operationalising a Human Rights Based Approach to Development (Martinus Nijhoff, Leiden, 2005) pp. 71–98. See in particular pp. 90 and 91 where the data is presented that 78 per cent of the voting power in the International Bank for Reconstruction and Development and 76 per cent of the voting power in the International Development Association (as of 2003) are bound by the International Covenant on Economic, Social and Cultural Rights.
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Political Rights (ICCPR) has been responsible for developing and applying the doctrine that once a population finds itself protected by the ICCPR through the ratification of the ICCPR by the territorial State, that protection cannot be taken away or diminished through the change of the sovereign.12 This approach was applied in the 1990s in the context of the dissolution of the Soviet Union and former Yugoslavia, to the effect that all the emanating newly independent States were considered to be Parties to the ICCPR from the day of independence, irrespective of when they deposited their formal instrument of succession or accession. Likewise, the Human Rights Committee has insisted that the ICCPR continues to apply to the benefit of the populations of Hong Kong and Macau, irrespective of the fact that these territories have been ceded to the People’s Democratic Republic of China, which is not a party to the ICCPR. Finally, in July 2006 the Committee considered a report by the United Nations Mission in Kosovo on the implementation of the ICCPR in Kosovo, demonstrating that if the powers of an intergovernmental organisation affect the enjoyment of ICCPR rights by a population covered by the preceding ratification of the Covenant by the territorial State, then that organisation will be bound by the substantive provisions of the Covenant and even the reporting obligation under Article 40.13 It may very well be that none of these four alternative theories alone will be able to provide a solid basis for the concrete contents of legally binding human rights obligations for intergovernmental organisations in the fight against terrorism. But it does not appear premature to conclude that taken together these doctrines are sufficient to prove the existence of such legal obligations and, at least in part, also the substantive content of those obligations. What results is a matrix of doctrines and human rights obligations where one theory forms the basis for certain obligations while another theory explains some other human rights obligations. Two examples related to countering terrorism In the specific context of the protection of human rights while countering terrorism, the issue of possible human rights obligations of intergovernmental organisations has arisen, in particular, in two situations. (a) The relationship between UN Security Council counterterrorism resolutions and human rights. According to Article 103 of the United Nations Charter, Member States’ obligations under the Charter shall in case of conflict prevail in respect of obligations under any other international agreement. This clause on the primacy of Charter obligations 12 See M. Scheinin, ‘The Work of the Human Rights Committee under the International Covenant on Civil and Political Rights and Its Optional Protocol’, in R. Hanski and M. Scheinin, Leading Cases of the Human Rights Committee, second revised edition (Åbo Akademi University Institute for Human Rights, Turku, 2007) pp. 8–10. 13 See Human Rights Committee concluding observations on Kosovo (CCPR/C/UNK/CO/1), 2006, para. 2 and concluding observations on Serbia and Montenegro (CCPR/CO/81/ SEMO), 2004, para. 3.
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has been interpreted generously to the effect that also obligations flowing from Security Council resolutions adopted under Chapter VII of the Charter enjoy primacy in respect of the treaty obligations of Member States. Although such derived primacy of secondary norms adopted through the exercise of powers created by the Charter is subject to criticism from a constitutional law perspective, the generous interpretation prevails and corresponds to the doctrine of the Security Council enjoying unlimited powers when acting under Chapter VII.14 Soon after the terrorist attacks of 11 September 2001, the Security Council, acting under Chapter VII of the Charter, adopted resolution 1373, which includes a whole range of mandatory counterterrorism measures for Member States15 and establishes a CounterTerrorism Committee (CTC) to monitor the implementation of those obligations, inter alia, on the basis of periodic reports by States.16 On occasion it has been argued that as this resolution was adopted under Chapter VII of the Charter, it trumps any human rights treaty obligations that Member States may have. Notably, only some weeks after the adoption of the resolution, the United Kingdom government appeared before the Human Rights Committee to present its periodic report under the ICCPR and relied on this occasion on the argument of resolution 1373 having primacy in respect of the ICCPR.17 In its concluding observations the Committee insisted that any counterterrorism measures, including those that implement mandatory resolutions by the Security Council, must be taken within the framework of the ICCPR, a framework that includes the possibility of derogating from some of the Covenant provisions in times of a public emergency that threatens the life of the nation.18 Some of the subsequent counterterrorism resolutions by the Security Council – notably not mandatory in the sense of having been adopted under Chapter VII of the Charter – have emphasised the responsibility of Member States to comply with their other international obligations, including human rights obligations, when implementing counterterrorism measures. This applies for instance in respect of resolution 1456, adopted at the level of ministers for foreign affairs,19 and resolution 1624 that includes 14 See R. Bernhardt, ‘Article 103’, in B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, second edition (Oxford University Press, Oxford, 2002) pp. 1292–1302. 15 S/RES/1373 (2001), adopted on 28 September 2001. See in particular paras. 1–3. 16 Ibid., para. 6. 17 “With regard to the relationship between Security Council resolution 1373 (2001) and the Covenant, he [Mr Steel] was unable to say whether the action against terrorism called for in the resolution would involve a derogation from Covenant rights, but if it did the provision of Article 103 of the Charter of the United Nations to the effect that obligations under the Charter prevailed over those under any other international agreement would apply.” Summary records of the Human Rights Committee, 18 October 2001, CCPR/C/SR.1963, para. 25. 18 “The State party should ensure that any measures it undertakes in this regard are in full compliance with the provisions of the Covenant, including, when applicable, the provisions on derogation contained in article 4 of the Covenant.” Human Rights Committee concluding observations on the United Kingdom, CCPR/CO/73/UK, para. 6. 19 S/RES/1456 (2003), adopted on 20 January 2003. According to para. 6, “States must ensure that any measure taken to combat terrorism comply with all their obligations under interna-
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a set of new counterterrorism measures by Member States and mandates the CTC to monitor their implementation.20 The construction that transpires from these resolutions is that the Security Council perhaps is omnipotent to adopt, under Chapter VII of the Charter, mandatory resolutions that would call for counterterrorism measures that trump human rights treaty obligations but at the same time Member States must remain within the framework of human rights law when implementing those resolutions. However, in particular resolution 1624 demonstrates the artificial nature of such a distinction as it establishes a set of new counterterrorism measures by States,21 stresses the obligation of States to comply with human rights law when implementing those measures,22 and mandates the Security Council’s own Counter-Terrorism Committee to monitor the implementation of the resolution by Member States.23 Taken as a whole, the resolution must be understood to authorise the CTC to monitor its implementation by Member States within the framework of their other international obligations, including human rights obligations. Hence, the human rights clause in paragraph 4 of the resolution must be understood to have not only Member States but also the CTC as its addressee. In line with this interpretation the first report by the CTC on the implementation of resolution 1624 includes a separate chapter on States’ compliance with other obligations under international law when implementing the resolution.24 In addition to the references to human rights obligations in Security Council resolutions also the UN Charter supports the position that human rights cannot simply be marginalised by a reference to the primacy of Charter obligations pursuant to Article 103 of the Charter. According to Article 24(2) of the Charter, the Security Council shall when discharging its duties “act in accordance with the Purposes and Principles of the United Nations”. Article 1(3), in turn, refers to human rights in the context of the purposes of the organisation, by defining as one of the purposes “to achieve international co-operation”, inter alia, “in promoting and encouraging respect for human rights”. The Security Council has explicitly confirmed that when implementing counterterrorism measures pursuant to Security Council resolutions, Member States are bound by their human rights obligations. Hence, the construction of counterterrorism resolutions trumping human rights treaties pursuant to Article 103 of the Charter is artificial and erroneous. Where the Security Council has been less explicit the question is whether inter-governmental organisations in general and the Security Council itself in particular are bound by human rights law when deciding about measures to counter terrorism.
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tional law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law”. S/RES/1624 (2005), adopted on 14 September 2005. Ibid., paras. 1–3. Ibid., para. 4: “Stresses that States must ensure that any measures taken to implement paragraphs 1, 2 and 3 of this resolution comply with all of their obligations under international law, in particular international human rights law, refugee law, and humanitarian law.” Ibid., para. 6. S/2006/737, paras. 49–61.
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(b) Sanctions against individuals and entities. One of the problems of the construction outlined above – States being explicitly bound by their human rights obligations when implementing counterterrorism measures but ambiguity remaining in respect of intergovernmental organisations – is that not only States implement counterterrorism measures. At least in the field of sanctions by the UN Security Council an individual or an entity may be directly affected by the decisions of inter-governmental organisations and some of these effects may entail human rights issues. Resolution 1267 created a framework of “smart” sanctions against Al Qaeda and the Taliban and associated individuals and entities, including a travel embargo and the freezing of assets.25 A Committee of the Security Council was established (the 1267 Sanctions Committee). Later on, the resolution has been amended several times,26 and the 1267 Sanctions Committee has been working on gradual improvements to the procedure for listing and delisting individuals and entities.27 Some of the problems with the current procedures are the administrative nature of the listing process, with little transparency and without judicial or otherwise external review, the de facto permanent nature of the measures including the freezing of assets, the narrow scope of humanitarian exemptions, the unanimity requirement among Security Council members for delisting and the inability of the individual or affected entity to seek delisting. If the sanctions linked to inclusion on the list are de facto permanent, and the effect of the freezing of assets is of severe nature, then no matter how the sanctions are qualified by the relevant resolutions, they may fall within the scope of criminal sanctions for the purposes of international human rights law and require full fair trial guarantees before a competent court.28 Also the principles of proportionality and of necessity must be respected.29 When the sanctions regime of the United Nations does not offer judicial review for individuals or entities affected, those affected may turn to domestic courts with claims based on human rights considerations. Due to the involvement of the European Union in the implementation of the sanctions, two such cases have been adjudicated before the Court of First Instance of the European Communities.30 The European Court of Justice, acting as the appeal instance, is currently dealing with the cases. 25 S/RES/1267 (1999), adopted on 15 October 1999. 26 See <www.un.org/Docs/sc/committees/1267/1267ResEng.htm>. 27 For a UN press release, referring to new guidelines on listing and ongoing work on delisting procedures, see <www.un.org/News/Press/docs/2006/sc8890.doc.htm>. For the current (January 2007) guidelines, see <www.un.org/Docs/sc/committees/1267/1267_guidelines. pdf>. 28 2006 report to the General Assembly by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, A/61/267, para. 35. 29 Ibid., para. 33. 30 Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Case T-315/01, Judgment of 21 September 2005; Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Case T-306/01, Judgment of 21 September 2005.
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In the two cases, the rulings by the EU Court of First Instance were based on the construction of a three-step hierarchy between jus cogens, UN Charter obligations and treaty-based human rights obligations. Any court in the world would be competent to examine whether sanctions imposed by the UN Security Council pursuant to a resolution adopted under Chapter VII of the UN Charter are in breach of peremptory norms of international law (jus cogens). If that were the case, the primacy of jus cogens in respect of treaty norms as reflected in Article 53 of the Vienna Convention on the Law of Treaties would apply even in respect of UN Charter obligations. If, in turn, the human rights norm at issue would not be of jus cogens character, Article 103 of the UN Charter would dictate the primacy of the Security Council sanctions. As the human rights norms invoked by the applicants in the view of the EU Court of First Instance were not of jus cogens nature, the EU measures to implement those sanctions were upheld. The reasoning by the EU Court of First Instance is highly formalistic and misses the opportunity to delve into the inherent human rights constraints of the powers of the Security Council and into the possibility to harmonise at the stage of implementation counterterrorism measures decided by the Security Council, including sanctions against individuals, with the human rights obligations of the EU and its Member States. How to monitor human rights obligations of other actors than states? As demonstrated above, there is no shortage of arguments upon which a theory of broader human rights obligations than State obligations can be built. However, the problem lies in the underdeveloped state of mechanisms of accountability for any other actors than States. Human rights treaties are not only negotiated, adopted and ratified by States only, also all their monitoring mechanisms – periodic reporting, individual complaints, inter-State complaints and inquiry procedures – are geared towards States. Generally speaking, the existing mechanisms for monitoring human rights treaty obligations do not provide for monitoring in respect of others than States. However, there are interesting openings in this respect. Above, reference was already made to the fact that in 2006 the Human Rights Committee examined a report on the implementation of the ICCPR in Kosovo, submitted by the UN itself.31 Protocol No. 14 to the European Convention on Human Rights takes into account the prospect of the future accession to the Convention by the European Union.32 In December 2006 the UN General Assembly adopted the Convention on the Rights of Persons with Disabilities that will allow “regional integration organisations” to become Parties to the treaty and subject to its monitoring mechanisms.33
31 See supra section: The basis for obligation in doctrine, (d) Acquired rights. 32 Article 17 of Protocol No. 14, amending Article 59 of the European Convention on Human Rights (ETS 194, not yet in force). 33 A/RES/61/106, adopted on 14 December 2006. For the text of the Convention, see UN document A/61/611. Article 44(1) defines a regional integration organisation as “an organization constituted by sovereign States of a given region, to which its Member States have transferred competence in respect of matters governed by this Convention”.
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Despite the interesting openings just mentioned, the main rule is that the monitoring mechanisms under existing human rights treaties only operate in respect of States. In the exercise of the competencies of human rights treaty bodies, a finding of a human rights violation represents the end result of the application of the treaty in a concrete case or situation, and includes an attribution of State responsibility for a breach of its obligations. Under other, non-treaty-based procedures, such as the special procedures of the Human Rights Council, a finding of a human rights violation entails a pronouncement that a State has acted in breach of its obligations under international human rights law. No similar treaty-based or other monitoring mechanisms generally exist in respect of non-State actors. Hence, even assuming that the notion of human rights violations could meaningfully be applied in respect of non-State actors, there are for the time being no mechanisms through which the actors in question could be made accountable.34 In order to address the question whether private actors and inter-governmental organisations violate human rights, the human rights community needs to think seriously about the mechanisms that would allow the establishment of such violations as an end result of an adequate monitoring mechanism. Until such time, references to “violations” by others than States tend to remain strikes in the air. At least three alternative avenues need to be examined for providing such mechanisms that enable the accountability of non-State actors in the form of a reasoned finding of a human rights violation. International criminal law Since 1990, the evolution and revolution of international criminal law has helped to fill in the gaps that exist in enforcing human rights against others than States. The network of international conventions against terrorism is one achievement in that process,35 albeit there is no agreement of a comprehensive convention against terrorism that would include an agreed precise definition of terrorism.36 Even short of that, the network of 34 2005 report to the Commission on Human Rights/Human Rights Council by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, UN document E/CN.4/2006/98, paras. 68 and 69. 35 <www.un.org/terrorism/instruments.html> lists and provides the text of 13 international conventions or protocols against terrorism, out of which the latest, the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism (A/RES/59/290), has not yet entered into force as of January 2007. 36 Among the existing counterterrorism conventions, the 1999 International Convention for the Suppression of the Financing of Terrorism (A/RES/54/109) comes closest to such a comprehensive but precise definition through its Article 2 that refers to: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act. The annex of the Convention, in turn, lists nine out of the earlier counterterrorism conventions: (1) Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on
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counterterrorism conventions now covers most forms of international terrorism, making them crimes under international criminal law in the broad sense, i.e. acts that are not directly punishable by an international court but for which international law imposes on individual States a legal obligation to make the act punishable and to prosecute or extradite the perpetrators. In most cases acts of terrorism covered by the existing counterterrorism conventions would amount to the denial or destruction of human rights. Through creating a legal basis for such a conclusion the conventions in question hence are a vehicle for making non-State actors accountable for human rights violations. The reference above to a “revolution” in international criminal law, however, relates to the new wave of mechanisms through which individuals are made subject to international criminal law in the narrow sense, i.e. subject to the jurisdiction of an international tribunal for defined international crimes. The material scope of such direct accountability on the international level is of course narrower than the scope of international criminal law in the broad sense. Nevertheless, the statutes of the international criminal tribunals for former Yugoslavia (1993) and Rwanda (1994), and, above all, the Rome Statute of the International Criminal Court,37 all adopted in the 1990s, represent a marked paradigm shift when compared to the slow pace of developments during the preceding decades. Under the Rome Statute, individuals can be prosecuted before an international court and punished by that court for genocide, war crimes and crimes against humanity. Although it has been a matter of contention whether particular acts of terrorism committed have amounted, for instance, to crimes against humanity, it cannot be excluded that the International Criminal Court one day will try the perpetrators of a particularly serious act of terrorism for crimes against humanity. Furthermore, in respect of the future evolution of international criminal law, the human rights community should be prepared to discuss the inclusion of a carefully defined crime of “terrorism” in the Rome Statute. This would be a further step in making individuals accountable, directly at the level of international law, for certain gross human rights violations.
16 December 1970, (2) Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal on 23 September 1971, (3) Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973, (4) International Convention Against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979, (5) Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 3 March 1980, (6) Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal on 24 February 1988, (7) Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, done at Rome on 10 March 1988, (8) Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988, and (9) International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997. 37 Adopted 17 July 1998, 2187 UNTS 90.
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State responsibility as a vehicle for broader accountability The second potential avenue for accountability beyond States for human rights violations can be built upon the articles on State responsibility, developed by the International Law Commission (ILC),38 annexed to a General Assembly resolution taking note of them.39 These articles address in a sophisticated way the various forms of collusion of State and non-State actors in the commission of internationally wrongful acts, a category that includes human rights violations. In this context, some of the most promising clauses among the articles are Article 2, according to which an omission may constitute an internationally wrongful act, Article 5, according to which the conduct of persons exercising elements of governmental authority trigger State responsibility, as well as, pursuant to Article 8, the conduct of persons acting on the instructions of or under the direction or control of a State. Furthermore, Article 9 covers the conduct of persons exercising elements of governmental authority in the absence or default of official authorities (e.g. in the situation of a “failed State”), and Article 10 covers the conduct of an insurrectional movement that later on becomes the new government. To conclude a non-exhaustive list of examples, reference is also made to Article 16 that provides for the State responsibility of a State that aids or assists another State in the commission of an internationally wrongful act.40 The strength of the ILC articles on State responsibility is that they provide for a more sophisticated approach in establishing the international wrongfulness of certain State conduct involving third parties as active or passive actors, compared to the traditional human rights treaty-based approaches that focus on positive obligations,41 due diligence42 or the right to security of the person43 as the legal basis for an obligation of the State to prevent acts of violence by third parties. By the establishment of the international wrongfulness of acts or omissions that involve private actors, the State responsibility approach allows indirectly for a pronouncement that the private actors in question were involved in a human rights violation. Hence, State responsibility would serve as a vehicle for the accountability of non-State actors for human rights violations, account38 Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53rd session (2001), Report of the International Law Commission on the work of its fifty-third session, Official Records of the General Assembly, 56th session, Supplement No. 10 (A/56/10), chp. IV.E.1. 39 United Nations General Assembly resolution, 12 December 2001, UN document A/ RES/56/83. 40 For a commentary of the articles, see J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambrige University Press, Cambridge, 2002). 41 Gülec v. Turkey, Judgment of European Court of Human Rights, 27 July 1998; Osman v. United Kingdom, Judgment of European Court of Human Rights, 28 October 1998. 42 Velásquez Rodríguez v. Honduras, Judgment of the Inter-American Court of Human Rights, 29 July 1988. 43 William Eduardo Delgado Páez v. Colombia (Communication No. 195/1985), Views of the Human Rights Committee, 12 July 1990.
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ability here meaning public and reasoned findings on the wrongfulness of the conduct and on the parties involved. An inherent weakness in the State responsibility approach, however, lies in the fact that it is deeply anchored into the paradigm of public international law being constituted of reciprocal relationships of rights and duties between States. Hence, the notion of an “injured State” is central for the State responsibility framework.44 This weakens the potentials for the use of the State responsibility concept as a vehicle for establishing the international wrongfulness of conduct involving non-State actors. However, the ILC articles also provide for the invocation of State responsibility by any State – but only States – if the obligation breached is “owed to the international community as a whole”,45 as is often the case with human rights obligations. Towards a World Court of Human Rights A third possibility for creating mechanisms of human rights accountability in respect of actors other than States is the creation of a World Court of Human Rights. The rapid emergence of the International Criminal Court, referred to above,46 shows that when there is momentum even radical reforms that were previously “unrealistic” may suddenly obtain sufficient support. In recent years, the idea of a future World Court of Human Rights with legally binding jurisdiction has figured in many discussions,47 including those related to the UN human rights treaty body reform. In the context of the current article, the question to be addressed is how such a Court could be given jurisdiction not only in respect of States but also in respect of other actors that exercise de facto powers affecting the enjoyment of human rights by people. Although current UN human rights treaties are open to ratification or accession by States only, there is no need formally to amend all those treaties in order to create a World Court of Human Rights that would have jurisdiction also in respect of entities other than States. This can be done through a separate Statute of the Court which does not have substantive human rights provisions of its own but includes a list of existing human rights treaties defining the rights in respect of which the Court will exercise jurisdiction. The Statute, in turn, would be an international treaty open to ratification by States, and possibly also by intergovernmental organisations with international legal personality. However, also other entities than full parties to the Statute would have the possibility to recognise the binding jurisdiction of the Court. This would include, for instance, inter-governmental organisations, international financial institutions, transnational corporations and liberation movements with a defined organisational structure. Each ratifying State or other entity recognising the jurisdiction of the Court would 44 45 46 47
Draft Articles on State Responsibility, supra note 38, Article 42. Ibid., Article 48(1)(b). See supra section: International criminal law. These discussions go back at least to September 2000, when Professor Manfred Nowak and the present author were returning from Iceland after the founding meeting of the Association of Human Rights Institutes and spent the journey exploring the various issues involved.
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through a declaration specify the human rights treaties listed in the Statute in respect of which the Court would have jurisdiction. The recognition of the Court’s jurisdiction would open up the possibility of any affected individual, group of individuals or non-governmental organisation to submit a complaint about a human rights violation by the State or other entity that has recognised the jurisdiction of the court. This jurisdiction would entail legally binding powers in respect of interim measures, the establishment of whether there was a human rights violation, effective remedies and supervision of implementation. Upon ratification or other recognition of jurisdiction the States and other entities could through a declaration specify which domestic, internal, regional or international remedies need to be exhausted before a case can be taken to the World Court of Human Rights. For instance, a European State could declare that in matters covered by the European Convention on Human Rights, a case can be initiated before the World Court only after it has first been addressed by the European Court of Human Rights. Any State Party to the Optional Protocol to the International Covenant on Civil and Political Rights could declare that before addressing the World Court, a complainant must exhaust the Optional Protocol procedure. Alternatively, the State in question could denounce the Optional Protocol when ratifying the Statute of the World Court. Intergovernmental organisations or transnational corporations, in turn, could through a declaration indicate that before taking a case to the World Court the complainant must give an internal complaints board or inspection panel the opportunity to provide redress. The World Court of Human Rights, as sketched out here, would be based on a high degree of variable geometry in respect of the substantive human rights norms to be applied in each case, in respect of the parties involved, and in respect of the admissibility requirements. In part because of the last item, and even more so because of the optional nature of its jurisdiction, it is unlikely that the Court would be flooded by cases. Rather, it would start to operate through pilot cases that would gradually convince States and other actors of the need to move forward in the international protection and international monitoring of human rights. What exists today in the form of the system for the international protection of human rights was an unrealistic utopia in 1948. What appears as an unrealistic utopia today may be reality sooner than we think.
39
Indicators for Monitoring Human Rights Jonas Grimheden*
Introduction Monitoring mechanisms for human rights in a broader sense include the use of indicators. Result-oriented functions – be it for example intra-organisational or in development cooperation – depend on some form of indicative measurement of results to enable assessment. Fundamental differences, however, set apart the more recent advance of human rights indicators from ordinary developmental indicators. There are in particular two aspects that call for this distinction: one, the indicators typically relate to a particular human right, a certain aspect of a right or a human rights principle; two, the indicators prominently include avenues for appeals and redress. The first aspect is maybe more obvious, the second one often forgotten. It is the second one that most notably enables the empowerment engrained in rights: that which makes human rights essential. Indicators that fail to take this into consideration are simply not human rights indicators. Also the first aspect, that of the relationship with a particular right, adds further complexity. Not only should the indicators relate to a “right”, they should also be framed in such a way as to enable a comprehensive, well-structured and possibly “more objective” set of indicators. In other words, indicators should not only be measuring the measurable but should be an effort to measure a “right”! (or an element of a right, or a principle) in its entirety. Human rights indicators are increasingly used at all levels, from global to local. As monitoring instruments are being developed, indicators are seen as a way to enhance the objectivity and credibility and thus the impact. It is also a way to concretise rights from more abstract principles to operational tools on the ground. I will commence with a background, elaborating on the development in diverse settings of indicators, and pro*
BA, LLB, LLM, LLD, Senior Researcher at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law. In particular I am grateful for many rewarding discussions and cooperation with Andrea Algård. Thanks also to Karin Lukas, Tove Gladh, Carin Laurin, Anna Wendegård, Hélène Ragheboom, Gregor Noll, Johan Hallenborg and Gudmundur Alfredsson for challenging discussions.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 421-428.
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ceed with discussing the purpose of human rights indicators in more detail, continuing the discussion on the two critical aspects of human rights indicators introduced above. Finally, I argue for a matrix – a framework of indicators – as an integral component of human rights indicators. Towards indicators Efforts aimed at measuring human rights have been ongoing over a long period of time. Impact Assessment, conceived initially to predict potential damage to the environment caused by commercial undertakings, found application in human rights development strategies as early as in the late 1970s. The United Nations (UN) considered for example “human rights impact assessments” in relation to the highly contested “right to development”. This initiative was restated during the Vienna World Conference on Human Rights in 1993, by “call[ing] on prominent international and regional finance and development institutions to assess also the impact of their policies and programmes on the enjoyment of human rights”. The International Labour Organization (ILO) similarly linked assessment in development activities within Convention 169, on indigenous and tribal peoples, with the need “to assess the social, spiritual, cultural and environmental impact … of planned development activities”. Looking more specifically at indicators, some of which are more developmental than human rights oriented, such have been developed by a number of actors. In realising the Millennium Development Goals indicators are being used. The United Nations Development Programme (UNDP) is relying on the well-known Human Development Index, based on a number of quantifiable data, such as life-expectancy, literacy and gross domestic product. Also, the World Bank is relying on indicators, in particular related to aspects of rule of law, but also more broadly, in particular in their World Development Indicators, 2006. “Paris21”, a consortium of major actors including the
K. Tomaševski, ‘Human Rights Impact Assessment: Proposals for the Next 50 years of Bretton Woods’, in J. Griesgraber and B. G. Gunter (eds.), Rethinking Bretton Woods, Promoting Development: Effective Global Institutions for the Twenty-first Century (Pluto Press, London, 1995) p 83; see also the series of meetings, starting in 2000, convened by the Humanist Committee on Human Rights, Utrecht, The Netherlands, <www.hom.nl>; on environmental impact assessment, see e.g the International Association for Impact Assessment, <www.iaia. org>. Report by the UN Secretary-General E/CN.4/1334, para. 314, 2 January 1979, proposing a “human rights impact statement” in all major development cooperation. II A, para. 2, UN Doc. A/CONF.157/23. Article 7(3), Convention 169 was adopted in 1969. For an overview, see P. Alston, ‘Towards a Human Rights Accountability Index’, 1:2 Journal of Human Development (2000). . . See the World Bank Institute, <www.worldbank.org/wbi>. <devdata.worldbank.org/wdi2006/contents/cover.htm>.
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UN, launched “Metagora”, a project that for some years has been working on indicators on good governance, democracy and human rights.10 These are various forms of development indicators that aim to capture the situation and the improvement of situations, including the level of human rights protection. Human rights indicators Indicators for human rights specifically covering the crucial element of being able to claim a right are used not the least at the global level. The UN Committee on Economic, Social and Cultural Rights, for instance, stated already in 1989 that “the essential first step towards promoting the realization of economic, social and cultural rights is diagnosis and knowledge of the existing situation”.11 The Vienna World Conference on Human Rights in 1993 called for “a system of indicators to measure progress in the realization of the rights set forth in the International Covenant on Economic, Social and Cultural Rights”.12 The Committee on Economic, Social and Cultural Rights in its General Comment No. 13 of 1999 made reference to indicators: “[T]he State party is required to adopt and implement a national educational strategy … [which] should include mechanisms, such as indicators and benchmarks on the right to education, by which progress can be closely monitored.”13 In a later General Comment (No. 16 of 2005), the Committee holds: National policies and strategies should identify appropriate indicators and benchmarks on the right to equal enjoyment by men and women of economic, social and cultural rights in order to effectively monitor the implementation by the State party of its obligations under the Covenant in this regard.14
Human rights indicators are now also used or being introduced by, for example, the UN treaty bodies in the monitoring of State reports. A process for the Covenant Committees in particular was concretised with a 2005 conference in Åbo/Turku, Finland,15 and followed up by two expert consultations in Geneva later the same year, and in 2006 with
10 <www.metagora.org>; see also <www.paris21.org>. 11 General Comment 1 (1989), para. 3, referenced in A. Eide, ‘The Use of Indicators in the Practice of the Committee on Economic, Social and Cultural Rights’, in Eide et al., Economic, Social and Cultural Rights, 2nd ed. (2001) p. 548. 12 II E, para. 98, UN Doc. A/CONF.157/23. 13 E/C.12/1999/10, 8 December 1999 (on the right to education), para. 52. In relation to the CESCR, see also the IBSA-project at Mannheim University, under the direction of the ViceChair of the CESCR, Eibe Riedel, ‘The IBSA Procedure as a Tool of Human Rights Monitoring, . See also CERD/C/67/Misc.8, 19 August 2005. 14 Para. 39. 15 For a report as well as various papers, see <www.abo.fi/instut/imr/research/seminars/indicators/>. See e.g. M. Scheinin, ‘Use of Indicators by Human Rights Treaty Bodies – Experiences and Potentials’.
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two Inter-Committee meetings.16 A pilot phase is now underway with a series of indicators being used. Quite recently, moreover, in the Convention on the Rights of Persons with Disabilities, adopted in 2006, Article 31(1) requires States to “undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention” (the inclusion of this Article was, however, reportedly highly contested in the negotiations).17 The mandate holders of the UN Human Rights Council are increasingly relying on indicators in their monitoring work.18 The UN Office of the High Commissioner for Human Rights,19 and various other UN entities, such as the UNDP,20 the Food and Agriculture Organization (FAO)21 and the UN-Habitat,22 are similarly using indicators. Ideally even the UN Human Rights Council would eventually be able to develop the Universal Periodic Review to include human rights indicators. Human rights indicators are not only applied at the global level. At regional and country levels, many development cooperation agencies, such as EuropeAid, the Swedish International Development Cooperation Agency (Sida), etc., increasingly rely on human rights indicators in their work.23 At the national level, human rights indica16 See UN Doc. HRI/MC/2006/7, 11 May 2006. 17 See further the contribution to this volume by Anna Bruce. 18 Prominently, the Special Rapporteur on the right to education, Katarina Tomaševski, E/ CN.4/2002/60, 7 January 2002, paras. 27 et seq. See also the work of Paul Hunt on the right to health, e.g. E/CN.4/2006/48, 3 March 2006. Also the UNSG Special Representative, John Ruggie, has discussed the use of indicators for business: see e.g. Reporting on Non-Financial Performance, 2006, available at <www.business-humanrights.org>. 19 For an early example, see C. G. Mokhiber, ‘Towards a Measure of Dignity: Indicators for Rights-Based Development’, Statistics, Development and Human Rights Conference, Montreaux, 4–8 September 2000, <www.portal-stat.admin.ch/iaos2000/index.htm>. 20 See e.g. the UNDP guide for usage of indicators in measuring implementation of human rights, Indicators for Human Rights Based Approaches to Development in UNDP Programming: A Users Guide, March 2006, <www.undp.org/oslocentre/docs06/HRBA%20indicator s%20guide.pdf>; see also UNDP’s ‘Governance Indicators: A Users’ Guide’, <www.undp.org/ governance/docs/policy-guide-IndicatorsUserGuide.pdf >. 21 See e.g. The Voluntary Guidelines (2004) by the FAO on the right to food, Guideline 17. 22 Monitoring housing rights – Developing a set of indicators to monitor the full and progressive realisation of he human right to adequate housing, United Nations Housing Programme Working Paper No. 1, Nairobi, 2003, <www.unhabitat.org/programmes/housingrights/documents/Monitoring-Housing-Rights.pdf>. 23 EuropeAid, <ec.europa.eu/comm/europeaid/projects/eidhr/pdf/impact_indicators_channel _en.pdf>, and the Swedish International Development Cooperation Agency, see e.g. J. Hallenborg, Review of Country Strategy for Laos – thoughts on the use of indicators in the review process (internal memo), Embassy of Vientiane, 3 August 2005. See also Cida, <www.acdicida.gc.ca/INET/IMAGES.NSF/vLUImages/HRDG/$file/INDICENG.pdf>. See also on indicators in development Results Based Management in the Development Co-operation Agencies: A Review of Experience, OECD Development Assistance Committee (DAC), 2001. See furthermore H.-O. Sano and L. Lindholt, Human Rights Indicators 2000. Country Data and Methodology, <www.humanrights.dk>.
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tors are being incorporated in, for instance, national human rights action plans,24 and even in the identification and formulation of “best practices”.25 At sub-national levels human rights indicators are introduced in local action plans and development strategies.26 Coherence, to some extent, in the usage of indicators from global to local levels strengthens monitoring. This is accomplished by facilitating exchange between international supervision and local levels, where local advocacy more easily can follow up international monitoring and where maybe even a comparison between and at various levels can be accomplished.27 Distinguishing human rights indicators The Special Rapporteur on the right to health, Paul Hunt, describes human rights indicators as “specific information on the state of event, activity or an outcome that can be related to human rights norms and standards; that address and reflect the human rights concerns and principles; and that are used to assess and monitor promotion and pro-
24 See e.g. the revised Swedish Plan of 2006’s promises for the next plan of 2009 to integrate indicators, A National Action Plan for Human Rights, 2006–2009, Swedish Government Communication 2005/06:95, pp. 67 et seq.; The New Zealand Action Plan for Human Rights 2005, <www.hrc.co.nz/hrc/worddocs/nzaphr%20-%20print%20version.doc>; see also the International Council on Human Rights Policy, Local Government and Human Rights: Doing Good Service, 2005, <www.ichrp.org/paper_files/124_p_01.pdf>. See also usage by national human rights institutions, e.g at a workshop in India, <www.nhrc.nic.in/dispArchive.asp?fno=1442>, or Human Rights in New Zealand Today Report, The Human Rights Commission, <www.hrc. co.nz/report/>. 25 See Gender Justice – Best Practices, ILAC Report for the Ministry of Women’s Affairs in Haiti, <www.ilac.se>, 2007. Indicators based on international human rights standards were developed in the areas of abortion, customary unions, paternity determination and violence against women. The indicators established elements of best practice and were used as tools for identification, analysis and comparison in the context of country examples. See also ‘Assessing the Effectiveness of National Human Rights Institutions’, International Council on Human Rights Policy (2005) pp. 9 and 10. See also for a related purpose Indices, Benchmarks, and Indicators: Planning and Evaluating Human Rights Dialogues, The German Institute for Human Rights, 2005. 26 C. Johnsson et al., A Study on Methods and Tools for Analysis on the Work on Human Rights, The Raoul Wallenberg Institute, Lund, Sweden, 2005, report submitted to the Swedish Ministry of Justice in their work on the national human rights action plan, including human rights indicators for the municipal level. 27 For further general references on human rights indicators, see R. Malhostra and N. Fasel, Quantitative Human Right Indicators: A Survey of Major Initiatives, 2005, available at <www. jus.uio.no/forskning/grupper/humrdev/Project-Indicators/Workshop06/Background/ Malhotra&Fasel.pdf >; see also T. Landman, Protecting Human Rights: A Comparative Study (Georgetown University Press, Washingtion, D.C., 2005); and G. de Beco, ‘Human Rights Indicators for Assessing State Compliance with International Human Rights’, 77:1 Nordic Journal of International Law (2008).
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tection of human rights”.28 It is also helpful to distinguish indicators from benchmarks. Hunt, again, offers a distinction: With a view to monitoring progress, a State needs a device to measure this variable dimension of the right to health. The most appropriate device is the combined application of indicators and benchmarks.
Having established the format, Hunt elaborates: Thus, a State selects appropriate indicators that will help to monitor different dimensions of the right to health. Most indicators will require disaggregation, such as on the grounds of sex, race, ethnicity, rural/urban and socio-economic status. Then the State sets appropriate national targets or benchmarks in relation to each disaggregated indicator.29
Benchmarks are rather a measure for improvement over time, while human rights indicators measure, or at least indicate, compliance with a right. Benchmarks could certainly be formulated so as to match human rights indicators, but are at the outset not identical. The two aspects distinguishing human rights indicators from ordinary indicators were, I suggested: (1) the apparent relationship with a particular human right or such, and (2) that human rights indicators must include avenues to effectively claim the right. It is true, as Thomas Hammarberg argues, that “[h]uman rights can never be fully measured in statistics[;] the qualitative aspects are too essential”. He nevertheless continues to conclude that it “is not that the human rights community should avoid using quantitative facts, but rather to learn how to use them”.30 Indicators thus remain an obvious way to organise information in a more coherent and systematic way. However, to simply look at the number of violations in a country, disregarding the obstacles and challenges the country is facing, due to for example available institutions and resources, “is not only unfair to those countries where a national human rights system has yet to be developed, but it also disregards one of the main targets of international cooperation in the area of human rights, namely to promote human rights”.31 28 OHCHR Report on Indicators for Monitoring Compliance with International Human Rights Instruments: A Conceptual and Methodological Framework, HRI/MC/2006/7, 11 May 2006, para. 7, quoting Paul Hunt, Report A/58/427, Section II, 10 October 2003. See also M. Green, ‘What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement’, 23 Human Rights Quarterly (2001) p. 1065. Green similarly talks about “a piece of information used in measuring the extent to which a legal right is being fulfilled or enjoyed in a given situation”. Her definition, however, encapsulates less of a process. 29 A/HRC/4/28/Add.2, 28 February 2007, Mission to Sweden. 30 T. Hammarberg, ‘Searching the Truth: The Need to Monitor Human Rights with Relevant and Reliable Means’, Statistics, Development and Human Rights Conference, Montreaux 4–8 September 2000, p. 2. 31 K. Tomaševski, ‘Indicators’, in A. Eide et al., Economic, Social and Cultural Rights, 2nd ed. (Kluwer Law International, Dordrecht, 2001) p. 532. I am indebted to Katarina Tomaševski for many discussions and guidance on the topic.
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Katarina Tomaševski elaborates on this by arguing that the purpose of human rights indicators is to capture two aspects: the willingness and the capacity of a government to promote and protect human rights, thereby disassociating unwillingness from incapacity. Tomaševski further concludes that indicators on the mere adoption of legislation are not sufficient. She ends by saying that various mechanisms of translating human rights into practice by government bodies must be utilised.32 Thus, at the outset, it is important to acknowledge the feasibility of human rights indicators and the importance of encompassing both qualitative and quantitative factors in a way that enables insight into the intent and the capability, as well as the actual implementation. For the latter point, indicators must therefore contain both aspects of process and results to also capture aims and capacity. Quantitative aspects are conveniently those that are enumerable,33 but qualitative aspects can be included by either simply looking at the existence or not of a mechanism or the quality in terms of for instance low, medium or high. A matrix of indicators To define and elaborate human rights indicators is not sufficient. For reasons of coherence, comprehensiveness, objectivity and credibility, human rights indicators require operationalisation by being placed within a framework.34 Human rights indicators, as discussed above, need to include different kinds of information and to cover various aspects. Attempts to capture this multidimensionality include prominently that of Tomaševski, with her 4A-scheme, that a right must be “Available, Accessible, Acceptable, and Adaptable”.35 The 4A-scheme was applied in the Committee on Economic, Social and Cultural Rights’ General Comment No. 13 of 1999, and also in modified forms in relation to other rights, such as in the Committee’s General Comment No. 15 of 2002. Hunt has similarly used a chart in which the common headings of “Structural, Process, and Outcome” are placed horizontally with additional subheadings on the vertical axis, 32 Ibid., p. 539. 33 On a more philosophical note: “Numbers provide the comforting illusion that incommensurables can be weighted against each other, because arithmetic always ‘works.’ … [N]umbers are symbols of precision, accuracy, and objectivity. They suggest mechanical selection, dictated by the nature of the objects, even though all counting involves judgment and discretion. … Numerals hide all the difficult choices that go into a count.” This is from P. Legrande, ‘Comparative Legal Studies and the Matter of Authenticity’, 1:2 Journal of Comparative Law (2006) pp. 425 and 426, citing D. A. Stone, Policy Paradox and Political Reason (HarperCollins, 1988) pp. 136 and 137. 34 See A. Eide, ‘The Use of Indicators in the Practice of the Committee on Economic, Social and Cultural Rights’, in Eide et al., Economic, Social and Cultural Rights, 2nd ed. (2001) p. 545. 35 Katarina Tomaševski, during her mandate on the right to education, developed and applied the “4-A scheme”, a framework for indicators, see e.g. Human Rights Obligations in Education: The 4-A Scheme (Wolf Legal Publishers, Nijmegen, 2006). The 4-A scheme has been used and developed by e.g. the New Zeeland Human Rights Commission report: Human Rights in New Zeeland Today, <www.hrc.co.nz/report/chapters/chapter15/education01.html>.
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such as legal-financial contexts, plan of action, participation, etc.36 Andrea Algård used “Respect, Protect, and Fulfil’ in addition to the 4A-scheme to capture the comprehensiveness of rights.37 At the Raoul Wallenberg Institute in Lund, researchers have in different projects sought a framework or a matrix that would aptly cover the many dimensions of a right.38 One manner of creating a matrix for human rights indicators is to frame them in “Structural, Process, and Outcome” on the horizontal bar and “Available, Accessible, Acceptable, and Adaptable” on the vertical bar, creating a template of 12 boxes. Inserting a set of indicators in each of these boxes ensures that the formal commitments, such as ratification of conventions and adoption of laws, will be included in the “structural” column, that policies and mechanisms are in the “process” row and that actual implementation and the results are covered in the “outcome” column. At the same time such a matrix ensures the inclusion of indicators according to the 4A-scheme, where fundamental prerequisites such as funding (availability), accessibility of the right and, very centrally, complaints mechanisms and non-discrimination are included. Human rights indicators organised in a matrix will ensure that all aspects of the rights are covered in a coherent way. Such a framework, moreover, strengthens the objectivity of the selection of the indicators and thus the credibility of the form of measurement. Human rights indicators, including the essential element of being able to effectively claim a right, are a monitoring tool that spans from local to international mechanisms, and when applied systematically at such different levels will provide for better quality of monitoring by mutual reinforcement and reciprocal feedback. Human rights indicators that are formulated and framed sufficiently well will, moreover, be able to serve as communicators between disciplines and with reality.
36 Paul Hunt on the right to health, e.g. E/CN.4/2006/48 (3 March 2006); see also P. Hunt and G. MacNaughton, ‘A Human Rights-Based Approach to Health Indicators’, in M. A. Baderin and R. McCorquodale (eds.), Economic, Social and Cultural Rights in Action (Oxford University Press, 2007). 37 Andrea Algård analysed the development of indicators and proposed changes for the two covenant committees, Challenges and Possibilities Arising in the Development of Human Rights Indicators for State Reporting, unpublished master thesis, Faculty of Law, Lund University, Sweden, 2006, see e.g. p. 17. She also relied on “indicative questions” to further stimulate good indicator-response in the process of State reporting. 38 I have been involved in such projects with, in particular, Carin Laurin, Tove Gladh and Andrea Algård. We have developed these frameworks for various purposes, but mainly for usage at the national level and below.
40 Sexual Orientation Discrimination: A Necessary and Emerging Area of United Nations Concern Timothy Maldoon*
Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands? ~ Ernest Gaines
Introduction Article 1 of the Universal Declaration of Human Rights recognises that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Unfortunately, due to the existing prejudices, negative stereotypes and discrimination which are firmly anchored into society’s various value systems and patterns of behaviour, those human beings of a different sexual orientation than the established norm, i.e. heterosexuality, are often denied the very rights that the heterosexual majority takes for granted. Moreover, “reason”, “conscience” and acting in “spirit of brotherhood” have long ago been tossed out the window by far too many with regard to the treatment of sexual *
LL.M., University of Lund, Sweden. At the time of writing, employed as Publication Officer at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund, Sweden and Managing Editor of the International Journal on Minority and Group Rights. Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, see <www.un.org/Overview/rights.html>. Persons belonging to sexual minorities experience discrimination that gives rise to an array of violations of rights guaranteed by international human rights instruments, including: the right to life, the right to liberty, the right to protection against torture and ill-treatment, the right to a fair trial by an independent and impartial judiciary, the right to privacy, the right to freedom of expression, the right to freedom of association, the right to equal protection of the law and equality before the law, the right to work, the right to the enjoyment of the highest standard of attainable health, and the right to freedom of movement. See International Research Centre on Social Minorities, Sexual Minorities in Uzbekistan, December 2005, available at <www.ein.org.uk/resources/IRCSMUzbek.doc>.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 429-438.
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minorities. Adding to this negative picture, this denial is often sanctioned by national legislation and the actions and expressions of the public officials and authorities in the very States that have agreed to uphold the protected rights in the various international human rights treaties to which they are Parties. While sexual orientation discrimination is a relatively recent notion in human rights law, in the past two decades, the United Nations (UN) has begun step up its devotion to a discrimination that has not, and still does not, received the attention it deserves. Having said that, this article will progress to exemplify the work to date of various UN bodies in this budding area of concern. Attention to sexual orientation discrimination in the United Nations bodies Treaty-based bodies Human Rights Committee et al. The Human Rights Committee (HRC), which monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR) and the Protocols to the Covenant in the territory of State Parties, has assumed a leader role by taking numerous commendable stances against sexual orientation discrimination which have had a ripple effect on the UN system as a whole. Already on 31 March 1994, the Human Rights Committee reached a seminal decision with regards to sexual orientation discrimination in Toonen v. Australia. In this decision, the author, Nicholas Toonen, was an activist for the promotion of the rights of homosexuals in Tasmania, Australia, who challenged two provisions of the Tasmanian Criminal Code, namely Sections 122(a) and (c) and 123, which criminalised various forms of sexual contacts between men, including all forms of sexual contacts between consenting adult homosexual men in private, on the basis that they violated Articles 2(1), 17 and 26 of the ICCPR. The HRC concluded that the Sections contradicted Articles
For more information on the work of the HRC, see the chapters by Alfred de Zayas and Carla Edelenbos in this volume, and <www.unhchr.ch/html/menu2/6/hrc.htm>. Toonen v. Australia, 31 March 1994, Communication No. 488/1992, UN Doc. CCPR/C/50/ D/488/1992 (1994). See also Hertzberg et al. v. Finland, 2 April 1982, Communication No. 61/1979, UN Doc. CCPR/C/OP/1 at 124 (1985), an earlier decision where the HRC found that there had been no violation of Article 19(2) of the ICCPR in relation to Finnish authorities, including organs of the State-controlled Finnish Broadcasting Company, having interfered with the authors’ right of freedom of expression and information by imposing sanctions against participants in, or censoring, radio and TV programmes dealing with homosexuality since “[a]ccording to article 19 (3), the exercise of the rights provided for in article 19 (2) carries with it special duties and responsibilities for those organs. As far as radio and TV programmes are concerned, the audience cannot be controlled. In particular, harmful effects on minors cannot be excluded.” Emphasis added. Other decisions concerning the discrimination of sexual minorities which may be of interest are: X. v. Colombia, 14 May 2007, Communication No. 1361/2005, UN Doc. CCPR/C/89/D/1361/2005, concerning pension benefits; Ms. Juliet Joslin et al. v. New Zealand, 30 July 2002, Communication No. 902/1999, UN Doc. CCPR/C/75/D/902/1999, concerning providing for marriage between same-sex couples.
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17 (right to privacy) and 2 (non-discrimination) and recommended that the laws be repealed. The HRC did not consider Article 26 (equality before the law) but did state that the protected category of “sex” in both Articles 2(1) and 26 is to be taken as “including sexual orientation”. In response to the Tasmanian Parliament’s refusal to repeal the laws, the federal government of Australia passed the Human Rights (Sexual Conduct) Act 1994, prohibiting laws that arbitrarily interfere with the sexual conduct of adults in private. In 1997, the High Court of Australia, in Croome v. Tasmania, struck down the laws as they were inconsistent with the Act. In an equally important decision, on 6 August 2003, the HRC dealt with the partnership rights of same-sex couples in Young v. Australia. Here Young complained that the State Party’s refusal, on the basis of him being of the same sex as his partner, i.e. due to his sexual orientation, to provide him with a pension benefit violated his right to equal treatment before the law contrary to Article 26 of the ICCPR. Having provided no arguments as to why a distinction between same-sex partners, who are excluded from obtaining benefits under the law, and unmarried heterosexual partners, who are granted such benefits, was reasonable and objective, Australia was found in violation of Article 26. Following the decision, in September 2003, the Australian Senate passed a motion calling for an end to discrimination against same-sex couples. However, in August 2004, the Senate passed the Marriage Amendment Bill, effectively denying same-sex couples the right to marry in Australia and the recognition of such marriages “solemnised in more enlightened nations”. The HRC has also repeatedly expressed its concern with regard to sexual orientation discrimination in several of its concluding observations/comments. This non-exhaustive list includes the following: In 1993, the HRC encouraged Romania to proceed with their plans to repeal certain discriminatory laws such as those which had victimised homosexuals.10 In 2006, Human Rights Watch commended Romania for exemplary progress in combating abuses based on sexual orientation, “where a decade of domestic and international pressure led to the repeal of a sodomy law and to the passage of broad antidiscrimination protections”.11 See generally the informative website of New South Wales Council for Civil Liberties, and in particular <www.nswccl.org.au/issues/hr_violations.php#Toonen>. Young v. Australia, 6 August 2003, Communication No. 941/2000, Un Doc. CCPR/C/78/ D/941/2000 (2003). New South Wales Council for Civil Liberties, <www.nswccl.org.au/issues/hr_violations. php#Young>. New South Wales Council for Civil Liberties, <www.nswccl.org.au/issues/glbt.php#marriage>, emphasis added. For a thorough list and examination of the HRC’s concluding observations up to and including the year 2007, see International Commission of Jurists, Sexual Orientation and Gender Identity in Human Rights Law: References to Jurisprudence and Doctrine of the UN Human Rights System, third updated edition, 2007, available at <www.icj.org/IMG/UN_References. pdf>. 10 UN Doc. CCPR/C/79/Add.30. 11 See Human Rights Watch, .
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In 1995, the Committee raised its voice against the continuance of sodomy laws in several US states, noting: “The Committee is concerned at the serious infringement of private life in some states which classify as a criminal offence sexual relations between adult consenting partners of the same sex carried out in private, and the consequences thereof for their enjoyment of other human rights without discrimination.”12 Of special interest is that such laws were deemed unconstitutional, and thus unenforceable, by the US Supreme Court on 26 June 2003 in Lawrence et al. v. Texas.13 In November 1997, the HRC expressed to Sudan that the “imposition in the State party of the death penalty for offences which cannot be characterized as the most serious, including apostasy, committing a third homosexual act, illicit sex, embezzlement by officials, and theft by force, is incompatible with article 6 of the Covenant”.14 In November 1998, the Committee considered that existing legislation in Austria on the minimum age of consent for sexual relations in respect of male homosexuals was discriminatory on grounds of sex and sexual orientation. Noteworthy is that European Court of Human Rights (ECtHR) on 9 January 2003, in the cases S. L. v. Austria and L. and V. v. Austria, found the named legislation as constituting a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to privacy) of the European Convention on Human Rights (ECHR).15 In July 1999, in its concluding observations to Poland, the Committee regretted that the reference to sexual orientation which had originally been contained in the nondiscrimination clause of the draft Constitution had been deleted from the text.16 As a side note, the ECtHR, on 3 May 2007, found Poland, a Member of the European Union since 2004, in violation of Articles 11 (right to freedom of assembly), 14 (prohibition of discrimination) and 13 (right to effective remedies) of the ECHR with regard to Warsaw authorities having banned in 2005 a march and several stationary assemblies to alert public opinion to the issue of discrimination against minorities – sexual, national, ethnic and religious and also against women and disabled persons.17 In December 2003, the HRC noted the following with regard to the Philippines: “The Committee urges the State party to take the necessary steps to adopt legislation explicitly prohibiting discrimination, in accordance with articles 3 and 26 of the Covenant. The Committee notes that legislation related to sexual orientation is currently being discussed in Congress and urges the State party, in this context, to pursue its efforts to counter all forms of discrimination”.18 The anti-discrimination bill, “An Act Prohibiting Discrimination on the Basis of Sexual Orientation and Gender Identity and Providing
12 13 14 15
UN Doc. CCPR/C/79/Add.50. Lawrence et al. v. Texas, 26 June 2003, 539 U.S. 558 (2003). Un Doc. CCPR/C/79/Add.85, emphasis added. S. L. v. Austria, 9 January 2003, Application No. 45330/99, and L. and V. v. Austria, 9 January 2003, Application Nos. 39392/98 and 39829/98. 16 UN Doc. CCPR/C/79/Add.110. 17 Baczowski and Others v. Poland, Application No. 1543/06. 18 Un Doc. CCPR/CO/79/PHL, emphasis added.
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Penalties Therefore”, introduced in Congress in 1999, has faced strong, uphill religious opposition and has as of August 2008 not been adopted.19 Finally, it should be noted that a plethora of other treaty bodies have devoted attention to the discrimination of sexual minorities, including the Committee on Economic, Social and Cultural Rights, Committee on the Elimination of Racial Discrimination, Committee Against Torture, Committee on the Elimination of Discrimination Against Women and Committee on the Rights of the Child, in various general comments, concluding observations, communications and reports.20 Charter-based bodies Human Rights Council / Commission on Human Rights The Human Rights Council (the successor to the Commission on Human Rights), made up of 47 States, is an inter-governmental body with the mandate of strengthening the promotion and protection of human rights and addressing human rights violations and making recommendations on them.21 Due to its highly politicised nature and its members being made up of States, which are far too often the direct violators of the human rights of this protected category of persons, providing a few examples of the both the Human Rights Council and its predecessor’s dealings with sexual orientation discrimination is warranted. With regard to the Commission on Human Rights, the most notable call to end the discrimination of sexual minorities came when the Brazilian delegation introduced a historic draft resolution on “Human rights and sexual orientation” at the 59th session in 2003 of the Commission on Human Rights, a resolution which reaffirmed the established rights in the UDHR and other UN human rights treaties and moved along to express “deep concern at the occurrence of violations of human rights in the world against persons on the grounds of their sexual orientation” and stress “that human rights and fundamental freedoms are the birthright of all human beings, that the universal nature of these rights and freedoms is beyond question and that the enjoyment of such rights and freedoms should not be hindered in any way on the grounds of sexual orientation”. Moreover, the resolution called on States to promote and protect the human rights of all persons regardless of sexual orientation and encouraged all special procedures of the Commission and the United Nations High Commissioner for Human Rights to pay due attention to the subject.22 Amidst sustained opposition from various States, considera19 For more information on this progressive legislation and the religious opposition it faces, see International Gay and Lesbian Human Rights Commission, <www.iglhrc.org/site/iglhrc/ section.php?id=5&detail=886>. 20 For a detailed examination of the doctrine and jurisprudence of the various treaty bodies, see International Commission of Jurists, supra note 9. 21 For further information on the Human Rights Council and its predecessor, see the chapters by Ulrika Sundberg, Jan Eliasson, Lyal Sunga and Ibrahim Salama in this volume. See also the homepage of the HRC at <www2.ohchr.org/english/bodies/hrcouncil/>. 22 See Religious Tolerance.org, <www.religioustolerance.org/hom_unchr.htm>.
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tion of this resolution was postponed at both the 59th and 60th sessions and has thereafter, unfortunately, not surfaced again.23 While this can be seen as a defeat for sexual minorities and their defenders, it is noteworthy that several Commission resolutions on extrajudicial, summary or arbitrary executions and the question of the death penalty were adopted between the years 2000–2005 that note with concern the killings of persons because of their sexual orientation.24 So the ball is rolling in the right direction and only time will tell if will tell if the new Human Rights Council steps up to the plate and adopts once and for all a resolution on sexual orientation and human rights. In connection, it important to note that positive developments have materialised at the regional level: on 3 June 2008, the Organization of American States (OAS) General Assembly showed true leadership and adopted the Brazil-sponsored “Resolution on Human Rights, Sexual Orientation, and Gender Identity”, which takes note of the adoption of the “Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity”25 and affirms the principles of nondiscrimination and universality in international law. In a separate but equally important process, States in the region are negotiating the text of a proposed Inter-American Convention Against Racism and All Forms of Discrimination and Intolerance, which includes sexual orientation and gender identity as protected categories.26 As far as the Human Rights Council is concerned, at the third session of the Human Rights Council in 2006, the Council in a discussion on “other issues” related to the protection of human rights expressed deep concern at ongoing violations based on sexual orientation and gender identity. Moreover, it was noted that “[all] Special Procedures and treaty bodies should continue to integrate consideration of human rights violations based on sexual orientation within their relevant mandates, as too often in the past these human rights abuses had passed in silence. Tackling stigma and discrimination was about political and moral leadership: from politicians, religious figures, communities, the media, campaigning organizations, and from individuals, including how each behaved.”27
23 See <www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.DEC.2003.118.En?Opendocu ment>, and <archive.amnesty.org/library/Index/ENGIOR410092004?open&of=ENG-SDN>. 24 For these resolutions, see UN Docs. E/CN.4/RES/2005/34, E/CN.4/RES/2004/37, E/CN.4/ RES/2003/53, E/CN.4/RES/2000/31, E/CN.4/RES/2005/59, E/CN.4/RES/2004/67, E/CN.4/ RES/2003/67, E/CN.4/RES/2002/77. See also International Commission of Jurists, supra note 9. 25 The Yogyakarta Principles are groundbreaking international legal principles on sexual orientation, gender identity and international law that chart a way forward for both the United Nations and governments to ensure the universal reach of human rights principles, adopted in November 2006 by a group of 29 high-profile human rights experts and launched on 26 March 2007 at the UN Human Rights Council’s session in Geneva, available online at <www. yogyakartaprinciples.org>. 26 See Human Rights Watch, <www.hrw.org/english/docs/2008/06/06/colomb19049.htm>. 27 See United Nations Office at Geneva, <www.unog.ch/80256EDD006B9C2E/ (httpNewsByYear_en)/89C18DC3DB500C73C125723E005A0765?OpenDocument>, emphasis added.
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Special procedures of the former Commission on Human Rights and current Human Rights Council Several special procedures of the former UN Commission on Human Rights, which are now assumed by the current Human Rights Council, have drawn attention to human rights violations perpetrated against sexual minorities. These include but are not limited to the following:28 A 1998 report of the Special Rapporteur on the independence of judges and lawyers noted with concern that two Brazilian lawyers had allegedly received anonymous telephone calls requesting them to drop their investigations into the murders of two homosexuals and a transvestite on 6 June 1996 or they would be killed.29 In 1999, the Special Rapporteur on extrajudicial, summary or arbitrary executions expressed that “criminalizing matters of sexual orientation increases the social stigma of members of sexual minorities, which in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life. Because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also more likely to be committed in a climate of impunity.”30 Similarly, in his 2001 report to the General Assembly, the Special Rapporteur on torture stated that “members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment, because they fail to conform to socially constructed gender expectations. Indeed, discrimination on the grounds of sexual orientation may often contribute to the process of dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place.”31 The Special Representative of the UN Secretary General on human rights defenders took note in 2001 of the “special importance” of “human rights groups and those who are active on issues of sexuality, especially sexual orientation. … These groups are often very vulnerable to prejudice, to marginalization and to public repudiation, not only by state forces but other social actors.”32 A 2003 report of the UN Working Group on Arbitrary Detention noted that in some countries drug addicts, prostitutes, homosexuals and people suffering from AIDS are given prison sentences solely because of their sexual orientation and took the view that this violated Articles 2(1) and 26 of the ICCPR.33 In 2004, the Special Rapporteur on sale of children, child prostitution and child pornography highlighted that gay, lesbian, bisexual and transgendered adolescents are more exposed to violence, and that the hostile reactions by society to their gender and
28 For a complete list of a wide range of other special procedures that have addressed the issue, see International Commission of Jurists, supra note 9. 29 UN Doc. E/CN.4/1998/39. 30 UN Doc. E/CN.4/1999/39. 31 See Human Rights Watch, <www.hrw.org/english/docs/2005/03/10/global10303.htm>. 32 Ibid. 33 UN Doc. E/CN.4/2004/3.
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sexuality may leave them unaided in a marginalised situation that exposes them to exploitation.34 The 2004 report of the Special Rapporteur on the right to health noted that “discrimination on the grounds of sexual orientation is impermissible in international law,” and found that “[t]he legal prohibition of same-sex relations in many countries, in conjunction with a widespread lack of support or protection for sexual minorities against violence and discrimination, impedes the enjoyment of sexual and reproductive health by many people with lesbian, gay, bisexual, or transgender identities or conduct”. The Rapporteur observed a “duty on the State to respect an individual’s freedom to control his or her health and body.”35 In 2006, the UN Indepedent Expert on Minority Issues recognised “that some individuals within ethnic, religious, linguistic or national minority groups may experience multiple forms of discriminations because of other factors including gender, gender expression, gender identity, sexual orientation, disability, age or health status”, and promised to pay greater attention to this issue in her work. As a final example, in April 2008, the Human Rights Council, through its Working Group on the Universal Periodic Review, pressed Poland on, inter alia, the issue of sexual orientation.36 In the discussions several recommendations concerning the issue at hand were made to Poland by various States, e.g.: – Canada recommended that Poland ensure that human rights defenders, in particular groups campaigning for equality and against discrimination based on perceived sexual orientation, be allowed to carry out their work in a secure environment, and that the rights of freedom of expression and association are respected. – Slovenia, while enquiring about a legislative proposal aimed at punishing anyone who promotes homosexuality or any other deviance of a sexual nature in an education establishment, recommended that it be withdrawn if it had not yet been done. – Slovenia, the UK and Sweden recommended that Poland adopt an anti-discrimination law that would prohibit discrimination on any grounds, including sexual orientation and gender identity.37 It can be hoped that the Working Group continues down this positive path when other States come up for Review. Subcommission on the Protection of Human Rights / Secretary General Both the Subcommission on the Protection of Human Rights and Secretary General have taken a participatory role in highlighting the problem of sexual orientation discrimination. 34 UN Doc. E/CN.4/2004/9/Add.2. 35 See Human Rights Watch, supra note 29. 36 For more information on the Universal Periodic Review, see <www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx>. 37 UN Doc. A/HRC/8/30.
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The Subcommission has for example in a 2004 study noted that the reference to “sex” in various treaties is more and more frequently interpreted as encompassing “sexual orientation”, citing the Human Rights Committee’s decision in Toonen v. Australia and the Committee on Economic, Social and Cultural Rights’ General Comment No. 14 of 2000 on the right to health. For filling the gaps with regard to neglected categories of discrimination, the South African Constitution of 1996 and European Union’s Charter of Fundamental Rights were seen as sources of particular inspiration.38 Several reports of the Secretary General also contain references to sexual orientation discrimination, highlighting the discrimination of women because of their sexual orientation, sexual orientation discrimination in connection to HIV/AIDS and the increased risk of trafficking and sexual exploitation of certain groups, including homosexual, lesbian, bisexual and transgender children.39 UN High Commissioner for Refugees / UN High Commissioner for Human Rights The United Nations High Commissioner for Refugees (UNHCR), the UN agency mandated to lead and coordinate international action to protect refugees and resolve refugee problems worldwide, has time and again urged States to recognise people facing persecution because of their sexual orientation as protected under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. These conventions require that no State “shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. The UNHCR has also declared “that persons facing attack, inhumane treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees”.40 The High Commissioner for Human Rights has also stepped up efforts to combat the issue at hand: that is, the plight of those of another sexual orientation than the established norm has been spotlighted in various reports and addresses, dealing with refugee 38 UN Doc. E/CN.4/Sub.2/2004/24. The South African Constitution of 1996 protects the following categories from discrimination: “race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”. Article 21 of the European Union’s Charter of Fundamental Rights refers to “genetic features” and “disability, age or sexual orientation”. For further references to the work of the Subcommission in this area of concern, see International Commission of Jurists, supra note 9. 39 For these reports, see International Commission on Jurists, supra note 9. 40 See Human Rights Watch, . For information on the work of the UNHCR, see its website at <www.unhcr.se/en/index_en.html>, and for further references to the work of the Commissioner in this field of concern, see International Commission of Jurists, supra note 9. Take also note of the fact that, in 1998, the Human Rights Committee had the following to say to Zimbabwe: “The Committee notes with concern that homosexuals are subjected to discrimination, e.g. that aliens deemed to be homosexuals may be defined as ‘Prohibited Persons’ for immigration purposes and are subject to deportation”, UN Doc. CCPR/C/79/Add.89.
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status, hate speech, anti-discrimination legislation, vulnerable groups during internal armed conflict, ill-treatment by State agents, etc.41 Concluding remarks To summarise, as this article evidenced, the UN has for nearly two decades begun to pay attention to an area of discrimination that deserves all the attention it can get, if one considers the magnitude of violations occurring daily of the human rights of sexual minorities in every State throughout the world. Moreover this attention has been a long time coming considering that the UDHR was adopted over 60 years ago and that greater attention has been paid to nearly every other minority. Despite this slow progress, all evidence points to the fact that this is an area of UN concern that is here to stay, despite the wishes of numerous States that would like to see this issue fade into oblivion. In additon, regional and national actors have also to lesser and greater degrees been engaged in the struggle to provide the full spectrum of human rights to sexual minorities, and some of the more progressive could serve as particular sources of inspiration for the UN and others’ future work in this area. While in relation to sexual minorities it will take a long time to live up to the lofty but praiseworthy aspirations of Article 1 of the UDHR and to fully protect, respect and fulfil the already established human rights provisions of numerous international instruments, the boxing gloves have been put on and the blows dealt should necessarily intensify.
41 For a more extensive examination of the Commissioner’s work in this field, see International Commission of Jurists, supra note 9.
Part VII: The Council of Europe
41
Inter-State Complaints under Treaty Provisions – The Experience under the European Convention on Human Rights* Søren C. Prebensen**
Introduction Several international human rights treaties provide for a system of dispute settlement consisting of two kinds of action against a Contracting State: petitions lodged by one or more Contracting States (“inter-State” or “State applications”) and petitions lodged by individuals (“individual applications”). In analysing the role of inter-State applications in the implementation of international human rights standards, it may be instructive to look at the experience of the European Convention on Human Rights. Within the framework of the European system of protection, inter-State applications have not only *
This chapter from 1999 attempted to provide a historical survey of the role of State applications under the European Convention. Since then, only a few developments have taken place, and it seems premature at this state (February 2007) to draw any conclusions further to those made in 1999. It is therefore proposed simply to republish the same article with an addendum completing the picture by giving a brief account of those developments. ** The author is Head of Division at the Registry of the European Court of Human Rights. He is grateful to his colleagues Paul Mahoney and Michael O’Boyle for their comments and to Markus Schmidt and Cristina Cerna for information provided on respectively the United Nations and the Inter-American Commission and Court. Any views expressed are personal. 1 Article 41 of the 1966 International Covenant on Civil and Political Rights and its Optional Protocol; Articles 21 and 22 of the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Articles 11 to 14 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination; Articles 44 and 45 of the 1969 American Convention on Human Rights; Articles 49 and 55 of the African Charter on Human and People’s Rights; and Articles 24 and 25 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. See also Articles 26 to 29 and 31 to 34 of the Constitution of the International Labour Office (ILO). For a general survey on the subject, see S. Leckie, ‘The Inter-State Complaints Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking’, 10 Human Rights Quarterly (1988) pp. 249–303. Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 441-463.
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been more frequent than under any other system, but there is also a tremendous body of practice in relation to individual applications enabling the two to be compared. The object of the present article is to analyse the intended function of State applications under the European Convention (“the Convention”) and then to examine the role which this kind of application has actually played in the implementation of the Convention standards. Finally, we will ask what the future role of State applications could be in the recently expanded Convention community, which now includes a large number of States from Central and Eastern Europe, after the entry into force on 1 November 1998 of Protocol No. 11 of the Convention providing for a reform of the Convention supervisory system. Under the former system, cases were first dealt with by the Commission, which established the facts, decided on admissibility and, in admissible cases, invited the complainant and the respondent State to reach a friendly settlement. In the absence of a settlement, the Commission drew up a detailed report (former Article 31) setting out the facts and expressing a non-legally binding opinion on the law. Competence to give a binding decision on the merits of admissible cases was vested in two alternative institutions: if the case was not referred to the Court for final adjudication (former Article 46), it was for the Committee of Ministers to give a decision (former Article 32). According to a reporting procedure, the Committee supervised the measures taken by the respondent State to execute the Committee’s decisions (former Article 32) and the Court’s judgments (former Article 54) in cases where the Committee or the Court had reached adverse conclusions. Following the entry into force of Protocol No. 11, a full-time Court was established, replacing the original two-tier system of parttime Commission and Court and removing the Committee of Ministers from its role of taking final binding decisions on the merits of cases. The Committee has, however, retained its role of supervision of the execution of judgments (Article 46(2)). So far 20 State applications have been lodged in 13 cases, in relation to seven kinds of situations: (i) The cases of Greece v. the United Kingdom (applications nos. 176/56 and 299/57 introduced respectively on 7 May 1956 and 17 July 1957 and declared admissible on 2 June 1956 and 12 October 1957), concerning a number of alleged breaches of the Convention by the British colonial regime on Cyprus, related to a series of emergency laws and regulations, including regulations providing for the imposition of whipping and various forms of collective punishment, and 49 individual instances of alleged torture (29 of which were declared admissible). The Commission adopted
To date, two State applications have been brought under the UN Convention Against Torture, a few more under the ILO provisions, but none under the International Covenant and the American Convention. Resolution 70(17) of the Committee of Ministers of the Council of Europe provides that States Parties to the European Convention which have also ratified the International Covenant should bring applications against other Convention States to Strasbourg. Subject to transitional provisions, according to which the Commission would continue to operate for a year in order to complete its examination of pending applications declared admissible and the Committee of Ministers would complete its examination of cases pending before it (Article 5(3) and (6) of Protocol No. 11).
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two reports (of September 1958, published in 18 HRLJ 348 (1997), and of July 1959, which remain confidential). The Committee of Ministers, having taken note of the final settlement of the Cyprus question (the Zurich and London Agreements on the independence of Cyprus), considered that no further action was called for. (ii) The case of Austria v. Italy (application no. 788/60, introduced on 11 July 1960 and declared admissible on 11 January 1961), concerning complaints of breaches of Articles 6 and 14 of the Convention in a murder case in the village of Fundres/ Pfunders. The Committee of Ministers endorsed the conclusions expressed by the Commission in its report (of 30 March 1963) to the effect that there had been no violation of the Convention. (iii) “The Greek Case” (Denmark, Norway, Sweden and the Netherlands v. Greece – applications nos. 3321-23/67 and 3344/67 introduced in September 1967 and March 1968 and declared admissible on 24 January 1968 and 31 May 1968), concerning allegations of systematic and aggravated violations by the military regime in Greece. The Commission adopted a report on 18 November 1969 establishing violations of a number of provisions. On 12 December 1969, while the Committee of Ministers discussed a draft resolution calling for the suspension of Greece from the Council of Europe, Greece withdrew from the Organisation and denounced the Convention. On 15 April 1970 the Committee decided that Greece had violated a variety of provisions in the Convention but, noting Greece’s withdrawal and denunciation, concluded that there was no basis for further action to implement its own decision. A further application (no. 4448/70 – “The Second Greek Case”, lodged on 10 April 1970 and declared admissible on 16 July 1970) was eventually struck out by the Commission, following Greece’s readmission on 28 November 1974 to the Council of Europe.10 (iv) The case of Ireland v. the United Kingdom (application no. 5310/71, introduced on 16 December 1971 and declared admissible on 1 October 1972) concerning inter alia interrogation techniques and detention applied by British authorities in Northern Ireland. This was the only inter-State case to be referred to the old Court, which in a judgment of 18 January 1978 upheld a number of the Commission’s findings of violation of the Convention (report of January 1976).11 A second application (no. 5451/72), introduced by Ireland in March 1972, was struck from the Commission’s list in October 1972.
Resolutions (59) 12 and 32 of 20 April and 14 December 1959. See Yearbook of the European Convention on Human Rights (hereinafter referred to as the “Yearbook” or “YB”) 2 (1958– 1959) pp. 174–197. YB 4 (1961) p. 116. Resolution DH (63) 3 of 23 October 1963. YB 11 (1968) p. 764. Committee of Ministers Resolution DH (70) 1, YB 12 (1969). 10 Report adopted by the Commission on 4 October 1976, Decisions and Reports (DR) 6, p. 5. 11 Series A No. 25.
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(v) The first case of Cyprus v. Turkey (applications nos. 6780/74 and 6950/75, introduced on 19 September 1974 and 21 March 1975, joined and declared admissible on 26 May 1975)12 related to the consequences of the Turkish military operations in Northern Cyprus in July and August 1974. In its report of 10 July 1976 the Commission concluded with violations of a number of provisions of the Convention. The Committee of Ministers took its decision on 21 October 1979, concluding inter alia that the events in Cyprus had constituted violations of the Convention and urging the parties to resume inter-communal talks; a further decision was taken on 20 January 1979 in the light of failure to continue such talks.13 Cyprus brought a second case against Turkey (application no. 8007/77, introduced on 6 September 1977 and declared admissible on 10 July 1978),14 complaining that Turkey continued to violate the Convention after the Commission terminated its examination of the first case. The Commission adopted its report on 4 October 1983, concluding with violations, which the Committee of Ministers made public on 2 April 1992, without having been able to determine the case. A third case (application no. 25781/94), also a follow-up case to the first, was lodged by Cyprus on 22 November 1994 and was declared admissible on 28 June 1996. The Commission adopted its report on 4 June 1999 and decided on 11 September 1999 to refer the case to the new Court. (vi) “The Turkish Case” (France, Norway, Denmark, Sweden and the Netherlands v. Turkey, applications nos. 9940-44/82, introduced on 6 July 1982 and declared admissible on 6 December 1983) concerning allegations of widespread and aggravated violations by the military regime in the early 1980s.15 Following a dialogue between representatives of the Turkish government and delegates of the Commission, the parties agreed to settle the case in 1985, which the Commission accepted.16 (vii) The case of Denmark v. Turkey (application no. 34382/97, introduced on 7 January 1997 and declared admissible by the new Court (First Section) on 8 June 1999), relating to allegations of ill-treatment of a Danish national in July and August 1996, while held in custody in Turkey, and to alleged administrative practice of applying such treatment to pre-trial detainees.17 As will be shown below, the actual role of State applications has been more limited than was initially intended – as regards their frequency, the substance of the issues raised and the identity of the States involved. This kind of avenue of complaint, not confined to individual cases but extending to any alleged breach of the Convention, has nonetheless offered a crucial means of addressing widespread and aggravated human rights violations in areas under emergency rule and, in some instances, armed tension, where dem12 13 14 15 16
DR 2, p. 125. Resolution DH (79) 1. DR 13, p. 85. DR 35, p. 143 = 6 HRLJ 331 (1985). Report adopted by the Commission on 7 December 1985 pursuant to former Article 30 of the Convention (friendly settlement), DR 44, p. 31. 17 The text of the admissibility decision is not published but may be obtained from the Court’s registry. Denmark v. Turkey, no. 34382/97, ECHR 2000 IV.
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ocratic governance is non-existent or at its weakest and where effective remedies are not available to the aggrieved individuals either at the domestic or at the international level. Although the collective enforcement mechanism set up under the Convention has until present been, and will no doubt continue to be, ensured primarily by means of individual applications, this does not mean that State applications no longer have any role to play. As is evident from the recent examples of southeast Turkey, former Yugoslavia and, most recently, of the Chechnian Republic of the Russian Federation, emergency rule and armed tension is not something that belongs exclusively to the past but is likely to surface in different forms in various parts of today’s Europe. Situations may still arise where the means of redress offered by individual applications is inadequate and where the Contracting Parties to the Convention arguably have a duty to consider bringing proceedings, or else the Convention system of collective human rights enforcement “runs the risk of becoming meaningless”, to quote the Assembly resolution 346 of 1967 (see below). State action may moreover prove a valuable, if not indispensable, means of ensuring or accelerating compliance in areas where laws and practices have not yet been brought into line with the Convention rules, as may be the case of certain new and unsettled democracies in Central and Eastern European States which have recently joined the Convention community. Intended role of inter-State applications under the European Convention on Human Rights The purpose of the High Contracting Parties in concluding the Convention differed from that of diplomatic protection under traditional international law. It was not to concede to each other reciprocal rights and obligations in pursuance of their individual national interests but to realise the aims and ideals of the Council of Europe, as expressed in its Statute, and to establish a common public order of the free democracies of Europe.18 When the Consultative (later Parliamentary) Assembly considered the well-known Teitgen report of September 1949, presented by the Committee on Legal and Administrative Questions, it agreed with the latter’s proposal that the Contracting States should be able to bring any alleged breach of the Convention before the European Commission of Human Rights. Under former Article 24 of the Convention, such a right followed immediately from ratification of the Convention. On the other hand, delegations were divided as to whether to accept a right of individual petition to the Commission. Whilst some delegations were of the view that such a right was essential if the Convention guarantees were to be effective, others considered that this would be a revolutionary development which could be dangerous for States and would be open to abuse.19 As a result, under former Article 25 of the Convention, the right of individual petition was made optional so as to apply only in relation to Contracting States which 18 Austria v. Italy, YB 4 (1961) pp. 138, 140; see also the Commission’s decision on admissibility of 6 December 1983 in France, Norway, Denmark, Sweden, and the Netherlands v. Turkey (“The Turkish Case”), DR 35, p. 143. 19 A. H. Robertson and J. G. Merrills, in Human Rights in Europe, A Study of the European Convention on Human Rights (Manchester University Press, 1992) pp. 7–10.
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had made a declaration to this effect. Thus, in 1950, the collective enforcement of the Convention guarantees was supposed to be ensured primarily by means of inter-State applications. The States’ initial intention of basing the collective guarantee primarily on State actions is further reflected in the fact that the admissibility requirements are less strict than is the case for individual applications.20 Protocol No. 11 has not brought about any changes in this respect. In the first place, under former Article 25 (replaced by Article 35) of the Convention, the Commission could not examine an application lodged by an individual unless he or she claimed to had been a “victim” of a violation of the Convention. An actio popularis for the interpretation of the Convention and complaints about a law or practice in the abstract were thus excluded: the individual complainant must allege that the application of the law or practice in concreto affected him or her in a manner contrary to the Convention. This kind of limitation did not apply to inter-State cases since a State could refer to the Commission “any alleged breach” of the Convention (former Article 24, replaced by Article 33). The review of a State application was thus potentially wider in scope than that of an individual application. Moreover, under former Article 26 (replaced by Article 35(1)), an application could not be examined unless all effective domestic remedies had been exhausted and the application had been lodged within six months from the date of the final domestic decision. According to the case-law, these requirements apply to State applications, in the same way as they do to individual applications, in so far as the State alleges violations in individual cases and act in the place of the alleged victims. On the other hand, they do not apply where the applicant State complains of a practice21 as such but does not ask for a decision on each of the cases put forward as proof or illustrations of applications of the
20 For a detailed analysis of the admissibility requirements under the Convention, see D. J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights (Butterworth, London, 1995) chapter 23. See also H. C. Krüger and C. A. Nørgaard, ‘The Right of Application’, in R. St. J. Macdonald, F. Matscher and H. Petzold (eds.), The European System for Protection of Human Rights (Kluwer, Dordrecht, 1993) pp.659–661. 21 An administrative practice comprises two elements: the repetition of acts and an official tolerance (“The Turkish Case”, DR 35, p. 163). The Court has held that a practice incompatible with the Convention consists of an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system; a practice does not of itself constitute a violation separate from such breaches. It is inconceivable that the high authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice. Under the Convention those authorities are strictly liable for the conduct of their subordinates and cannot shelter behind their inability to ensure that it is respected (Ireland v. UK, judgment of 18 January 1978, Series A No. 25, p. 64, para. 159).
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legislation or practice in question.22 The position is the same with respect to a complaint about legislative measures.23 Furthermore, under former Article 27(2) (replaced by Article 35(3)), the Commission should consider inadmissible any application which was incompatible with the Convention or which was manifestly ill-founded. In practice, at the admissibility stage, the Commission undertook a thorough examination of the merits of individual applications, involving exchanges of written observations and often also an oral hearing was held in Strasbourg. It declared inadmissible not only those complaints which were incompatible or manifestly ill-founded, but also those which were simply ill-founded. However, Article 27(2) did not apply to State applications. When considering the admissibility of such applications, the Commission did not even carry out a preliminary examination of the merits. Unlike an individual applicant, an applicant State was not therefore required at that stage to adduce prima facie evidence of a breach24 of the Convention, any examination of the merits being entirely reserved for the post-admissibility stage.25 So was the question whether the application was substantially the same as a matter which had already been examined by the Commission, which in the case of individual applications had to be addressed at the admissibility stage (former Article 27(1)(b), replaced by Article 35(2)(b)).26 In addition, applicant States have had a privileged standing in the proceedings when compared with that of individual applicants, which is understandable considering the 22 Ireland v. UK, ibid. The existence of an administrative practice may likewise dispense an individual applicant from the obligation to exhaust domestic remedies (see for instance Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions, 1996-IV, p. 1210, para. 67). 23 As stated by the Commission in “The Turkish Case” (DR 35, pp. 162 and 163) this rule must be seen as a consequence of the absence, in many countries, of legal remedies against legislation. In Ireland v. UK, the Court held that a “breach” results from the mere existence of a law which introduces, directs or authorises measures incompatible with the rights and freedoms safeguarded, provided it is couched in terms sufficiently clear and precise to make the breach immediately apparent (p. 91, para. 249). 24 Another matter is that where the State complaint concerns an alleged practice the applicant State had to furnish prima facie evidence of the existence of the practice in question. 25 On the other hand, former Article 27 did not exclude the application of a general rule providing for the possibility of declaring an application under former Article 24 inadmissible if it was clear from the outset that it was wholly unsubstantiated or otherwise lacking in the requirements of a genuine allegation in the sense of former Article 24 of the Convention (“The Turkish Case”, DR 35, pp. 161 and 162). 26 It may be mentioned that it is the date of ratification by a respondent State, not that by the applicant State, which was decisive for the temporal scope of Convention review (Austria v. Italy). A government could not avoid collective enforcement of the Convention by not recognising the government of the applicant State; non-recognition of the applicant State by the respondent State did not affect the former’s locus standi before the Convention institutions (Cyprus v. Turkey, application no. 8007/77, decision on admissibility of 10 July 1978, DR 13, pp. 146 and 147). Nor did denunciation of the Convention by the respondent State preclude Convention review (“The Second Greek Case”, DR 6).
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responsibility of States as partners in the system of “collective enforcement” only to lodge an application if there is a prima facie case. Whilst any inter-State application was automatically communicated by the Commission to the respondent State for observations on admissibility (Rule 45 of the Commission’s Rules of Procedure), individual applications were only communicated if the Commission found it necessary. The position is the same under the Rules of the new Court (compare Rule 51(1) and Rule 54(3)). There were also certain differences which Protocol No. 11 eliminates. Before the old Court, the main difference was that, unlike a State Party concerned, an individual applicant did not have a right to refer the case to the Court unless the respondent State had ratified Protocol No. 9 and then only subject to the non-rejection of the application by a Screening Panel of three judges.27 Where a case had not been referred to the Court but was finally decided by the Committee of Ministers, the interested State could take part in the Committee’s examination of the case, whereas an individual applicant did not even have standing before the Committee. Actual role of State applications Frequency of State applications The fact that the admissibility requirements are less strict in inter-State cases than individual cases has had certain practical consequences: whilst all applications referred by States so far have been admitted for examination on their merits, about 90 per cent of the (registered) applications lodged by individuals have been declared inadmissible. However, whether or not it was a realistic assumption in 1950 that the collective enforcement be based primarily on inter-State applications, that is not what has actually happened. In the first place, more and more States have been prepared to declare their acceptance of the right of individual petition under former Article 25. When the Convention entered into force on 9 September 1953, 3 of the then 10 Contracting States had made such a declaration.28 In 1960 10 of 13 Contracting States had done it.29 In 1970 the ratio was 11 to 6;30 in 1980 it was 14 to 4;31 and in 1990 all 22 Contracting States had done
27 After referral of a case to the old Court, an applicant individual was in hardly a less favourable position than an applicant State. This state of affairs resulted essentially from a gradual development of the Court’s practice and Rules of Procedure; the former Convention did not even mention the applicant as a participant in the proceedings before the Court. 28 Denmark, Ireland and Sweden, but not Greece, Germany, Iceland, Luxembourg, Norway, Saar and the United Kingdom. 29 The aforementioned three States plus Austria, Belgium, Germany, Iceland, Luxembourg, the Netherlands and Norway, but not Italy, Turkey and the United Kingdom. 30 The above-mentioned ten States plus the United Kingdom, but not Cyprus, Italy, Malta, Portugal, Spain and Turkey. 31 The 11 States mentioned above, plus Italy, Portugal and Switzerland, but not Cyprus, Greece, Malta and Turkey.
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it.32 This trend continued. As of 31 December 1997, all of the 39 States Parties33 to the Convention had accepted the right of individual petition. Since the entry into force of Protocol No. 11 on 1 November 1998, the acceptance of that right is no longer optional to and separate from, but follows directly from, ratification. Moreover, the difference in the number of State applications and individual applications is striking. As of 31 December 1999 the Strasbourg institutions had registered some 53,000 individual applications but only 20 applications by States – in 13 cases relating to seven situations. States involved and nature of State applications State applications, unlike individual applications, have involved only certain States and have tended to centre on issues of a specific nature. Some of them have been brought by States which have not had a direct interest in the outcome and have been sufficiently publicly spirited to assume the political burden of bringing proceedings; others have been lodged by States which have had a certain self interest by reason of their links with the persons in the respondent State affected by the matter complained of. Cases brought mainly in the pursuance of a general European public interest A typical example from the first category is the “The Greek Case” (Denmark, Norway, Sweden and the Netherlands v. Greece),34 which had its background in the coup d’état in Greece in April 1967 and the suspension by the military junta of a number of the Convention guarantees. The case was brought in the light of the Consultative Assembly’s resolution (346) of 23 June 1967, inviting the Contracting States to bring proceedings against Greece before the Commission. The Assembly stated: 8. Having been informed of the notice of derogation addressed to the secretary General of the council of Europe by the Greek Government under Article 15 of the … Convention…; (…) 10. Believing that, in an important and serious case of this kind, the Contracting states to the Convention have a duty to act under Article 24 of the Convention and that, if they do not act as requested, the mechanism of collective guarantee of human rights set up by the convention runs the risk of becoming meaningless.
By a large majority, the Commission concluded inter alia that there was not in existence a public emergency threatening the life of the Greek nation justifying derogations under Article 15 and that there had been violations of the Convention in the following respects: suspension of constitutional safeguards against arbitrary detention, practices 32 The 14 States mentioned above, plus Cyprus, France, Greece, Liechtenstein, Malta, San Marino, Spain and Turkey. 33 Every Member State of the Council of Europe, except for Russia. 34 Applications nos. 3321/67 – 3323/67 and 3344/67.
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of administrative detention of persons considered dangerous to public order and security and the absence of judicial review of detention (Article 5); lack of independence of the courts martial, the government’s dismissal of a large number of judicial officers and the lack of effective remedies for complaints of torture or other ill-treatment of political prisoners (Article 6); practice by the police of carrying out arrests at night (Article 8); press censorship prohibiting criticism of the government and left wing propaganda (Articles 9 and 10 alone and together with Article 14); banning of meetings for political purposes, and the dissolution of hundreds of trade unions and other organisations on the ground that they were Communist or Communist inspired (Article 11); lack of inquiries into complaints by political prisoners of torture and ill-treatment (Article 13); prohibition of political parties (Article 3 of Protocol No. 1); individual cases of torture or other ill-treatment, practices of torture of persons arrested for political reasons and lack of effective investigation into numerous and substantial allegations of such treatment (Article 3 of the Convention). On 12 December 1969 the Committee of Ministers discussed a draft resolution calling for the suspension of Greece from the Council of Europe. As it became clear that enough States would vote for passing the resolution, Greece announced its withdrawal from the Organisation and its denunciation of the Convention. However, this did not prevent examination of the case. On 15 April 1970 the Committee of Ministers, in agreement with the Commission, decided that the government of Greece had violated Articles 3, 5, 6, 8, 9, 10, 11, 13 and 14 of the Convention and Article 3 of Protocol No. 1. Characteristic of the first category is also “The Turkish Case” (France, Norway, Denmark, Sweden, the Netherlands v. Turkey),35 which related to the period between September 1980 and July 1982, when Turkey was governed by a military regime. The applicant governments complained of widespread and systematic torture and inhuman and degrading treatment of detainees in violation of Article 3, of violations of Articles 5 and 6 with regard to detention and criminal proceedings under martial law and of restrictions imposed on political parties, trade unions and the press in breach of Articles 9 to 11. The applicant governments also referred to the notice of derogation given by the Turkish government under Article 15 of the Convention and submitted that whatever situation existed in Turkey prior to 12 September 1980 a public emergency threatening the life of the nation did not remain there on 1 July 1982. In any event, the legislation, administrative measures and practices complained of went beyond what was strictly required by the exigencies of the situation. In addition, Turkey had failed to keep the Secretary General of the Council of Europe fully informed of the measures taken and the reasons therefore. Turkey, however, contested the above allegations. The Commission declared the applications admissible in December 1983. In December 1985, it was informed by the parties that they had reached a friendly settlement, which the Commission accepted as being based on the respect of human rights as defined in the Convention (Article 28). The settlement involved measures to prevent torture and other ill-treatment, the gradual lifting of emergency rule and guarantees of personal rights and freedoms. 35 For references see supra notes 15 and 16.
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Cases brought in the pursuance of a more specific public interest In the majority of inter-State cases the applicant State has had certain affinities with the alleged victims. For instance in Austria v. Italy, the Austrian government alleged that, in breach of Article 6 of the Convention, irregularities had occurred in criminal proceedings relating to the murder of an Italian customs officer in Tyrol, a German-speaking region in Italy: four of the six jurors had been of Italian ethnic origin and had thereby been particularly liable to be swayed by an Italian press campaign; violations had resulted from the fact that the accused, who were young men of Pfunders, were of a different ethnic and linguistic (national) origin from the majority of citizens of Italy. However, the Commission found no violation, and the Committee of Ministers agreed.36 A further example is the various applications lodged by Cyprus against Turkey.37 Following a Greek-sponsored coup in Cyprus in July 1974, Turkey intervened militarily in Cyprus, resulting in the partitioning of the island. Cyprus alleged that Turkish occupying forces in the northern part of island were responsible for violations of a number of provisions of the Convention. In its report of 10 July 1976, the Commission (on each point by an overwhelming majority of 11 to 13 votes in favour and 1 to 3 against or abstaining) reached inter alia the following conclusions: there had been violations of Article 8 of the Convention, firstly, by reason of the refusal by the Turkish authorities to let 170,000 Greek-Cypriots return to their homes in the North; secondly, by expelling Greek-Cypriots from their houses in the North and by deporting them to the South: and, thirdly, by displacing a large number of Greek-Cypriot families. Moreover, there had been violations of Article 5 in respect of the detention of thousands of GreekCypriots in various detention centres of Greek-Cypriot civilians and army personnel in Turkey; of Article 2 by reason of killings of a number of Greek-Cypriot civilians by Turkish soldiers; of Article 3 on the grounds of rape and other ill-treatment of prisoners by the Turkish Army, deprivation of water, food and medical treatment for prisoners and detainees and ill-treatment of persons not in detention; of Article 1 of Protocol No. 1 because of the large number of cases of deprivation of possessions of Greek-Cypriots in the northern part of the island under Turkish control; of Article 13 (lack of effective remedy); and Article 14 (discrimination against Greek-Cypriots). The Committee of Ministers took note of the Commission’s report as well as of the memorial of the Turkish government and found that events which had occurred in Cyprus constituted violations of the Convention and invited the parties to resume the inter-communal talks.38 However, in the second case,39 which was a sequel to the above in so far as concerned the complaints under Articles 5 and 8 of the Convention and Article 1 of Protocol 36 Application no. 788/60, decision of 11 January 1961 on admissibility; YB 4 (1961). 37 Cyprus v. Turkey, applications nos. 6780/74 & 6950/75, decision of 26 May 1975 on admissibility, DR 2 , Commission’s report of 10 July 1976, see supra notes 12–15. 38 Resolution 79 (1) of the Committee of Ministers. 39 Cyprus v. Turkey, application no. 8007/77, decision of 10.7.1978 on admissibility (DR 13, pp. 85–157), Commission’s report of 4 October 1983, rendered public on 2 April 1992 (DR 72,5 = 13 HRLJ 15 (1995)).
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No.1, the Committee of Ministers was unable to reach a final decision although the Commission (in a report of 4 October 1983) had made similar findings. In the third case, which is currently pending, the Commission expressed the opinion that, as regards Greek-Cypriot missing persons, there had been no violation of Article 4 of the Convention or of Article 5 (actual detention) (unanimously), there had been a continuing violation of Article 5 in respect of a lack of effective investigation (unanimously), there had been a violation of Article 2 on account of the lack of an effective investigation (unanimously) and a continuing violation of Article 3 in relation to the missing persons’ relatives (unanimously). As regards matters in relation to home and property of displaced persons, there had been a continuing violation of Article 8 and a continuing violation of Article 1 of Protocol No. 1 (unanimously), a violation of Article 13 of the Convention in the failure to provide effective remedies in relation to those violations (unanimously) and a violation of Article 14 in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 (19 votes to 1). As concerns the living conditions of Greek-Cypriots in northern Cyprus, it found (for the period under consideration) no violation of Article 2 or of Article 5 (unanimously), no violation of Article 6 (17 votes to 3), no violation of Article 11 (unanimously), but there had been one of Article 9 (unanimously) and of Article 10 (unanimously). It further concluded that there had been a continuing violation of Article 1 of Protocol No. 1, a violation of Article 2 of Protocol No. 1 and of Article 8 of the Convention (unanimously). Moreover, there had been a violation of Article 3 on account of the discriminatory treatment of Greek-Cypriots living in the Karpas area (unanimously) and of Article 13 as a result of the failure to provide remedies for the violations established (unanimously). On the other hand no violation was found of Article 3 of Protocol No. 1 with respect to the right of displaced Greek-Cypriots to hold free elections or the complaints relating to Turkish Cypriots.40 In this context it is worth mentioning also the Loizidou v. Turkey case, though this is not an inter-State case in the proper sense of the term. It originated in an individual application referred by the Cypriot government to the Court under former Article 48(b) of the Convention.41 Relying on Article 8 of the Convention and Article 1 of Protocol No. 1, the applicant, a Greek-Cypriot, complained that she had been denied access to and had lost control of her property in northern Cyprus. In a judgment of 23 March 1995 (Preliminary Objections),42 the Court concluded that the facts alleged were capable of falling within Turkey’s “jurisdiction” within the meaning of Article 1 and that Turkey’s (former) Article 25 and 46 declarations, although containing territorial restrictions which were invalid, constituted valid acceptances of the competence of the Commission and Court. In a further judgment of 18 December 1996 (Merits),43 the Court found that the matters complained of were in fact imputable to Turkey and that there had been vio40 Report of 4 June 1999. 41 Under former Article 48(b), a High Contracting Party subject to the jurisdiction of the Court and whose national is alleged to be a victim of a violation may refer the case before the Court. 42 Series A No. 310 = 16 HRLJ 15 (1995). 43 Reports of Judgments and Decisions 1996-VI, Vol. 26 = 18 HRLJ 50 (1997).
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lations of Article 1 of Protocol No. 1 and Article 8 of the Convention. By judgment of 28 July 1998 (Article 50),44 the Court dismissed Turkey’s claim that the applicant State had no entitlement to an award for just satisfaction under (former) Article 50 and ordered it to pay 300,000 Cypriot pounds for pecuniary damage and 20,000 pounds for non-pecuniary damage, as well as certain sums for costs and expenses. The implementation of the award is an issue which has as yet to be settled by the Committee of Ministers.45 In Ireland v. UK46 the complaints centred on the treatment of detainees and extrajudicial deprivation of liberty in Northern Ireland. The Court held, as was not disputed by the respondent government, that the practice of the so-called “five techniques” of interrogation47 constituted inhuman and degrading treatment, but not torture, within the meaning of Article 3 of the Convention (16 votes to 1). It further concluded that various acts of violence committed over a period of time in 1971 by members of the Royal Ulster Constabulary against a large number of detainees held in custody amounted to inhuman treatment in breach of Article 3 (unanimously). On the other hand, considering the conditions for derogation under Article 15(1), the Court found no violation of Article 5 with regard to the complaint of extra-judicial detention, being satisfied that there was a “public emergency” in Northern Ireland “threatening the life of the nation” (unanimously) and that the derogations did not exceed the extent “strictly required by the exigencies of the situation” (16 votes to 1). Effects of State applications On average it has taken as long as four years for an admissible application lodged by an individual to be processed by the Commission and be referred for final adjudication by the Court or by the Committee of Ministers, but once a final decision is taken States are normally forthcoming with respect to the payment of compensation to the victim and are often prepared even to modify their legislation and administrative and judicial practices. In about two-thirds of the cases in which the Court has found a violation, the respondent State, either pending the proceedings or following the judgment, has been prompted to take such general measures,48 on average six years after the introduction of the application or one year after judgment. On the whole, the system of individual applications has proven reasonably effective. As regards the impact of State applications, the picture has been more varied.
44 Reports 1998-IV, p. 1807 = 19 HRLJ 260 (1998). 45 The fact that the question is still pending before the Committee of Ministers has given rise to critical reactions among members of the Parliamentary Assembly (see CM/Inf (99) 41 pp. 3–6 and AS (1999) CR 11, provisional edition, pp. 5 and 6 = 20 HRLJ 142–147 (1999). 46 See supra note 11. 47 Disorientation or sensory techniques which were applied in combination and consisted of wall-standing (for periods of some hours in a stress position), hooding, subjection to noise, deprivation of sleep and deprivation of food and drink. 48 This is a rough estimate based on information available in the Court’s Survey – Forty Years of Activity 1959–1998.
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The sole example of the Strasbourg review having had a satisfactory impact49 is Ireland v. UK, the only State application which has come before the Court, where the contested “five techniques” of interrogation50 had been definitely abandoned even before the Court had ruled that they violated Article 3 of the Convention.51 In other cases the impact has been less positive or more difficult to assess. The proceedings in “The Greek Case” were to some extent complicated by the fact that a separate political process52 was carried out by the Consultative Assembly53 of the Council of Europe. In its Recommendation 547, the Assembly declared that the Greek government was in serious violation of the conditions for membership in Article 3 of the Statute and recommended the Committee of Ministers to draw these conclusions to the attention of the Greek government and to take appropriate action, having regard to Articles 3, 7 and 8 of the Statute. On 12 December 1969 the Committee discussed a draft resolution calling for the suspension of Greece from the Council of Europe. As it became clear that enough States would vote for passing the resolution, Greece announced its withdrawal from the Organisation and its denunciation of the Convention. As mentioned above, the Committee, in agreement with the Commission, decided on 15 April 1970 that Greece had violated a variety of provisions in the Convention. However, noting Greece’s withdrawal and denunciation of the Convention, the Committee concluded that there was no basis for further action to implement its own decision.54 The manner in which the Greek question was handled by the Committee of Ministers was severely criticised by Max Sørensen, member of the Commission and later its President (1967–1972), in an article entitled “Lost Opportunity – When Human Rights Were Sacrificed”.55 He pointed to the fact that on 12 December 1969, when the Committee considered suspending Greece, it had not included on its agenda the Commission’s report, which had been submitted to the Committee one month before together with proposals made by the Commission under the Convention.56 The Greek withdrawal had made it impossible to carry out the proposals, the main aim of which had been to get 49 Although the Court noted an uncooperative attitude on the part of the respondent government in some respects (see pp. 60–62, paras. 148 and 152–155 of the judgment). 50 Supra note 47. 51 Series A No. 25, pp. 61 and 62. 52 This process was initiated by the Assembly Resolution mentioned in supra note 34, which not only urged the Contracting States to bring proceedings against Greece before the Commission but also called for the appointment of a rapporteur to present a report to the Assembly on the situation in Greece with a view to any necessary action to be taken under the Statute of the Council of Europe. 53 Later renamed the “Parliamentary Assembly”. 54 Committee of Ministers’ Resolution DH (70) 1. 55 Published in the Danish newspaper Politiken on 5 January 1970. M. Sørensen, “Lost Opportunity – When Human Rights Were Sacrificed”, reproduced in English by the Consultative Assembly in AS/Inf.(70)10 (Strasbourg: Council of Europe, 26 January 1970). See also H. D. Coleman, ‘Greece and the Council of Europe: The International Protection of Human Rights by the Political Process’, 2 Israel Yearbook on Human Rights (1972) pp. 121–141. 56 Article 31(3).
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the Greek government to give the Committee of Ministers an undertaking that it would restore democratic freedom in line with a specific time-schedule and exercise greater control of the methods used by its security police, close certain prison camps, grant compensation to victims of torture and punish those responsible. The former President of the Commission stressed that the Committee could have supervised the realisation of this plan, with sanctions being held in reserve should the plan not be carried out. In general it had been very difficult to ascertain exactly what conditions were necessary in order for international methods of compulsion to be effective, but in this case the situation had been exceptionally favourable, bearing in mind the importance of Greece’s relationship with the Common Market and Greece’s military dependence on the USA. Max Sørensen further disputed that the increased severity of the regime which seemed to have resulted subsequently could be cited as proof that nothing could have been done. If pressure had been effective and carried out skilfully, one might well have achieved a different reaction. The result of the “The Greek Case” in the Council of Europe was in his opinion tragic, not only for the European system itself but also for other international human rights systems based on inter-State complaints and for which the European mechanism was a pilot-scheme. Sørensen could not see how the latter could serve as a model for resolving human rights problems in other parts of the world, exclusion being a meaningless approach whatever the subject-matter of the complaint. He added: International protection of human rights is a task of such dimension that a long-term strategy is necessary if it is to be achieved. Simply to manoeuvre from case to case under the influence of political opportunism and rash emotions is not sufficient. Faced with a situation unique in history, which represented a clear challenge to all who take their heavy duties seriously, the Committee of Ministers of the Council of Europe under the guidance of the Scandinavian countries has lost an opportunity to move the ideals of the pioneers one foot nearer their goal.
Political considerations eventually prevailed also in the resolution before the Committee of Ministers of the cases lodged by Cyprus against Turkey. Their outcome can hardly be said to have had any impact on the situation at the root of the complaint, as is apparent even from the very terms of the decisions of the Committee of Ministers.57 In the first case (Cyprus v. Turkey – application nos. 6780/74 and 6950/75), the Committee of Ministers, taking into account the Commission’s report of 10 July 1976, decided on 21 October 1977 that the contested events in (northern) Cyprus constituted violations of the Convention. It asked that measures be taken in order to put an end to such violations which might continue to occur and urged the parties to resume inter-communal talks. Up to this point one could say that the Committee had sought to assume its role 57 According to C. Tomuschat, the Committee dealt with the matter “in a spirit of political mediation alien to the legal task entrusted to [it] under Article 32 of the Convention” (‘Quo Vadis, Argentoratum?, The Success Story of the European Convention on Human Rights – and a Few Dark Stains’, 13 HRLJ 402 (1992)). See also V. Coufoudakis, ‘Cyprus and the European Convention on Human Rights: The Law and Politics of Cyprus v. Turkey, Applications 66780/74 and 6950/75, 4 Human Rights Quarterly (1982) p. 4.
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under Article 32 of the Convention. However, the stance taken by the Committee thereafter when faced with difficulties of implementation may be regarded as an abdication from this role. On 20 January 1979, the Committee, considering with regret that this request had not been taken up by the parties concerned, affirmed its conviction that the enduring protection of human rights in Cyprus could only be brought about through the re-establishment of peace and confidence between the two communities and that the inter-communal talks constituted the appropriate framework for reaching a solution of the dispute. The Committee decided to urge the parties to resume such talks under the auspices of the UN Secretary General and viewed this decision as completing its examination of the case. In addition, it indicated that the case documents should be made public on 31 August 1979. In the above-mentioned follow-up case58 Cyprus complained that, since May 1976 when the Commission had terminated its investigation in the first case, Turkey had continued to commit breaches of a number of Convention provisions. The Commission, which to a large extent shared the views of the applicant government, communicated its report of 4 October 1983 to the Committee of Ministers shortly after that date. However, the Committee failed to reach the two-thirds majority required for taking a decision on the case but decided on 2 April 1992 (almost ten years later) to make public the Commission’s report, while stating that this decision completed its examination of the case. Cyprus has since brought yet another application which is pending before the Court.59 Far more difficult to assess is the settlement reached between the applicant and respondent governments in “The Turkish Case”. It comprised three substantive parts, one concerning matters relating to Article 3 of the Convention, another about derogations under Article 15 and a third about the issue of amnesty. As regards the first, it was agreed that a State Supervisory Council be set up under Article 108 of the Constitution and would be instructed to have special regard to the strict observance by all public authorities, including the military and civilian detention centres, of the obligations assumed by Turkey under Article 3. It moreover entailed a duty on Turkey to submit reports on measures of internal law and practice (including on conditions and procedures of detention) taken to ensure the effective implementation of Article 3, to be followed by a confidential dialogue between Turkey and the Commission and a final report about one year later. As regards the second point it was noted that a number of decrees and enactments restricting personal rights and freedoms had been changed or amended in view of Turkey’s Convention obligations and Turkey would keep the Commission informed of further changes made in the same spirit. As to the third point, the question of amnesty, it was noted that this was a matter of concern to the parliament and government of Turkey, that work on this issue was under way and that the Commission would be informed of developments in this regard.60 In its report of 7 December 1985, accepting the settlement as being reached and secured on the basis of respect of human rights (former Article 28 (b)), the Commission 58 Application no. 8007/77. 59 Application no. 25781/94, see introductory chapter above. 60 DR 44, pp. 31–41.
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had regard to the criminal prosecutions and convictions concerning cases of torture in Turkey, to the progressive lifting of martial law and to measures of leniency being taken in the country, as well as to the fact that the settlement provided for further progress and continued information to the Commission in relation to conditions and procedures of detention, further implementation of personal rights and freedoms and the issue of amnesty.61 The fact that the settlement was adopted not only in light of what had actually been achieved but also in view of expectations of further achievements makes it all the more difficult to assess its effects. Does not the latter suggest that the settlement was concluded prematurely? On the one hand, martial law was lifted in some provinces, general elections were held and a number of political prisoners were released. In addition, albeit unclear whether as a result of the settlement, Turkey accepted the right of individual petition under former Article 25 of the Convention. On the other hand, it cannot be denied that, notwithstanding the settlement, human rights organisations continued to report on instances of political imprisonment and widespread and systematic use of torture. Moreover, the situation in Turkey has continued to raise concern within the Council of Europe. For instance, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) issued a public statement on 15 December 199262 pointing to a practice of torture and other forms of severe ill-treatment of persons in police custody. In a second statement of 6 December 199663 the CPT noted that some progress had been made but that it had continued to receive credible reports of torture and ill-treatment. The CPT has continued to receive reports of severe illtreatment of prisoners in Turkey after a follow-up visit in October 1997, although it has commended the Turkish government for its cooperative attitude and constructive spirit in dealing with such problems.64 The acceptance by Turkey of the right to individual petition has lead to a large number of applications to Strasbourg. As of 5 February 1998 approximately 1,470 individual applications were pending before the Convention institutions.65 As of 16 June 1999, the figure had risen to 2,115.66 In addition, two inter-State cases are pending before the Court, one lodged by Cyprus, and another by Denmark.67
61 Ibid., pp. 41 and 42. 62 14 HRLJ 49 (1993). 63 18 HRLJ 294 (1997). See also in this context the statement by Stefan Trechsel, former President of the Commission, reported in 18 HRLJ 471 (1997). 64 See CPT’s report to the Turkish government on its visit to Turkey from 5–17 October 1997, inter alia, paras. 8–10, 83–85 (CPT/Inf (99) 2, 23 February 1999), made public with the agreement of the said government. 65 1420 before the Commission, 25 before the Committee of Ministers and 21 before the Court. The latter had delivered 16 judgments, most of which contain adverse findings. 66 See 20 HRLJ 114 (1999). 67 See introductory Section above.
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Concluding remarks – is there a future role for inter–state applications? When the Convention was drafted in 1950, it was thought that the collective enforcement of the Convention rights and freedoms was to be ensured primarily by means of State applications, not individual applications, and of a quasi-judicial procedure with the Committee of Ministers, rather than the Court, as the final adjudicator. As a result, the right of individual petition and the Court’s compulsory jurisdiction were made subject to declarations of acceptance separate to ratification, which indeed reflected the scepticism of some States towards the idea of giving citizens direct access to an international human rights court. It is true that in most State cases the respondent State had not at the material time accepted the right to individual petition or the Court’s compulsory jurisdiction.68 It is not improbable that the States concerned have viewed the cases as being too political (whatever that may mean) to be left to be decided by independent judges. In this respect the expectations in 1950 were, albeit in a limited sense, fulfilled. In all other respects the reality turned out to be quite different. All the Contracting Parties eventually accepted the right to individual petition and the Court’s compulsory jurisdiction, and the number of State cases – a dozen or so – has been marginal compared with that of individual cases – about 53,000 (December 1999) applications registered. Unlike individual applications, State applications have been limited both with regard to the subject-matter and the States involved. There appears to be a general reluctance among the Members of the Convention community to bring proceedings, be it because of a lack of concern or a desire to avoid the political costs involved. In the majority of cases, the applicant State has had a direct interest in the outcome. In the few instances where that has not been the situation, it seems that the applicant State prefers to share the diplomatic burden of instituting proceedings with other States and is prepared to do so only if the alleged human rights violations are widespread and of a particularly serious nature. Most State applications have focused on alleged practices of aggravated violations which occurred in areas under emergency rule69 and have been lodged by small States against larger States. With the exception of France in the “The Turkish Case”, the larger States in Europe have tended to avoid any involvement on the applicant side in such proceedings. Furthermore, State applications have generated some of the most hard-fought cases that have come before the Strasbourg institutions. In some instances, the respondent
68 Cyprus ratified the Convention on 6.10.1962 and made declarations under former Articles 25 and 46 respectively on 24.1.1980 and 1.1.1990; Greece ratified first on 28.3.1953 and then (after denunciation) on 28.11.1974 and made the respective declarations on 20.11.1985 and 30.1.1979; Italy ratified on 26.10.1955 and made the declarations on 1.8.1973; Turkey ratified on 18.5.1954, and made the respective declarations on 28.1.1987 and 22.1.1990; the United Kingdom ratified on 8.3.1951 and made the declarations on 14.1.1966. 69 In this sense, Austria v. Italy (application no. 788/60, decision of 11 January 1961 on admissibility YB 4 (1961)) was untypical as the subject-matter was confined to an issue of due process.
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State has even refused to take part in the Commission proceedings on the merits.70 The inter-State cases have had a tendency of being particularly time-consuming for all the parties involved and, especially, for the Commission, having had to hear a number of witnesses in order to be able to assume its task under the Convention of ascertaining the facts in the case (former Article 28(1)(a)). The few attempts made in legal literature to evaluate the role of State applications have been anything but encouraging in their conclusions. For instance, according to Peter van Dijk (former judge of the Court) and G. J. H. van Hoof, such applications have hardly been effective.71 An even more pessimistic view has been expressed by the late Judge Pettiti of the Court: by lowering the level of protection afforded by the Convention institutions, State applications have had the unfortunate effect of “normalising” the matters complained of.72 Does this mean that State applications have no role to play in the Convention protection machinery? So far, State action has offered a crucial means of addressing widespread and aggravated human rights violations in areas under emergency rule and, in some instances, armed tension, where democratic governance is non-existent or at its weakest and where effective remedies are not available to the aggrieved individuals either at the domestic or at the international level. The recent examples of south-east Turkey, former Yugoslavia and, most recently, of the Chechnian Republic of the Russian Federation73 show that emergency rule and armed tension is not something that belongs exclusively to the past. Situations may still arise where the means of redress offered by individual applications is inadequate and where the Contracting Parties to the Convention arguably have a duty to consider bringing proceedings, or else the Convention system of collective human rights enforcement would risk becoming meaningless. Moreover, it is important to recall that State applications, unlike individual applications, may concern any alleged breach of the Convention and do not have to be confined to individual cases. Thus, in theory at least, State applications could offer a far more effective means of addressing general situations or practices which are incompatible with the Convention. To the extent that the Convention States are prepared to assume their responsibilities under the Convention system of collective enforcement, this may prove 70 See Cyprus v. Turkey, application no. 25781/94, Commission’s report of 4 June 1999, paras. 9 and 10. 71 P. van Dijk and G. J. H. van Hoof, Theory and Practice of the European Convention on Human Rights, 2nd ed. (Kluwer, The Netherlands, 1990) p. 36. See also Harris, O’Boyle and Warbrick who subscribe to this view (supra note 20, p. 587). 72 L.-E. Pettiti, ‘Le système de Strasbourg, Les recours interétatiques dans le système de la Convention européenne des droits de l’homme’, Académie de droit international de La Haye, Colloque, La Haye, 6.8.1990, pp. 331–395, at p. 335. 73 In this regard it is interesting to note that on 15 December 1999 the Secretary General of the Council of Europe, exercising his powers under Article 52 of the Convention, requested that Moscow provide “explanations concerning the manner in which the Convention is currently being implemented in Chechnya, and the risk of violations which may result”. Rarely used, this is the first time the Article 52 powers have been exercised with regard to one particular State.
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a valuable, if not indispensable, means of ensuring or accelerating compliance in areas where laws and practices have not yet been brought into line with the Convention rules. This may for instance be the case for certain new and unsettled democracies in Central and Eastern European States which have recently joined the Convention community.74 It is unrealistic always to assume that such laws and practices can be adequately dealt with by means of individual applications. Inter-State applications have often served as a step in a wider political process75 and have thus had strong political overtones, not so much because of the nature of the Convention issues raised but more because of the political interests at stake. It is possible that the examination of such cases in the final instance by a political body – the Committee of Ministers – has had the effect of exacerbating the political features of the case, thereby diminishing the prospects of an effective settlement. If so, as illustrated by the example of Ireland v. UK, final adjudication by the Court outside the political arena might have proven more effective.76 For the time being this is of course largely a matter of speculation. It remains to be seen whether, since the entry into force on 1 November 1998 of Protocol No. 11, the total judicialisation of the procedure for determination of cases will entail any significant differences for State applications. It may not lead to any substantial increase in the frequency of such applications, but the Convention system of dispute settlement is, on the whole, likely to become more effective. A final and legally binding judgment by the Court will probably carry more weight and leave less room for discretion at the execution stage before the Committee of Ministers than a decision by the Committee itself upholding a non-legally binding report by the Commission. The manner in which the Committee performs its function of supervision of the execution of judgments will no doubt continue to reflect on the authority of the Court, whether the application has been lodged by an individual or by a State. In the final analysis, the effectiveness and credibility of the Convention system of collective enforcement will depend on the good faith cooperation of all States Parties.
74 In this connection Pettiti points in particular to the problem of protection of ethnic minorities (see supra note 72, pp. 349 et seq.). 75 See for instance H. Labayle, ‘Article 24’, in La Convention européenne des droits de l’homme, Commentaire article par article, sous la direction de L.-E. Pettiti, E. Decaux et P.-H. Imbert, at p. 575. 76 Although it would have been for the Committee of Ministers to supervise the execution of its judgment.
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Addendum77 The situation in March 2007 During the seven years or so that have elapsed since the above article was written, the Convention community has further expanded78 and the number of individual applications79 has continued to soar at an overwhelming pace. Only one new State application (no. 13255/07) has been lodged with the Court, namely on 26 March 2007 by Georgia against the Russian Federation. It related to complaints about the alleged reaction by the Russian authorities against the arrest in Georgia in September 2006 of four Russian service personnel on suspicion of espionage, who were later released by executive act of clemency. The reaction allegedly involved a pattern of official conduct giving rise to specific and continuing breaches of the Convention and its Protocols, including various forms of harassment and persecution of the Georgian immigrant population in Russia, the conditions in which “at least 2,380 Georgians” had been detained, measures aimed at the collective expulsion of Georgians and at obstructing access to remedies. Another event worth noting is that the case of Denmark v. Turkey, which was still pending before the Court when the article was sent to print (see above), was resolved in a friendly settlement, enabling the Court to strike the case from its list of cases by a judgment of 5 April 2000.80 The settlement provided for ex gratia payment and the expression of regret by the respondent government concerning the occurrence of occasional and individual cases of torture and ill-treatment in Turkey. It also provided for the assistance in police training by the applicant government and the establishment of a continuous Danish-Turkish political dialogue on human rights issues. The Court further had regard to changes to the legal and administrative framework introduced in Turkey in response to instances of torture and ill-treatment as well as the respondent government’s undertakings to make further improvements in this field and to continue their co-operation with the Committee for the Prevention of Torture. A further development was the Court’s landmark judgment of 10 May 2001 in the case of Cyprus v. Turkey (Grand Chamber, no. 25781/94, ECHR 2001‑IV) (see above). This was the third inter-State case brought by Cyprus against Turkey in relation to the situation in northern Cyprus but the very first one to end in a judgment by the Court, the two previous ones having been dealt with by the Committee of Ministers after a condemning report by the Commission under the (former) supervisory system that applied prior to the entry into force of Protocol No. 11. 77 The author is grateful to Mrs Corinne Amat, Legal Officer of the Directorate of Human Rights, for her valuable information and advice for these additions. 78 New Member States of the Council of Europe: Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Monaco and Serbia. All have ratified, except for Monaco, which has only signed. 79 At the end of 2006, there were approximately 90,000 individual applications pending (23,000 had yet to be completed in order to be allocated to the appropriate judicial formation – Committee or Chamber). 80 Denmark v. Turkey, no. 34382/97, ECHR 2000 IV.
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In its judgment of 10 May 2001 the Court, by 16 votes to 1, held that the impugned matters entailed Turkey’s responsibility under the Convention and found 14 violations of the Convention in relation to the following four categories of complaints: (i) Greek-Cypriot missing persons and their relatives (continuing violations of: (1) Article 2 concerning the failure of the Turkish authorities to conduct an effective investigation into the whereabouts and fate of Greek-Cypriot missing persons who had disappeared in life-threatening circumstances; (2) of Article 5 with regard to such persons in respect of whom there was an arguable claim that they had been in Turkish custody at the time of their disappearance; and (3) of Article 3 by reason of the silence of the Turkish authorities in the face of the real concerns of the relatives); (ii) Home and property of displaced persons (continuing violations of: (4) Article 8 concerning the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus; (5) of Article 1 of Protocol No. 1 in that GreekCypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well compensation for the interference with their property rights; (6) a violation of Article 13 concerning the absence of remedies in respect of the foregoing items (4) and (5)); (iii) The living conditions of Greek-Cypriots in the Karpas region of northern Cyprus (violations of: (7) Article 9 on account of the effects of restrictions on freedom of movement which limited access to places of worship and participation in other aspects of religious life; (8) of Article 10 due to excessive censorship of schoolbooks for primary school; (9) a continuing violation of Article 1 of Protocol No. 1 for the failure to secure the property rights of Greek-Cypriots living in northern Cyprus in case of their permanent departure from that territory, and failure to recognise in case of death the inheritance rights of relatives living in southern Cyprus; (10) a violation of Article 2 of Protocol No. 1 (right to education) in respect of GreekCypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them; (11) a violation of Article 3 in that the Greek-Cypriots living in the Karpas area of northern Cyprus had been subjected to discrimination amounting to degrading treatment; (12) a violation of Article 8 concerning the right of Greek-Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home; (13) a violation of Article 13 by reason of the absence of remedies in respect of the foregoing); (iv) Rights of Turkish Cypriots living in northern Cyprus (a violation of Article 6 on account of the legislative practice of authorising the trial of civilians by military courts). Following the judgment of the Court it was the responsibility of the Committee of Ministers to supervise Turkey’s execution of the Court’s judgment. Already in July 2001 the Committee discussed the matter and decided to group the violations into the same four categories as the Court had in its judgment, but dealing with category (ii) as the last point. The Committee has examined the four categories of questions several times. With regard to category (iv), the Committee closed its examination by an Interim Resolution ResDH(2005)44 of 7 May 2005, being satisfied that military officers no long-
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er were entitled to serve on military courts and that these no longer had jurisdiction to try civilians. In December 2006 the Committee of Ministers expressed preparedness to close its examination of category (iii), items 7, 8 and 10, in light of satisfactory progress achieved in relation to freedom of religion and the right to education. The examination of category (i), however, is taking longer. In its May 2005 Resolution, the Committee noted (with respect to items 1 and 2) that, after a long period of inactivity, the Committee on Missing Persons in Cyprus (CMP), set up in 1981 under the aegis of the United Nations, had been reactivated at the end of August of 2004 and that a special information unit had been set up for families within the Office of the Turkish Cypriot Member of the CMP. The latter had been mandated to draw up an exhaustive list of missing persons of both communities and to determine whether they were alive or dead, and in the latter case determine the approximate date of their deaths. However, while recognising that this could constitute a positive development in the execution of the Court’s judgment, the Committee considered that further measures were in any event required in order to comply fully with the requirements of the Convention concerning effective investigations, aimed at clarifying the whereabouts and fate of Greek-Cypriot missing persons who had disappeared in life-threatening circumstances or of whom there was an arguable claim that they were in custody when they disappeared. In December 2006 the Committee still recalled the urgency of obtaining concrete and conclusive results, respecting the requirements of effective investigations according to the Court’s judgment, while taking note of the commitment by the Turkish authorities to keep them regularly informed about progress. Item 3 too is ongoing. The Turkish authorities announced the establishment within the CMP of a special information unit for the families, which started to function in November 2004, but the Cypriot authorities dispute its adequacy. As to category (ii), the Cypriot authorities have expressed their concern as regards transfer of and construction activities done on the properties of displaced persons and have requested the Committee to ensure the imposition of a moratorium on those transfers and construction activities.81 Still, in December 2006, the Committee of Ministers urged the Turkish authorities to provide relevant information on measures taken or envisaged to safeguard displaced persons’ property rights.82 At the same time, the Committee underlined the necessity not to interfere with the proceedings before the Court in the case of Xenides-Arestis v. Turkey.83 81 CM/Inf/DH(2006)6/5rev. 82 982nd (DH) meeting, 5–6 December 2006, Decisions adopted at the meeting; CM/Del/ Dec(2006)982, 7 December 2006. 83 See Xenides-Arestis v. Turkey, no. 46347/99, 22 December 2005 and, in particular, XenidesArestis v. Turkey (just satisfaction), no. 46347/99, 7 December 2006, where a Chamber of the Third Section made an award of pecuniary compensation for the applicant’s losses emanating from the denial of access and loss of control, use and enjoyment of her property between 22 January 1990 (date of Turkey’s acceptance of the Court’s compulsory jurisdiction) and the time of judgment. The Court noted the establishment of an Immovable Property Commission under a law of 2005 with competence to decide on the restitution, exchange of properties or the payment of compensation. In the assessment of the amount of the award, the Court had regard to an ex officio proposal by the Commission. Both parties have requested to refer the latter judgment to the Grand Chamber.
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Control of Execution of Decisions under the European Convention on Human Rights – A Perspective on Democratic Security, Intergovernmental Cooperation, Unification and Individual Justice in Europe Fredrik G. E. Sundberg*
Introduction The European Convention of Human Rights (“the Convention”) of 1950 was, as stated in its preamble, to be the first step for the collective enforcement by the Member States of the Council of Europe of some of the rights contained in the Universal Declaration of Human Rights of 1948. The Convention protects mainly civil and political rights. Over the years it has become essential to the new European political architecture, a constitutional element of European public order, an important contribution to European democratic stability and security as well as a prerequisite for efficient inter-governmental co-operation and unification. One of the major, although discrete, elements of the system is the Committee of Ministers and its supervision of proper execution of decisions establishing violations of the Convention. In the first edition of essays in the honour of Jakob Möller, I tried to provide a number of remarks on the Committee of Ministers’ supervision execution and how this work has contributed to the system’s success. The present article is a development and update *
Deputy to the Head of Department for the execution of judgments of the European Court of Human Rights – all opinions expressed in this chapter are personal. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11, Rome, 4 November 1950, European Treaties Series No. 5. See e.g. Loizidou v. Turkey, 23 March 1995, ECHR, Preliminary Objections, No. 40/1993/435/514, para. 75. See e.g. the Committee of Ministers reply of 9 January 2002 to Parliamentary Assembly recommendation 1477 (2000) or Council of Europe, Declaration of the Committee of Ministers, Ensuring the Effectiveness of the Implementation of the European Convention on Human Rights at National and European Levels, 12 May 2004. The idea of democratic security is probably wider than stability, but it would appear that the Convention system is as relevant for both. These ideas received expression already in the preamble to the Convention.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 465-485.
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of those remarks in the light of the important developments which have taken place over the last years. On the procedural side, it is worth noting from the outset that the Europeans aimed from the beginning at more than a political monitoring. Indeed the first proposals by the European movements at the basis of the Council of Europe’s work foresaw a judicial system based on an agreed catalogue of rights and a Court. However, the European governments did not, in these years, 1949–1950, accept something as far reaching as a full judicial system with competence to interfere in their, traditionally, internal affairs. After careful negotiation they did, however, accept what was perceived to be a rather detailed codification of certain human rights in a Convention, to be subjected to their collective guarantee. It was accepted that additional rights could be included on an “à la carte” basis after separate negotiations (indeed the first protocol with additional rights came already in 1952, i.e. only two years after the Convention was adopted in 1950). The Convention made clear that derogations could be accepted under the scrutiny of the other States for times of public emergencies threatening the life of the nation. It was also accepted that the protection of most other rights was to be subjected to a proportionality test. Only the protection of the right to life and the rights to freedom from torture and slavery were made absolute. The basic collective guarantee took the form of a confidential peer review procedure before the Member governments, sitting in the Committee of Ministers of the Council of Europe – the old so-called “Article 32 procedure”. In its basic form this peer review could be set in motion only by States and would result in a decision by the Committee, adopted with two-third majority, on the issue of whether or not the situation complained of violated the Convention. In order to ensure the efficiency of the review, the Committee was to be assisted by a Commission of high level experts with a fact-finding mandate and entrusted with providing the Committee with a first opinion as to whether or not violations had occurred. Also this procedure was confidential. In addition to the basic peer review, the system opened up two optional, as it would appear crucial, avenues for its reinforcement in line with the original proposals: the States could thus accept a judicial procedure instead of the peer review and/or the right of for each and every individual under their jurisdiction to petition the system. Already under the original arrangements it fell on the Committee of Ministers not only to decide whether or not the Convention had been violated, but also to control execution, to decide what effect should be given to its decisions. The organisation of the original peer control contributed significantly to the execution process. The Commission carried out an important filtering work and ensured that the Convention case law developed progressively, respectful of domestic traditions and domestic needs. In general, the findings of violations in the Committee would not ap
As resulting from the 1948 Hague Conference of the European Movements. I.e. Article 32 in its wording before Protocol No. 11. See e.g. the Commission’s report in the Delcourt case of 1 October 1968, para. 5, p. 56, or the Commission’s constant practice of authorising State monopolies in the area of radio and television broadcasts.
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pear to have been opposed by the respondent States. In view hereof it is perhaps not so surprising that these drew from the very outset the “natural” conclusions of the violations and accepted to remedy their consequences for the victim and to prevent new similar violations. Indeed, in so doing the Committee only confirmed and spelled out in greater detail what was already at the time considered normal requirements of international customary law.10 This practice was also easily transferable to the Committee’s supervision of the execution of the first findings of violations by the European Court of Human Rights (“the Court”) in 1968. As will be developed below, the Court tried, however, in the beginning to care itself for the situation of the individual applicant in cases brought before it and the intial Committee practice in Court cases thus mainly concerned the question of general measures to prevent new violations. Numerous further steps followed to develop and consolidate the Convention system. Most importantly, more and more States accepted the two optional obligations – the compulsory jurisdiction of the Court and the right of individual petition. Indeed, all Council of Europe Member States had accepted them by 1990, in time for the important change of the European political landscape caused by the dissolution of the Soviet Union. This major event brought new challenges. The importance of reorganising
Indeed, only in 5 out of some 2,700 cases decided by the Committee under former Article 32 (i.e. as the Convention was worded before the entry into force of Protocol No. 11) did it fail to reach the necessary majority for a decision. Indeed, in three of the five cases, a plausible reason for the absence of a decision (the procedure was confidential and no reasons were given) was the fact that the States concerned had already remedied the situation for all parties when the case came up for decision. The questions of individual and general measures were part of the Committee’s examination under former Article 32 from the very outset – see e.g. the Committee of Ministers resolutions DH(63)2 in the cases of Pataki and Dunshirn v. Austria; (70)1 in the Greek case; (79)3 in the case of Hilton v. United Kingdom; (81)4 in the case of Draper v. United Kingdom; and (85)4 in the case of Marijnissen v. Netherlands. 10 The principles underlying the Committee of Ministers execution control of individual and general measures have old roots in international law. In its judgment of 9 July 2004 in the Advisory Opinion regarding the Legal Consequences of The Construction of a Wall in The Occupied Palestinian Territory the International Court of Justice, for example, recalled that the essential forms of reparation in customary law were laid down by the Permanent Court of International Justice in the Chorzów Factory case, Judgement No. 13, 1928, Publications of the Permanent Court of Justice, Series A, No. 17, p. 47: “The essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.” The need for both individual and general measures to make good violations of international law was also stressed in different textbooks on the subject, such as that of professor H. F. Sundberg, Folkrätt (Nordstedt, Stockholm, 1944) pp. 180 et seq.
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Europe along peaceful and cooperative lines stressed the importance of common values, and membership in the Council of Europe11 and respect for the Convention became key elements of the new European architecture. For the Convention system this entailed maintaining the high level of human rights protection achieved, also in the new wider political environment, as stressed by the Council of Europe’s first summit of Heads of State and Government in 1993 in Vienna. Whereas inter-State complaints under the Convention were not infrequent up till the 1990s (some 20 such complaints were received), there has ever since the beginning been an important development of the number and importance of individual complaints. Indeed, since 1990 only three inter-State complaints have been received, whereas several hundred thousand individual complaints have been lodged. Already in the early 1990s the efficiency of the Convention system thus largely hinged on the handling of these individual complaints, including at the execution stage. Not surprisingly, the ensuing efforts to improve the system have concentrated on the handling of such individual complaints. Among the first results was Protocol No. 11, opened for signature in 1995, which replaced the old rather complicated three-partite machinery of Commission, Committee of Ministers and Court with a “new” system, ridding itself of much of the confidentiality inherent in the earlier procedures,12 and emphasising the judicial element by providing for a single, permanent Court. These changes evidently had repercussions also for the Committee of Ministers’ execution control, notably in that they allowed the Committee to concentrate fully on execution supervision. Protocol 11, however, quickly showed itself insufficient to care for the increasing number of cases, and additional efforts have become necessary to safeguard the efficiency of the system. These go in three directions: – Improve the Court’s decision-making capacity. – Improve the domestic implementation of the Convention so as to ensure that violations are to the greatest extent possible prevented already at the domestic level. – Improve the execution of the Court’s judgments as efficient execution not only ensures respect for individual judgments but as a “spin off ” effect, especially when combined with good execution supervision, also better respect of all Convention requirements in all Contracting States. So far these efforts have notably led to the adoption of a new protocol to the Convention, Protocol No. 14 improving the Court’s decision-making and execution supervision (see more below). The Committee also adopted five recommendations to Member States to 11
An interesting article on the Council of Europe’s admission practice was published by the Austrian ambassador to the organisation Hans Winkler. See H. Winkler, ‘Democracy and Human Rights in Europe. A Survey of the Admission Practice in the Council of Europe’, 47 Austrian Journal of Public and International Law (1995) pp. 147–172. The Council of Europe today counts 46 Member States. 12 The Committee had already under the “old” system started this process and had in the course of the 1990s started to render public its decisions on the merits immediately public together with the Commission’s reports.
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improve the national implementation of the Convention.13 In 2008, it adopted a further recommendation to improve the national execution process.14 It has also carried out two reforms of its rules of procedure (one in 2000 and the other in 2006). It is likely that further proposals will come forward in the context of the ongoing review in different fora of further measures to improve the Convention system. Other recent developments at the Council of Europe level demonstrate the increasing general institutional support given to the execution process. Developments of relevance include a strong engagement by the Parliamentary Assembly since 2000 to assist in the execution of old, “overdue” cases and in other especially important cases. They also include the reinforcement of the resources of the Commissioner of Human Rights, set up in 1999, allowing notably the development of the Commissioner’s contacts with national institutions for the protection of human rights (notably ombudspersons) and with human rights defenders. Also the creation of the special commission of government experts for the efficiency of justice (CEPEJ) is a special contribution to improved domestic implementation of the Convention’s Article 6 together with other relevant Council of Europe standards. In addition, the independent experts in the Venice Commission (the European Commission for democracy through law) have increasingly started to give opinions of relevance for the execution process. These developments add to earlier special initiatives, most notably the contribution given by the Committee for the Prevention of Torture (CPT). Recently the Council of Europe Development Bank also set up, on Norwegian initiative, a special Human Rights Trust fund “to facilitate the implementation of national measures to prevent or redress violations of the Convention”. Recent cases have also highlighted the links between the Convention and the EU (notably cases regarding the candidate States) and other international organisations or institutions, including the UN (e.g. the cases relating to different problems in Cyprus). In view of the increasing number of actors, recent proposals15 have stressed the need to improve synergies between all involved. Ensuring adequate synergies is evidently of major relevance for the execution process.
13
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Recommendation Rec(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights; – Recommendation Rec(2002)13 on the publication and dissemination in the Member States of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights; – Recommendation Rec(2004)4 on the European Convention on Human Rights in university education and professional training; – Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights; – Recommendation Rec(2004)6 on the improvement of domestic remedies. 14 Recommendation Rec(2008)8 on improved domestic capacity to execute the judgments of the [Court]. 15 See e.g. Parliamentary Assembly resolution 1516(2006) or the report of the Group of Wise Persons set up after the Third Summit in 2005, Report of the Group of Wise Persons to the Committee of Ministers, CM(2006)203, 15 November 2006.
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The Committee of Ministers The Committee of Ministers is the Council of Europe’s decision-making body. Under the Council of Europe’s statute it decides on membership of the organisation and adopts conventions and recommendations to Member States. In addition hereto it also performs a number of monitoring tasks, notably the supervision of the execution of the judgments of the Court. In the exercise of its functions, the Committee is composed of the ministers of foreign affairs, but the ministers themselves usually only meet once a year. Ordinary business is carried out by the Ministers’ Deputies (their Permanent Representatives (ambassadors) in Strasbourg), who meet regularly, approximately once a week. Presently, the Committee carries out its supervision of the execution of the Court’s judgments mainly at four regular human rights meetings16 (acting through the Minister’s Deputies), each three days in duration. With the massive influx of new judgments in individual cases from the Court (some 1,500 such cases came in 2007), an average of some 2,000 cases are presently examined at each meeting at different stages of execution. In total, well over 7,000 cases are pending for execution control, relating to over 500 structural/systemic problems (requiring e.g. amendments of legislation, regulations or court practice – see more below). The other cases are either so-called “clone” or repetitive” cases or relate to very special, “one off ” problems not revealing any structural/systemic problem. Only one inter-State case is pending before the Committee – Cyprus v. Turkey.17 As a result of this situation, the credibility and efficiency of the Convention system today rests very much on the results of the Committee’s supervision of the proper execution of judgments rendered in response to individual applications. This aspect of the system will thus be developed at some length. Most of the time execution supervision is a cooperative task and aims at finding the measures which best meet both the national and the Convention concerns. The Committee has thus only on very rare occasions been called upon to really “enforce” the collective guarantee set up by the Convention (see more below). If it comes to a vote on substance, the Committee applies the majority provided for in Article 20d of the Statute of the Council of Europe, i.e. a majority of members entitled to sit, and two-thirds of those voting18. In performing the supervision of execution the Committee of Ministers is assisted by the Secretariat of the Council of Europe and in particular the special department for the 16 Examination of case also takes place outside these meetings, if necessary. The special human rights meetings were instituted in 1989 following the increase in the number of cases for decision under the old Convention or requiring execution control. 17 Judgment of 10 May 2001. See also the last interim resolution adopted by the Committee, Resolution DH(2007)25. When this update was written Georgia just submitted a complaint against Russia on account of the situations caused by the Russian intervention in August 2008. 18 Protocol 14 increases this majority for decisions to bring interpretation and infringement proceedings to two-thirds of those entitled to sit.
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execution of judgments of the European Court of Human Rights whose work has been compared with that of an “advocate” of the Convention interests. In the course of the execution process the Committee may adopt decisions and interim resolutions, notably to provide recommendations about appropriate execution measures, urge for the speedy adoption of reforms or highlight outstanding issues (see below).19 When there is agreement that all execution measures deemed necessary have been taken, the Committee will adopt a public resolution (available on the internet), summarising the relevant information. All Court judgments and Committee of Ministers resolutions related to the execution process are available on the Court’s HUDOC website available at <www.echr.coe. int/ECHR>.20 Other Committee texts (decisions, memoranda, press releases, etc.) are available on its website, accessible through the general Council of Europe website <www. coe.int>. Also the Committee’s new annual report on its supervision of execution can be found here (the first one was issued for 2007). The Committee of Ministers’ practice in execution matters General The increasing caseload and the calls for more efficient execution supervision over the last years has led to a number of important changes in the Committee’s powers and practice. The old rule of confidentiality was thus definitively abandoned through the adoption of the new rules in 2000. Experience demonstrated that efficient execution supervision required the possibility of an open dialogue with all State authorities concerned by a certain violation and not only the government. The Committee of Minister’s own working methods were modernised by the Norwegian Chairmanship in 2004. Respondent States are now e.g. expected to submit action plans for required reforms, including timetables for implementation, more rapidly than hitherto, i.e. not later than six months from the date a judgment becomes final. Guidelines for debates have also been issued by the Chair in order to save the Committee’s deliberation time for important issues.21 The new Protocol No. 14 has also given the Committee additional powers aimed at facilitating and strengthening its execution supervision. The Committee will thus be able to refer questions of interpretation of judgments to the Court (earlier this pos19 Compilations of interim resolutions and of the individual and general measures adopted by the States over the years are found on the special web site dedicated to the supervision of the execution of judgments of the Court, <www.coe.int/T/E/Human_Rights/execution/>. 20 Please note that resolution numbers should be entered in the “text” box in HUDOC and within citation marks, e.g. ‘(2005)8’. The resolution numbers should not be entered in the “case title” box. 21 The main elements of the new working methods and the guidelines are presented in document CM/Inf(2004)8 Final of 7 April 2004.
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sibility was open only to the respondent government and the applicant). The present competence of the Committee to deal with refusals to comply is also supplemented by a possibility to bring infringement proceedings before the Court – however, without any monetary or other sanction being attached to a finding of infringement. In order to better secure respect for friendly settlements, Protocol No. 14 also extends the Committee’s competence to control the respect of all such settlements, not just those taking the form of a judgment as before. This Protocol has, however, not yet entered into force because of delays in Russia’s ratification thereof. The reflections carried out in the context of the work on Protocol No. 14 and the proposals contained therein also led the Committee to request the Steering Committee for Human Rights (CDDH) in June 2004 to revisit anew the Committee’s rules for the supervision of execution. Revised rules were adopted by the Committee on 10 May 2006. To a considerable extent they confirm the previous ones and practices which had emerged. Most importantly, they provide for improved opportunities for civil society to participate in the execution process by submitting written observations directly to the Committee on execution issues. What is expected of respondent States in different situations is also highlighted in the five recommendations adopted by the Committee relating to the national implementation of the Convention and in the new recommendation regarding improved domestic capacity to execute the judgments of the Court (see above). As to the substance of the Committee’s control, it has not changed very much over the years. Execution supervision thus covers basically three aspects: the payment of any just satisfaction awarded (today exclusively by the Court) and, where necessary, the taking of further individual measures to remedy the consequences of the violation for the applicant and general measures to prevent future violations and stop ongoing ones. The scope of this control will be developed below. Control of payment Payment control has always been strict. Today cases come back on every human rights meeting until proof of payment has been submitted (usually in the form of an extract from the governments bank account, a receipt signed by the applicant or similar documentation). Despite strict supervision, payments are late for a number of practical reasons. Even if States accepted from the beginning to pay, as part of their execution obligations, default interest22 and even if the Committee, in the same vein, insisted on their obligation
22 Indeed, before 1996, when no provision on default interest had yet been introduced in the Court’s judgments, governments or other domestic authorities nevertheless paid default interest in the cases where payment was late. Information on this was also included in the respondent State’s report to the Committee of Ministers on the execution measures taken. Such interests were thus paid in the cases of Sporrong and Lönnroth v. Sweden, resolution DH(85)17); Delta v. France, resolution DH(91)31; Pine Valley v. Ireland, resolution DH(93)43; and Papamichalopoulos v. Greece, resolution DH(98)309.
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to safeguard the value of amounts due,23 there appeared to be considerable practical advantages in having the order to pay default interest already in the decisions/judgments ordering the payment of just satisfaction. Accordingly, on the initiative of the Chairman of the Committee of Ministers, the old Court and the Committee decided to introduce, as from January 1996, that all payment decisions contain an order to pay default interest after the expiry of the ordinary three-month payment deadline. Payment raises many difficult issues similar to those in any payment situation: what constitutes payment, what exchange rate applies, who bears the exchange rate and inflation risks in case money travels or payment is delayed, how can payment be made to an applicant who has disappeared, etc. This article will not attempt to provide any detailed answers hereto. A guide on the Committee of Ministers’ practice is, however, being prepared and a first part is available on its internet site.24 Even the mere payment of just satisfaction may have important political repercussions and cause serious execution problems setting in motion the collective guarantee provided by the Committee of Ministers. Major examples hereof are the case of Stran Greek Refineries and Stratis Andreadis v. Greece25 and the case of Loizidou v. Turkey.26 In both the Committee took a firm approach to execution and exercised important diplomatic and other pressure on the respondent States. Both were also a success as the payments in issue were eventually made. It may be noted that in the Loizidou case the Committee went as far as declaring its resolve to ensure compliance with all means available to the organisation, and calling upon the authorities of the Member States to take such action as they deemed appropriate to this end (Interim Resolution (2001)180). One may note that shortly afterwards the European Union Partnership agreement of 2003 also included respect of the judgments of the Court.27 Other individual measures Payment of a sum of money will not always provide adequate redress to the applicant and since the beginning other individual measures have also been part of the execution process. The reopening of judicial proceedings were e.g. part of the responses to the very first violations established by the Committee of Ministers under old Article 32 in the 1960s.28 However, the Committee of Ministers (under the old Article 32 procedure) and the Court have in general refrained from indicating what specific individual measures should be adopted, as this would interfere with the States’ freedom of choice as regards the execution measures required. It is thus normally for the State authorities concerned 23 This general principle has been expressly stressed by the Committee of Ministers in Stran Greek Refineries v. Greece, resolution DH(97)184. 24 See document CM/Inf/DH(2008)12rev. 25 Judgment of 19 December 1994. 26 Judgment on just satisfaction of 28 July 1998. 27 See Council decision of 19 May 2003, 2003/398/EC. 28 See resolution DH(63)2 in the Pataki and Dunshirn cases.
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to evaluate which measures best erase, to the extent possible, the consequences of the violation established and thus ensure restitutio in integrum. Execution supervision will only ensure that this result is achieved. As indicated above, the Court, initially, controlled itself whether necessary individual measures had been taken. It did so by separating the decision on the merits establishing the violation from that on just satisfaction. The procedure for awarding just satisfaction could then be used to identify and implement practical measures to erase the consequences of the violation. The results of the Court’s assessment of the appropriateness of the measures adopted would then be reflected in its subsequent judgment on just satisfaction. In the context of this procedure the Court and the registry could even to a certain extent influence the domestic authorities efforts to achieve redress.29 Since the mid 1990s the Court has in principle stopped exercising this competence and the supervision of individual measures is today almost exclusively carried out by the Committee of Ministers. Why the Court ceased is not entirely clear, but the radical increase of cases before it (supervising individual measures and rectifying shortcomings in the national measures adopted is time and resource consuming) and the problems linked with the separation of powers (exercising pressure on a recalcitrant State is not traditionally a judicial activity) may explain the change (see below). The Court’s standard practice today is thus to deliver its judgment on just satisfaction together with that on the merits. As a result, the judgment on just satisfaction will not fully address the question of redress and the question of individual measures is left to the States under the Committee of Ministers’ supervision.30 The Committee of Ministers examines in principle the progress achieved on the question of individual measures at each human rights meeting, i.e. today usually once every three months. Typical individual measures include: the reopening of judicial proceedings;31 measures of grace (totally lifting conviction or simply reducing sentences);32 the striking of 29 See e.g. the Piersack judgment (Article 50) of 26 October 1984. 30 This situation has advantages over and above those linked with procedural economy. In situations where it is not clear that the individual measures required are possible under national law, the political weight of the Committee of Ministers has, for example, proven an asset in ensuring that the necessary changes are introduced to allow for compliance with the Court’s judgment. See e.g. the Court’s vain expressions of dissatisfaction in the De Cubber judgment of 14 September 1987. A disadvantage, on the other hand, is that the Committee is not equipped to make any detailed assessment of the question of redress comparable to that possible before the Court, as evidenced, for example, in the Schuler-Zgraggen judgment of 30 January 1995 or Barbéra, Messegué and Jabardo just satisfaction judgment of 13 June 1994 . Sometimes, this shortcoming may be rectified through a second complaint to the Court. But this solution poses an important burden on the applicant. 31 See e.g. the Hakkar case, resolution DH(2001)4. 32 See e.g. the Neumeister case, 17 May 1974, where the president of the Federal Republic granted a pardon regarding the remainder of sentence to compensate for the excessive length of detention on remand; Weeks case, resolution DH(89)18, where the month following the delivery of the principal judgment, Her Majesty the Queen, on the recommendation of the Home Secretary, remitted the applicant’s life sentence by means of the Royal Prerogative; Bönisch
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convictions out of criminal records (often following the repayment of the fines imposed as part of the just satisfaction);33 the re-examination of questions of parental rights or visiting rights;34 the granting of residence permits or other permits, such as those to start a school35 or for registration of associations or churches;36 the destruction of information gathered by the police in violation of the Convention;37 the resumption of unsatisfactory criminal investigations into alleged abuses by security forces;38 or others depending on the circumstances of the case. It is worth noting that the Court has recently re-entered the “arena” in a new way as it has started, in certain cases, to provide indications on individual measures, notably by indicating that the re-opening of proceedings would, in general, be the best way to repair the violation established.39 How this new practice will develop and how it will relate to established State practices before the Committee of Ministers remains to be seen. For the time being there is little reference to these practices in the Court’s judgments. Even if the choice of the individual measures is today most of the time left to the national authorities under the Committee of Ministers’ supervision, there may be situations where there is really no choice: only one measure can rectify the violation established. This is for example the situation in cases of detention in violation of the Convention. In such situations, the Court has itself ordered the release – see for example Assanidze v. Georgia40 and Ilascu v. Russia and Molodova.41 The execution of the latter case is still, when this text was written early 2007, pending before the Committee of Ministers, notably as a result of the absence of Russian cooperation to ensure the liberation ordered by the Court of the applicants, prisoners that had been handed over by the Russian military to irregular “Transnistrian” separatists in 1992. The absence of implementation notably led the Committee to adopt four interim
33 34 35 36 37 38 39 40 41
case, resolution DH (87)1, where the president of Austria granted a pardon expunging the sentences and removed the applicant’s name from criminal records to compensate for unfair proceedings. See e.g. Marijnissen, resolutions DH(85)4; Jon Kristinsen, resolution DH(90)26; and Schwabe, resolution DH(94)23. See e.g. Görgülü v. Germany; a description of the present state of proceedings is found in the annotated agenda of the 976th meeting of the Ministers’ Deputies, available on the Committee of Ministers’ web site. Chahal case, pending awaiting other execution measures; Ahmed case, pending awaiting other execution measures; and Monica Paez, 30 October 1997. See e.g. Partidul Comunistilor (Nepeceristi) ad Ungureanu v. Romania, 3 February 2005, presently pending before the Committee of Ministers. See e.g. Amann v. Switzerland or Halford v. United Kingdom or Rotaru v. Romania – final resolutions pending; the information is cited in the public annotated agenda of the Committee of Ministers. See e.g. Egmez v. Cyprus, resolution DH(2006)13. See e.g. the case of Gencel v. Turkey, 23 October 2003 and Stoichkov v. Bulgaria, 24 March 2005. See judgment of 8 April 2004. See judgment of 8 July 2004.
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resolutions on the matter.42 After the release of the last applicants in June 2007, they lodged a new complaint to the Court as a result of the prolongation of their unlawful and arbitrary detention. In its subsequent interim resolution43 the Committee decided to suspend its further examination of the case and to resume it after the final determination of the new application by the Court. It should be noted that the responsibility in question in this case only concerns the fate of the individual applicants, just as in any kind of expulsion case, and that there has never been any question of any responsibility on the part of the respondent States for the general situation in the territory of reception. General measures to prevent new violations The obligation of the State concerned to abide by the judgments of the Court has also since the beginning of the Convention system been considered to include general measures notably to prevent new similar violations or stop ongoing ones (changes of legislation, case law, administrative practice, etc.). Also this obligation is one of result and the respondent State has a large margin of appreciation, under the Committee’s supervision, to choose the means best suited to meet it. The precision of this obligation, crucial for the effectiveness of the Convention system, is intimately linked with the coherence of the Court in its decision-making. Governments are unlikely to engage in extensive reforms in response to a specific judgment if it is uncertain that the judgment really represents a firm position on the part of the Court. Ensuring the continuation of the coherence of case law, which so far has allowed the Committee to request general measures even after a single judgment, appears today to be a major challenge for the Court in view of the increasing number of sections and cases to be decided. Following the presentation of a new judgment to the Committee of Ministers, the question of general measures is, in principle, pursued at intervals not exceeding six months.44 Identifying what general measures are required is not always easy. This requires both a good knowledge of the Convention requirements and of the domestic situation at the basis of the violation. Just as with individual measures, the identification is in general made by the domestic authorities in accordance with the principle of subsidiarity. The Committee will mainly supervise that the measures proposed are apt to prevent new violations and that they are rapidly implemented. Even if the Court, as the former Commission under old Article 32, has always provided indications about the domestic legal or other situations at the basis of the violations,45 42 43 44 45
The last being interim resolution (2006)26. Interim resolution (2007)106. See Rule 2 of the Committee’s Rules for the Application of Article 54. See e.g. the Belgian linguistic case in which the Court held in 1968 in the operative provisions of the judgment that the Belgian law at issue was in violation of the Convention. More usually, relevant domestic law is reproduced in the “As to the Facts” part of the judgment, with possible comments in the “As to the Law” part.
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efficient execution supervision has often required additional fact finding. This has often resulted in considerable work before the Committee to establish the scope and nature of the root causes of violations. In order to facilitate execution, the Committee formally asked the Court in May 2004 for better assistance in identifying systemic problems.46 In response, the Court has attempted to provide more precise indications as to the origins of the violations established, and has also started a so-called “pilot” judgment procedure to prevent the Court from being flooded with complaints related to specific systemic problems. The first case in which this procedure was applied was the Broniowski case.47 Under this procedure the Court undertakes a more thorough investigation of the origins of a perceived systemic problem. Most importantly it may freeze all other related cases awaiting the solution of the problem and order the setting up of effective domestic remedies capable of providing redress to all victims. Victims thus do not have to go before the Court itself to obtain justice. The Committee of Ministers has also itself in recent years increasingly stressed the necessity of rapid action in order to create effective domestic remedies in case of important systemic problems.48 However, the Committee has so far not ordered a State to create such remedies; it has only recommended their adoption.49 The “pilot” judgment procedure has to some extent also been used by the Court to control the efficiency of the general measures adopted in the “pilot” case itself. The approach is to separate the just satisfaction issue from the merits and use the separate Article 41 procedure to examine the effectiveness of the reforms adopted. The Court’s conclusions will then be made public in its judgment on Article 41. This procedure raises sensitive questions both of substance and of procedure as the Court here goes beyond its traditional judicial role. It has thus so far been used very cautiously by the Court.50 Legislative and regulatory changes Legislative reforms will in a number of situations be the only way to prevent new violations, e.g. when the interference in the applicant’s rights lacks a legal basis, or when it is firmly enshrined in the legislation itself. The need for legislation has to be examined, however, in the light of the possibility of changes of case law and practice (see also the following section). Because of the usually “heavy” procedures involved in legislative work, it is often difficult and time consuming to change adopted laws. The Committee will, accordingly,
46 See resolution (2004)3 on judgments revealing an underlying systemic problem. 47 Broniowski v. Poland, judgment of 22 June 2004 (merits) and 28 September 2005 (just satisfaction). 48 Interim resolution DH(2006)27 on judgments by the European Court of Human Rights concerning issues of reforestation and violations of property rights in Greece. 49 See notably Recommendation Rec(2004)6 on the improvement of domestic remedies. 50 See e.g. the Article 41 judgments in the above mentioned Broniowski v. Poland or XenidesArestis v. Turkey, 7 December 2006.
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normally ensure that it is informed already of draft legislation so as to be able to provide warning signals at an early stage of the legislative process.51 The Committee of Ministers usually presupposes that adopted laws are also implemented. Experience demonstrates, however, that a certain control of implementation may be necessary. For example, in the Sargin and Yagçi resolution of 199352 and in the Erdagöz resolution of 1996,53 the Committee took note of a number of important legislative and regulatory changes aimed at preventing torture in Turkey. The fact that this legislation did not effectively prevent torture became, however, rapidly evident from a number of sources, notably new cases and the public statement on Turkey made in December 1996 by the Committee for the Prevention of Torture.54 Further action became necessary. The subsequent follow-up is evidenced notably by three interim resolutions taking stock of progress achieved and main outstanding questions, the last adopted in 2005.55 The problem of length of proceedings in Italy reflects the same problem. In response to a series of findings of violations starting in the end of the 1980s, the Committee, in its first resolution of 1995,56 took note of a number of procedural changes and a new law creating 5,000 new posts of justices of the peace. An attempt to supervise efficiency was made in that the Committee also supervised the actual appointments of most of the judges. These measures proved, however, insufficient, and the Committee started in 2000 to supervise more in-depth the progress made on the basis of yearly reports including extensive statistical material.57 As these measures have also eventually proven insufficient, the Committee is currently engaged in a new dialogue with the Italian authorities. In its latest interim resolution of February 2007,58 the Committee urged the Italian authorities at the highest level to hold to their political commitment to resolve the problem and invited the authorities to undertake interdisciplinary action, involving the main judicial actors, co-ordinated at the highest political level, with a view to drawing up a new, effective strategy. The Committee is, however, not so well equipped to supervise the real effects of norms enacted and depends to a great extent on the information submitted by the respondent State. The Committee’s Rules of Procedure do not provide for any onsite visits or hearings of witnesses. Other sources of information do, however, exist, for example in the form of information provided by the other Contracting Parties or by the other Council of Europe organs (Committee for the Prevention of Torture, Commission for the Efficiency of Justice, Human Rights Commissioner, Parliamentary Assembly). 51 52 53 54 55 56 57 58
See e.g. the interim resolution in the case of the Metropolitan Church of Bessarabia v. Moldova, resolution DH(2006)12. Resolution DH (95)99. Resolution DH(96)17. Available notably on the Torture Committee’s web site <www.cpt.coe.fr>. See interim resolutions DH(99)434, DH(2002)98 and DH(2005)43. See resolution DH(95)82. See resolution DH(2000)135 and subsequent yearly reports. Interim resolution (2007)2.
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Other information in the public domain may also be taken into account, notably from the United Nations (e.g. the Secretary General’s reports on Cyprus). The recent changes to the Rules improving civil society’s possibility to submit information may also prove of great value. Changes of case law or practice Violations can often be rectified without legislative action. Many violations originate in the practice of domestic courts and authorities, for example when these apply legislation with general or vague clauses (e.g. an oral hearing shall be held “if necessary” or a journalist may be called upon to reveal his sources if this is “in the interest of justice”). In execution practice today, both the Committee of Ministers and respondent governments rely very much on the presumption that domestic courts and authorities will for the future adapt their interpretation of the domestic law to the case-law of the Court – i.e. that they will give what is usually called direct effect to judgments of the Court – so that legislative action will not be required. A first prerequisite for this direct effect is that the national courts and authorities and those pleading before them are well aware of the Court’s judgment. The Committee, accordingly, regularly requests information on the publication and dissemination of the judgments, where necessary translated into the language used in the respondent State and accompanied by explanatory notes. Other prerequisites include a legal doctrine stressing the domestic courts’ and authorities’ obligation, within their respective competences, to effectively apply also the Strasbourg case law. Here governments can lift any doubts which may exist as regards their position on the matter by clearly recording in resolutions and decisions adopted by the Committee that they expect, or count on, the domestic courts/ authorities to execute the Court’s judgments by giving them direct effect.59 Such statements also lift any uncertainties which may exist as to whether or not the direct application of the Court’s judgments could imply an interference with foreign policy, an area otherwise mainly reserved for the executive. The Committee of Ministers often intervenes in this process to add its support for the development of direct effect. Today, the governments of most countries have submitted evidence that domestic court and authorities are willing to grant direct effect to the Court’s judgments. If the violation has occurred as a result of clear national legislation, a change of the relevant legislation may be the only remedial action possible. In countries having incorporated the Convention on supra legal level the problem may, however, frequently be solved as a mere problem of conflict of laws with the superior law, i.e. the Convention, prevailing. The courts of a number of countries have, accordingly, demonstrated their capacity to set aside provisions at the basis of violations established by the Court. This
59 See e.g. Akkus v. Turkey, resolution DH(2001)71.
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has for example occurred in cases involving the Swiss,60 French,61 Turkish62 and Dutch courts.63 Complex measures Even if both States and the Committee of Ministers attempt to have general measures adopted as soon as possible in order to avoid new violations of the Convention, it is sometimes difficult to reach the root causes of violations and elaborate efficient measures. Implementing more complex measures may also be time consuming. The Committee is presently seized with an increasing number of cases requiring complex coordinated action between different State authorities – legislative, executive and judiciary. In some situations efficient implementation may also profit from coordination with international bodies and organisations. The Committee of Ministers is thus seized, for example, with: the issue of prison conditions in Russia and a number of other States;64 massive non-execution of domestic court judgments in Russia and the Ukraine – to some extent also in Moldova;65 questions relating to the actions of security forces in Russia,66 Turkey67 and in the United Kingdom (Northern Ireland);68 a number of aspects of the Cyprus problem;69 and a 60 61 62 63 64 65 66
67 68 69
See e.g. E. L., R. L. and J. O.L. v. Switzerland, resolution DH(2005)3. See e.g. Mazurek v. France, resolution DH(2005)25. See e.g. Öcalan v. Turkey, resolution DH(2007)1. R.V. v. Netherlands, resolution DH(2007)86. See Kalashnikov, 15 July 2002, final on 15 October 2002, interim resolution DH(2003)123. See e.g. the conclusions of the round table organised in Strasbourg on 27–28 November 2006, reproduced in CM/Inf/DH(2006)45, available on the Committee of Ministers’ web site. See notably the memorandum by the Department for the execution of the judgments of the European Court of Human rights, CM/Inf/DH(2006)32, published by the Ministers Deputies at their meeting on 17–18 October 2006, available on the Committee of Ministers’ web site. See notably interim resolutions DH(2005)43, DH(2002)98 and DH(99)434. See notably the memorandum prepared by the department for the execution of the judgments of the European Court of Human Rights, CM/Inf/DH(2006)4 revised 2, available on the Committee of Ministers’ web site. See e.g. Cyprus v. Turkey, 10 May 2001, raising a series of issues regarding the problem of missing persons, the rights of the enclaved Greek Cypriots, the rights of Turkish Cypriots and the rights of displaced Greek Cypriots. See also Djavit v. Turkey, 20 February 2003, interim resolution DH(2005)44, concerning freedom of movement to the South and the effectiveness of available remedies; Adali v. Turkey, 31 March 2005, regarding ineffective investigations into the killings of a well known writer and the absence of effective domestic remedies; Kakoulli v. Turkey, 22 November 2005, regarding the killing of a Greek Cypriot by Turkish boarder guards and the absence of adequate investigations; Selim v. Cyprus, 16 July 2002, resolution DH(2003)49, regarding discriminations of Turkish Cypriots with respect to their right to marry; Aziz v. Cyprus, 22 June 2004,regarding a discrimination of Turkish Cypriots as regards their right to vote; Egmez v. Cyprus and Denizci v. Cyprus, 21 December
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number of important problems concerning excessively long judicial proceedings, notably in Italy70 and Poland.71 Importance of execution beyond the respondent State Whilst a primary purpose of the execution process is clearly to provide redress to individual victims of violations of human rights, this process, and in particular the general measures aspect thereof, also serves other purposes of great importance. In the period of European reconstruction following the dissolution of the Soviet Union, the efficiency of the Committee’s supervision has thus, as already stated in the introduction, been considered an important contribution to the trust between nations essential for democratic stability and good inter-governmental cooperation.72 This contribution is notably illustrated by the many hundreds of reforms adopted by respondent States, under the Committee’s supervision, to ensure that national situations are aligned with the Convention requirements. The authority thus given to the Convention system also helps to ensure that these requirements serve as guide for other national reforms affecting human rights and fundamental freedoms. The execution process also helps States to share experiences in addressing more complex national situations in violation of the Convention. Such exchanges are facilitated already by the collective supervision procedure and the accompanying documentation, but exchanges may also take place at special seminars or meetings73. The Convention’s confidence building capacity is of particular importance in situations of conflict. This potential is illustrated by the different cases regarding Cyprus as these have led to the abolishment of different situations of discrimination against both Greek Cypriots and Turkish Cypriots and have also led to the establishment of more effective remedies for human rights violations in both parts of the island. It is hopefully not vain to expect that such reforms contribute to a more trust inspiring climate between the two communities. The Cyprus cases also illustrate the important connection which may exist between the Committee of Ministers’ execution supervision and other organisations and the need for a coordination of approaches to avoid contradictions and profit from possible synergies of action. The question of missing persons in Cyprus, for example, a central theme in the case of Cyprus v. Turkey, has thus important links with the United Nations
70 71 72 73
2000 and 23 May 2001, respectively, resolution DH(2006)13, regarding serious shortcomings in criminal investigation into abuses by security forces. See notably interim resolution DH(2005)114. See e.g. the Podbielski group of 121 cases; see for details the annotated agenda of the Ministers Deputies of the 982nd meeting on 5–6 December 2006, available on the Committee of Ministers’ web site. See e.g. the foreword of the Chairs of the Committee of Ministers to the Committee’s first annual report on its execution supervision (2007). See e.g the regional seminar on the Round Table on non-enforcement of domestic courts decisions in member states in Strasbourg, in June 2007 or the Round Table on control of action of security forces held in Moscow in July 2007.
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efforts on the same issue. Similar links with the United Nations indeed exist for most issues raised in the other Cyprus cases cited above. Today, connections extend also to the work of the European Union. Many cases before the Committee are also connected with the functioning of the European Union and the implementation of European Union law.74 This interdependence and the need to avoid contradictions are important considerations underlying the proposal, both in the old Constitutional Treaty and the new Lisbon Treaty that the European Union formally join the Convention system. Important links with the European Union exist also in the supervision of the execution of all cases decided by the Court against States which are candidates to the European Union as the execution requirements under the Convention also form part of the “acquis”, the respect of which is controlled, notably by the Commission, in order to assess whether the candidate States meet the admission criteria.75 An overview of the achievements made in the different cases pending before the Committee of Ministers, notably illustrating the above points, is made in the Committee’s new annual report, the first of which was published in March 2008 and related to the situation in 2007. Concluding remarks This article has focused on how the authority and success of the Convention system has been linked to the special procedures set up, and how these procedures have developed to meet changing needs. The focus has been the Committee of Ministers’ supervision of execution. It has attempted to stress how efficient execution not only ensures that each and every Court judgment is transformed into concrete remedial action in the respondent State, but also provides important “spin off ” effects, and contributes thus to respect in general for all Convention requirements in all Member States. Besides the Committee’s successful insistence on full execution of every judgment, its promotion of the direct effect of the Convention and of the Court’s case law is perhaps one of the Committee of Ministers’ most important contributions to the Convention system’s success. Direct effect ensures that not only legislators, but indeed all domestic decision-makers, take seriously the European dimension of their decisions and align, within the limits of the Convention requirements, their practices with those of their neighbours. It also provides strong national bastions against attempts to limit unduly human rights protection in the face of different perceived threats, be they linked with 74 The question of the right of the population of Gibraltar to stand for elections and to vote for the European Parliament was a central theme in Matthews v. United Kingdom, 18 February 1999. The freedom of expression of members of the European Parliament was a central theme in Piermont v. France, 27 April 1995, and the question of the enforcement of domestic judgments implementing European Community obligations came up in Hornsby v. Greece, 19 March 1997. Many cases also deal with the national implementation of EU obligations, e.g. Procola v. Luxembourg, 31/8/1995 or Cantoni v. France, 22/10/1996. 75 See e.g. the regular country reports presented by the European Commission.
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terrorism, refugees, environment, the fight against serious crime, or others. In addition, by contributing greatly to the efficiency of domestic remedies, in particular those before the courts, direct effect also appears to be a major avenue for limiting the caseload of the Court. The success of the Committee of Ministers action appears closely linked to the stability and coherence of its practices over tim. This stability may at first appear surprising considering the Committee’s political composition and the major repercussions of certain cases. A good number of reasons over and above the general persuasive force of established practices may here play a role. An important explanation would appear to be the importance governments and other domestic authorities have attached to the Convention system as a tool for providing security and stability in Europe on the basis of democracy, human rights and the rule of law. The expressions hereof are multiple: One is the importance attached to the efficiency of the supervision of judgments based on the ordinary individual complaints procedure, the main theme of this article. Another relates to inter-State complaints.76 These have made important contributions to the definition and organisation of State responses to major political events in Europe threatening these values, such as the military coups in Greece in 1967 or in Turkey in 1980. Acceptance of the Convention system (together with Council of Europe membership) have also been a self-evident element of the of the restructuring of governments after the end of totalitarian/authoritarian regimes, perhaps most importantly after the dissolution of the Soviet Union,77 or after the end of military and political struggles.78 Other explanations would appear linked to the importance for governments to have a “clean” human rights record, including proven respect for the individual rights protected by the Convention, to safeguard their legitimacy, both domestically and in international relations. 76 Some 20 such complaints have been lodged. Only one such case, Cyprus v. Turkey, regarding a number of questions relating to the Cyprus issue, is presently pending before the Committee of Ministers. Today, perhaps because of the importance of the control carried out as a result of the mass of cases brought by individuals and the extensive control this entails and because of the absence of any major threat to the fundamental values protected by the Convention in any contracting State, such complaints are absent. 77 Thus, Greece, Portugal and Spain rapidly signed (or in the case of Greece, re-ratified) the Convention after their return to democracy, and Turkey, who never left the system because of the rapid stepping down of the military after the coup in 1980, reinforced its engagements by accepting the right of individual petition shortly after the return to democracy in 1985. All new governments emerging after the dissolution of the Soviet Union also rapidly sought admittance to the Council of Europe and accepted also to ratify the Convention. Indeed, respect for human rights was also a criterion for the recognition of new States. 78 For example, in the context of the creation of Cyprus in 1960 where respect for rights similar to those of the Convention rights was inscribed as part of the Treaty of Establishment, or in the Balkans where respect for the Convention was part of the Dayton Accords of 1995. Also, the work of the international ombudsman in Kosovo 2000 to 2005 merits mentioning in this context.
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Also the importance of the Convention for the development of the European Communities/Union has in all likelihood played a role. Special mention might also be made of the advisory assistance provided by the Council of Europe’s permanent secretariat, acting both as an institutional memory of past practices and solutions to different problems (indeed the secretariat possesses a wealth of information on good responses to recurrent problems of government) and as an advocate of the Convention interests before the Committee of Ministers. Even if the coherence of the Committee’s practice is an essential element of the credibility of the system, coherence is not enough. As hinted throughout this article, the Convention system has been suffering from a constant increase in individual cases brought before the Court – and thus also before the Committee. Credibility also requires efficiency. Efficiency is presently hampered by “clone” or “repetitive” cases, many of which come before the European judge merely because of delays or negligence in the adoption of the necessary reforms, or because of the absence of any domestic remedy capable of providing, with sufficient retroactive effect, reparation for violations already committed. Sustained actions to guarantee the long-term effectiveness of the Convention system are thus required.79 Reinforced execution supervision to come to grips with situations of delay or negligence in execution is part of the responses. Connected hereto is a further reinforcement of the direct effect of the Convention. If domestic courts in all Contracting States really developed to be the main protectors of the rights guaranteed, leaving only difficult questions of interpretation to the European level, much would be achieved. The Committee’s efforts to promote this direct effect and to ensure the effectiveness of domestic remedies are thus of great importance. On a more general level the need for further synergies is more and more apparent, whether in the relations between different Council of Europe organs or with the European Union, the Organization for Security and Co-operation in Europe or the United Nations. Coherence is evidently of primary importance from the execution perspective – execution becomes highly difficult if States receive conflicting messages from different bodies and/or organisations.80
79 A formal declaration to this effect was also adopted by the Committee on 19 May 2006. In this, the Committee stressed anew that respondent States must execute fully and more rapidly the judgments of the Court; reiterated its call to all Member States to implement speedily and effectively the five recommendations regarding the national implementation of the Convention; encouraged Member States to make full use of the possibility to request Council of Europe assistance in this respect; welcomed in this connection the upcoming examination within the Council of Europe Development Bank of ways and means to assist in providing such assistance; and invited all Member States to take an active part in a new European Programme for Human Rights Education. The Ministers also gave a number of more detailed instructions to their Deputies, notably stressing the need to intensify their action to improve and accelerate the execution of the Court’s judgments, inter alia, by carrying forward practical proposals for the supervision of execution of judgments in situations of slow or negligent execution. 80 In the search for synergies it appears of great importance to safeguard the Committee of Ministers ultimate competence in execution matters as only the Committee has the neces-
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Reflections on further efforts to improve the Convention system are ongoing in a number of fora, notably through a series of seminars organised by the Chairs of the Committee of Ministers and through the reflections carried out by the governmental experts in the Steering Committee for Human Rights. Despite the current problems, the results achieved under the Convention system make it difficult to reach any other conclusion than the following: the European experience of a collective guarantee for some of the rights contained in the Universal Declaration is encouraging and demonstrates something important also at the global level: the human rights approach of the Universal Declaration in order to improve freedom, justice and peace in the world is not an idealist dream. Results require, however, time, commitment and good procedures.
sary legitimacy and procedures to guarantee a coherent, non-discriminatory approach to execution supervision.
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The European Court of Human Rights – Past, Present and Future: An Introduction to the Strasbourg Court Elisabet Fura-Sandström*
This chapter is envisaged as an introduction to the European Court of Human Rights in Strasbourg. The format does not allow a detailed analysis of the European system of protection of human rights nor an exhaustive listing of relevant aspects. Instead I have chosen to focus on some of the factors I believe will help understand how the system works, with its “unique selling points” as well as its flaws. Hopefully it will facilitate familiarity with some of the key features of the Court and the Convention it applies. Background on the Convention Recently the importance of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) was highlighted in the following terms: “the Convention must continue to play [a central role] as a constitutional instrument of European public order, on which the democratic stability of the Continent depends” (Declaration of the Committee of Ministers of the Council of Europe, 12 May 2004). It is because of its pan-European dimension that the Strasbourg system provides the only framework within which it will be possible to develop a common European conception of human rights. The history of the Convention has been one of expansion and success; a compulsory right of individual petition to an independent Court doing away with earlier optional features and a wholly judicial system for the protection of human rights; a geographical expansion across Western Europe to Central and Eastern, Baltic and Caucasian Europe and Turkey; an expansion of the guarantees of the Convention through an evaluative case-law and Additional Protocols; a confirmation of the Court’s central place in the European constitutional architecture through the planned, but unfortunately delayed, accession of the European Union to the Convention. But the Convention was not drafted with such a success in mind, which is why amendments have been made, and are still being made, on a continuing basis. *
Judge at the European Court of Human Rights. Any views expressed in this chapter are the author’s and do not bind the Court.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 487-492.
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In the aftermath of the atrocities of the Second World War, the Convention was drafted in a remarkably short time. Of course, the drafters had the benefit of the United Nations Charter which had been adopted just a few years earlier and which recognised that it was a matter of international concern how a State treated its nationals. This was the beginning of the introduction of international human rights enforcement mechanisms, which the Council of Europe became a part of. But the founding fathers (there were no mothers) of the Convention did not satisfy themselves by merely copying the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948 but foresaw the need for a control mechanism and thus created the Commission and the Court. The Court, as we now know it, has been functioning since November 1 1998 and at present (September 2006) there are 46 States Parties. Once the Court has adopted a judgment, it is for the Committee of Ministers of the Council of Europe to supervise its execution. The basic driving force behind this drafting work was prevention. The human rights violations of the Parties had to be avoided in the future and the individual had to be protected from totalitarian regimes. Thus the Convention also contains civil and political rights in addition to the more fundamental rights to life and freedom. Solidarity and subsidiarity The key principles of the Convention are solidarity and subsidiarity. In undertaking to protect the rights listed in the Convention in their domestic legal orders, the Contracting States have declared their solidarity with the system as such as well as with the values underpinning it. The principle of subsidiarity means that the European Court of Human Rights is neither a fourth instance nor a replacement of the domestic courts or institutions. Its task is to control, in the cases brought before it, that the domestic legislation and practice of the respondent State is compatible with the Convention. Looking at it from the perspective of the individual bringing a complaint before the Court, it means that she or he must exhaust all domestic remedies provided for in the national legal order prior to filing the application in Strasbourg. Failing to do so will in most cases lead to the complaint being declared inadmissible. This is to allow the respondent State the possibility of rectifying the violation, if there is one. The Convention and the additional protocols describe a minimal standard that all signatory States must live up to, but there is nothing preventing them from doing better. Article 1 of the Convention demands of the Contracting States not to infringe or interfere with the rights of the Convention, often referred to as the negative obligation of the State. Furthermore the States have a positive obligation to ensure that these rights are guaranteed to all persons under their jurisdiction. The Contracting States can also be liable for violations of the rights guaranteed within their jurisdiction by private persons. It is for the respondent State to show that it has fulfilled its positive obligation by having adequate laws in place to protect the individuals from infringement of their rights. In some exceptional cases, the Convention can be described as having an extraterritorial effect in the sense that its application will depend on facts and have certain effects outside the jurisdiction of the respondent State. Thus, the guarantees laid down in Articles 2 and 3 will prevent a Contracting State from expelling a person to another
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State where there is a serious danger that his rights will be violated. It follows from generally recognised rules of international law that the Convention only governs for each Contracting State those facts which are subsequent to the date of its entry into force with regard to the State in question. This principle of non-retroactivity applies also in relation to the amending Protocols. Principles of interpretation The reader of the Convention will soon discover that the wording of its articles is rather general and has to be interpreted to be applicable to real-life situations. The general rules of international law on the interpretation of treaties apply, and more specifically the Vienna Convention on the Law of Treaties of 23 May 1969 (Articles 31 to 33) should guide the Court when interpreting the Convention. Each article should be interpreted in accordance with its wording, i.e. the ordinary meaning of the words has to be sought, but in such a way that the Convention as a whole makes sense. In other words, the interpretation of articles of the Convention “must be in harmony with the logic of the Convention”. The preparatory work of the Convention (travaux préparatoires) can be of some guidance, but must be used with caution. Reference is rarely given to these works in the judgments or decisions of the Court, whereas reference to case-law is all the more frequent. The Court has often held that the Convention must be interpreted in a dynamic way, allowing for the development in society to have an influence. Thus several principles of interpretation have been developed in the case-law of the Court (and previously the Commission) such as, but not limited to, the margin of appreciation, the autonomous meaning of terms and the principle of proportionality. In summary, the Convention must be interpreted in an objective and dynamic manner as it is a living instrument, but at the same time the text as such has to be respected. Protected rights The rights protected in the Convention and its Protocols are traditional civil and political rights. Even though there is no formal ranking of rights in the Convention itself, the Court has in its case-law established that a distinction can be made between qualified and unqualified rights. Unqualified rights are to be found in Articles 2, 3, 4, 5, 6, 7, 12, 13 and 14 of the Convention. The Additional Protocols also contain unqualified rights such as the complete prohibition of the death penalty in Protocol 13. Thus, the right to life safeguarded in Article 2 of the Convention sets out the circumstances when a deprivation of life may be justified and ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which a deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for
See for example Bancovic and Others v. Belgium and 16 Other Countries, decision of 12 December 2001, para. 35. See Leander v. Sweden, judgment of 26 March 1987, Series A, No. 116, para. 78.
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the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective. Qualified rights exist when the Convention identifies a right but indicates that a State has the right, or even the obligation, to infringe upon it in order to safeguard other specified interests. The right to respect for family and private life in Article 8 belongs to this category together with the rights specified in Articles 9, 10 and 11 of the Convention along with Article 1 of Protocol 1. Thus Article 10, safeguarding the freedom of expression, clearly states that this freedom may be subject to conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society but only in so far as they are justifiable to protect certain other interests as specified in the Article (see Article 2(2)). Likewise the right to a family life laid down in Article 8 may be infringed upon if it is necessary to protect the interests of the child. Quite often the Court has to deal with cases where protected rights are in conflict with each other and a balance of the different interests involved has to be achieved. This is a delicate task and a description of how it was approached in the context of a case on freedom of the press and the right to private life can be found in von Hannover v. Germany. Finally, it has to be noted that the applicant must be personally a victim of the alleged violation as a prerequisite to bring a complaint. The Court will not deal with a complaint in abstracto, and the matter must still be unresolved for the individual applicant when the Court deals with the complaint. The current situation and the need for reform It has often been said that the Court is a victim of its own success and, in many ways, this is a true description of the current situation. To put it in positive terms, the unique success the Court has known, together with the enlargement of the Council of Europe and the accession to the Convention of the Central and East European democracies, has contributed to the stability of Europe. At the same time it has made reforms of the system necessary and urgent. The system for the protection of human rights and fundamental freedoms was simply not created for 46 signatory States with over 800 million citizens. The influx of applications is constantly growing, as the Convention and the Court become better known, and the backlog of cases before the Court is growing at a worrisome speed. The Court has constantly refined its case-processing management and techniques and the productivity has increased remarkably as a result. In approaching the problem of how to manage the ever-increasing caseload different philosophies can be adopted. If one wants to safeguard and maintain the individual right to access the Court, which is indeed regarded as one of its unique features, perhaps the introduction of a filtering body allowing the Court to be more selective in the cases which it will
See McCann and Others v. United Kingdom, judgment of 27 September 1995, Series A, No. 324, pp. 45–46, paras. 146–147. Judgment of 24 June 2004, paras. 58–81. See Pisano v. Italy, 36732/97, paras. 38–39. For further reference and statistics, see the Court’s website <www.echr.int>.
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examine on the merits and in depth would be necessary. In any event there seems to be a common understanding that the cases will not stop arriving in large numbers until the day the States themselves improve their domestic remedies. Much has been done already in this domain, but ideally the Court should not have to deal with repetitive cases if proper remedies are in place in each of the Member States. Recently the Court has adopted some judgments where it has not been left open what kind of remedy the violating State should use. In the controversial judgment Broniowski v. Poland the Court abandons its previous restraint in merely stating that there has been a violation but goes further indicating a precise remedy. Some of the critics argue that this goes beyond the actual mandate of the Court since it is the Committee of Ministers that supervises the execution of judgments. They have voiced the concern that the Court has become too political and is threatening democracy. In the additional Protocol No. 14, currently in the process of ratification, a reform package is outlined which will allow the Court to process the cases more speedily. For example, some decisions on admissibility will be taken by a single judge assisted by a rapporteur instead of a committee of three judges, as is currently the practice. Furthermore, a new admissibility criterion will be introduced according to which the applicant must have suffered a significant disadvantage in order to have his case examined by the Court. These reforms will certainly help, but they do not provide a sustainable solution to the problem. To address this issue a group of Wise Persons was set up by the Committee of Ministers in May 2005. The group is to consider the long-term effectiveness of the Court control mechanism, including the initial effects of Protocol No. 14. In its interim report submitted in May 2006, the wise persons identified on a provisional basis some areas for possible reforms, such as but not limited to: – making the system more flexible as regards the conditions for reforming it, – extension of the duties of the Commissioner for Human Rights, – judgments of principle, – forms of cooperation between the Court and the national courts, – decentralisation, and – translation and dissemination of the Court’s case-law. It goes without saying that no system is so good that it cannot be improved. If potential applicants were better informed about the scope of the protection under the Convention and, even more importantly, the limitations of it, large numbers of unmeritorious applications would not take up the valuable time of the Court. It has been discussed whether it is wise to maintain a system where anyone can complain without paying a filing fee and without legal representation. Moreover, the applicants can file their complaints in any of the official languages of the Member States and correspond with the Court up to the stage of admissibility in 33 different languages. When the system becomes overburdened with cases, the risk is that substantial violations will not be dealt with within a
See Broniowski v. Poland [GC], No. 31443/96, ECHR 2004‑V, paras. 193–194. 116th Session of the Committee of Ministers (Strasbourg, 18–19 May 2006), Interim report of the Group of Wise Persons to the Committee of Ministers, Document CM(2006)88, <www.coe. int/t/cm>.
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reasonable time and new legal issues cannot be addressed properly, which is necessary if the Court is to develop its case-law in new areas in order to maintain the Convention as a truly living instrument, relevant today for the people living in the Member States. In conclusion, it seems that the system has reached a crossroads. The time has come for the Europeans to decide what they want the Court to do. What should be the future of the Court? Should it be a complaints body or a sort of European constitutional court? Some very delicate and difficult choices will have to be made, and it will take courage to address the matter without further delay.
44 The European Convention for the Prevention of Torture Eric Svanidze*
Origins The prohibition of torture and cruel inhuman or degrading treatment or punishment has emerged as a norm of customary international law with peremptory status or jus cogens, notwithstanding the very wide Sate practice in all regimes of the world. Although the norms of hard law and soft law are clear, there is a serious problem of enforcement. Bearing in mind the ineffectiveness of norms alone to stop the practice, monitoring mechanisms had to be devised. However, the specificity of the phenomenon of torture and alarming state of affairs concerning the observance of the corollary erga omnes obligation made it obvious that a specific response was required in addition to these standard international tools. The initiative to fight torture by means of visit-based instruments is linked to the name of retired Swiss banker Jean-Jacques Gautier, founder of the Swiss Committee Against torture (SCAT). He placed his emphasis on routine visits conducted in a spirit of mutual assistance and collaboration, prevention, possibility of swift action and creation of a nucleus of committed States instead of dramatic inquiries with “quasi-judicial” accusation of States. Corresponding proposals were forwarded during the drafting of the United Nations (UN) Convention Against Torture (CAT) that took place in the *
Council of Europe Human Rights Expert, Georgia; former Head of the Internal Department of the Prosecutor General’s Office, Georgia. Universal Declaration of Human Rights of 1948 (Article 5); International Covenant on Civil and Political Rights of 1966 (Article 7); United Nations Convention Against Torture of 1984; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by UN General Assembly in 1975; The European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (Article 3); American Convention on Human Rights of 1969 (Article 5); Inter-American Convention to Prevent and Punish Torture of 1985; etc. J.-J. Gautier, ‘The Case for an Effective and Realistic Procedure’, in International Commission of Jurists, Torture: How To Make The International Conventions Effective (Geneva, 1980).
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 493-502.
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mentioned period. However, under the auspices of the UN this approach did not gain immediate support and was deferred. Within Europe the problem of combating torture along with related forms of illtreatment has been dealt primarily under the auspices of the Council of Europe. By the time to which one can trace the origins of the idea of linking a visit-based principle to the problem of enforcement of the prohibition of torture, both the European Commission and the Court of Human Rights were already exercising their powers in respect of inter-State and individual applications concerning Article 3 of the European Convention on Human Rights (ECHR). However the necessity of additional tools to this a posteriori judicial control as well as the attractiveness of the proposed model and the slow developments within the United Nations inspired the Council of Europe to institute its own regional system. Explicit commitments in respect of the maintenance and further realisation of human rights and fundamental freedoms and the comparatively consistent policy followed in this regard within the Council of Europe made it possible to introduce one more international human rights mechanism based on noticeable exemptions from the concept of State sovereignty. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) and its treaty-body the CPT have emerged in 1980s. The ECPT was adopted by the Committee of Ministers of the Council of Europe on 26 June 1987 and was opened for signature on 26 November 1987. It took only a year to get the seven necessary ratifications stipulated by its Article 19, and the Convention entered into force on 1 February 1989. As a result, the unique judicial machinery created under the ECHR has been supplemented with the ECPT monitoring mechanism. By 30 September 2006 it has been ratified by 46 Member States of the Council of Europe. Essence of the ECPT mechanism The main idea of the ECPT is to ensure a compliance with the prohibition through the prevention of torture, inhuman or degrading treatment or punishment. It is an independent visit-based mechanism. Unlike the CAT, the ECPT is a purely “procedural” convention, which contains no substantial definitions. The treaty imposes on State
It was only recently, on 18 December 2002, that it became possible for the UN General Assembly to adopt the text of the enriched Optional Protocol to, among other mechanisms, include the visit-based system. It entered into force on 22 June 2006. Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, <www.unhchr.ch/html/menu2/6/cat/treaties/opcat.htm>. See The Greek case, Com. Report (1969) 12 YB; Ireland v. United Kingdom, Judgment (1978); Tyrer v. United Kingdom, Judgment (1978). Article 1(b) of the Statute of the Council of Europe, . The full title is the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. See the List of Ratifications, <www.conventions.coe.int/Treaty/EN/CadreListeTraites.htm>.
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Parties obligations to permit visits to any respective place within their jurisdiction and to co-operate with the CPT established under it. Actually these are the only binding obligations that a Member State undertakes by joining it. At the same time they appeared to be sufficient for upgrading the machinery up to the level of the most efficient international human rights mechanism. The CPT is neither a judicial or quasi-judicial body. That is another important feature of the Committee. Initiative is on its side. The CPT can visit a State Party at any time it considers necessary and appropriate. It does not need to wait for a formal complaint or a State report in order to activate the machinery. The usefulness of a visit-based mechanism is evidently linked to the opportunity of a direct evaluation of the factual situation in State Parties. However, the Convention defines the nature of the fact-finding aspect of the CPT activities giving due account to the specificity of its preventive mandate. The Explanatory Report to the ECPT emphasises that the purpose of the Committee is not to condemn States. According to Article 10(1) of the Convention, after each visit the Committee shall draw up a report on the facts established during the visit and transmit the report to the State Party concerned with any recommendations the CPT considers necessary. In other words, the fact-finding task of the Committee is seen as a prerequisite to and a basis for urging measures aimed at prevention of ill-treatment of persons deprived of their liberty. There is no mentioning of an obligation for the State Parties to follow the recommendations and no legal sanctions are envisaged for non-compliance with them in the Convention. Nevertheless, the principle of mutual co-operation set up in Article 3 of the ECPT in conjunction with the provisions of Article 10 clearly implies a presumption that the authorities concerned will take measures to implement recommendations. It is important to note that the duty to co-operate does not concern the obligation to receive visits only. It includes a proper implementation of the CPT’s recommendations as well. The rule of confidentiality is the element that balances the “auditing and inspection” powers of the CPT. This rule is developed throughout the text of the Convention. That is why the Committee meets in camera; its reports drawn up after a visit are sent only to the authorities concerned; information gathered by the Committee in relation to a visit, its report and its consultations with the Party concerned are confidential; the members of the Committee, experts and other persons assisting the CPT are required, during and after their terms of office, to maintain the confidentiality of the facts or information of which they have become aware during the discharge of their functions. The reports are published only on the request of the State concerned. Even more, Article 11(2), which provides for publication of reports, stipulates that it should be done together with any comments of the Party concerned, whenever requested by it. In other words, States are formally in control of the publicity of the CPT’s findings.
See Articles 1–3 of the ECPT. See also the Explanatory Report, CPT/Inf/C (89) 1 [EN], <www. cpt.coe.int/en/docsref.htm>. Explanatory Report to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CPT/Inf (89) 1 [EN], para. 20, <www.cpt.coe.int/ en/documents/explanatory-report.htm>.
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At the same time, in recent years a trend of requesting publications of reports has been formed. Ten years elapsed before the report on the first visit to Turkey, carried out in 1990, would be published. By 30 September 2006 Turkish authorities authorised the publication of reports on all visits carried out by the Committee.10 Currently there is not a single Member State that fully upholds the policy of refraining from publication.11 In some instances authorities have made public even the preliminary observations of the CPT delegations shared with them at the end of visits.12 How far such a trend of systematic publication of the CPT’s reports will go and how consistent it will be remains to be seen. However, an abstention in this regard is seen as a negative element of the human rights record of the country concerned. Such expectations in respect of transparency mean that the CPT’s reports are potentially public. In addition, Article 10(2) of the ECPT stipulates that if the State Party fails to cooperate or refuses to improve the situation in the light of the Committee’s recommendations, the Committee may decide, after the Party has had an opportunity to make known its views, by a majority of two-thirds of its members to make a public statement on the matter. This weapon has been used by the CPT so far only four times: in 1992 and 1996 vis-à-vis Turkey, and in 2001 and 2003 with regard to Russia and, more precisely, to the situation in the Chechen Republic.13 The small number of instances of resorting to it demonstrates the actual potential of a public statement. The effectiveness of the policy is evident since the CPT has managed to solve the majority of relevant problems by mere threatening or mentioning a possibility of resorting to Article 10(2). Such a reminder itself is regarded as an exceptional measure.14 The presumption of fulfilling the CPT’s recommendations along with the cumulative effect of significant public attention to the attitude demonstrated by States towards the issues covered by the ECPT and respective implications of a possible public statement have converted the principle of co-operation and therefore the CPT’s recommendations into an effective instrument.
10 CPT materials in respect of Turkey, <www.cpt.coe.int/en/states/tur.htm>. 11 Up to 30 July 2003 the only exception was Russia. However, it has authorised the publication of one of the CPT’s reports submitted to the authorities. CPT materials in respect of the Russian Federation,<www.cpt.coe.int/en/states/rus.htm>. 12 See the Preliminary Observations made by the Delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which visited Finland from 7 to 17 September 2003, CPT/Inf (2003) 38, <www.cpt.coe.int/ documents/fin/2003-38-inf-eng.htm>. 13 See the CPT’s Public Statement of 15/12/1992 on Turkey, CPT/Inf (93) 1 [EN]; the CPT’s Public Statement of 06/12/1996 on Turkey, CPT/Inf (96) 34 [EN]; the CPT’s Public Statement of 10/07/2001 concerning the Chechen Republic of the Russian Federation, CPT/Inf (2001) 15; the CPT’s Public Statement of 10/07/2003 concerning the Chechen Republic of the Russian Federation, CPT/Inf (2003) 33, <www.cpt.coe.int/en/states.htm>. 14 See the Report on the visit to Ukraine from 10 to 26 September 2000, CPT/Inf (2002) 23, para. 22, <www.cpt.coe.int/en/states.htm>.
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Modus operandi Obligations to permit visits and to co-operate stipulated in Articles 2 and 3 of the ECPT are spelled out and specified further in the text of the Convention. Article 7 mentions two types of visits: periodic and ad hoc ones. In practice, a periodic visit covers almost the whole range of the Committee’s mandate. This kind of visit to each State Party normally takes place on an equitable basis approximately once every four years, but without formal fixation of the period. The Committee establishes and at the end of each year publishes a provisional programme of periodic visits for the subsequent calendar year. It is done without mentioning exact dates. A formal notification usually is sent approximately two weeks prior to a visit. As a rule, concrete dates and some establishments to be visited are made known to the authorities on short notice. The majority of places are visited by delegations already within the country without any notification at all. The CPT is not obliged to let authorities know in advance about every place it is visiting. That would not be possible because often decisions are made on the spot according to information gathered. Ad hoc visits are mentioned in Article 7(1) of the ECPT under the wording “to be required under the circumstances”. In case of such visits, the authorities are notified just a few days before. This type of visits is focused on certain specific, problematic issues for the country or the sphere concerned. Visits to the North Caucasus Region of the Russian Federation (there were nine such visits since 1999)15 can serve as an example of ad hoc visits focused on geographically concentrated issues. They can target certain categories of persons deprived of their liberty or specific establishments.16 In recent years the CPT is following the policy of prevalence of activities based on ad hoc approach. It makes the work of the Committee more accentuated, topical and, therefore, effective. For example, within the period from 1 August 2003 to 31 July 2004, the Committee conducted 22 visits, out of which 12 were ad hoc ones.17 The Committee may carry out one or more follow-up visits to any place already visited in the context of a periodic or an ad hoc visit.18 Categories of visits do not affect powers of the CPT that it enjoys on the spot. Authorities are obliged to receive visits at any time after a notification by the CPT. There are sometimes few elements of investigation, tracing particular prisoners and information, but mainly a mission is like a routine inspection with mandatory checking 15 See supra note 11. 16 The purpose of the visit was to review the situation in homes for persons with mental disorders and/or mental retardation. See the Report on the CPT visit to Bulgaria from 16 to 22 December 2003, CPT/Inf (2004) 23, <www.cpt.coe.int/documents/bgr/2004-23-inf-eng. htm>. 17 14th General Report on the CPT’s Activities (2003–2004), <www.cpt.coe.int/en/annual/rep14.htm>. 18 Sometimes this category of visits is regarded as the third in addition to the periodic and ad hoc ones. However, Rule 33 of the Rules of Procedure of the CPT clearly suggests that it is not a separate category in respect of mentioned criteria. Follow-up visits have to be distinguished from initial ones and not compared to periodic or ad hoc visits.
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of records and files; entering cells, dormitories, other premises, and measuring them and counting inmates; looking at feeding, sanitary and medical issues; meeting and interviewing inmates, staff, government officials, lawyers; examining and analysing legislation, regulations; etc. All information, personal observations, data, submitted documents are gathered by the members of the CPT delegations and reflected in their personally kept files, “field notes”. There are no formal proceedings for collecting evidence. The only procedural requirement mentioned in the ECPT19 is that, normally, a visit shall be carried out by at least two members of the Committee. The Rules of Procedure of the CPT do not specify any additional proceedings in this regard. The situation in respect of a particular fact, an establishment or a country visited is assessed on the basis of all material and information collected. At the end of a visit, as a rule, CPT delegations share their preliminary impressions with the authorities concerned. In addition to this customary arrangement, by virtue of paragraph 5 of Article 8 of the Convention, the CPT delegations are entitled to make a formal immediate observation when they reveal any problem that requires an urgent solution. It is made on the spot before leaving the country and even before drafting a report. In practice the response about measures taken in respect of such observations is due within three months. However, there were instances when authorities had been requested to reply within shorter periods of time.20 After a mission the CPT, members and experts involved prepare notes that are later compiled by the Secretariat in a draft, which is considered by the delegation at a separate meeting. Subsequently, a draft report, revised and agreed upon by the delegation, is presented to the plenary of the Committee, which scrutinises and adopts it. The CPT meets for plenary meetings three times a year in March, July and November. Time required for a report to be adopted depends on the category of the mission and an interval left before the next plenary. Normally reports on periodic visits are comparatively longer than those on ad hoc visits and necessitate more time to draft. As a result, reports are normally adopted within six and three months periods, respectively. According to established practice, authorities are asked to provide within six months an interim report giving details of how it is intended to implement the CPT’s recommendations and within twelve months a follow-up report offering a full account of action taken to implement the recommendations. There is no formal rule that obliges State Parties to send interim or follow-up reports. However, it is rather an exception to remind authorities to do it. The variety of possible tools at the CPT’s disposal, i.e. a new immediate visit, a public statement and so on, helps to keep the schedule in the majority of instances. The reporting procedure both in terms of timing and substance is controlled through the Secretariat and respective delegations, which are giving corresponding accounts to the Committee at plenary meetings. This part of the work is a basis for planning subsequent rounds of missions to State Parties and, therefore, a starting point for the next cycle of permanent scrutiny by the ECPT machinery. 19 Article 7(2). 20 See the Report on the CPT visit to Estonia from 23 to 30 September 2003, CPT/Inf (2005) 7, para. 8, <www.cpt.coe.int/documents/est/2005-06-inf-eng.htm>.
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Even outside the context of visits, the Committee may request information or explanations with regard to the general situation, a given place or an isolated case. Although there is no formal complaints procedure, it is possible to bring into play the mechanism in this respect as well. Paragraph 4 of Article 8 of the ECPT allows the Committee to communicate freely with any person whom it believes can supply relevant information. When adopting the Rules of Procedure and in subsequent practice, the Committee has interpreted this norm as the ground for considering any communication received during visits or at any other time. Communications include complaints, information submitted by non-governmental organisations, information published in the press and any information brought to its attention. If the content of communication is significant, the Committee can send a formal letter to the authorities requesting clarification or additional information. Often such a request solves many problems. In some instances, communications had precipitated visits to certain States and induced the visiting delegation to meet certain persons. Scope and content of reports Article 1 of the ECPT restricts the reach of the mechanism by reference to persons deprived of their liberty by a public authority. That is why the CPT is not supposed to deal with torture, inhuman or degrading treatment or punishment that occurs outside that context. However, the specificity of the CPT’s fact-finding angle has empowered it to look at borderline instances in order to examine the situation in respect of persons placed in social care homes, special closed schools for juveniles, etc. The Committee’s mandate has been interpreted as covering instances actually amounting to deprivation of liberty by authorities or under their acquiescence regardless of the official titles of such establishments and the status of persons placed. Based on the preamble to the ECPT that refers to “non-judicial means of a preventive character”, the Committee has defined the content of its recommendations as measures designed to prevent the possible occurrence of treatment that is contrary to what reasonably could be considered as acceptable standards for dealing with persons deprived of their liberty.21 It had stated that the CPT’s activities aim at “conflict avoidance” on the practical level, prevention of abuses, whether physical or mental. Its task is to assist them in finding ways to strengthen the “cordon sanitaire” that separates acceptable and unacceptable treatment or behaviour.22 The Committee devotes its attentions equally to instances of torture, inhuman and degrading treatment and punishment. That is why, besides concrete cases of ill-treatment that illustrate the state of affairs in countries or establishments concerned, a significant place in reports is devoted to safeguards provided in legislation and respective practical arrangements, as well as regime, material, medical and other aspects of conditions of deprivation of liberty. 21 The CPT’s First General Report, CPT/Inf (91) 3 [EN], para.4, <www.cpt.coe.int/ en/docsannual.htm>. 22 Ibid., paras. 2 and 3. In para. 26 the text refers to a general international standard as well.
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With the view of fulfilling its preventive function, the CPT is justifiably expanding the range of the matters to be examined during visits and consequently to be addressed in its recommendations. Since recent years the Committee has systematically focused on the issues related to the system of “combating impunity” for ill-treatment. Due to the interrelated character of human rights, it takes into account some other issues covered by the ECHR, including elements of fair trial, liberty and security of the person. Actually, it deals with all other human rights applicable to persons deprived of their liberty. The CPT is moving towards the concept according to which any violation of human rights of detained persons is seen as a form of inhuman or degrading treatment. The ECPT just indicates criteria according to or norms in comparison with which the question of what could be reasonably considered as acceptable standards of treatment of persons deprived of their liberty is answered. It is done by means of the isolated reference to Article 3 of the ECHR in its preamble. The ECPT was drafted with the view to avoid possible contradictions between findings of mechanisms set up under the instruments that would hamper both. In order to keep due distance between them and, in particular, to bar the CPT from quasi-judicial application of Article 3 of the ECHR, the Explanatory Report to the ECPT weakens the link by considering the case-law of the ECHR bodies only as a source of guidance.23 This important feature affects the work of the Committee and has to be kept in mind when reading its reports. The CPT has endorsed the approach that gives the opportunity to define the problem, but without strict affirmation that an instance of torture, inhuman or degrading treatment or punishment has been established. It is achieved by means of using such wordings as “could be considered as amounting to torture” or “could be qualified as torture”.24 In addition to the mentioned use of the conditional mood, sometimes the CPT does not include in its reports such references to the terms or “severe ill-treatment” in general in spite of respective findings.25 Different assumptions have been made in order to clarify the reasons for such variations of the CPT’s position. They were explained by evidential problems, different policies and so on with a great degree of probability only.26 However, they did not propose a general idea or logic of mentioned particularities. The pattern described suggests that the Committee operates with the notions, includes them in reports with the due respect to the idea of refraining from a judicial function and uses them as an additional indicator of the seriousness of the state of affairs in the country 23 Supra note 9, para. 27. 24 CPT’s Report on the visit to Latvia from 24 January to 3 February 1999, para. 14, CPT/Inf (2001) 27; CPT’s Report on the visit to Cyprus from 22 to 30 May 2000, para. 10, CPT/Inf (2003) 1, <www.cpt.coe.int/en/states.htm>. 25 See the CPT’s Report on the visit to Poland from 30 June to 12 July 1996, CPT/Inf (98) 13[EN], para. 16; the CPT’s Report on the visit to Hungary from 1 to 14 November 1994, CPT/Inf (96)5[EN], para. 17, <www.cpt.coe.int/en/states.htm>. 26 See M. Evans and R. Morgan, Preventing Torture. A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Clarendon Press, Oxford 1998) pp. 233–241; R. Morgan and M. Evans, Combating Torture in Europe (Council of Europe, Strasbourg, 2001) pp. 59–67.
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concerned. Relevant references to notions of torture or severe ill-treatment as well as inhuman and degrading elements in respect of the situation, policy or just techniques revealed is seen as a tool for bringing further pressure upon the authorities. The CPT exploits, and rightly so, the opportunity to be more flexible and not to be formally obliged to qualify its findings in accordance with the constituents of prohibition in question. While the establishment of breaches of the ECHR is the main and, in certain sense, the final goal of activities of the European Court of Human Rights, for the CPT the identification of facts, practices and problems related to the issue is only an initial stage for subsequent phases of its work, namely the elaboration of recommendations and further co-operation with Member States. The CPT is focused on the future. Often it assesses the situation from the angle of possible developments, whenever it spots respective dangers and not necessarily breaches which have already occurred. This difference can be illustrated by nuances reflected in the judgement in the case Öcalan v. Turkey27 and the CPT’s reports concerning the treatment of the person concerned.28 The Court did not find a breach of Article 3 of the ECHR in respect of the conditions of detention, in particular, his isolated detention. Taking into account the unique circumstances of “exceptional custodial arrangements”, in the situation when harmful consequences of social isolation had not occurred yet or a real risk of them was not established, and in the light of interests put forward by the government, it was difficult for the Court to find that at a given moment the situation had amounted to a violation of Article 3. As to the CPT, actually it took into account practically unlimited perspectives of such kind of isolation while serving the life sentence and raised concerns in respect of possible consequences that may occur in the course of time. Therefore, there is no substantial contradiction between the Court and the CPT as it may seem at first glance. CPT’s jurisprudence In spite of the wealth of material available, the CPT often finds that no clear guidance can be drawn from it for the purpose of dealing with specific situations encountered by the Committee, or at least that more detailed standards are needed. In relation to such situations, the CPT is feeling its way towards developing its own “measuring rods”, including those on legal criteria for the treatment of persons deprived of their liberty. In its public general reports the Committee, without referring to specific countries, has synthesised its views on standards applicable to police custody; healthcare services in prisons; foreign nationals detained under aliens legislation; involuntary placement in psychiatric establishments; juveniles and women deprived of their liberty; combating impunity; etc. Relevant parts of general reports are called “substantive sections”. This invention explicitly not envisaged neither by the Convention nor the Explanatory Report and even Rules of Procedure of the Committee clearly was inspired by the practice of issuing General Comments by supervisory bodies of other human rights instruments. 27 Öcalan v. Turkey, Judgment (2005). 28 See the CPT’s Report on the visit to Turkey from 16 to 17 February 2003, CPT/Inf (2004) 2, <www.cpt.coe.int/documents/tur/2004-02-inf-eng.htm>.
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The CPT periodically publishes an updated compilation of these substantial sections under the title “The CPT standards”.29 In a more specific way, the standards on issues covered in the substantial sections can be traced in reports on visits that are put in a public domain. In spite of being a nonjudicial body the CPT calls its set of standards “jurisprudence”. Though, this term in relation to the CPT and by the Committee itself is often used in inverted commas. Taking into account the factual power of the CPT’s recommendations, almost systematic ex-officio coverage of all Member States and unlimited possibilities of controlling their implementation, not surprisingly, the CPT’s standards are now playing a kind of legislative role. Its documents are considered as a source of contemporary standards in this sphere. In this sense, its jurisprudence has gained nearly the same level of importance in this comparatively narrow field of application as the case-law of the European Court of Human Rights has in the corresponding spheres covered by the Article 3 ECHR. During recent years the trend of bringing the CPT’s texts in the European Court of Human Rights’ proceedings is constantly expanding. It is determined both by their evidential value and as sources of commonly accepted standards. Composition Unlike the treaty body established under the UN CAT, the number of members of the CPT is not restricted by any fixed figure. The rule is that each Party is represented by one member.30 Article 4 of the ECPT provides that the Committee is to consist of persons of “high moral character, known for their competence in the field of human rights or having professional experience” in the areas covered by the Convention. The CPT is concerned to ensure a multidisciplinary approach and respectively balanced membership. Although lawyers prevail, there are many members of medical background (with experience in forensics, psychiatry, etc.) in the Committee, as well as human rights specialists and those with skills in prison or police matters. The Secretariat of the CPT that constitutes one of its pillars is based in Strasbourg and forms a part of the Council of Europe’s headquarters. As a rule, during visits and drafting of reports the CPT delegations are supported by experts in respective spheres of activities. Members are elected by the Committee of Ministers of the Council of Europe from a list of candidates nominated by national delegations of the Parties in the Consultative Assembly of the Council of Europe and drawn up by the Bureau of the Assembly. Members are elected for an initial term of four years, with the possibility of reappointment for two further terms. They serve in their individual capacities and not as State representatives. In order to reinforce their impartiality, members do not take part in visits to and have to refrain from interventions during plenary meetings on issues related to their own countries. 29 The CPT standards – “Substantive” sections of the CPT’s General Reports, <www.cpt.coe. int/en/docsstandards.htm>. 30 By 30 September 2006 there were 40 members in the CPT. Seats in respect of six countries were vacant. See the List of the CPT Members, <www.cpt.coe.int/en/members.htm>.
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The European Social Charter Regis Brillat*
The European Social Charter (ESC) was adopted in 1961, 11 years after the European Convention on Human Rights (ECHR). It was opened for signature on 19 October 1961 and entered into force in 1965. It has since then been complemented by three Protocols and by the Revised European Social Charter of 1996. The new version is progressively replacing the original version. The Charter remained unknown and in many ways ineffective for many years. It has attained a degree of effectiveness following the reforms in the 90s. As of 1 July 2008, the Charter has been signed by all 47 Council of Europe Member States and ratified by 39 of them. The majority of States (24) are bound by the Revised Charter. As a complement to the European Convention on Human Rights that protects civil and political rights, the European Social Charter protects the fundamental social and economic rights of the Parties’ citizens. The Charter is a human rights treaty which proclaims a number of rights and provides for a monitoring mechanism to ensure their proper implementation.
*
Head of the Department of the European Social Charter, Directorate General of Human Rights and Legal Affairs, Council of Europe. The opinions expressed are purely those of the author and do not represent the views of the Council of Europe. I am grateful to Niamh Casey, Administrator, Secretariat of the European Social Charter, for her comments and suggestions on this text. States which have not yet ratified are Bosnia-Herzegovina, Liechtenstein, Monaco, Montenegro, the Russian Federation, San Marino, Serbia and Switzerland.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 503-513.
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Rights guaranteed by the Charter Presentation of the Social Charter rights The rights guaranteed by the Charter concern individuals in their daily lives and cover a wide range of issues not only linked to work or professional life. The Revised Charter updated and enlarged these rights in the following areas: Housing – – – – –
access to adequate and affordable housing; reduction of homelessness; housing policy targeted at all disadvantaged categories; procedures to limit forced eviction; equal access for non-nationals to social housing and housing benefits; housing construction and housing benefits related to family needs.
Health – – – –
accessible, effective health care facilities for the entire population; policy for preventing illness with, in particular, the guarantee of a healthy environment; elimination of occupational hazards so as to ensure that health and safety at work are provided for by law and guaranteed in practice; protection of maternity;
Education – – – – – –
free primary and secondary education; free and effective vocational guidance services; access to initial training (general and vocational secondary education), university and non-university higher education, vocational training, including continuing training; special measures for foreign residents; integration of children with disabilities into mainstream schooling; access to education and vocational training for persons with disabilities.
Employment – – – – – – –
prohibition of forced labour; prohibition of the employment of children under the age of 15; special working conditions between 15 and 18 years of age; the right to earn one’s living in an occupation freely entered upon; an economic and social policy designed to ensure full employment; fair working conditions as regards pay and working hours; protection from sexual and psychological harassment;
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– – – – –
freedom to form trade unions and employers’ organisations to defend economic and social interests; individual freedom to decide whether or not to join them; promotion of joint consultation, collective bargaining, conciliation and voluntary arbitration; protection in case of dismissal; the right to strike; access to work for persons with disabilities.
Legal and social protection – – – – – – – – –
legal status of the child; treatment of young offenders; protection from ill-treatment and abuse; prohibition of all forms of exploitation (sexual or other); legal protection of the family (equality of spouses within the couple and towards children, protection of children in case the family breaks up); the right to social security, social welfare and social services; the right to be protected against poverty and social exclusion; childcare; special measures catering for the elderly.
Movement of persons – – – –
the right to family reunion; the right of nationals to leave the country; procedural safeguards in the event of expulsion; simplification of immigration formalities.
Non-discrimination – –
– –
the right of women and men to equal treatment and equal opportunities in employment; a guarantee to all nationals and foreigners legally resident and/or working that all the rights set out in the Charter apply regardless of race, sex, age, colour, language, religion, opinions, national origin, social background, state of health or association with a national minority; prohibition of discrimination on the basis of family responsibilities; right of persons with disabilities to social integration and participation in the life of the community.
When ratifying, States must specify which provisions they accept to be bound by. The choice is not entirely free. States have to accept at least 6 of 9 specific provisions known
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as core provisions; in addition the total number of provisions to be accepted must be above a minimum. After ratification, States are invited progressively to accept additional provisions of the Charter. In practical terms, the Council of Europe Committee of Ministers decided to invite the European Committee of Social Rights (ECSR) to review the situation with the States concerned every five years following the ratification of the Revised Charter. This process started in 2003, five years after the first ratification of the Revised Charter, i.e. the ratification by Sweden. Links with other international treaties or texts The Charter is linked to several international instruments. It was drafted with a view to complementing the European Convention on Human Rights. Indeed, several rights appear in both treaties such as the prohibition of forced labour, the right to family life, the freedom to organise. In addition, several issues are dealt with by the two treaties under different approaches, e.g. the right to pensions, equality of children. Non-discrimination is another important issue and the entry into force of Protocol 12 to the ECHR will undoubtedly increase the interaction between the ECHR and the ESC. The Charter is by nature very close to the UN Covenant on Economic, Social and Cultural Rights but also to other major United Nations (UN) treaties such as the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In addition, references to the Charter were made during the elaboration of the recent UN Convention on Disability. The Charter is also linked to International Labour Organization (ILO) conventions. Indeed, the Council of Europe benefited from a constant support from the ILO during the elaboration of the Charter in the 50s and during its implementation. Several new rights included in the Revised Charter reflect recent ILO conventions. The European Union (EU) Charter on Human Rights, adopted during the Nice Summit, contains most of the rights embodied in the Revised Social Charter in addition to the rights provided in the ECHR. The revision of the ESC was a key factor to achieve this result as well as the elaboration by the EU Commission and adoption of several directives in the matters covered by the ESC. This led to the examination of the possibility of the EU acceding to the Social Charter, in parallel to its foreseen accession to the ECHR.
See Article A of the Revised Charter. See e.g. Mazurek v. France, judgment of 1 February 2000, ECtHR. The issue had been the subject of a recommendation adopted by the Committee of Ministers, following a finding of non-conformity (Rec. no. CHS(38)1). O. de Schutter, ‘Anchoring the European Union to the European Social Charter: The Case for Accession’, in G. De Burca and B. de Witte, Social Rights in Europe (Oxford University Press, Oxford, 2005).
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Identifying the violations: a quasi-judicial body: the European Committee of Social Rights The European Committee of Social Rights is a committee of independent experts which assesses, from a legal standpoint, the compliance of national situations with the Charter. Its findings on the national reports are published every year and called “Conclusions”. They can be found on the Council of Europe website as well as its decisions on admissibility and on the merits of the complaints. Composition The Committee is not a permanent body, although its members devote a significant part of their professional activities to it; it is composed of 15 experts elected by the Committee of Ministers of the Council of Europe. When established in 1967, it was composed of seven members and their number has been progressively increased over the years in order to allow for a better representation of the different legal systems of States Parties and also to allow the Committee to function more efficiently and, in particular, to create sub-committees dealing with the examination of the reports. The Committee holds seven sessions per year in Strasbourg. Each session lasts five days; the Committee sits for two days in plenary and three days in sub-committees. According to Article 25 of the Charter, as amended by the Turin Protocol, Committee members “must be of the highest integrity and of recognised competence in national and international social questions”. As of 1 July 2008, the Committee is composed of 13 university professors or professors emeritus of which: seven in labour law/social law; three in public law/human rights law; three in social sciences; one judge and two former judges. The gender balance is the following: six women and nine men. Functions The European Committee of Social Rights: – examines reports submitted by States Parties to the Charter (in its original 1961 version or in its 1996 revised version) and makes a legal assessment of the conformity of national situations with the Charter; – examines collective complaints lodged under the 1995 Protocol, decides on their admissibility and examines the merits.
Article 25 of the Charter established a “Committee of Experts” known for a period of time as “the Committee of Independent Experts” and since 1998 as “the European Committee of Social Rights”. <www.coe.int>. Conclusions and decisions can be searched using a HUDOC database similar to the Court’s HUDOC database.
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The reporting system States are under the obligation to submit to the Secretary General of the Council of Europe a yearly report on a selection of provisions of the Charter. Originally, the Charter provided for a report every second year on all accepted provisions. The current reporting system provides for a report to be submitted on 30 0ctober according to the following scheme: States shall present a report annually on a part of the provisions of the Charter (whether it be the 1961 Charter or the 1996 Revised Charter), the provisions having been divided into four thematic groups. In this way, each provision of the Charter will be reported on once every four years. The reports shall be presented on 31 October of each year. The European Committee of Social Rights shall be invited to publish its conclusions before the end of the following year. The four groups of provisions shall be composed as follows: – Group 1 (reports on 31 October 2007): employment, training and equal opportunities – Group 2 (reports on 31 October 2008): health, social security and social protection – Group 3 (reports on 31 October 2009): labour rights – Group 4 (reports on 31 October 2010): children, families, migrants 10 Reports are public documents available on the Council of Europe Internet Site. National trade unions and employers’ organisations are invited to comment on the reports and so are non-governmental organisations having participatory status with the Council of Europe.11 When examining State reports, the Committee sits in two sub-committees: their task is to prepare the Committee’s decisions. Each Committee member is responsible for a certain number of provisions of the Charter and acts as rapporteur for the reports of all States having accepted the provisions concerned. Sub-Committees report to the Plenary Committee, which adopts the conclusions concerning each State at the end of each supervision cycle. All conclusions are public and can be found on the Council of Europe website12 and searched for using the HUDOC database.
10 11
Articles 1, 9, 10, 15, 18, 20, 24 and 25. Articles 3, 11, 12, 13, 14, 23 and 30. Articles 2, 4, 5, 6, 21, 22, 26, 28 and 29. Articles 7, 8, 16, 17, 19, 27 and 31. See Articles 21 and 23 of the 1961 Charter as amended by the Turin Protocol. The same control mechanism applies to the Revised Charter. 12 <www.coe.int>.
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The collective complaints procedure The following organisations are entitled to make collective complaints, a procedure made available after a protocol opened for signature in 1995, and entered into force in July 1998: – European organisations of employers and trade unions which participate in the work of the Governmental Committee in pursuance of Article 27(2) of the Charter;13 – other European non-governmental organisations with consultative status with the Council of Europe and appearing on a special list drawn up for this purpose by the Governmental Committee;14 – national organisations of employers and trade unions of the State concerned. In addition, each State may, in a declaration to the Secretary General, authorise national non-governmental organisations to lodge complaints against it. Finland has made such a declaration. Collective complaints are examined by the European Committee of Social Rights, which first decides on their admissibility in the light of criteria listed in the protocol and in its rules of procedure. In practice, a complaint is declared admissible if it is lodged in writing, if it indicates in what respect the complainant organisation considers that the Charter is not respected and if it concerns a provision accepted by the respondent State. In addition, the person who signs the complaint must be entitled to represent the organisation. When a complaint is admissible, the Committee proceeds to examine the merits of the case. The procedure is generally a written one, but a public hearing may be organised. The Committee adopts a report containing its decision on whether the Charter is respected or not by the State concerned. The report is addressed to the parties and to the Committee of Ministers, which adopts a resolution terminating the procedure. In cases of violation of the Charter, the Committee of Ministers may adopt a recommendation. The decision of the European Committee of Social Rights becomes public no later than four months after its transmission to the parties and to the Committee of Ministers. By 1 October 2006, 37 complaints had been registered. The Committee declared most of them admissible and has adopted 26 decisions on the merits. All the decisions are published on the Council of Europe website and can be searched through the HUDOC database. Interpretation of the Charter Since 1967, the Committee has undertaken to interpret the Charter. In its General Introduction to Conclusions III (1973), the Committee stipulated:
13
The European Trade Union Confederation (ETUC), Business Europe (former Union of Industrial and Employers’ Confederations of Europe (UNICE) and International Organization of Employers (IOE). 14 The list appears on the Council of Europe website.
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17. The Social Charter, which is designed to promote social progress, is a legal instrument which must be interpreted according to the normal rules for interpreting international treaties. 18. Where a clause is clear and precise, it must be applied as it stands (…). 19. However, many of the provisions of the Charter are very general in character (…). Although these provisions are phrased in very general terms, they enshrine legal obligations. The Committee (…) is therefore obliged to define their substance. (…) 20. When the Committee considers the reports, it is constantly concerned to determine the reality behind the appearances. Although legislation may not exist, the objectives of the Charter may be attained as a result of reality being in advance of the text of the law. Conversely legislation which at first sight may seem very satisfactory is sometimes inadequately or poorly applied. (…)15
In practical terms, when deciding whether situations are in conformity with the Charter, the Committee first verifies whether existing laws and regulations are consistent with Charter rights and do not impede their application. If this first “test” is passed, it then goes on to ensure that the law is properly applied in practice. A situation is “not in conformity” with the Charter if the relevant legislation is incompatible with its requirements or if compatible legislation is incorrectly or not fully applied. In a recent Statement of Interpretation, the Committee gave a further explanation on the principles of its interpretation: The Social Charter is a human rights treaty. Its purpose is to apply the Universal Declaration of Human Rights within Europe, as a supplement to the European Convention on Human Rights. In this perspective, while respecting the diversity of national traditions of the Council of Europe’s member states, which constitute common European social values and which should not be undermined by the Charter nor by its application; it is important to: – consolidate adhesion to the shared values of solidarity, non-discrimination and participation; – identify the principles that ensure that the rights embodied in the Charter are applied equally effectively in all the Council of Europe member states. The primary responsibility for implementing the European Social Charter naturally rests with national authorities. Having regard to their constitutional arrangements and their welfare and industrial relations systems, these authorities may in turn delegate certain powers to local authorities or the social partners. However, these implementation strategies, if not accompanied by appropriate safeguards, may put at risk the actual implementation of the undertakings under the Charter.16
The purpose of the Charter is not to impose a single social model on all Council of Europe Member States. Moreover States are free to choose the means of implementation. What the Charter imposes on States is that they respect the fundamental rights of 15 Conclusions III, p. xiii. 16 Conclusions 2006, Statement of Interpretation (to be published).
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individuals under all circumstances when defining or implementing their social policies or any policy within the scope of the Charter. Rights of the Charter must be concrete and effective, not theoretical and illusory. In the case of ICJ v. Portugal, the Committee adopted its first decision on the merits of a complaint and stated that: the aim and purpose of the Charter, being a human rights protection instrument, is to protect rights not merely theoretically, but also in fact. In this regard, it considers that the satisfactory application of Article 7 cannot be ensured solely by the operation of legislation if this is not effectively applied and rigorously supervised (…).17
Several rights in the Charter, however, appear to be extremely difficult to implement in practice. States claim that they need time and resources. The Committee replied to this argument in Autism Europe v. France: When the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve, a State Party must take measures that allows it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources. States Parties must be particularly mindful of the impact that their choices will have for groups with heightened vulnerabilities as well as for others persons affected including, especially, their families on whom falls the heaviest burden in the event of institutional shortcomings.18
Bringing the situations into conformity: the Committee of Ministers and the Governmental Committee Spontaneous reforms During the last decade, States have responded increasingly to the conclusions and decisions of the European Committee of Social Rights. There are examples of significant changes in legislation, practice, case law and collective agreements aimed at bringing a situation into conformity with the Charter. The Council of Europe website contains fact sheets in respect of each Member State indicating these positive developments. However, in respect of certain situations, States are less proactive, and there is a need to increase the pressure on them so that they proceed to make the necessary changes. Peer pressure The Council of Europe’s Committee of Ministers is entrusted with the task of verifying compliance with the Charter. It is composed of the foreign ministers or their representatives. It is empowered to adopt recommendations to Member States in case the latter do 17 ICJ v. Portugal, 9 October 1999, no. 1/1998, para. 32. 18 Autism Europe v. France, 4 November 2003, no. 13/2002, para. 53.
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not react positively to a conclusion or decision of the European Committee of Social Rights. In order to prepare the Committee of Ministers’ work, there is a Governmental Committee, composed of representatives of the States Parties to the Charter and assisted by representatives of the European social partners participating as observers. States having signed the Charter but not yet ratified are also invited as observers. The Governmental Committee considers conclusions of non-compliance in the months following their publication. States are invited to provide information on the reforms foreseen to bring the situation into conformity: The State concerned must be in a position to set out the measures which it has taken or which it is contemplating taking in order to remedy the situation and, in the latter case, has to provide a timetable for achieving compliance. In the event that the Governmental Committee considers that it is not envisaged to remedy a violation and take action on a decision of non-compliance, it may adopt a warning as an incentive for the State concerned to move towards compliance and as a warning that the Governmental Committee may propose that the Committee of Ministers address a recommendation to the State concerned. Peer pressure is an important driving force behind the Governmental Committee’s work. Although its meetings are held in camera, its yearly report to the Committee of Ministers is public19 and contains important information on developments at national level. When “soft” pressure” fails to produce the desired result, the Committee of Ministers, on the proposal of the Governmental Committee, may adopt a recommendation20 calling on the State concerned to take appropriate measures. The selection of situations which should lead to a recommendation is based on social, economic and other policy considerations. On the adoption of recommendations by the Committee of Ministers, only the Parties to the Charter are entitled to vote. Recommendations are adopted by a majority of two-thirds of the ministers’ deputies casting a vote and a majority of the Parties to the Charter. In respect of collective complaints, the Governmental Committee has no role.21 It is for the Committee of Ministers itself to ensure that the situation is brought into conformity.
19 It can be found on the Council of Europe website. 20 Recommendations appear on the Council of Europe’s Committee of Ministers website. 21 Article 9(2) of the 1995 Additional Protocol providing for a system of collective complaints reads as follows :
2. At the request of the Contracting Party concerned, the Committee of Ministers may decide, where the report of the Committee of Independent Experts raises new issues, by a two-thirds majority of the Contracting Parties to the Charter, to consult the Governmental Committee.
However, it has never been applied.
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What is the possible future of the European Social Charter? The Council of Europe Parliamentary Assembly has made two different proposals for future reform: – firstly, the ECSR could be transformed into a European Court of Social Rights;22 – secondly, the rights embodied in the Social Charter could be inserted into the European Convention on Human Rights.23 For the time being there does not seem to be a political consensus amongst Member States to proceed with either reform. Another more pragmatic solution with a view to increasing the impact of the Charter would be: – to continue reinforcing the follow-up of conclusions and decisions of the ECSR and the “peer pressure” on States, within the Committee of Ministers and the Governmental Committee, so that more situations are brought into conformity with the Charter; – to increase synergies between the European Convention on Human Rights and, in particular, the European Court of Human Rights on the one hand, and the European Social Charter and, in particular, the European Committee of Social Rights on the other.
22 Recommendation 1354 (1998), Future of the European Social Charter. 23 Recommendation 1415(1999), Additional Protocol to the European Convention on Human Rights Concerning Fundamental Social Rights.
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46 The Council of Europe Commissioner for Human Rights Thomas Hammarberg and John Dalhuisen*
The monitoring powers of the Council of Europe Commissioner for Human Rights are not limited to any particular area or set of rights, nor tied to a given treaty or procedure. Also, monitoring is only one of the Commissioner’s functions. Created in 1999, and currently only into the term of its second titleholder, the defining activities and procedures of this institution are still evolving. This essay will begin with an examination of the Commissioner’s monitoring role and powers as they are set out in his mandate, before going on to look at how they have been implemented in practice. It will conclude with a number of thoughts on how the institution’s monitoring activity might usefully develop in the future. The originality of the Commissioner’s mandate reflects the fact that the institution operates within the wider context of the Council of Europe’s sophisticated human rights protection system. Indeed, the obvious question to arise when the creation of the institution was first discussed was precisely how such a new institution should relate to the Council of Europe’s existing range of activities in the field of human rights, which already covered five main areas: i. The creation of new standards through conventions and recommendations; ii. Monitoring compliance with these norms through a number of specialised mechanisms (covered elsewhere in this book); iii. Providing advice to Member States on how best to comply with their obligations; iv. Promoting awareness of human rights; and v. Offering the opportunity of redress to individual victims of human rights violations through the European Court of Human Rights.
*
Thomas Hammarberg was elected Council of Europe Commissioner for Human Rights in October 2005 and took up his functions on 3 April 2006. He is the second Commissioner for Human Rights. The first Commissioner for Human Rights was Alvaro Gil-Robles. John Dalhuisen was Special Adviser to the first Commissioner for Human Rights from 1 April 2001 till the end of his mandate.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 515-521.
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Despite the initial enthusiasm of a number of States and the Parliamentary Assembly for an authority to take up individual complaints in the manner of an ombudsman, it was ultimately decided that individual applications were best left in the hands of the Court. The creation of new norms is clearly a matter for inter-governmental bodies and not independent institutions. The question to be determined, therefore, was what combination of the second, third and fourth of these functions the Commissioner should have. Should the institution educate and advise on the respect for human rights? Or should it also monitor the extent to which these rights were respected? The institution’s mandate, Resolution 99(50), makes it clear that the Commissioner should do all three. Article 1 states that “the Commissioner shall be a non-judicial institution to promote education in, awareness of and respect for human rights”. Article 3 expands on this broad definition, stating that the Commissioner shall a. promote education in and awareness of human rights; b. contribute to the promotion of the effective observance and full enjoyment of human rights; c. provide advice and information on the protection of human rights and the prevention of human rights violations; d. facilitate the activities of national ombudsmen or similar institutions in the field of human rights; e. identify possible shortcomings in the law and practice of Member States concerning the compliance with human rights as embodied in the instruments of the Council of Europe, promote the effective implementation of these standards by Member States and assist them, with their agreement, in their efforts to remedy such shortcomings. Article 3(a) restates the Commissioner’s awareness-raising role, whilst Article 3(d) adds a further duty to promote effective national institutions for the protection of human rights. It is Article 3(b), (c) and (e) that provide for an active monitoring role. In effect, the Commissioner is to contribute to the effective observance of human rights (Article 3(b)) through the provision of advice (Article 3(c)) in respect of shortcomings identified in the law and practice of Member States (Article 3(e)). The reference to the promotion of “effective observance” and “full enjoyment” of human rights in Article 3(b) is the key. It indicates that the Commissioner not only can but should intervene in respect of concrete human rights violations; the Commissioner must be concerned that rights enjoyed on paper are enjoyed in practice. This requires investigation and direct contact with Member States, as Article 3(e) goes on to recognise. It is important to note, however, that the Commissioner’s monitoring mandate is clearly linked to the injunction to “assist” States in their efforts to remedy shortcomings. Whilst the Commissioner is clearly required to monitor Member State’s compliance with the Council of Europe’s human rights instruments, this monitoring is not conceived as an end in itself. It is rather a precondition for the fulfilment of the Commissioner’s overriding objective of promoting the effective respect for human rights. Beyond the identification and reporting of problems, therefore, the Commissioner must actively seek to encourage change. The Commissioner does not have the power to make binding or enforceable decisions. What he must do, instead, is cooperate constructively with
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Member States by suggesting practical solutions and working with national authorities to encourage their implementation. Indeed, this requirement of constructive engagement and continuous dialogue with national authorities is a key feature of the institution. Resolution 99(50) confers a number of powers on the institution to enable such an engagement and dialogue. The Commissioner is authorised to contact Member States directly, and they are, in turn, obliged to facilitate the independent and effective performance of his functions. In particular they must facilitate the Commissioner’s contacts, including travel, and provide information requested in good time. These are strong powers, commensurate with, and justified by, the Commissioner’s status as an elected, independent authority. Whilst the institution may act on information received from individuals, organisations and other institutions, the Commissioner may also request information directly. The ability to conduct such independent fact-finding and verification is essential to the institution’s effectiveness as the Commissioner must be able to engage States and make recommendations on problems and issues that the institution has firsthand knowledge of. Whilst information provided by a network of non-governmental organisations and national and international human rights institutions has certainly proved invaluable, it is, at the same time, essential that the Commissioner be able to rely on an understanding of problems based on his, or his Office’s, own investigations. The experience of the institution with regard to the independent search for information and organisation of visits has so far been positive, including those extending to the observation of events and the inspection of sites: none have ever been refused. The Commissioner has consequently been able to visit such sensitive detention facilities as those in Chernokosovo, in Chechnya, in 1999 at the height of the second Chechen conflict, and in the US military base, Camp Bondsteel, in Kosovo in 2002 and in 2004 the Belmarsh prison in the United Kingdom to meet with the detainees held indefinitely under the 2001 Anti-Terrorism, Crime and Security Act. In all of these cases the Commissioner has been able to converse with detainees in private. Other more usual examples of the Commissioner’s personal inspection of sites include visits to detention centres for foreigners, centres for victims of domestic violence, psychiatric institutions, prisons and young offenders’ institutions. Whilst conferring a wide variety of tasks and strong powers on the Commissioner, Resolution 99(50) recognises that the institution does not operate in a vacuum. Resort to existing sources of information is therefore encouraged. Cooperation with the multitude of international mechanisms active in Europe is explicitly required and is, in any case, a practical necessity. Thus, the Commissioner is able to build his action upon the findings, decisions and recommendations of treaty-bodies or specialised monitoring mechanisms already in place in the Council of Europe and beyond.
Resolution 99(50), Article 7. Ibid., Article 6(1). Ibid., Article 5(1). Ibid., Article 3(i).
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Cooperation with national human rights structures is also required. Indeed, there is definitely a sense in which the Commissioner should, like the Court, respect a certain subsidiarity. The requirement that the Commissioner should encourage the creation and growth of national human rights protection mechanisms – in the form of ombudsmen or general human rights institutions – reflects the fact that it is at the national level that human rights problems should ideally be first identified and addressed. In addition to engaging with governments through direct contacts, the Commissioner is authorised to issue reports, opinions and (non-binding) recommendations. Whilst the Commissioner will, on occasion, engage in discussions with national authorities in confidence, it is, at the same time, important that the institution operates, and is perceived to operate, transparently. The publication of the Commissioner’s conclusions in the form of reports, opinions and recommendations is central to this. Indeed, whereas many monitoring mechanisms are bound by confidentiality or delayed disclosure agreements, the Commissioner’s ability to report immediately and publicly is one of its strengths. If not an end in itself, publicity is, nonetheless, vital to raising awareness of violations and promoting change. The Commissioner has a responsibility, therefore, not only to governments but also to the public to be an objective reporter of human rights problems. Other than specifying the types of documents that the Commissioner may present and broadly defining his relationship with national authorities, the Commissioner’s mandate offers virtually no guidance on the precise activities the Commissioner should engage in, nor the procedures he should follow when doing so. Indeed, its only explicit instruction is a prohibition that the Commissioner’s gathering of information should not give rise to a general reporting system. The Commissioner must not, therefore, establish a monitoring procedure that entails a structured, regular reporting obligation on States in the form of questionnaires or other systematic written requests. This reflects the fact that the Commissioner’s monitoring role is intended to be informal, flexible and solution driven. A few other guiding principles can also be deduced from Resolution 99(50). The Commissioner must not only identify problems, but must constructively engage States in their resolution. The Commissioner must rely on a network of sources, including non-governmental organisations, and coordinate his activities with other international and national institutions, but must also seek to obtain a first hand understanding of the issues he takes up with national authorities. The Commissioner must always report objectively and may also do so publicly. These principles have been at the heart of the activities that the institution has developed to date. Some of these activities have been developed only in outline, however, and much of the real potential of the Commissioner’s mandate remains to be tapped. Broadly speaking, the Commissioner’s monitoring activity has been divided into five areas.
Ibid., Article 3(c). Ibid., Article 5(2).
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Assessment reports on country situations The first Commissioner visited 32 Member States and presented reports on the respect for human rights in each country. The second Commisisoner has continued this approach and decided to cover the remaining 15 Member States before the end of 2008. These reports present the Commissioner’s findings and recommendations based on extensive visits including on-site inspections, meetings with national authorities including government ministers, and, often, heads of state, senior members of the judiciary, national human rights institutions and civil society representatives. Without ever aiming to cover each and every human rights issue in the country, these periodic reports enable the Commissioner to conduct a kind of human rights check-up, in which salient issues are identified and recommendations are made. These reports also allow for the highlighting of good practice and facilitate their transmission from country to country. In order to avoid double standards and ensure even coverage, an attempt was made to visit all Council of Europe Member States, large and small, new and old, during the mandate of the first Commissioner, and the institution is committed to completing this cycle. The Commissioner’s assessment reports are followed up through additional visits during which the implementation of their recommendations is reviewed and then reported upon. Crisis situations From the very outset the institution has sought to be active in Europe’s crisis areas. The very first visit conducted by the institution was to the Chechen Republic in 1999, as the Russian army was entering Grozny. A further five visits to the region and other visits to Kosovo and the breakaway regions of Transnistria, Moldova, and Abkhazia and South Ossetia, Georgia, have confirmed the value of the Commissioner’s involvement – as both a reporter and promoter of change – in respect of serious human rights violations. During the mission to the areas affected by the South Ossetia conflict in August 2008, the Commissioner encouraged and helped organise the release ad exchange of more than one hundred persons detained. Most of these visits have given rise to public reports. Recommendations and opinions Recommendations and opinions are two other means of action envisaged by the drafters of the Commissioner’s terms of reference (Article 8 of Resolution (99)50). As of today (October 2008), the Commissioner has issued 11 opinions and 3 recommendations on a variety of issues. The Commissioner is entitled to define himself the use of one or the other category. Opinions are favoured when the Commissioner gives a substantive analysis of an issue whereas a recommendation is made when the focus is on the measures which should be adopted. In addition, the term opinion was always used when national or international actors sought the Commissioner’s view on an issue. For instance, recently, the Commissioner issued an opinion “regarding family visits to persons deprived of their liberty” upon request by the Registry of the International Criminal Court.
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Although non of these two instruments are legally binding, their legal significance originates not least from the Committee of Minister’s Resolution (99) 50. Their status has been further demonstrated in light of their practical impact at national level. This tool has the potential of becoming more important in the context of the continued country monitoring and also in the context of the Commissioner’s thematic priorities and concerns. Informed discussion The Commissioner seeks to encourage an informed debate on crucial human rights issues often based on direct experience of his Office. He publishes regular “Viewpoints” which identify problems and suggest actions for solution on the basis of agreed standards and the case law of the European Court of Human Rights. Issue analyses and policy recommendations The Commissioner may also present thematic reports and policy recommendations on a specific issue or set of issues identified as being of concern to all or several Council of Europe Member States. The first Commissioner presented one such report, on the respect for the rights of Roma/Gypsy minorities in Europe. The second Commissioner has initiated a series of “Issue papers” which define human rights issues based on his experience during country visits and otherwise. These documents contain recommendations to governments. Such papers have been presented on, for instance, corporal punishment against children, housing rights and rights of people with disabilities. The Commissioner’s monitoring activity has so far mainly focused on periodic country reporting and crisis situations. However, the considerable emphasis placed on these activities is more a reflection on the institution’s limited resources than a measure of the ideal weighting. As the institution has developed and has become better known, the expectations and calls on it have grown. The Office is increasingly expected to intervene in respect of new human rights challenges as and when they arise. Unfortunately, it is currently not always able to do so. Periodic, general country reporting is certainly a useful exercise which has proven its effectiveness. However, it is simply not enough to promote “effective respect” and “full enjoyment” of human rights throughout the European continent, as each country will be covered, at best, only once every six years. Nor do general reports allow for all issues to be treated in the detail that they deserve. As the institution expands, therefore, greater use of shorter visits followed by ad hoc recommendations and opinions will become necessary. Such immediate responses ought also to enable the institution to better contribute to reducing the number of applications to the European Court of Human Rights in the manner that is increasingly being expected of it. Though yet to come into force, Protocol 14 to the European Convention on Human Rights confers on the Commissioner the right to intervene before the Court in cases before the Chamber and Grand Chamber. This right is, in itself, less a means of monitoring than a way of assisting the Court in its analysis of cases submitted to it by drawing
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its attention to the underlying situations, patterns, practices or rules in breach of the Convention in the State concerned. This provision – new Article 36(3) of the Convention – will empower the Commissioner to enrich the judicial debate with information emanating from his direct field experience and his detailed understanding of the structural human rights problems affecting the defendant State. Its judicious use in respect of clone cases or cases raising structural concerns will, hopefully, enable the Court to identify relevant issues that individual cases perhaps obscure and result in judgments whose proper execution should better resolve the identified concern. More thematic reporting bringing together the experiences of different countries in respect of a common concern would also be beneficial. It would allow the Commissioner to pool experience, present general policy guidance and feed his concerns into the Council of Europe’s inter-governmental activity. A final possibility worth exploring, and one which would perhaps cement all the institution’s other monitoring activities, resides in the Commissioner’s obligation to present an annual report. To date the Commissioner’s annual reports have recounted the institution’s activities and analysed a few marked human rights trends or general concerns to have arisen across the continent that year. A more ambitious annual report, however, would review the salient human rights developments – both positive and negative – in each Member State. Such a report would offer a single reference document reviewing, with the same standards, the human rights situation in each country. Such an annual report would provide an excellent occasion to hold an annual debate – both at inter-parliamentary and intergovernmental levels – on the human rights situation of our continent and would facilitate common approaches when it comes to respond to emerging threats and new challenges. Such an undertaking would require no extension of the Commissioner’s mandate, though it would require an increase in the Commissioner’s scarce resources. Such reporting would draw on the great potential of this unique institution – no one else in Europe is mandated to monitor the respect for all human rights with the same guarantees of independence, objectivity and verification as the institution of Commissioner.
Ibid., Article 3(h).
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The Monitoring Procedure of the Council of Europe’s Parliamentary Assembly Jan Kleijssen*
Introduction The Parliamentary Assembly of the Council of Europe (set up in 1949) is the oldest international parliamentary assembly with a pluralistic composition of democratically elected members of parliament. It is, together with the Committee of Ministers, a statutory organ of the Council of Europe. The Parliamentary Assembly consists of individual representatives from each of the currently 47 Member States. Only Belarus remains outside the European family as a result of Mr. Lukashenko’s dictatorship. The number of representatives in the Assembly, and consequently the number of votes, is determined by the size of the country, with the largest States having 18 and the smallest 2 representatives (as well as an equal number of substitutes). At present the total number of representatives and substitutes is 636. In addition, there are 15 observers (from Canada, Israel and Mexico). Specific competences The Assembly may make recommendations to the Committee of Ministers upon any matter within the aim and scope of the Council of Europe. It is also regularly seized for opinion by the Committee of Ministers, for instance on draft conventions. The Assembly has been the political engine of the Organisation. Over one-third of the Council of Europe’s over 200 conventions – including the European Convention on Human Rights – resulted from Assembly initiatives. The Assembly elects the Secretary General and the Deputy Secretary General of the Organisation, as well as the Secretary General of the Assembly. The Assembly also elects the members of the European Court of Human Rights. It is interesting to note, in comparison, that the European Parliament may not elect the judges of the European Court of Justice. *
Director of Standard-Setting, Directorate General of Human Rights and Legal Affairs, Council of Europe.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 523-528.
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The Committee of Ministers must consult the Assembly on the admission of new Member States. It is in fact the Assembly’s opinions which have been decisive as regards the admission of the new democracies to the Council of Europe since 1989. It is also in the context of its competence in this field that the Assembly created a procedure for the political monitoring of Member States’ compliance with their commitments and obligations. This procedure has become one of its key activities. The establishment of a monitoring mechanism Since 1989, the new democracies of Central and Eastern Europe all requested Council of Europe membership. The possibility to be accepted as equal partners in a pan-European political forum, the possibility to consolidate their recently established democracies, while guaranteeing respect for human rights and the rule of law, were important incentives. Finally, Council of Europe membership was considered as a necessary preparation for future accession to the European Union (EU). Although the first requests for membership posed relatively little problems (Hungary, Poland and the then Czechoslovakia), it soon became clear that other candidate States did not meet the strict requirements for membership. This created a dilemma for the Assembly. Either it could maintain a strict interpretation of the criteria, which would keep certain countries out of the Council of Europe for a considerable time, or it could relax the criteria, which would enable the accession of these countries but which would negatively affect the Council of Europe’s credibility. In order to avoid this dilemma, the Assembly decided to extend a “credit of confidence”. It asked candidate States to formally undertake a series of commitments, for instance with regard to the adoption of legislation, the ratification of certain Council of Europe instruments or the adoption of certain policy principles, upon accession to the Council of Europe. The Assembly insisted that these commitments be undertaken in writing by the highest State authority. In the case of Russia’s accession request, it led to a unique document, and the only one of its kind, to be signed by the president, the prime minister and the speaker of Parliament. In order to ensure that these commitments would also be effectively honoured, the Assembly adopted, in June 1993, the so-called Halonen Order, Order 488, establishing a parliamentary procedure regarding the respect of commitments entered into by new Member States. The then Secretary General of the Assembly Mr. Bruno Haller played an important role in the establishment of this procedure. The Political Affairs Committee and the Committee on Legal Affairs and Human Rights were instructed to monitor regularly the obligations entered into by the new Member States. The Assembly also made it clear that respect for the commitments entered into was a condition for the full participation of the parliamentary delegations of the new Member States in the work of the Parliamentary Assembly. Rightly, and not surprisingly, the new Member States were quick to point out that all Council of Europe Members should respect their obligations. This awareness led, in 1994, to a new resolution extending the monitoring procedure to all obligations under the Statute, the European Convention on Human Rights and all other ratified conventions. The Assembly made it
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clear that the monitoring process should be regarded as a stimulus and guidance for the consolidation of democracy in States which had become Members since 1989. In November 1994, the Committee of Ministers also established a monitoring procedure, of a thematic nature, at inter-governmental level. On the basis of acquired experience, the Assembly, in 1995, refined its procedure inter alia by introducing public debates on the honouring of commitments. In addition, the Assembly specified the sanctions to be imposed in case of non-respect: non-ratification of credentials followed by, as the last resort, a recommendation to the Committee of Ministers to exclude an offending State from the Council of Europe. To emphasise that it regarded monitoring as vital for the credibility and thus the future of the Council of Europe, the Assembly therefore decided in January 1997 (by Resolution 1115) to create a specific committee on the honouring of obligations and commitments by Member States (the Monitoring Committee), with the task of “verifying the fulfilment of the obligations assumed by the member states under the terms of the Council of Europe’s statute, the European Convention on Human Rights and all other Council of Europe conventions to which they are parties, as well as the honouring of the commitments entered into by the authorities of member states upon their accession to the Council of Europe”. From the beginning, it became clear that the monitoring procedure was seen as a temporary arrangement, to be ended upon completion of the commitments entered into upon accession to the Council of Europe. However, the Assembly also created possible sanctions. In cases of persistent failure to keep commitments and obligations, the Assembly may decide not to ratify the credentials of the parliamentary delegation concerned, thereby preventing it from participating in its work. The Assembly may also recommend to the Committee of Ministers that a Member State be suspended or expelled from the Council of Europe Scope The monitoring procedure may be opened at the request of – the Monitoring Committee, – other Assembly committees, – at least ten members of the Assembly (representing at least two national delegations and two political groups), – the Bureau of the Assembly. The actual decision is taken by the Bureau of the Assembly. The composition of the Monitoring Committee reflects the very specific character of the procedure. Whereas the membership of other Assembly committees is decided by national delegations, the members of the Monitoring Committee are designated by the Assembly’s five political groups. The preparation of its reports is also a particular one: whereas the other Assembly committees generally appoint a single rapporteur, the Monitoring Committee works with two co-rapporteurs appointed to guarantee a certain political and regional balance. In order to allow for free and confidential discussion, notably with the parliamentary
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delegation of the country under monitoring, the Monitoring Committee meets in camera. The total number of its members is currently 84. In order to avoid that countries lose momentum, or slide back, or the monitoring procedure be concluded too rapidly, over the years the Committee has developed criteria for the ending of the procedure. Three cumulative requirements have been identified: a. Following generally free and democratic elections, the political situation of the country must be stable enough to allow for the conduct of tangible and irreversible reforms; reforms adopted must have been properly implemented; b. In the case of countries which do not have full sovereignty over their territories, countries which are partially or entirely under international rule, countries which are at war with a neighbour or experiencing serious ethnic and/or separatist tension, the authorities must have demonstrated practical commitments to settling those conflicts in a lasting manner by peaceful means and in the interest of the populations concerned; c. All the Council of Europe conventions, which include monitoring mechanisms (either judicial monitoring, such as the European Court of Human Rights, or via an obligation on States to report regularly), must have been ratified. Moreover, in 2000, the Assembly endorsed the proposals by its Bureau on a so-called post-monitoring mechanism, enabling the continuation of monitoring of specific issues, following the closing of the formal monitoring procedure. At the time of writing (September 2008) there were 11 full monitoring and 3 post-monitoring dialogue procedures underway. Since June 2007, the Progress Report of the Monitoring Committee is a contribution to the annual PACE debate on “the state of democracy and/or human rights in Europe”. In particular, since June 2008, the practice was established that each year the report will enter into the merits and summarise the situation in all Member States under monitoring or post-monitoring with respect to the theme dealt with each year by this annual debate. In 2007, summaries were provided on 14 States (and Italy and the United Kingdom for which opinions on opening procedure were prepared) with respect to the functioning of democratic institutions on the basis of a thematic outline (separation of powers; elections and electoral reform; political parties and their funding; the fight against corruption; media pluralism; conflicts and the role of parliaments in promoting confidence building). In 2008, summaries will be prepared with respect to the theme of Human Rights. In 2007–2008, the Committee prepared opinions on two applications to initiate a monitoring procedure for two “old” democracies: Italy (media pluralism) and the United Kingdom (electoral fraud, in particular with respect to postal voting). Especially the latter was very widely publicised. Results Legislative measures such as abolition of the death penalty, changes major improvements to the criminal codes and improvement of the legal status of minorities are
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among the successes of the monitoring procedure. In particular, as a long-term instrument, combined with the Council of Europe’s co-operation and assistance programmes, the Assembly’s monitoring procedure has proven itself to be a concrete way of helping Council of Europe Member States to meet their obligations and commitments. The years ahead In April 2006, Mr. Jean-Claude Juncker, prime minister of Luxembourg, presented, in his personal capacity, a comprehensive report on the relations between the Council of Europe and the European Union. In his report, Mr. Juncker proposes that EU bodies should give formal effect to the spirit of Article 6.2 of the Treaty on the European Union, on which cooperation with the Council of Europe is based, by making it a working rule that the decisions, reports, conclusions, recommendations and opinions of these monitoring bodies: 1. will be systematically taken as the first Europe-wide reference source for human rights; 2. will be expressly cited as a reference in documents which they produce. In fact this proposal merely confirms existing practice. But it does mean taking something which today is simply a practice, and turn it into a rule for EU institutions on all levels. This explicit formula will enhance the status of the Council of Europe’s human rights instruments and monitoring machinery in all its member states, both EU members and others. It will also make for more effective cooperation between the two organisations.
It remains to be seen how Mr. Juncker’s recommendations will be implemented by the two institutions. An important first step was the memorandum of understanding signed in May 2007. The Assembly has constantly stressed the comprehensive and non-discriminative character of its procedure. Nevertheless, it has been reluctant to extend the monitoring procedure to any of the pre-1989 Member States, with the exception of Turkey, leading to allegations of double standards. Consequently, on 29 June 2006, the Assembly adopted Resolution 1515. The Assembly welcomed “the Monitoring Committee’s initiative to prepare and attach to its annual progress report to the Assembly, periodic reports on states which are not currently subjected to a monitoring procedure, or involved in a post monitoring dialogue”. It noted that the reports would be based on country-by-country assessments carried out by other Council of Europe institutions, including the Congress of Local and Regional Authorities, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the Advisory Committee on the Framework Convention for the Protection of National Minorities, the European Commission Against Racism and Intolerance (ECRI) and others. The advantage of this procedure is that it provides an overview of how the situation is assessed in the countries not under monitoring. The Monitoring Committee has di-
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vided the 33 countries, not currently under monitoring or post-monitoring procedure, into three country groups and an initial set of 11 country reports were presented to the Assembly in 2006, and specific proposals to these countries included in Resolution 1515. Periodic reports on the second group of 11 states were presented to the Assembly in April 2007 and on the third and last group in June 2008. By introducing this new procedure, the Assembly has returned to the spirit of its original Resolution 1115, which aimed at ensuring full compliance with undertakings made by all Member States. This should contribute to reinforcing the credibility of the exercise and to strengthening the Council of Europe’s role as the European continent’s first and foremost watchdog on human rights, democracy and the rule of law.
48 The “Pilot-judgment” Procedure of the European Court of Human Rights David Thór Björgvinsson*
Introduction Within the Council of Europe institutions there has been an ongoing discussion on how to tackle situations where an established violation of the European Convention on Human Rights in an individual case is a part of a systemic problem, and insufficient legislation and judicial practices in a Member State affect a large group of individuals. In such a situation the alleged violation is not rooted in a single incident or decision on behalf of the authorities, but follows from general administrative and regulatory shortcomings. It may therefore happen that after one individual is successful before the Court, many others, even thousands, may follow with similar complaints arising from the same systemic problem. This paper focuses on the so called “pilot-judgment” procedure of the European Court of Human Rights, which must be viewed as one of the possible means to alleviate the situation, and help the Court in coping with its overwhelming case-load. But, despite good intentions, the adoption of this procedure also raises interesting questions. Firstly it brings to the forefront issues concerning the legal basis of the procedure, namely questions of legal reasoning and interpretation. Secondly, it raises issues concerning the borderline between the judicial powers of the Court, as defined by the Convention and the Committee of Ministers and of the national authorities in the respective countries, especially in the light of the subsidiary role of the Convention and the Court, as institutions under public international law. Execution of judgments under the Convention and the role of the Committee of Ministers Article 46(1) of the Convention provides that the Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. Furthermore, *
Judge, European Court of Human Rights, Professor at Reykjavik University School of Law.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 529-540.
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paragraph 2 stipulates that the final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. In general terms, the role of the Committee in the enforcement of judgments can be divided into: (1) control of payment, in case where damages have been awarded, (2) other individual measures (e.g. reopening of a case before the national courts, lifting of convictions, striking convictions out of the criminal record, etc.), (3) general measures to prevent new violations, (4) interim resolutions. It goes without saying that respect of the Court’s judgments is a crucial element of the Council of Europe’s system for the protection of human rights. The new Protocol 14 provides for certain improvements, for instance to Article 46. In general the changes put into effect by Protocol 14 aim at speeding up the procedures before the Court and securing more effective execution of judgments. Three main elements are of importance in this regard: a) the institution of the single judge in a final way that a case is inadmissible (Article 7 of Protocol 14), b) new admissibility criteria under which an application is to be declared inadmissible if the applicant has not suffered significant disadvantage, unless the respect for human rights as defined by the Convention requires an examination of the application (Article of 12 Protocol 14), c) provisions concerning the execution of judgments (Article 16 of Protocol 14). It is this last point which is of importance for this paper. Clearly the drafters of the Protocol were aware of the need for improvement in this area. The new Protocol 14 offers two new alternatives. First, if the Committee of Ministers considers that problems concerning the interpretation of a judgment stand in the way for its execution, it may, with a two-thirds majority, request from the Court a ruling on interpretation of the judgment (Article 16(3)). Secondly, the Committee of Ministers is invested with a power to refer to the Court the non-compliance of the State Party with a final judgment (Article 16(4)). Following such a reference the Court can consider and decide whether a State has failed to fulfil its obligation to abide by specific judgments of the Court. As a part of the overall framework provided for by Protocol 14, the Committee of Ministers has adopted Resolution (2004)3 on judgments revealing what is termed as an underlying systemic problem. In the Resolution the Committee stresses the importance of the Convention as the most important point of reference when it comes to the definition of a common standard for the protection of human rights in Europe. In addition, it is emphasised that execution of judgments of the ECHR would be facilitated if
As further reading on the general role of the Committee of Ministers in the enforcement of judgments a reference is made to the article, by Fredrick G. E. Sundberg in this book. Protocol 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention. Council of Europe Treaty Series No. 194. 13.V.2004. The prospects of the Protocol ever to take force are bleak after Russia has rejected to ratify it. For a more detailed account of the changes provided for by Protocol 14 see the Explanatory Report (CETS 194). Council of Europe Committee of Ministers. Resolution (2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem (adopted by the Committee of Ministers on 12 May 2004, at its 114th Session).
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the existence of a systemic problem is already identified in the judgment of the Court. On the basis of these considerations the Committee further invites the Court: I. as far as possible, to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments; II. to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the State concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court. In this context, a reference should also be made to Recommendation Rec(2004)6 of the Committee of Ministers on the improvement of domestic remedies, in which it is emphasised that, in addition to the obligation under Article 13 of the Convention to provide an individual who has an arguable claim with an effective remedy before a national authority, States have a general obligation to solve the problems underlying the violations found. Mindful that the improvement of remedies at the national level, particularly in respect of repetitive cases, should also contribute to reducing the workload of the Court, the Committee of Ministers recommended that the Contracting States, following Court judgments which point to structural or general deficiencies in national law or practice, review and, “where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court”. The Broniowski-case and the Hutten-Czapska-case Two judgments of the ECHR cast light on the application of the “pilot-judgment” procedure, namely Broniowski v. Poland of 22 June 2004 and Hutten-Czapska v. Poland of 19 June 2006. These two judgments are without doubt the most important “pilot-judgments”, although several others are also noteworthy.
In relation to this a reference is made to the Court’s own submission on this matter to the Committee of Ministers session on 7 November 2002. Recommendation (2004)6 of the Committee of Ministers to Member States on the improvement of domestic remedies (adopted by the Committee of Ministers on 12 May 2004, at its 114th Session). See infra note 8.
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The Broniowski-case The Broniowski-case, the first case where the “pilot-judgment” procedure was applied, concerned an alleged failure on behalf of the Polish State to satisfy the applicant’s entitlement to compensation for property (a house and land) in the Ukraine, which belonged to his grandmother when the area was still part of Poland. The applicant’s grandmother along with many others who had been living in the eastern provinces of pre-war Poland was repatriated after Poland’s eastern border had been redrawn in the aftermath of the Second World War. Under the so-called “republican agreements” between the Polish Committee of National Liberation and the governments of the former Soviet Republics of Lithuania, Belarus and Ukraine, Poland undertook to compensate those who had been “repatriated” and had had to abandon their properties. During the years from 1944 to 1953, around 1,240,000 people were “repatriated” under the arrangements provided for in these agreements. Since 1946, Polish law has entitled those repatriated in such circumstances to compensation in kind; they have been entitled to buy land from the State and have the value of the abandoned property offset against the fee for the so-called “perpetual use” of this land or against the price of the compensatory property or land. The anticipated total number of entitled persons was nearly 80,000. However, following the entry into force of certain legislative acts in Poland reducing the pool of State property available to claimants in a similar situation as the applicant (the Bug River claimants) the State Treasury was unable to fulfil its obligation to meet the compensation claims. Thus the applicant had received only approximately two per cent of the estimated value of the property (i.e. of the compensation due to him) in the form of the right of perpetual use of a small building plot, which his mother bought from the State in 1981. On 19 December 2002 the Polish Constitutional Court declared the provisions that excluded the possibility of enforcing the Bug River claims against State agricultural and military property unconstitutional. However, following this judgment, the State agencies administering State agricultural and military property suspended all auctions, considering that further legislation was required to deal with the implementation of the judgment. In early 2004 a law entered into force to the effect that the Polish State’s obligations towards the applicant, and all other Bug River claimants who had ever obtained any compensatory property under the previous legislation, were deemed to have been discharged. Claimants who had never received any compensation were awarded 15 per cent of their original entitlement, subject to a ceiling of 50,000 Polish zlotys. The applicant claimed that he had suffered a violation of Article 1, Protocol 1 of the Convention, which the Court accepted. Furthermore the following is stated in the operative part of the judgment: The Court … 3. Holds that the above violation has originated in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the “right to credit” of Bug River claimants;
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4. Holds that the respondent State must, through appropriate legal measures and administrative practices, secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1;
Here the Court expressly draws attention to the existence of a systemic problem underlying the violation of the Convention, a problem that had already generated many similar cases and deemed likely to generate more and obliges the respondent State to adopt necessary general measures to secure the implementation of the property right in question. Furthermore, for this reason the Court held that, as far as the financial award to the applicant for any pecuniary or non-pecuniary damage resulting from the violation found in the case, the question of the application of Article 41 was ready for decision and accordingly reserved the said question as a whole. Also, in line with this judgment, further processing of cases concerning the Bug River claimants that had already been brought before the Court was adjourned. Following upon this judgment and owing to the positive attitude of the Polish government, a friendly settlement in the Broniowski-case as regards the compensation was concluded on basis of which the Court took the decision of 28 September 2005 to strike the case out of list. According to this settlement the Polish government settled the individual Broniowski-case. In addition the government declared: (a) that they undertake to implement as rapidly as possible all the necessary measures in respect of domestic law and practice as indicated by the Court in the fourth operative provision of the principal judgment, and that, to this end, they will intensify their endeavours to make the new Bug River legislation effective and to improve the practical operation of the mechanism designed to provide the Bug River claimants with compensation, including the auction-bidding procedure and payments from the Compensation Fund (Fundusz Rekompensacyjny) referred to in the July 2005 Act; (b) that, as regards the auction-bidding procedure, they will ensure that the relevant State agencies will not hinder the Bug River claimants in enforcing their “right to credit”; (c) that, in addition to adopting general measures designed to remove obstacles in implementing the ‘right to credit’, they recognise their obligation to make available to the remaining Bug River claimants some form of redress for any material or non-material damage caused to them by the defective operation of the Bug River legislative scheme in their regard.
When the Broniowski-judgment from 22 June 2004 was handed down the consideration of other applications deriving from the same systemic problem identified in the case was adjourned. Following up on the judgment and the friendly settlement the Polish state went on to adopt legislation which in short provided for payment of 20 per cent of the original claims of the Bug River claimants. In the cases Wolkenberg v. Poland (application no. 50003/99) and Witkowska-Tobola v. Poland (application no. 11208/02), decisions of 4 December 2007 where the applicants submitted that this was not enough to meet the requirements made in the original Broniowski-judgment, the Court accepted that it was enough and decided to strike the applications out of the list of cases. Although
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this may seem to be controversial to many, the Court’s reasoning will not be further described in this context. This should indicate what will be the next steps with regard to other cases still pending which are similar to Broniowski. The Hutten-Czapska-case The “pilot-judgment” procedure was again used in another Grand Chamber case, the Hutten-Czapska-case which also dealt with property rights. The applicant, as an owner of a house and a plot of land in Gdynia in Poland, claimed to be affected by a restrictive system of rent control, from which some 100,000 landlords are affected by and 600,000 to 900,000 tenants benefited from. The system originated in laws adopted under the former communist regime in Poland which imposed a number of restrictions on landlords’ rights, in particular, by setting a ceiling on rent levels which were even below costs for the maintenance of the property, let alone allowing for the making of profit. Despite attempts on behalf of the Polish authorities to improve the situation of the landlords, which are thoroughly described in the judgment, the Court found that the Polish authorities had imposed a “disproportionate and excessive burden” on the applicant, which could not be justified by any legitimate community interest. Furthermore the Court found that the violation of the right of property in the applicant’s case was not exclusively linked to the question of the levels of rent chargeable but, rather, consisted in the combined effect of defective provisions on the determination of rent and various restrictions on landlords’ rights in respect of termination of leases, the statutory financial burdens imposed on them and the absence of any legal ways and means making it possible for them either to offset or mitigate the losses incurred in connection with maintenance of property or to have the necessary repairs subsidised by the State in justified cases. The Court referred to its case-law confirming that in many cases involving limitations on the rights of landlords – which were and are common in countries facing housing shortages – the limitations applied had been found to be justified and proportionate to the aims pursued by the State in the general interest. However, in none of those cases had the authorities restricted the applicants’ rights to such a considerable extent as in Ms. Hutten-Czapska’s case. In the first place, she had never entered into any freely-negotiated lease agreement with her tenants; rather, her house had been let to them by the State. Secondly, Polish legislation attached a number of conditions to the termination of leases, thus seriously limiting landlords’ rights. Finally, the levels of rent were set below the costs of maintenance of the property such that landlords were not able to increase the rent in order to cover necessary maintenance expenses. The Polish scheme did not, and does not, provide for any procedure for maintenance contributions or State subsidies, thereby causing the inevitable deterioration of the property for lack of adequate investment and modernisation. The Court was aware that the rent control system was an inheritance from the communist regime, aimed at challenging an acute shortage of flats available for lease at an affordable level of rent, and an attempt to balance difficult and socially sensitive issues with the interests of the landlords. Nevertheless, the Court found that legitimate interests of the community in such situations called for a fair distribution of the social and financial burden involved in the transformation and reform of the country’s housing
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supply. That burden could not, as in the applicant’s case, be placed on one particular social group, however important the interests of the other group or the community as a whole. However, the Court considered that the Polish State had failed to strike the requisite fair balance between the general interests of the community and the protection of the right of property, and found a violation of Article 1 of Protocol No. 1. As in the Broniowski-case, the Court also found that the conditions for the application of the “pilot-judgment” procedure were met. It was noted that the operation of the impugned housing legislation potentially entailed consequences for the property rights of a large number of people whose flats were let under the rent-control scheme. It was stressed that similar applications were already pending before the Court, including one lodged by an association of some 200 landlords. The Court noted, however, that the identification of a “systemic situation” justifying the application of the “pilot-judgment” procedure did not necessarily have to be linked to, or based on, a given number of similar applications already pending. In the context of systemic or structural violations, the potential inflow of future cases was also an important consideration in terms of preventing the accumulation of repetitive cases on the Court’s docket, which hindered the effective processing of other cases giving rise to violations, sometimes serious, of the rights it was responsible for safeguarding. Although the Polish government maintained that the rent-control scheme no longer existed in Poland, the Court reiterated its view that the general situation had not yet been brought into line with the Convention standards. The Grand Chamber shared the Chamber’s general view that the problem underlying the violation of Article 1 of Protocol No. 1 consisted in “the malfunctioning of Polish housing legislation”. However, the Grand Chamber saw the underlying systemic problem as a combination of restrictions on landlords’ rights, including defective provisions on the determination of rent, which was and still is exacerbated by the lack of any legal ways and means enabling them at least to recover losses incurred in connection with property maintenance, rather than as an issue solely related to the State’s failure to secure to landlords a level of rent reasonably commensurate with the costs of property maintenance. These considerations found expression in parts 3 and 4 of the operating part of the judgment, where the Court held: 3. ... by 16 votes to 1 that the above violation has originated in a systemic problem connected with the malfunctioning of domestic legislation in that: (a) it imposed, and continues to impose, restrictions on landlords’ rights, including defective provisions on the determination of rent; (b) it did not and still does not provide for any procedure or mechanism enabling landlords to recover losses incurred in connection with property maintenance; 4. ... by 15 votes to 2 that, in order to put an end to the systemic violation identified in the present case, the respondent State must, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interest of the community, in accordance with the standards of protection of property rights under the Convention (see paragraph 239 above);
As in the Broniowski-case and after a friendly settlement procedure the Court decided on 28 April 2008 to strike the Hutten-Czapska-case off the list of cases, as it was consid-
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ered that sufficient steps had been taken to implement the judgment of 19 June 2006. At the time of writing other cases similar to Hutten-Czapska are still being processed. The legal basis for the “pilot-judgment” procedure The Broniowski-judgment is usually taken as the first clear example where the Court recommends to the respondent State to adopt general measures to solve systemic problems and regulatory shortcomings of which the violation is a part of. The Hutten-Czapskajudgment is the clearest example after that where this is done. The main features of these judgments are the following: a) It is emphasised in the operative part that a breach of the Convention is rooted in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to rectify the situation. b) It is submitted that the respondent State must, through appropriate legal measures and administrative practices, secure the implementation of the property right in question in respect of the applicants. c) A decision as far as the financial award to the applicant for any pecuniary or nonpecuniary damage resulting from the violation found is postponed. d) An additional side effect of the procedure is that other similar cases were adjourned, pending the general measures taken. In fact the two above mentioned judgements exhibit all these features. Several other judgments resembling these two can be mentioned. These judgments show that the pilot-judgment procedure is still being developed.
See for example Sejdovic v. Italy of 10 November 2004 (application no. 56581/00). The Chamber judgment refers to a systemic problem concerning court proceedings (para. 47), reference which is repeated in the operative part. This is maybe viewed as a pilot judgment. Measures to be adopted are described in more detail compared to Broniowski and HuttenCzapska. The factual situation in these cases, however, made it possible for the Court to be more specific. In the judgment of the Grand Chamber no such reference to a systemic problem is to be found. Another example is Lukenda v. Slovenia of 6 October 2005 (application no. 23032/02). See in particular para. 98, where the defendant State is encouraged to adopt general measures to shorten court proceedings. However, the alleged shortcomings are not described in the operative part of the judgment nor does it oblige the State to adopt general measures. Also Xenides-Arestis v. Turkey of 22 December 2005 (application no. 46347). The operative part of the judgment is different from the Broniowski-case, although the Court ordered the defendant State to adopt general measures. In this judgment decision on compensation was adjourned. Later a separate judgment was given on just satisfaction since it was believed that the defendant State had not adopted appropriate measures nor offered sufficient compensation (see judgment of 22 March 2006); Doğan v. Turkey of 9 June 2004 (applications nos. 8803-8811/02, 8813/02 and 8815-8819/02) and judgment on just satisfaction of 13 July 2006; Scordino v. Italy (Scordino 1) of 29 March 2006 (Grand Chamber) (application no. 36813/97). See in particular paras. 237 and 239. Although in this judgment a different approach was adopted compared to Broniowski the judgment is interesting in this regard. And finally Scordino v. Italy (Scordino 3) from 6 March 2007 (application no. 43662/98).
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It is also clear from the the judgments that certain conditions must be fulfilled in order to apply the pilot-judgment procedure. They are mainly that a breach of the Convention is rooted in a general systemic problem and reglulatory malfunction in a given area, rather than specific decisions by courts or the administration, and that these shortcomings affect many individuals. The Broniowski- and Hutten-Czapska-judgments would seem to indicate that the legal basis for the pilot-judgment procedure is Article 46 of the Convention and the aforementioned Resolutions and Recommendation of the Committee of Ministers (see further paragraphs 188–191 of the Broniowski-judgment). This has prompted some critisism as will be shown in the next section. General remarks and observations As a first remark it should be mentioned that the concepts of a “pilot-judgment” and “pilot-judgment procedure” have been used in this paper almost as they are well defined legal terms. However, they are not. These words are not to be found in the relevant legal texts, namely the Convention or the Rules of Court. Still in absence of clear definitions several distinguished features of this procedure can be identified. The main feature is to be found in the operative part of the judgments on merits. They are the following: Firstly, by indentifying a systemic problem of which the breach in the case is rooted in. Secondly by oblige the respondent State to adopt general measures to alleviate the situation. At the same time it is important to have in mind that only two cases can truly be earmarked as pilot procedure-cases. Further it must be had in mind that both these cases concern Article 1 of Protocol 1. The way in which it may be used in other types of cases is therefore uncertain and the whole idea must be seen as in its initial stage of development. There are therefore many questions and issues that remain to be solved. From the reasoning of the Court in these two cases and its background, it is clear that reasons concerning the overwhelming case-load of the Court play an important role and the “pilot-judgment” approach should inter alia be viewed as an attempt to reduce the number of repetitive cases, a consideration which does not only concern the Court as an institution, but is also of importance for the general effectiveness of the system set up under the Convention. Therefore, the legitimacy for the adoption of this procedure does not only follow from the need of the Court to find ways to reduce its case-load, but from the fact that it is one of the means to implement the Convention rights in an effective way in the national systems. In addition, it should be viewed as an
This is i.a. reflected in paragraph 234 of the Hutten-Czapska-judgment saying: “One of the relevant factors considered by the Court was the growing threat to the Convention system and to the Court’s ability to handle its ever increasing caseload that resulted from large numbers of repetitive cases deriving from, among other things, the same structural or systemic problem [….]. Indeed, the pilot judgment procedure is primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to the persons concerned the Convention rights and freedoms as required by Article 1 of the Convention, offering to them more rapid redress and, at the same time, easing the burden on the Court which would otherwise have to take to judgment large numbers of applications similar in substance.”
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attempt to provide a practical and sensible way for the administration of justice on a pan-European level. From an ideological point of view, it is difficult not to subscribe to the basic idea behind this procedure and the obvious advantages inherent in it. The main concern from a more theoretical point of view, however, relates to the method of legal interpretation adopted, together with issues concerning the role and nature of the Court as an institution under international public law. As mentioned above the legal basis of the pilot-judgment procedure is mainly Article 46 of the Convention and the aforementioned Resolutions and Recommendation of the Committee of Ministers. This warrants some comments. By its wording, Article 46 of the Convention refers to the execution of judgments. Under normal circumstances, a judgment where a violation has been established imposes upon the State a obligation to fulfil its duties vis-à-vis the applicant(s) only. The excerpts of the operating part of the judgments cited above go beyond that, urging the State in rather general terms to adopt measures aimed at rectifying the situation in relation to individuals who are not party to the proceedings, but are deemed to be affected in the same or similar way as the applicant. This is done without exact and detailed specifications of the alleged shortcomings of the defective legal framework or administrative practices (but rather by reference to its consequences) and without detailed guidelines as to what specific measures should be taken to bring the situation in line with the Convention standards. In the judgments mentioned above, the Court justifies the application of the “pilot-judgment” procedure by reference to different factors. It should be noted, in particular, that reference is made to the Committee of Ministers Resolution (2004)3 mentioned above. This justifies the conclusion that the Resolution, together with the Recommendation, must be seen as the main legal basis upon which the adoption and the legitimacy of the “pilot-judgment” procedure rests.10 From the judgments it also becomes apparent that certain conditions must be fulfilled in order to adopt this procedure: (1) the violation must be rooted in a systemic problem (rather than individual decisions) connected with serious shortcomings in the domestic legal order, (2) it must affect a large group of individuals in the same or similar way. It should be noted in this context that in point 3 and 4 of the operative part of the Broniowski-judgment (cited above) the Court, in fact, obliges the respective State to amend its own legislation and/or administrative practices in order to solve a general problem which does not only affect the applicants in these cases, but numerous other individuals as well. However, Article 46 of the Convention simply states that the High Contracting Parties undertake to abide by the final judgment of the Court in any case “to which they are parties” and, furthermore, that it is for the Committee of Ministers to supervise the execution of judgments. The wording would seem to refer only to cases between the applicant and the State that have been decided by the Court, but not to the duty of the State to take measures in relation to individuals who are not parties to the case at hand, although they may be in the same or a similar situation as the applicants. In 10 See in particular the Broniowski-judgment, paras. 190 and 191.
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other words, the wording of Article 46 seems to narrow the binding effect of a judgment of the Court to what may be termed as inter parties. However, it could be argued that by applying the “pilot-judgment” procedure the Court has extended the binding effect of a judgment to other identical or similar cases regardless of whether they are already pending before the Court.11 The reference in the judgments to Resolution (2004)3 and Recommendation (2004)6 also warrants comments. Normally the resolutions and recommendations of the Committee of Ministers are directed towards governments. As regards the Court they do not represent binding legal norms which the Court must abide by or take into consideration, nor is the Court specifically under the Convention invested with powers to apply them and interpret and to give them legal effect in a given situation. Having this in mind, it is fair to say that the adoption of the “pilot-judgment” procedure displays an example of a rather innovative and dynamic legal interpretation. This may not be to everyone’s liking, and is bound to be subject to scholarly criticism.12 An additional problem in relation to the “pilot-judgment” approach which must be admitted is the vagueness inherent in the operating part of the judgments. Point 3 of the operating part of both of the judgments is more like a general description of a given situation, rather than a direct declaration of violation or direct order to take specific action which lends itself to be executed directly and without discretion. It is simply held that the violation originates in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to secure the rights of a definite group of individuals in line with Convention standards. Again, point 4 obliges the respondent State, through appropriate legal measures and administrative practices, to secure the implementation of the property rights in question in respect of the remaining claimants, or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1. Although the reasoning of the judgments contains further guidelines for the respondent State as to what is required, it is fair to say that it is far from being clear what specific action should be taken and which specific measures would satisfy the Court. This obviously creates problems for the Committee of Ministers in the supervision of the enforcement of a judgment under Article 46, as well as for the respondent State, when deciding which specific measures should be taken to enforce the judgment in a way that would satisfy the Court. This has twofold consequences. First, the distinction between the role the Court, as a judicial body, and the Committee of Ministers, as the executive branch of the Council of Europe, becomes rather blurred. Secondly it may be argued that the Court has entered the realm of domestic politics. In short, this approach See here for example the partly concurring and partly dissenting opinion of Judge Zupančič and partly dissenting opinion of Judge Zagrebelsky. 12 Concerns of this kind are inter alia reflected in the partly concurring and partly dissenting opinion of Judges Zupančič and Zagrebelsky. See also Lambert-Abdelgawad, ‘La Cour européenne au secours du Comité des Ministres pour une meilleure exécution des arrêts « pilote » (en marge de l´arrêt Broniowski)’, Revue Trimestrielle des Droits de l´Homme (2005) pp. 203–224. 11
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invites the criticism that the Court has gone beyond its competence as a judicial body in the traditional sense. Legitimate as these considerations seem to be, they may certainly give occasion to look further into the question whether changes are needed to the Court’s Rules of Procedure or whether a reform of the Convention would be appropriate in order to further strengthen the legal basis for the application of the “pilot-judgment” procedure. In any case, they do not override the practical advantages of this procedure. Measures will be needed to help the Court to cope with the ever increasing case-load and repetitive cases. The “pilot-judgment” procedure may be of some help in that respect. At the same time, it provides for a fair, practical and sensible way in the administration of justice on a pan-European level in the field of human rights. Similar views have also found expression in two recent high level reports on the Court’s working methods and long-term effectiveness of the Convention control mechanism.13 Both these reports fully endorse the “pilot-judgment” procedure and encourage the Court to build on its success so far, and work to identify further situations where a systemic or structural defect in the national legal system could be remedied by recourse to a “pilot-judgment”.
13
Review of the Working Methods of the European Court of Human Rights December 2005. The Right Honourable The Lord Woolf, Michael McKenzie CB QC Peter MacMahon, Dr. Colm O’Cinneide, Laura Clarke (the report repeatedly refers to the importance of “pilotjudgment” procedure and encourages its application) and the Report of the Wise Persons to the Committee of Ministers 10 November 2006 (Sages) pp. 27 and 28.
49 Monitoring against Discrimination and Xenophobia – The European Commission against Racism and Intolerance (ECRI) Lauri Hannikainen*
Introduction The European Commission against Racism and Intolerance (ECRI) is a human rights monitoring organ at the Council of Europe, charged with the task of combating racism, xenophobia, anti-Semitism and intolerance at the level of greater Europe and from the perspective of the protection of human rights. ECRI’s action covers all necessary measures to combat violence, discrimination and prejudice faced by persons or groups on grounds of “race”, colour, language, religion, nationality and national or ethnic origin. ECRI was established by the first Summit of Heads of State and Government of the Council of Europe in 1993. Its mandate is not based on any particular treaty, but it has a general mandate in the field of anti-racism and anti-discrimination. It is composed of one independent member from each Member State of the Council of Europe. The members are from very different backgrounds: academic experts, lawyers, ombudsmen, journalists, and others. This pluri-disciplinarity is one of ECRI’s strengths. I myself am the Finnish member of ECRI. ECRI’s work programme is wide-ranging, and based on three main aspects: its general policy recommendations, country monitoring reports and work to build up relations with civil society. These three aspects are interrelated. For example, the general policy recommendations form a basis for the analyses and recommendations made in the country reports, while the country monitoring work gives ECRI a clear picture of the main overarching problems and themes in Europe for which general policy recommendations, setting out guidelines for all Member States, should be prepared. Work with civil society is crucial, both in the preparation of country visits and for gaining an overall and balanced picture of the situation in each country, and to build up a network of partners or “multipliers” in each Member State, who can then take the results of ECRI’s work forward on the national level. *
Professor of International Law, University of Turku, Finland. ECRI’s website <www.coe.int/ecri> contains a lot of information and materials on ECRI’s work, including the texts of all ECRI’s country reports.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 541-546.
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The most important of these three tasks – taking most of the working time of ECRI – is country reports. At the beginning of 2003 ECRI began its third round of country reports. This round was completed in early 2008 when the fourth round began. The length of the third round country reports is 25–30 tightly packed pages. In the third round ECRI’s main focus was on monitoring national implementation of its previous proposals and recommendations. The key principles of ECRI’s country-by-country work The first principle guiding the work of ECRI is that it deals with all Member States of the Council of Europe on an equal footing. ECRI averages around nine countries per year and prepares reports on all these countries. According to the second principle ECRI’s country reports are not intended as a “finger-pointing exercise” put in place in order to criticise governments. ECRI’s starting point has always been that all Member States want to tackle the problems of racism, discrimination and intolerance which damage their societies. ECRI’s aim is, therefore, to cooperate with governments and assist them in dealing with the problems they face by proposing practical, targeted and reasoned solutions as to how these problems might best be solved. In its country reports ECRI makes many proposals to every Member State of the Council of Europe. The third principle is that ECRI’s reports are based on a wide-ranging investigation into the situation in each country, based on official documents such as legislative texts, governmental reports as well as on non-governmental sources. Of great importance are the visits to the country in question, where ECRI members have the opportunity to speak directly with both governmental and non-governmental experts working in the field of combating racism and intolerance. I myself have visited a number of countries as a member of the ECRI delegation, and I cannot stress too highly the value of these visits. The fourth principle is that ECRI’s country reports are always discussed at length by ECRI in plenary session and are adopted and endorsed by the Commission as a whole. The standards created by human rights conventions are used as basic standards in ECRI’s evaluations. However, since ECRI is not a treaty-monitoring organ, it is not rare that it opts to apply a somewhat higher standard in its effort to base its work on a comprehensive approach. Common sense plays a strong role in ECRI’s proposals. The contents of country reports A comprehensive approach to problems of racism, xenophobia, discrimination, antiSemitism and intolerance is ECRI’s major goal. This approach combines: – States’ international obligations and legislation and their effective implementation by the national and local authorities. This includes the need for a comprehensive set of rules against discrimination. – Special bodies with responsibility to address questions of racism, etc. – Education and training.
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– – – – – – – – – –
Reception and status of non-citizens, i.e. asylum-seekers, migrants and refugees, including conditions for acquiring citizenship. Integration strategies regarding migrants and refugees. Rights and fair treatment of national, ethnic, linguistic or religious minorities and any person belonging to these groups. Fair access to social services, employment and housing for persons belonging to various minority groups, including migrants and refugees. Vulnerable groups. Anti-Semitism. Adequate data in support of measures for the advancement of the position of minority groups. Monitoring the action taken by law enforcement officials (and giving them training in questions of multiculturalism). Media. Redress to victims of racism, discrimination, etc. Attention to issues of special concern.
When in its third round’s country report ECRI begins to address a given issue, for example, the conditions of acquiring citizenship in Finland, it first summarises its proposals made in the second round report. Then it reports how the government has taken note of these proposals and what kinds of new developments have taken place. After this analysis ECRI formulates new proposals. It often refers to its General Policy Recommendations as guides for further action. If ECRI is satisfied with the observance of its second round proposals, then it simply encourages the government to keep on eye the realisation of the improvements. The forms of monitoring in the light of third round country reports Before a country report is ready for publication, quite a lot has happened. At the beginning, ECRI requests the government of the State in question to provide information on recent years’ events and developments. This is an important stage for the government to bring to attention all positive measures taken by it; it may also point to problems. ECRI also approaches non-governmental organisations and representatives of the civil society for information. What follows is a well-prepared contact (fact-finding) visit by a ECRI delegation to the country concerned. During the visit the delegation meets and interviews public authorities, and persons representing minority communities and human rights organisations, as well as independent experts. Then the members of the delegation bring a draft country report to the ECRI plenum which discusses it and decides on the contents of the report. However, even the text adopted by the plenum still is a draft. It is sent to the government concerned with the request to express its opinion whether the text contains any factual mistakes. The governments often also comment on the proposals, but ECRI takes note only on com
ECRI is divided into nine so-called country-by-country groups (CBC-groups), each of which is annually responsible to produce one draft country report. The two country rapporteurs for
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ments on factual mistakes. They are corrected by the next ECRI plenum, and then the ECRI report is final. ECRI sends the report to the Committee of Ministers which forwards it to the government concerned. The Committee is not entitled to make any modifications to the report – it merely acts as a “post office”. This fact underlines the independence of ECRI. When the government has received the report, ECRI makes it public. However, the government is entitled to forbid the publication of the report, but no government has done so. Instead, many governments have used the option to attach their comments on the report as a separate addendum of the report. This addendum is not a part of the ECRI country report, but it is published with the report. ECRI has received criticism regarding its use of sources, which often are not revealed, and may be dismissed as mere allegations. Indeed, ECRI feels that it cannot reveal all its non-governmental sources, for example, information provided in oral meetings by representatives of minority groups. ECRI feels that it should not put its contact sources in jeopardy vis-à-vis the public authorities. However, since among the pieces of information received by ECRI there may be untrue pieces, ECRI’s general line is that for any given piece of information to be used in an ECRI report it has to be verified from at least one other source. It is not possible for ECRI to disregard information such as claims or allegations of racist or xenophobic acts of racial discrimination since ECRI’s statute requires it to closely examine any phenomena involving racism and discrimination in Member States. In these cases ECRI can use the following terminology: “There are allegations that …”, “It has been reported …”, “ECRI requests the authorities to investigate … and to take appropriate steps to solve this problem”. Regularly, the media reports on ECRI’s country proposals at the time of the publication of the report. ECRI considers it most important to bring its recommendations to the attention of the organisations of the civil society in order to promote national discussion on its proposals. It is the wish of ECRI that national non-governmental organisations would arrange an event at the time of the publication of the report in order to raise awareness of its content. In fact, ECRI takes a lot of efforts to bring its proposals to the attention of both public authorities and the civil society. It is ECRI’s wish that there should be bilateral and trilateral dialogue on the line ECRI-government-civil society. Ultimately, it is for the government to decide on its stand towards the proposals of ECRI. The government knows that at the latest at the time of ECRI’s next round of coun-
a given target State are chosen by the CBC-group. These rapporteurs together with an ECRI Secretariat member form ECRI’s country delegation. What is the role of the national ECRI member, for example the Finnish ECRI member, during the process of preparation of the country report on Finland? His/her role is limited: He/she participates in the first part of the ECRI CBC-group’s meeting which is preparing the country visit. He/she in no way participates in the country visit. When the ECRI delegation brings the draft country report to the plenum, at first the CBC-group and national member have a meeting in which they go through the proposals for amendment made by ECRI members to the draft report. It is common that the national members make proposals for amendment to the draft text of their home country. It is good for the plenum’s discussion on the draft report that the CBC-group and the national member have had preliminary discussion on the proposals for amendment made to the draft report.
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try reports ECRI will return to the recommendations made by it and ask: have there been positive developments? And ECRI must feel disappointed if the civil society has not persuaded the government to observe at least a part of its recommendations. Annually ECRI arranges a few national round tables in which its country report and various problems of racism, etc. in the country concerned are discussed in detail. For example, in 2005 ECRI arranged round tables in Turkey, Austria and Poland. I have participated in two round tables and have seen lively national debates on ECRI’s recommendations. Analysis of ECRI’s work Thornberry and Estébanez consider that ECRI adds to the battery of international bodies which address fundamental questions of discrimination and intolerance. Its effectiveness will be measured by what it adds to the whole, by the nature and distinctiveness of its contribution. Judged by output, ECRI appears to rank as one of the stronger bodies in the struggle against racism and intolerance. The recommendations appear comprehensive and competent, and address questions of substantial importance. It is in the position to integrate the prescriptions in its general recommendations with practical action. Its reports mount a sustained critique of principle as well as practice in the States examined. Their effectiveness may be gauged in part by the responses they elicit – they have clearly provided for thought to the authorities in the responded States. A cardinal virtue of ECRI’s approach is the even-handedness between the States of the East and West. Mark Kelly, an external expert who was commissioned by ECRI to make an assessment of its first ten years, makes a number of concluding remarks in his study. Among these, he considers that ECRI’s reports are working tools for those involved in the fight against racism at national level. They aim to provide a source of inspiration and impetus for both national authorities and civil society actors. In practice, the attitude of national authorities on certain issues seems to have shifted thanks to national discussions which have arisen around ECRI’s recommendations. It would appear that the reports are serving a dual purpose: offering detailed proposals of change and opening up space for reflection. Indeed, the level of debate to which ECRI’s work has given rise to in Member States is an area where ECRI can certainly claim a measure of success. The publication of country reports represents a key moment in this process: media coverage of the reports has increased substantially over the years. ECRI can also claim credit for the fact that the struggle against racism is higher on the European agenda than was the case ten years ago.
P. Thornberry and M. A. M. Estébanez, Minority Rights in Europe (Council of Europe Publishing, Strasbourg, 2004) pp. 591, 592. M. Kelly, ECRI – 10 Years of Combating Racism: A Review of the Work of the European Commission against Racism and Intolerance (Council of Europe, Strasbourg, 2004) pp. 137–139. Kelly also examines three States’ attitudes at ECRI’s recommendations in its second-round reports – Ireland, Latvia and Romania (pp. 113–127).
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Have States observed ECRI’s recommendations? Kelly points out that the answer is far from straightforward. Even in apparently clear-cut cases, where a State acknowledges that a particular measure has been introduced in response to one of ECRI’s recommendations, the change concerned may also be the product of a variety of internal and external political pressures; attributing it to ECRI may be merely politically expedient. Conversely, there may well be situations where action by ECRI has directly driven change but it is politically convenient to give credit to a national body or to a particular minister. Indeed, it may be futile to try to assess the exact effect of ECRI’s proposals. ECRI is only one international organ working against racism, xenophobia, discrimination, etc. However, there are questions where ECRI’s recommendations appear to have been effective: establishment of special bodies to tackle racism and discrimination, enactment of comprehensive legislation against discrimination, data collection, training of various categories of civil servants, dialogue between the government and immigrant Muslim communities, development of integration programmes. States are ready to listen to well-reasoned proposals. As to ECRI’s contribution to the developments of higher human rights standards, Kelly’s analysis concludes: ECRI has itself contributed to the development of standards, in an innovative way: starting from the bottom-up. ECRI’s primary concern has been to make useful and concrete proposals, and these proposals have gradually come to form a corpus of standards. Without necessarily having this aim at the outset, ECRI has, through its empirical approach, helped to create new standards in the fight against racism and racial discrimination.
My experience confirms that Kelly reaches the right conclusion. Although the new standards accomplished by ECRI are non-binding, ECRI with its general policy recommendations and country reports plays an important role in the development of higher legal standards because many human rights standards promoted by ECRI can in fact be treated as standards with a legal content.
Ibid., p. 113. Ibid., p. 138. See also L. Hannikainen, ‘Reflections of the Country Report on Finland by the European Commission against Racism and Intolerance (ECRI)’, in M. Scheinin and R. Toivanen (eds.), Rethinking Non-Discrimination and Minority Rights (Åbo Akademi University, Åbo, and German Institute for Human Rights, Berlin, 2004) pp. 48–50.
Part VIII: The Organization for Co-operation and Security in Europe
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Monitoring the Human Dimension of the OSCE Arie Bloed*
Introduction Although the Organization for Security and Cooperation in Europe (OSCE) has developed from a loosely organised diplomatic process into a more permanent, institutionalised international organisation, it still remains a peculiar entity in the international arena. This is particularly reflected in its strictly political nature in the absence of any constituent treaty, and in its light institutional structure. Although at the time of writing of this article there is a good chance that the OSCE will be endowed with legal personality in the near future, it will not change the character of the organisation significantly. The expectation is that the OSCE will remain a mainly political body with a light institutional structure and a relatively modest annual budget. These and other features highly determine the way of functioning of the organisation in its various fields of activity. These activities are concentrated on conflict prevention, crisis management, post-conflict rehabilitation and peaceful settlement of disputes in the Security Dimension, and on the protection and promotion of human rights, rule of law and democracy as part of the Human Dimension of the OSCE.
*
Associate Professor of the Law of International Organizations at the Law Faculty of Utrecht University, The Netherlands (on leave). For a more extensive description of the main developments of the history of the OSCE (until 1994 called the Conference on Security and Cooperation in Europe (CSCE)) reference can be made to: A. Bloed (ed), The Conference on Security and Cooperation in Europe; Analysis and Basic Documents, 1972–1993 (Dordrecht-Boston-London, 1993) pp. 1–118. The OSCE Secretariat has published an extensive handbook on the OSCE which can also be consulted at the web: <www.osce.org>. The OSCE website contains numerous documents with information about the activities of the various bodies of the organisation.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 549-559.
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In this brief essay attention will be focused on the way the OSCE is monitoring the implementation by its 56 participating States of their commitments in the field of the Human Dimension (HD). OSCE Human Dimension: some basic features The OSCE is probably the only international organisation which uses the term “Human Dimension”, which is one of the main areas of activity of the OSCE, going far beyond the strict notion of “human rights and fundamental freedoms”. Although a clear definition of the Human Dimension does not exist, there is a common understanding that it does include the protection and promotion of human rights and fundamental freedoms including the protection of the rights of (national) minorities, as well as the promotion of rule of law and (parliamentary) democracy, including democratic elections and democratic governance, and international humanitarian law. This indicates that the OSCE Human Dimension is covering a broad area and only the Council of Europe is to a certain extent comparable with its broad range of activities in the sphere of human rights and rule of law. However, the way the OSCE is dealing with its Human Dimension issues is quite different from the Council of Europe since the OSCE as primarily a security organisation is strongly focusing its Human Dimension activities on the political and security functions of the organisation. As a matter of fact, the Human Dimension is closely related to the Political-Military and the Economic and Environmental Dimensions, the other two main areas of activity of the OSCE. This broad-ranging approach of the OSCE is reflected in its basic concept of “comprehensive security”. This indicates that the OSCE deals, in particular, with those issues of the Human Dimension which are essential for building peace and security and preventing conflicts in the OSCE region. The comprehensive security concept expresses the still valid OSCE philosophy that the promotion of peace and security is not a strictly political-military issue, but that stability and prosperity in the region can only be established and promoted by a broad security approach, combining military, political, human and economic issues to a coherent whole. This explains, for instance, the strong OSCE emphasis on international supervision and observation of elections in OSCE States. This results from the conviction that political stability within a State is hardly feasible without fair and genuine elections and that, therefore, international peace and security may be jeopardised, if elections are fraudulent. The various “colour revolutions” in Georgia, Ukraine and Kyrgyzstan, all triggered by highly fraudulous elections, constitute convincing examples of this OSCE philosophy. (Although the Russian Federation and some of its allies now try to blame the OSCE election monitors for triggering these revolutions, this rather means that the messengers are blamed instead of the fraudulous elections they are reporting on.)
See e.g. ‘The Human Dimension of the OSCE: An Introduction’, in OSCE Human Dimension Commitments, Volume 1, Thematic Compilation, 2nd ed. (published by OSCE/ODIHR, 2005). See also A. Bloed, ‘Monitoring the CSCE Human Dimension: In Search of Its Effectiveness’, in A. Bloed et al. (eds.), Monitoring Human Rights in Europe; Comparing International Procedures and Mechanisms (Dordrecht-Boston-London, 1993) pp. 45–91.
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Not only the comprehensive security concept determines the character of the OSCE Human Dimension. It is also determined by its (so far) strictly political character and its rather “intrusive” nature. The political character is reflected in the fact that all OSCE commitments are only politically and not legally binding. Even when the OSCE might obtain international legal personality in the near future, this will not affect the political nature of the organisation’s commitments. The OSCE’s “intrusive” character is particularly visible in the agreement that all issues concerning human rights, fundamental freedoms, democracy, rule of law and protection of national minorities are “matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned”. This implies that in practice the nonintervention principle is no longer applicable in these instances, although it has to be observed that in the past few years several OSCE participating States again invoke the non-intervention principle in order to rebuke any discussion about their sometimes appalling behaviour (e.g. Uzbekistan, Turkmenistan, the Russian Federation). Since the other OSCE States do not always firmly oppose this behaviour, the acquis of the 1990s in the OSCE is gradually undermined. Another basic feature of the OSCE Human Dimension is its comprehensive nature: practically all fields of human rights, fundamental freedoms and humanitarian issues have been the subject of standard-setting in OSCE documents, often in greater detail than in any other comparable international instrument. The OSCE commitments relating to the protection of the rights of national minorities may be mentioned as an example in this context. The fact that the OSCE commitments are strictly political is a fair explanation why often much greater progress was possible within the OSCE than in other international organisations, where more time-consuming procedures have to be followed. Only the Council of Europe comes close to the level of standard-setting which is typical for the OSCE. Instruments for monitoring the Human Dimension Introductory remarks After the above description of some basic features of the OSCE Human Dimension, it cannot be surprising that the monitoring process within the organisation is also of a highly political character. Indeed, in the absence of any legal basis for the functioning of the OSCE as an organisation, it also lacks monitoring instruments of a legal or quasilegal character, and in this sense the OSCE differs widely from the Council of Europe with its multitude of legal and quasi-legal monitoring instruments. The OSCE does not have the judicial tools to deal with alleged violations of its Human Dimension commit
On this issue, see e.g. P. van Dijk, ‘The Final Act of Helsinki – Basis for a Pan-European System?’, in Netherlands Yearbook of International Law (1980) pp. 110 et seq. See also Bloed, supra note 1. See e.g. the preamble of the 1991 Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE. (Text in Bloed, supra note 1 and at OSCE’s website <www. osce.org/documents/odihr/1991/10/13995_en.pdf>).
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ments. The OSCE also has not established individual complaint procedures, which is a direct consequence of its comprehensive security approach: the OSCE is focusing on structural issues, strengthening the capacity to respect and promote human rights in the OSCE States, rather than focusing on individual human rights problems. This does not mean, of course, that the OSCE cannot deal with individual cases of human rights violations, and, in practice, it often does. This is, for instance, reflected in the work of the OSCE Representative on Freedom of the Media, who often raises his concerns about the ill-treatment of individual journalists by governmental authorities. The absence of individual complaint procedures can also be explained by the wish not to duplicate the work of other bodies, in particular those under human rights treaties. As a matter of fact, in various OSCE documents the participating States are urged to adhere to such treaties, if they have not yet done so. Monitoring the Human Dimension has been a focal point for the OSCE since its inception and has been vigorously developed after the end of the Cold War. In the beginning of the 1990s the organisation started presenting itself as a “community of values” to underline its impressive set of norms and standards in all areas of its activity, including the Human Dimension. In addition, however, it also emphasised being a “community of responsibility” which entails officially a joint responsibility for the proper implementation of all OSCE commitments by all OSCE States. This latter aspect is reflected, inter alia, in the fact that the OSCE in the course of the years has developed a multitude of instruments for monitoring the implementation of their commitments by the OSCE participating States. These debates are partially of a general character (e.g. general monitoring debates in the political OSCE bodies or at expert meetings) and partially of a specific nature. As a matter of fact, several OSCE bodies are involved in monitoring activities, although sometimes it is not part of their formal mandate (e.g. some OSCE long-duration missions). Since it is impossible to deal with all these instruments in detail in the present essay, the following sections will focus on some more general observations. General monitoring The main problems in the field of the Human Dimension are regularly discussed at the meetings of the main political bodies of the OSCE: the weekly meetings of the Permanent Council (PC) and the annual meetings of the Ministerial Council (always at the end of the year in the country which has the chairmanship). In this context the PC plays undoubtedly the most important role. In the past attention to HD issues sometimes suffered from the PC’s preoccupation with the management of crises in the OSCE area, which left little room for a systematic treatment of HD issues by the Council. However, in the past years several measures were taken to ensure a more regular discussion of HD issues also at PC meetings, which certainly was also a result of the fact that some key elements of the HD became highly contentious among OSCE participating States (such as the observation of elections, a key component of the OSCE HD). The PC is also regularly dealing with individual cases of violations of HD commitments, in particular, when high-profile cases are at stake.
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At the Brussels Ministerial in December 2006, OSCE States finally managed to reach a consensus about the establishment of a three-committee structure under the Permanent Council. The three committees will cover the three dimensions of the OSCE process, one of which concerns the Human Dimension. Although this may lead to a more systematic and regular discussion of HD issues, including the implementation of HD commitments by OSCE States, the risk is that HD issues in this way could be “parked away”, implying that HD issues will not be discussed extensively any longer at the level of the PC itself. On the other hand, the establishment of a special committee under the PC will undoubtedly lead to a more regular and systematic discussion of the many growing problems related to the HD in the OSCE area, such as the status of human rights defenders, torture, xenophobia, nationalism and extremism, human trafficking and regressive trends relating to human rights and rule of law in various OSCE participating States. It may also lead to a better preparation of PC discussions on HD issues. Monitoring of HD commitments by OSCE bodies has always been a controversial issue, already in the Cold War period. In the 1970s and 1980s the controversy always concentrated on the question how much time should be allotted to monitoring debates, with the communist countries sticking to as short a time as possible, and the Western countries taking the opposite view. Although the 1990s showed a more flexible approach for a certain time, the strictly inter-governmental nature of OSCE has been maintained. A consensus on granting monitoring tasks to autonomous or independent bodies has never been achieved; this has prevented the OSCE Office for Democratic Institutions and Human Rights (ODIHR) from developing into a full-fledged monitoring institution, not hampered by too much interference from OSCE States. Nevertheless, the nature and scope of monitoring by several OSCE bodies has developed over the years, and the organisation now offers several opportunities to raise human rights concerns also against the will of countries concerned. However, this does not include the right to take sanctions against any wrongdoers, as the organisation basically has only the right to raise concerns in a political way without the possibility to undertake action against the will of any of its participating States. The main bodies of OSCE which, in practice, do perform substantial monitoring functions on behalf of the organisation without being (fully) subject to the consensus principle are the following: the Chairman-in-Office; the ODIHR; the High Commissioner on National Minorities; the Representative on Freedom of the Media; and long-duration field presences. The Chairman-in-Office, a function performed by the foreign minister of one of the participating States on an annual basis, is the main political executive body within the OSCE which takes the political leadership role in the organisation. Although the Chairman-in-Office always has to seek consensus for his/her initiatives and actions, to a high extent the Chairman can shape the OSCE agenda on his/her own initiative. The Chairman-in-Office can also voice his/her concerns of perceived violations of HD commitments without being hindered by any of the other participating States. In this way he/she is able to raise concerns, to offer assistance, to call for an independent investigation or propose any other action which he/she deems appropriate. However, in case action on behalf of the OSCE is necessary, the Chairman-in-Office can only act with the consensus of all participating States. Nevertheless, in practice, the Chairman-in-Office
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has a considerable discretion to speak on behalf of the organisation and to put serious human rights violations on the international political agenda, even though he/she is sometimes “ahead of consensus”, meaning that the Chairman-in-Office certainly does not always reflect the common opinion of all participating States. Although the formal powers of the Chairman-in-Office are, therefore, quite limited, also depending upon the character and ambitions of the acting chairman, he/she is able to exert a considerable influence within the organisation in terms of monitoring the behaviour of participating States and putting issues on the political agenda. The ODIHR has always been the key OSCE body dealing with human rights, democracy and rule of law. However, it has never been able to develop into an independent monitoring body, as several OSCE participating States are strongly against a too independent role of this organ. Nevertheless, the ODIHR has acquired several functions which allow it to perform a monitoring task to a high extent. Best known are the ODIHR’s election observation missions which monitor (national) elections in OSCE States for their compliance with international minimum standards. Since the occurrence of the so-called “colour revolutions” in some former Soviet States, triggered by highly flawed national elections, this ODIHR function has become the topic of serious controversy. Several OSCE States aim at getting a much stronger grip on the autonomous ODIHR’s election observations, whereas other States try to maintain the level of independence which has been achieved so far. The ODIHR has also been able to develop certain monitoring tasks, such as the development of preparatory materials for many of its expert seminars, including the Human Dimension Implementation Meeting, which now often contains interesting country reviews. In his regular addresses to the Permanent Council and other OSCE organs, the director of the ODIHR also has the possibility to raise issues of concern in the political OSCE bodies. The High Commissioner on National Minorities (HCNM) has been officially set up as a conflict prevention instrument, aimed at de-escalation of tensions resulting from problems around national minority issues. Nevertheless, it goes without saying that the HCNM is unable to perform his duties without extensively monitoring the respect for minority rights in the OSCE participating States. In practice the HCNM is deeply involved in monitoring and promoting the implementation of minority rights in all those countries in which he has become active over the years, in particular also because problems around minorities virtually always are directly related to alleged violations of the rights of these minorities. Nevertheless, it has to be kept in mind that formally the
The HCNM has been active in many States where he considered the situation of such a nature that the potential of a conflict existed. All these countries are located in Central and Eastern Europe, the South Caucasus and Central Asia: Estonia, Latvia, Croatia, Slovakia, Hungary, Romania, Macedonia, Albania, Moldova, Ukraine, Georgia, and the five Central Asian OSCE States Kazakhstan, Kyrgyzstan, Uzbekistan, Tajikistan and Turkmenistan. Although the situation in particular in the Central and East European countries has greatly improved, the HCNM has not publicly declared his exit from any of these States. By addressing more “thematic” issues of minority problems, such as “new minorities” in Western countries, the HCNM also tries to address issues in other OSCE States than only those “east of Vienna”.
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HCNM has not been assigned a monitoring task as such. The OSCE Representative on Freedom of the Media (RFM) “observes media developments in all 56 OSCE participating States. He provides early warning on violations of freedom of expression and promotes full compliance with OSCE press freedom commitments”, as it is stated at the official OSCE website. This implies a major monitoring task for the RFM, as he is charged with assisting OSCE States in solving problems relating to the implementation of the relevant OSCE commitments. In practice this entails regular public or less public interventions by the RFM when he observes serious violations of these commitments, for instance in cases of serious harassment of journalists. The RFM has also regularly addressed Western countries when he assessed the situation as being in violation of the letter or spirit of OSCE standards, such as in the case of Italy, where the once-more elected Prime Minister Silvio Berlusconi controls a substantial majority of the public broadcasting media. Finally, the various OSCE missions of long duration to a certain extent constitute an exception to the strictly inter-governmental OSCE process. Such missions (or “field presences”) have been established in areas where serious security problems exist (such as Albania, Croatia, Bosnia-Herzegovina, Kosovo, Belarus, Ukraine, Moldova, Georgia, Tajikistan) or where a special need existed for a more permanent OSCE presence in order to enhance its relations with the countries concerned (in particular the other Central Asian States and Armenia and Azerbaijan). The main task of these missions is assisting the countries concerned in the areas of conflict prevention and/or crisis management, post-conflict rehabilitation, human rights, democracy, rule of law and economic/environmental cooperation. As a consequence of OSCE’s comprehensive security concept, almost all OSCE missions are deeply involved in Human Dimension issues. In a few instances, these missions had been explicitly mandated to monitor developments in the field of the Human Dimension (for instance in the case of the now closed OSCE Assistance Group in Grozny, Chechnya). In other cases the missions are mandated to assist the governments in building a proper legal framework for the Human Dimension and are, therefore, active in supporting the development of a proper legal infrastructure within these countries. Very often, OSCE missions are involved in specific problems around HD issues, as the citizens or residents of their host countries directly address the missions with their individual problem. Even though one could formally maintain the view that the missions’ mandates do not authorise them to deal with such individual cases, it would greatly affect the OSCE’s legitimacy if they would simply turn down such individual requests. Quite often, therefore, OSCE missions are involved in such cases by requesting clarification from the authorities of the host States or by providing support in other forms. All this implies that the missions are deeply involved in monitoring the political and social developments in their host countries, and their regular reports to the
See further the essay by John Packer in this publication. <www.osce.org/fom>. See e.g. the RFM’s statement of March 2002 at <www.osce.org/fom/item_1_6599.html>. The OSCE Missions in Estonia and Latvia were closed in 2001. The authorities of the Russian Federation did not allow a continuation of the OSCE Assistance Group in Chechnya after 2002.
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OSCE headquarters in Vienna are, therefore, valuable sources of information about the status of the implementation of OSCE standards in these countries. However, over the years the informative nature of these periodic reports has been negatively affected by the fact that the authorities of the host countries are making strong efforts to influence the nature and scope of the OSCE reporting. Although non-governmental organisations (NGOs) are not part of the official monitoring machinery of the OSCE, they do play an important role as providers of information and by alerting OSCE bodies about violations of OSCE commitments by participating States. Apart from their role at open OSCE Human Dimension meetings and conferences, they also are actively addressing OSCE bodies, such as the Chairman-inOffice, the HCNM, the RFM, OSCE missions, the ODIHR and other institutions. The independent nature of many of these NGOs makes their information an often highly valuable extra tool for the OSCE to exercise its monitoring function in the area of the Human Dimension. Specific monitoring instruments In addition to the general monitoring procedures and instruments, the OSCE has also developed a number of, sometimes highly sophisticated, monitoring instruments and mechanisms specifically for the Human Dimension. The most elaborate instrument is the so-called Human Dimension Mechanism (HDM) which may be used by States in specific circumstances to raise issues of concern. It consists of information and “complaint” procedures as well as the despatch of missions of experts or rapporteurs to countries where specific problems exist. However, the HDM has lost its practical value to a high extent and has rarely been applied in the past few years.10 This is mainly related to the fact that the HDM has been developed in a time when the OSCE did not have permanent political bodies. In view of the weekly (and sometimes more frequent) meetings of the PC and other OSCE bodies, the practical need of the HDM has greatly disappeared. Nevertheless, formally the HDM continues to exist, and OSCE States may initiate its application in specific cases at any time they wish to do so. Since its application does not require consensus of the 56 OSCE States, it may also be used by a small group or even individual countries as a “protest” voice in relation to situations considered to be unacceptable. A very interesting specific monitoring instrument of the OSCE is the annual meeting of the Human Dimension Implementation Meetings (HDIMs). Officially they are supposed to take place in every year in which no Summit Meeting is taking place. But since there have been no summits since the 1999 Istanbul Summit, the HDIMs in practice take place every year. In case a summit would take place, the HDIM is de facto taking place as the Review Conference which deals with all dimensions of the OSCE.
10 One of the rare cases of application of the HDM was the establishment of a mission of rapporteurs relating to Turkmenistan in 2002. Since the Turkmen government refused entry visas, the mission had to produce its (critical) report from outside. See E. Decaux, ‘The Moscow Mechanism Revisited’, No. 3 Helsinki Monitor (2003) pp. 355–371.
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The first HDIM took place in 1993 and devoted the full three weeks to a more or less comprehensive scrutiny of all OSCE Human Dimension commitments and the activities of the main bodies in this field. The HDIMs were the answer to the new times in which the confrontational East-West attitude had been replaced by a cooperative spirit in which the critical monitoring of the implementation of commitments had fallen more or less into oblivion. The establishment of the HDIM was meant to be an instrument for periodic scrutiny of the human rights records in the now 56 OSCE participating States. During the 1990s, the interest in the HDIMs gradually diminished to a low level, partially to be explained by the fact that after the Cold War the promotion and protection of human rights in the OSCE area improved considerably and partially because of organisational reasons: the duration of three weeks for these meetings turned out to be far too long. In several steps changes have been introduced, and presently the HDIMs last no longer than two weeks. However, in the past few years the interest in the HDIMs has increased substantially, and the HDIM in October 2007 for the first time in its history welcomed more than one thousand official participants, including hundreds from NGOs from all over the OSCE region. This may be a surprising development, as the HDIM officially is only an “expert conference” without any decision-making powers. In practice, it only produces recommendations by rapporteurs, and thereafter the OSCE decision-making bodies have full discretion in taking up any of the issues raised in these recommendations. The growing interest in the HDIM is undoubtedly connected to the seriously worsening situation in several OSCE participating States in the area of human rights, rule of law and democracy. And the HDIMs are only one of the few instances where NGO representatives have almost unlimited access and can voice their concerns in front of government representatives. The increased interest can also be explained by a better, more structured organisation and better preparation of the meetings. Even though the HDIMs have no formal decision-making powers, they exert some influence and have proven to be useful tools to have serious debates about many of the increasing number of human rights violations by OSCE States. The many informal meetings en marge of the HDIMs, for instance on Roma and Sinti, have proven to be useful events as well. Although some observers consider the HDIMs to be just “talk shows”, the fact that so many NGOs are willing to bear the costs for coming to Warsaw is testimony of the opposite. Moreover, it is obvious that the HDIMs are addressing key issues of concern which find a follow-up in decisions by political decision-making bodies. Apart from HIDMs, every year the OSCE is organising several Human Dimension seminars under different headings which address specific issues of concern. In the past few years several seminars have addressed problems of anti-semitism, xenophobia, discrimination and racism which constitute a growing concern in many OSCE States and which require urgent attention and action. The OSCE has even created three separate Personal Representatives of the Chairman-in-Office to address these problems.11 Other topics addressed during such seminars are the status of human rights defenders, access to justice, migration, police and human rights, etc. Each of these seminars entails an 11
H. J. Hazewinkel, ‘The OSCE Representatives on Tolerance and Non-Discrimination’, in No. 1 Security and Human Rights (formerly Helsinki Monitor) (2007).
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element of monitoring, as participants at these seminars (including many NGO representatives) have the right (and do so in practice) to raise their concerns about any problem they perceive in individual OSCE States. Formally, however, these seminars are again “meetings of experts” and do not have decision-making powers. Their influence stems from raising concerns in public and “shaming” the countries concerned. Concluding remarks This overview of some monitoring aspects of the Human Dimension of the OSCE permits a few concluding observations. The first is that the way in which the OSCE functions operationally has determined the monitoring function of the OSCE to a very high extent: the close relation with the security dimension has resulted in a strong focus on security-related, structural human rights problems. The strictly political nature of this scrutiny/supervision/monitoring task of the OSCE results in an almost perfect complementarity with the Council of Europe with its more (quasi-)legal and judicial systems of monitoring human rights implementation. Individual complaint procedures, therefore, do not fit in the OSCE system, but they constitute a core element of the Council of Europe system. The second observation is that the strictly political nature of the OSCE system allows for its application in circumstances in which other international organisations might have to face more (procedural) obstacles. As the non-intervention principle with the related exhaustion of local remedies rule does not apply in practice, States have more freedom to raise issues of concern to them, even when in the present times the Russian Federation and some of its closest allies started invoking this notorious principle again in order to avoid OSCE interference in their problems (such as the war in Chechnya). A third observation is that, owing to the specific character of the OSCE, this organisation has developed some unique instruments for human rights monitoring. In particular the long-duration missions in various trouble spots in the OSCE area, the RFM and the HDIMs may be mentioned in this context. A fourth observation is that the Human Dimension, in spite of its interesting monitoring instruments, always seems to run the risk of being subordinated to security concerns, in particular also in the present times of the “war against terrorism”. That is why it is important to maintain an autonomous status for this dimension and the related OSCE bodies. The question whether the ODIHR should remain in Warsaw or should also be moved to the OSCE’s headquarters in Vienna is less relevant than the official and practical guarantee of its satisfactory autonomous functioning. However, it is clear that a number of OSCE participating States at present seem to have a keen interest in undermining this autonomy and to strengthen their grip on the activities of the bodies concerned in order to avoid embarrassing debates and reports about their behaviour which increasingly seems to violate basic principles of the OSCE acquis. Their efforts to bring the ODIHR’s election observation activities more under their control is a clear sign of this worrisome tendency within the OSCE. Besides, it has to be observed that the “war against terrorism” has resulted in serious tensions with the respect for human rights and fundamental freedoms in an increasing number of Western States as well.
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Finally, it is clear that the Human Dimension as such, including its monitoring instruments, is “under attack” by a group of OSCE participating States. In the course of the past few years a clear tendency of regress can be observed both in terms of implementation and of monitoring the Human Dimension commitments in the OSCE region. The fact that Turkmenistan, for instance, is still a full-fledged participating State of OSCE, although it is one of the most dictatorial regimes in the world, is a clear sign of this development. The combat against violations of Human Dimension commitments and their monitoring is, therefore, far from over.
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Monitoring by the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) Eric Manton and Bernhard Knoll*
Due to its comprehensive approach to the so-called “human dimension” (HD), the Organization for Security and Co-operation in Europe (OSCE) is a unique transatlantic security organisation. Based on the Helsinki Final Act of 1975 of the then Conference for Security and Cooperation in Europe, the OSCE has endeavoured to address security issues with a multi-faceted strategy combining the politico-military and the economic/ environmental dimension with work in its “human dimension”. Vested with a transformed and expanded mandate to focus on the wide array of human dimension commitments, the Office for Democratic Institutions and Human Rights (ODIHR) based in Warsaw has been established as the principle institution within the HD. The commitments that 56 States have undertaken within the framework of the OSCE include the highest standards of human rights, the rule of law and democracy. This was a novelty in international relations. Never before had so many diverse countries shared so many principles and values, and agreed to hold each other mutually accountable. While these commitments are not founded on a multilateral treaty and do not create direct legal obligations in themselves, they are considered to be “politically binding”. While this formulation has had the advantage of an OSCE-wide acceptance of standards without the need for the time-consuming and sometimes controversial process of formal ratification by each participating State, the lack of clear legal status has undoubtedly
*
Eric Manton has worked for the OSCE in Prague, Kosovo, and Macedonia as well as in the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY). He is currently a Rule of Law Officer in the Democratization Department of the ODIHR focussing on war crimes and South-Eastern Europe. Bernhard Knoll has worked in various positions in the OSCE in Bosnia and Kosovo, and is currently a Special Adviser to the Director of the OSCE ODIHR in Warsaw. This chapter represents the personal opinions of the authors.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 561-568.
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hindered the Organization from establishing more concrete instruments to ensure the effective implementation of these commitments. Nevertheless, the OSCE, and the ODHIR in particular, have succeeded in developing a strong monitoring mechanism reflecting the OSCE-wide acknowledgment that HD issues “are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned” (Moscow 1991). Role of the ODIHR The OSCE recognises that weak democratic institutions, the lack of rule of law, violations of human rights and flawed elections can lead to conflict, instability and insecurity. As the OSCE’s key institution devoted solely to the Human Dimension, the ODIHR acts as part of the OSCE’s network of early warning and conflict prevention, as well as post-conflict rehabilitation as a preventive measure against the recurrence of conflict. As such, the ODIHR has received its multiple mandates and specific orientations from meetings of heads of States or governments, from the annual Ministerial Councils, the OSCE Permanent Council Decisions and Action Plans, but also from recommendations arising from HD meetings and Memoranda of Understanding with individual States. Since its conception in the early 1990s, the ODIHR has been called upon to engage in the monitoring of areas that have received particular attention from OSCE States. Such specific focus areas include elections, trials, torture, trafficking in human beings, tolerance and non-discrimination, discrimination against Roma and Sinti and gender equality. OSCE States have thus chosen to highlight a number of important areas in the HD, described in detail further below, for which they have agreed to specific provisions for enhanced transparency on implementation of commitments. Serving the participating States at the early stages as a clearing-house, the ODIHR later developed specific expertise and methodologies in these areas in order to increase its effectiveness.
Due to increasing awareness of this problem, the report Strengthening the Effectiveness of the OSCE (CIO.GAL/100/05 of 27 June 2005) of the Panel of Eminent Persons recommended that the OSCE should adopt a convention that would recognise its legal capacity. This approach was recently reaffirmed in the 2006 Brussels Ministerial Conference Decision 16/06. While this would go a long way to help solve practical issues of immunities and privileges, it may also affect the status of the OSCE acquis – its Human Dimension commitments. Some participating States condition any reform in this matter on the restating that these commitments would only have a “politically-binding” character. However, it may be argued that some Human Dimension commitments are already gaining legally-binding status through the process of the formation of regional customary law. For more analysis on this topic, see E. Manton, ‘The OSCE Human Dimension Process and the Process of Customary International Law Formation’, 11 OSCE Yearbook 2005 (2006) pp. 195–214. Cf. the reference to monitoring contained in para. 41 of the OSCE Strategy to Address the Threats to Security and Stability in the Twenty-First Century (Maastricht, 2003): “Full use will be made of ODIHR’s monitoring capacity, and operational co-operation with other monitoring bodies in such areas as data collection, information sharing and joint analysis will be promoted in order to have the fullest picture of developments. This will enable the OSCE to efficiently target work towards areas of highest priority.”
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While the ODIHR engages in monitoring and reporting for its task of early warning, the Office understands that, in order to prevent future violations and possible conflict, it must assist States in implementing their HD commitments. The Office therefore also provides expertise in best practices and technical assistance programmes for institution- and capacity-building. ODIHR’s programmes The ODIHR is organised into five main sections concentrating on particular programmes: Human Rights; Democratisation; Elections; Tolerance and Non-Discrimination; and Roma and Sinti Issues. Additionally, the ODIHR has been recently mandated by the Permanent Council to focus on the new priorities of terrorism, anti-trafficking, antiSemitism and discrimination. Gender issues have been mainstreamed throughout all of these programmes. The ODIHR not only gathers and assesses information relating to human rights, but also assists OSCE participating States in the implementation of Human Dimension commitments. Monitoring by itself is insufficient. Appropriate remedies for preventing continued violations of or not fulfilling the necessary standards should be identified and promoted. This is the particular strength of the OSCE in general and the ODIHR in particular, compared with other inter-governmental organisations dealing with human rights. Human rights monitoring The ODIHR’s Human Rights Department is currently comprised of six discrete programmes, each undertaking monitoring work in one form or another. As such, monitoring can be said to be the common denominator and the necessary starting point for undertaking projects for the protection and promotion of human rights in the OSCE area. The Department’s monitoring programme focuses on the implementation of key human dimension areas such as freedom of association, freedom of assembly, torture, trials and arbitrary detention. Monitoring the implementation of human dimension commitments in those areas has necessarily involved monitoring the situations in which human rights defenders and national human rights institutions (NHRIs) operate, especially in challenging circumstances. The work of the Department’s Monitoring Programme thus fed into the establishment, in 2007, of the ODIHR’s Focal Point for human rights defenders and NHRIs, which will help build capacity through education and training. Within its focus on human rights and terrorism, the ODIHR assists States to ensure that their counter-terrorism strategies effectively comply with their commitments in the sphere of fundamental freedoms. The ODIHR does this by monitoring events and policies in participating States as well as by providing assistance through organising meetings, publishing manuals and providing trainings for public officials and legal professionals involved in counter-terrorism to improve their awareness and understanding of relevant human rights issues. The ODIHR also offers its expertise to States in reviewing draft legislation and policies on anti-terrorism measures in order to ensure that they are compatible with international human rights. Furthermore, The Human Rights Department is the focal point for ODIHR’s anti-trafficking programme, which is carried
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out in coordination with the OSCE Special Representative on Combating Trafficking in Human Beings appointed in 2004. Elections Department The ODIHR is most well known for its activities in the area of elections. Election observation has become the most visible activity in which the ODIHR has developed a considerable body of experience and practice. Foremost, it has developed an advanced, impartial methodology for monitoring and evaluating elections according to accepted international standards for democratic elections. It has trained thousands of people from throughout the OSCE region in how to monitor and assess the conduct of elections according to international standards in this field. Following the observation efforts before, during and after elections, the ODIHR draws up a Final Report that is publicly available and which provides recommendations for improvement. Due to requests from participating States for assistance in following up on ODIHR’s recommendations, the institution also provides systematic capacity and institution-building assistance, including its expertise in conducting advisory follow-up visits, legislative reviews, roundtables for local stakeholders and training seminars. Democratisation Department The largest section at the ODIHR has traditionally been the Democratisation Department, which has been chiefly responsible for assisting participating States in strengthening the democratic character and procedures in their State institutions. The ODIHR monitors the implementation of the various civil and political rights of the OSCE’s HD commitments and develops assistance programmes to augment the States’ democratic functioning. This has been done by promoting democratic governance through capacity-building for public administration officials, political parties and members of civil society. The ODIHR supports efforts of civil society actors to be more effectively included in the political and legislative process. Further, the ODIHR has designed an expert database of best practice concerning national legislation dealing with HD commitments as a reference tool for States drafting similar legislation. ODIHR experts compliment this resource with systemic reviews of relevant legislation upon the request of an OSCE participating State. The Democratisation Department’s other main focus of monitoring and institutionbuilding lies within the rule of law. In this area, the Department deals mainly with the prevention of torture, criminal justice, penal reform, trial monitoring, war crimes and the situation facing defence lawyers. The ODIHR also promotes increasing the level of participation of women in public life throughout the OSCE region. Human rights commitments connected to migration and freedom of movement are also monitored, assessed and reported on.
All election reports are available on the ODIHR’s website at <www.osce.org/odihr-elections/>.
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Programme on Tolerance and Non-Discrimination In recent years, the OSCE has focused increasingly on the need to address manifestations of intolerance and discrimination, in particular the rise of hate crimes, and has developed an Organization-wide response for countering these phenomena that occur across the entire OSCE region. The ODIHR was chosen by the OSCE States to play a central role in this context, and it has developed a targeted programme on tolerance and non-discrimination. This programme has two streams. The first deals with improving responses to violent forms of intolerance and other hate crimes including by, inter alia, improving civil society’s mechanisms to confront hate crimes and incidents of intolerance. In-house, the ODIHR monitors, reports and follows up on manifestations of intolerance. Externally, it provides assistance with relevant legislative advice, training of law enforcement personnel and educational activities for promoting tolerance and non-discrimination. The second stream continues the ODIHR’s previous activities in monitoring the implementation of HD commitments on the freedoms of thought, conscience, belief and religion. Together with its Advisory Panel of Experts on Freedom of Religion or Belief, this programme monitors and analyzes draft legislation, court cases and possible violations of these freedoms in OSCE States. It also promotes dialogue among faiths as a form of conflict prevention and engages in religious and tolerance education. Contact Point FOR Roma and Sinti The ODIHR is also the OSCE’s main focal point for issues concerning Roma and Sinti. It monitors the situation with these groups in the OSCE area through its Contact Point, which collaborates with OSCE Field Operations, participating States, civil society groups and international structures such as the Council of Europe to improve the fulfilment of HD commitments in specific relation to these especially vulnerable groups. Monitoring The ODIHR’s general monitoring mandate encompasses the entirety of the Human Dimension. In practice, the ODIHR focuses on areas that are not already covered by the mandates of other OSCE institutions such as the High Commissioner on National Minorities or the Representative on Freedom of the Media. Also, where the OSCE has deployed large Field Operations with a monitoring mandate, the ODIHR refrains from duplicating such efforts. It does, however, play a subsidiary and supporting role and liaises closely with partners.
Cf. the task contained in Decision No. 4/03 of the 2003 Maastricht Ministerial Council, para. 7. Cf. the comprehensive monitoring mandate given to the ODIHR at the 1998 Ministerial Council in Oslo: “The OSCE and its institutions and instruments should further develop practical programs to foster democratic institutions, human rights and the rule of law in the OSCE area. The ability to react in a flexible and quick manner to emerging needs should be increased and the participating States should be encouraged to forward their requests for as-
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The ODIHR’s approach to human rights monitoring follows the cyclical process of: monitoring, fact-finding/info gathering, review, assessment and evaluation, reporting, recommendations, technical assistance and project work, monitoring progress of reforms and continued assistance. ODIHR specialists from each programme area gather information from governments, OSCE Field Operations, civil society actors, open sources and State reporting to treaty bodies. When the specialist officers become aware of a possible situation of concern, they will investigate further, analyze the facts with an eye to HD commitments and document and report their findings. Where valuable work is being carried out by other organisations, such as the Council of Europe or the United Nations, the ODIHR tries to avoid duplication. That is not to say, however, that serious human rights issues cannot be addressed by a variety of actors and institutions. On the contrary, issues at times require consolidated and co-ordinated efforts of the broader international community to receive the appropriate attention and be addressed effectively. It is therefore increasingly important that monitoring be undertaken in a consistent manner so as to produce credible and reliable information, especially that which might be supplied to the Permanent Council and the Chairmanin-Office. The development in the Tolerance and Non-Discrimination Programme of templates to allow for the monitoring of aspects of hate speech in all 56 participating States is of great interest. Human Dimension Meetings The HD Implementation Meeting (HDIM) held annually in Warsaw is the largest Human Rights conference in Europe. Its purpose is to review the implementation of commitments and exchange ideas on how their implementation can be improved. The Meetings may also discuss situations and incidents in particular States. The participants in the HDIMs cover the entire spectrum of human rights actors: national delegations,
sistance to the relevant OSCE institutions and instruments. In particular, the ODIHR should develop further its short-term advisory missions”; “The OSCE missions/field presences should be instructed to identify actions that should be undertaken by the States hosting the mission/field presence which would improve that State’s compliance with OSCE human dimension commitments, and suggest how the ODIHR might bring its expertise to bear. To this end the ODIHR should assist missions/field presences in enhancing their human rights reporting and the appropriate lines of communication between the ODIHR and the missions/field presences should be further developed.” Cf. the mandate given to the ODIHR at the Ministerial Council in Helsinki in 1992: “ODIHR will assist the monitoring of implementation of commitments in the Human Dimension by … serving as a venue for bilateral meetings…; receiving any comments from States visited by CSCE missions of relevance to the Human Dimension other than those under the Human Dimension Mechanism; it will transmit the report of those missions as well as eventual comments to all participating States with a view to discussion at the next implementation meeting or review conference; participating in or undertaking missions when instructed by the [Ministerial or Permanent Council].” See the ODIHR report Challenges and Responses to Hate-Motivated Incidents in the OSCE Region, 12 October 2006.
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representatives from OSCE Field Operations and institutions, international and domestic non-governmental organisations and other partner inter-governmental organisations. A unique element of the HDIM approach is that at the Meetings civil society actors stand on the same footing as governmental representatives. The Permanent Council chooses the main topic of each annual Meeting, though there are shorter sessions during the two-week gathering devoted to each of ODIHR’s programmatic areas. Each HDIM drafts a list of recommendations on the issues that arose during the meetings. In the course of the year, three Supplementary HD Meetings held in Vienna and one HD Seminar held in Warsaw are dedicated to specific HD issues. Analysis, reporting, recommendations Besides the instrument of regular meetings dedicated to reviewing the implementation of HD commitments and the resulting recommendations, the ODIHR provides expert advice to States and Field Operations on standards-related issues. As already mentioned, the ODIHR analyzes and comments on draft legislation and specific cases of violations, using both in-house expertise and specialists from participating States. The Programme on Tolerance and Non-Discrimination works with the Advisory Panel of Experts on Freedom of Religion or Belief, which consists of international experts that are assigned to analyze specific themes and situations. Furthermore, the ODIHR develops manuals, guidelines and databases based on best practice to train the relevant stakeholders on specialised topics. Lastly, the ODIHR draws up early warning reports on specific incidents, and publishes annual reports on specialised topics, expert analyses on HD topics and compilations of HD standards and best practice for use by implementers in States, civil society and OSCE Field Operations. The purpose of monitoring is, inter alia, to place issues on the political agenda, which necessitates a pro-active approach and focus on specific themes. As its 2006 report to the Brussels Ministerial Council makes clear, the ODIHR has a specific duty to bring concrete circumstances within the general HD framework to the attention of the Permanent Council and the Chairman-in-Office. Indeed, one of the recommendations contained in the report is that optimal use of the role of the Chairman-in-Office should be made to inform the Permanent Council of serious cases of non-implementation of HD commitments.
ODIHR, Common Responsibility: Commitments and Implementation, 10 November 2006, para 7. The 1994 Budapest Document provides that the ODIHR will, in consultation with the Chairman-in-Office, “act in an advisory capacity, participate in discussions of the … Permanent Council, by reporting at regular intervals on its activities and providing information on implementation issues.” Decision VIII, The Human Dimension, para. 8. Cf. also its para. 6, which encourages the Chairman-in-Office to inform the Permanent Council of serious cases of alleged non-implementation, including on the basis of information from the ODIHR. Ibid., p. 24.
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Conclusion The debate about whether a new monitoring mechanism is needed within the OSCE system is currently taking place within the overall discussion about OSCE reform. Whichever reform path the OSCE will take, it is crucial for the effectiveness and credibility of the ODIHR that it remains functionally autonomous from the political institutions of the OSCE and its participating States, so as to avoid pressure that may dictate which assistance programmes should be carried out and which not. Evidence of this autonomy will not be found only in the ODIHR’s constructive critique of shortcomings in democratic practice, of deficiencies in the area of the rule of law and of human rights violations by state actors, but also in the fact that the Office increasingly engages longer-standing democracies to assist them in fully complying with HD commitments. After 15 years of evolution of its mandate and collecting experience in monitoring and assistance projects, the ODIHR has learned a tremendous amount about analysis of HD commitments and advising on their better implementation. The Office has sought to turn this experience into upgrading the services and functions it can provide. The ODIHR has progressively gathered lessons learned and best practice concerning all aspects of the Human Dimension from its partners, including OSCE Field Operations and institutions, domestic and international non-governmental organisations and other inter-governmental organisations working on similar issues. In so doing it has gained extensive institutional knowledge about the many challenges that the OSCE as a whole has faced, the approaches that have been successful and those that have not and the strategies and methodologies that deserved to be shared with others confronting similar issues. From its inception, the ODIHR was conceived to be a flexible and reactive tool to respond to immediate situations. While past OSCE experience has shown that its flexibility has sometimes led to ad hoc approaches and “re-inventing the wheel” due to insufficient communication and coordination between the Organization’s institutions, the ODIHR has now positioned itself as a clearinghouse of sorts, a resource centre of expert comparative analysis of HD commitments and standards, successful strategies and projects and indepth research in specialised fields. The ODIHR has been able to adjust by shifting from a project focus to a programme framework, thus meeting more realistically the demands of longer-term democratisation processes. As a repository of this institutional knowledge, the ODIHR has become a centre of competence and expertise of advice and training in the support of Field Operations and participating States. The Office for Democratic Institution and Human Rights of the OSCE is a valuable mechanism for human rights monitoring not only for the Organization and its participating States, but also as a model international institution working on human rights issues. With its basis of the OSCE Human Dimension acquis, the ODIHR gathers information, engages in expert analysis of human rights issues, reports early warning of potential conflict situations, educates and promotes compliance with human rights standards, develops projects and tools for assisting implementers and collects and shares best practice. Accomplishing these functions within the network of OSCE institutions, and especially in support of the Field Operations, makes the entire Organization more effective and efficient in fulfilling its mandate of comprehensive security through democratic development and the respect for human rights.
Part IX: The European Union
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The EU Network of Independent Experts on Fundamental Rights Rhona K. M. Smith*
The European Union (EU) of the 21st century bears little resemblance to its constituent parts of half a century ago. The European Coal and Steel Community effectively ceased in 2002, while the European Atomic Energy Community and the European Economic Community are subsumed by the European Union, a new supra-national organisation created in 1992 by the Treaty on European Union. All three communities originally focussed on rebuilding the shattered economies of post-war Europe, the infusion of human rights throughout the work of the organisation was a later (and incremental) development. This entry briefly reviews the human rights capacity of the European Union and also sheds a light on the evolving need for a human rights institution to monitor human rights within the Union, and therefore explains the creation of the EU Network of Independent Experts. As will become apparent, the Network, while a meritorious additional layer of human rights monitoring, has little power over the institutions. In terms of the scope of this book, it fits into the sphere of dialogue functions and fact-finding. For a full picture of human rights in Europe, the reader should also consult other entries on the European Union as well as the entries on the Council of Europe (the implementation and monitoring of the European Convention on Human Rights, the Convention for the Prevention of Torture and the European Social Charter) and the Organization for Security and Co-operation in Europe. NOTE: This entry was written and submitted in 2006, before the EU Network of Independent Experts on Fundamental Rights ceased operation. Where possible, material has been updated to July 2008 although commenting on the constitutional status of the EU remains problematic given the ongoing round of referenda and parliamentary votes on the Treaty of Lisbon. *
Professor of International Human Rights, Northumbria University School of Law, Newcastle, UK. Treaty on European Union Article 1, ex Article A.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 571-578.
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Toward a human rights framework in the European Union Protecting human rights was not initially the goal of the Communities: equal pay for work of equal value and freedoms of movement were the main recognisable “rights”. As the legal system matured, however, grounds of discrimination such as language and religion appeared in jurisprudence. Minority protection and specific anti-discrimination directives aimed at securing racial equality and indeed general equality further advanced fundamental rights. Now Article 6 of the Treaty Establishing the European Union declares that “1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … and as they result from the constitutional traditions common to the Member States, as general principles of Community law.” In furtherance of this, the Treaty introduced the concept of Union citizenship. This is the current vehicle for developing human rights protection within the Union. However, there was still no clear focus on human rights, leaving a supranational organisation in the 21st century without a clear human rights agenda despite policies encroaching on citizenship rights. Enacting a document creating respect for the rights to which all States already adhere was a clear step forward (the European Charter of Fundamental Rights10) but had inbuilt limitations. “The provisions of this Charter are addressed to the Institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers …”11
M. Zuleeg, ‘Fundamental Rights and the Law of the European Communities’, 8 Common Market Law Review (1971) pp. 447–461. Article 119 EC, now 141 Treaty Establishing the European Communities. Case 379/87 Groener v. Minister for Education [1989] ECR 3967; Case C-70/95 Sodemare SA v. Regione Lombardia [1997] ECR I-3395; Case 145/88 Torfaen BC v. B&Q plc [1989] ECR 3851. See inter alia G. Pentassuglia, ‘The EU and the Protection of Minorities: The Case of Eastern Europe’, 12 European Journal of International Law (2001) pp. 3–38. Directive 2000/43/EC. Directive 2000/78/EC. Ex Article F Treaty on European Union. Ibid., Article 2 (ex B). 10 See e.g. K. Feus (ed), The EU Charter of Fundamental Rights – Text and Commentaries (Federal Trust, London, 2000). EU Network of Independent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union, 2006, available on <ec.europa.eu/justice_home/doc_centre/rights/charter/docs/network_commentary_final%20_180706.pdf>, visited 16 July 2008, <www.eucharter.org>, visited 16 July 2008. 11 Article 51 Charter of Fundamental Rights of the European Union, Official Journal C 364, 18 December 2000, pp. 1–22.
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Europe’s citizens already benefit from the Council of Europe, a longstanding proponent of human rights. The question of whether the Union could ever accede to the European Convention on Human Rights has been the subject of protracted legal and academic debate. Indeed the European Court of Justice opined that the Community had no competence to accede to the European Convention.12 A decade later, the new Constitution makes clear the intention of the Union to accede,13 though with the Constitution process effectively stalled accession is not imminent. However, as every Member State of the European Union has also ratified the European Convention, citizens of the Union are already entitled to the full range of regional human rights (as well as many international) rights.14 Creating a human rights “institution” within the European Union The European Court of Justice has some jurisdiction to consider alleged violations of the rights in the Charter. However, as other entries in this book demonstrate, international human rights are rarely enforceable in courts of law.15 Mechanisms for monitoring and reviewing compliance with human rights are more popular and often successful.16 Interestingly, Article 7 of the Treaty on European Union17 gives power to the Council to recommend appropriate actions if there is a “serious breach”18 of the fundamental rights’ principles. Given continuing progress towards establishing National Human Rights Institutions19 internationally, it is perhaps inevitable that the need for a Union human rights review body emerged. However, as essentially a creation of intergovernmental conferences, the Union has little original competence to alter its institutional structure. Moves towards creating a human rights body were thus restricted. The European Parliament in its 2000 resolution on the situation as regards fundamental rights in the European Union recommended that a network be set up consisting of legal experts who are authorities on human rights and jurists from each of the Member States, to ensure a high level of expertise and enable Parliament to receive an assessment of the implementation of each of the rights laid down 12 Opinion 2/94 Accession by the Community to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759. 13 Article I-9(2) Constitution. See now Article 6(2) Consolidated Version of the Treaty Establishing the European Union (as amended by the Treaty of Lisbon). 14 Enforcement of those human rights per se obviously is through the Council of Europe and not the European Union. 15 The regional systems are a notable exception. 16 Note the work of, for example, the Human Rights Committee in monitoring the International Covenant on Civil and Political Rights or the Committee monitoring the European Social Charter. 17 Ex Article F.1, amended by the Treaty of Nice. 18 Article 7.1 Treaty on European Union. 19 Paris Principles Relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights, UN Doc. A/Res/48/134, Annex.
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notably in the Charter, taking account of developments in national laws, the case law of the Court of Justice of the European Communities and the European Court of Human Rights and any notable case law of the Member States’ national and constitutional courts.20
Consequently, the EU Network of Independent Experts was established in September 2002.21 It represented a natural progression in the evolution of recognition of fundamental rights within the European Union. The work of the EU Network of Independent Experts Each of the Network’s 26 experts (one from each Member State and a coordinator) is an experienced human rights academic or practitioner. They maintain complete neutrality and impartiality, not accepting instructions from any agency (governmental or otherwise), and demonstrate the high level of integrity normally required for such offices. Relevant documentation can be accessed via the website of the DG Justice and Home Affairs22 and the website of the Interdisciplinary Research Cell in Human Rights.23 Most publications are available in English and French, the working languages of the Network. The Network discharges its mission in three ways: reporting annually on the situation of fundamental rights within each Member State, issuing comments on topical themes and preparing opinions on fundamental rights in the Union when so requested by the Commission. Annual reports The primary function of the Network is to monitor fundamental rights in the Union. In furtherance thereof, it prepares annual reports. Reports are prepared on the situation of human rights in each State and in the Union with an overall report summarising the current state of fundamental rights in the Union. Annual reports on the fundamental rights situation in each Member State Each expert member prepares an annual report detailing the human rights situation in his or her Member State over the preceding calendar year.24 Central guidelines ensure a degree of commonality of format, though each report is prepared independently. Reports consider each right in the Charter separately and review the opinion of international and regional bodies on the State’s compliance with the right in question. National laws and practices are also analysed in an effort to provide a comprehensive “snapshot” 20 Document A5-0223/2001, 5 July 2001, para. 9. 21 See also P. Alston and O. De Schutter (eds.) Monitoring Fundamental Rights in the EU – The Contribution of the Fundamental Rights Agency (Hart Publishing, Oxford, 2005). 22 See <ec.europa.eu/justice_home/cfr_cdf/index_en.htm>, visited on 16 July 2008. 23 See <www.cridho.cpdr.ucl.ac.be/en/eu_experts_network/>, visited on 16 July 2008. 24 E.g. December 2005 to December 2006.
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of protection and promotion of fundamental rights over the year. Consultation with relevant government officials, NGOs and national institutions should help ensure the comprehensiveness of each report. Although primarily “reports”, the experts also seek to evaluate adherence to fundamental rights, identifying examples of positive progress, good practice and areas of concern within each State. This provides a basis for establishing commonality and is a “discreet” way of circulating positive national initiatives, fostering an environment conducive to the promotion and protection of human rights. States can thus emulate highlighted good practices and, hopefully, avoid “lowlighted” potential problems. According to the Treaty on European Union,25 “independent persons” can be asked to submit a report on the situation within the Member State to assist the Council in determining whether a State has contravened any fundamental rights. There is a clear role for the Network in this respect. However, to date, the Network has restricted its work to general reports on the human rights situation in each Sate. Annual reports on the situation of fundamental rights in the Union The coordinator of the Network prepares an annual report on the situation of fundamental rights in the Union. This allows for independent monitoring of the implementation of, and adherence to, the Charter within the institutions themselves. As a system of transparent monitoring, this is clearly advantageous. However, the main problem is the potential lack of follow-up. Will the institutions themselves undertake to improve on any areas of concern noted by the Network? The 2005 report26 highlighted progress with the draft Constitution, the Fundamental Rights Agency and justice and home affairs, activities which developed a focus on fundamental rights and strengthened citizens’ rights and the mechanisms for protecting them in the Union. A more “proactive” approach to fundamental rights was called for as the Network coordinator suggests that in an enlarged Europe mutual recognition rather than legislative harmonisation is likely.27 Incorporating the Charter into the Constitution and postulating accession to the European Convention on Human Rights was identified as actively promoting and creating legal obligations to respect human rights in the Union. Synthesised annual report The principal issues identified in the reports on each State and on the Union are extrapolated into a single document, analysing the conclusions of the Network on the situation of fundamental rights over the preceding year. This report identifies good practices which should be circulated around the Union, situations of concern which may require attention and issues upon which the Union may wish to consider action in furtherance of fundamental rights in the Union. When finalised, this report is sent to the European 25 Article 7.1. 26 Ref CFR-CDF.rep.EU.en.2004, available online, supra notes 22 and 23. 27 Ibid., at p. 9.
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Commission. Issues of serious concern will ultimately arrive at the Council which enjoys the power to act to preserve fundamental rights under the Treaty on European Union. Thematic comments Thematic comments are published alongside each annual report, examining specific fundamental rights issues identified by the European Parliament and/or Commission. The first topic was “The balance between freedom and security in the response by the European Union and its member States to the terrorist threats”,28 then “Fundamental Rights in the external activities of the European Union in the fields of justice and asylum and immigration in 2003”,29 “The protection of minorities in the European Union”30 and then, in May 2006, “Implementing the rights of the child in the European Union”.31 In 2005, for example, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs indicated the need for a comment on implementing children’s rights, given the Commission’s intention to define the Union’s policy on implementing the UN Convention on the Rights of the Child in 2006.32 The resulting comment is a broad report, drawing on international (United Nations) and regional (Council of Europe) instruments, comments and reports. Although the Union has little original jurisdiction to address children’s rights, a number of elements of Union law clearly impact on children: the extensive provisions on maternity rights, immigration, asylum and equality are examples. The comment thus commences with a review of existing Union law and its application to children. Thereafter, there is a focus on employing existing European and international law to ameliorate the plight of children within the Union. This draws on the Network’s prior national reports and increases the potential responsibility of the Union to formulate policies: for example, juvenile justice and minority education are among the issues considered. Opinions on fundamental rights in the EU Just as with the Committee of the Regions33 and the Economic and Social Committee,34 the Network can be called upon to deliver opinions on specific questions within its remit.35 To date the opinions published address a spectrum of issues including responding
28 29 30 31 32 33 34 35
2003, available online, supra notes 22 and 23. Ref CFR-CDF.Them.Com.2003.en, 2004, available online, supra notes 22 and 23. Ref CFR-CDF.ThemComm2005.en, 2005,available online, supra notes 22 and 23. Ref CFR-CDF.Them.Comment.2005.doc, 2006, available online, supra notes 22 and 23. In furtherance of Strategic objectives 2005-2009, COM (2005) 12 final. Article 265 Consolidated Version of the Treaty Establishing the European Community. Ibid., Article 262. Unlike the two aforementioned committees, the Network only receives requests from the Commission.
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to terrorism,36 freedom of movement of persons in the Union37 and elements of criminal law and criminalising activities.38 An obvious advantage of using the Network to produce opinions is that a cross-section of opinion across all Member States can be considered and national laws and practices drawn upon. As with the thematic comments, opinions draw upon a wealth of pre-existing materials at the regional and international level and can often address issues not obviously within the remit of the Union. For example, “Equalisation of treatment between homosexual and heterosexual relations with regard to the age limits for sexual offences – the remaining exceptions in the Member States”,39 a report published in 2006, addresses an issue of particular relevance to Gibraltar (part of the UK). The question posed by the Commission was: “Are there certain legislative provisions in the member States that enshrine a difference in treatment between homosexual and heterosexual relations with regard to the minimum age provided by law for engaging in consenting sexual relations?” The Network considers the laws applicable in each Member State, identifies equality of age as pervasive but also notes the exceptions to the rule. Accordingly, the opinion appears to be a comprehensive (and in places a quite academic) comparative analysis of the relevant elements of national law. Creating a human rights framework in the EU? To what extent then does the Network foster a human rights compliant environment? Without a doubt its annual reports provide a useful and independent overview of the human rights situation within each State. Although those fundamental rights which also appear in the European Convention on Human Rights or Community treaties are to be accorded the same meaning as in the primary documents,40 there was little guidance on explicit citizen’s rights. In this respect the Network has pioneered human rights in the Union, heightening awareness of compliance: duties and responsibilities.41 Perhaps the main problem is a lack of awareness of its existence. Certainly a reading of the reports indicates a valuable resource for monitoring human rights across the Union. Independent non-non-governmental organisation reports are comparatively rare in international human rights. For a Union striving towards ever closer integration, it is imperative to secure respect for human rights. With a Union of 27 States and expanding competencies, human rights can no longer be relegated to “general principles of community and Member States’ laws”. In the 21st century, human rights must per36 Opinion 3 (2006) on extraordinary renditions and the responsibilities of member states, Ref CFR-CDF.Opinion 3.2006; and Opinion 3 (2005) on preventing radicalisation and recruitment of potential terrorists, Ref CFR-CDF.Opinion 3.2005. 37 Opinion 1 (2002) on fundamental rights dimension of free movement, Ref CFR-CDF.avis12.2002. 38 Opinion 5(2005) on combating racism and xenophobia through criminal legislation, Ref CFR-CDF Opinion.5.2005; Opinion 3 (2004) on illegally obtained evidence in criminal procedures, Ref CFR-CDF.opinion3-2003. 39 Opinion 2 (2006), ref. CFR-CDF Opinion 2.2006. 40 Article 52(2–3) Charter on Fundamental Rights. 41 Network Commentary on the Charter, supra note 10.
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meate through national, regional and international laws and policies. The Charter on Fundamental Rights is an overt statement of intent to secure this, the Network’s function was to assist both institutions and States with the transition from rhetoric to reality, creating a European Union grounded on respect for citizens’ rights.
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Fundamental Rights in the EU, with Special Emphasis on the Case-law of the European Court of Justice (Luxembourg) Allan Rosas*
Introduction After the Second World War, European co-operation and integration efforts took two different strands. One strand consisted of the focus on democracy, human rights and the rule of law, with the Council of Europe (1949) and the European Convention on Human Rights (ECHR) as one of its main institutional and legal components. Another strand consisted of economic integration, starting with the European Coal and Steel Community (1952) and later the European Economic Community (1957) and the European Atomic Energy Community (1957). The institutional framework of the first strand, the Council of Europe, was entrusted with a broad agenda but with a rather modest level of integration. The story of the birth and development of the European Communities and later the European Union (EU) is quite different: The process started as “deep” integration, with supra-national features, including the establishment of the Court of Justice of the European Communities (European Court of Justice, ECJ) in Luxembourg already in 1952, but with an integration agenda of relatively limited scope. As there were no explicit human rights/fundamental rights provisions in the founding Treaties of 1951 and 1957, and the Community was not a party to the ECHR or any other human rights convention, the introduction into Community law of a system of protection of fundamental rights is essentially a story of judge-made law. Through *
Allan Rosas is Judge of the European Court of Justice. Disclaimer: This chapter was written in December 2006 and does not reflect the changes that have taken place thereafter. C.f., however, the Preamble to the Treaty establishing the European Economic Community of 1957, which refers to the need to preserve and strengthen “peace and liberty”, or the substantive provisions of the Treaty relating, inter alia, to the economic liberties and the principles of non-discrimination on the basis of nationality or of gender and the provisions on judicial control. See P. Pescatore, ‘The Context and Significance of Fundamental Rights in the Law of the European Communities’, 2 Human Rights Law Journal (1981) pp. 295–308, here at pp. 296–298.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 579-590.
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the cases of Stauder (1969), Internationale Handelsgesellschaft (1970) and Nold (1974), the ECJ made it clear that fundamental rights form part of the general principles of Community law whose observance the Court is called upon to ensure. In the earlier days of European integration, however, the Court of Justice held that it was not competent to examine whether European Coal and Steel Community decisions were in violation of fundamental rights principles of a national constitution. This finding as such is not surprising, as the Court was and is called upon to interpret and apply Community law, not national law, and had to keep in mind the need for uniform application of Community law. But the fact that the Court stopped there and did not embark on any effort to develop a fundamental rights regime at Community level, despite a hint in this direction by its Advocate General, can also be explained by the limited material scope of European integration as perceived in the 1950s and early 1960s. In such a limited context of economic integration, the Luxembourg judges did perhaps not think it necessary to limit the powers of the Community institutions by restraints imposed by a largely unwritten set of fundamental rights. During the 1960s, and particularly after the principles of direct affect and supremacy of Community law had been asserted in Van Gend en Loos (1963) and Costa v. ENEL (1964), concerns were expressed notably in German and Italian constitutional doctrine and case-law about the possibility of conflict between a Community law declared supreme but bereft of a system of protection of human rights/fundamental rights, on the one hand, and national constitutional bills of rights, on the other. The first answer of the ECJ came in Stauder, where the Court referred to the fundamental rights of the person enshrined in the general principles of Community law whose observance the Court ensures (“les droits fondamentaux de la personne compris
Case 1/58 Stork v. High Authority, Recueil 1959, 43; Joined Cases 36-38/59 and 40/59 Geitling v. High Authority, Recueil 1960, 859. See e.g. G. Tesauro, ‘The Role of the Court of Justice in the Protection of Fundamental Rights’, in N. Colneric et al. (eds.), Une communauté de droit. Festschrift für Gil Carlos Rodríguez Iglesias (Berliner Wissenschafts-Verlag, Berlin, 2003) pp. 103–110, here at p. 104. P. Pescatore, ‘Les droits de l’homme et l’intégration européenne’, 4 Cahiers de droit européen (1968) pp. 629–673, here at p. 637. Opinion of Advocate General Lagrange of 24 May 1960 in the case of Geitling, supra note 2. A. Rosas, ‘The Legal Sources of EU Fundamental Rights’, in Colneric, supra note 2, pp. 87– 102, here at p. 87. This hypothesis is suggested by H. Rasmussen, On Law and Policy in the European Court of Justice (Martinus Nijhoff, Dordrecht, 1986) pp. 395, 403–440, who also mentions the alternative (according to him, less likely) explanation that the Luxembourg judges felt that in the absence of a Community Bill of Rights, it was up to national judges to ensure the necessary protection. Case 26/62 Van Gend en Loos [1963] ECR 1 (which established that not only regulations, but also primary law may have direct effects and thus may be invoked directly by individuals before courts and authorities); Case 6/64, Costa v. ENEL [1964] ECR 585. Pescatore, supra note 3, pp. 634–636. See also the Order of 18 October 1967 of the German Constitutional Court, VVerfGE 22, pp. 293, 298, 299.
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dans les principes généraux du droit Communautaire, dont la Cour assure le respect”). In Internationale Handelsgesellschaft, the Court underlined that the protection of fundamental rights must be ensured in the Community legal system and that, whilst the protection of such rights at the Community level is “inspired by the constitutional traditions common to the Member States”, the validity of Community acts, in accordance with the principle of supremacy of Community law, cannot be challenged on the basis of national constitutional bills of rights.10 The following year, in Nold, the ECJ added that “guidelines which should be followed within the framework of Community law” may also be found in “international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories”.11 The Nold judgment was delivered around two weeks before the German Constitutional Court handed down its decision in “Solange I”.12 The specifications offered by Nold did not prevent the Constitutional Court from asserting its competence to consider referrals from German courts on the compatibility of rules of Community law with the fundamental rights enshrined in the Basic Law “as long as” (“solange”) Community law was not endowed with a catalogue of fundamental rights matching the catalogue of rights of the Basic Law (that ruling, as we shall see, was reversed in Solange II of 1986). Probably the Solange I decision of the German Constitutional Court was one of the incitements for confirming, at the political level, the commitment of the Community to fundamental rights. Thus, on 5 April 1977, the European Parliament, the Council and the Commission issued a Joint Declaration, which states that, “as the Court of Justice has recognised, … Community law comprises, over and above the rules embodied in the treaties and secondary Community legislation, the general principles of law and in particular the fundamental rights, principles and rights on which the constitutional law of the Member States is based”.13 Recalling further that all the Member States were Parties to the ECHR, the three institutions underlined “the primary importance they attach to the protection of fundamental rights, as derived in particular from the constitutions of the Member States and the [ECHR]”. This comes close to the formula of Nold, supplemented by an explicit reference to the ECHR in the case of Rutili, decided in 1975.14 The ECHR is also mentioned in the Preamble to the Single European Act of 1987, which states that the signatories are determined to work together “to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the [ECHR] and the European Social Charter, notably freedom, equality and social justice”. Case 29/69 Erich Stauder v. City of Ulm [1969] ECR 419, Recueil 1969, 419. Opinion of Advocate General Roemer of 29 October 1969, ibid., p. 428. 10 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paras. 3, 4. See also the Opinion of Advocate General Dutheillet de Lamothe of 2 December 1970, Recueil 1970, pp. 1148, 1149. 11 Case 4/73 Nold [1974] ECR 491, para. 13. 12 Order of 29 May 1974, BVerfGE 37, 271. 13 OJ C 103, 27.4.1977, 1. See also Pescatore, supra note 1, pp. 301–303. 14 Case 36/75 Rutili [1975] ECR 1219.
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The Treaty of Maastricht (1992) included references to fundamental rights in the operative part of the Treaty. According to Article F (later to become Article 6), paragraph 2, of the EU Treaty, the Union “shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law”. It will be noted that the provision, in line with the Court’s case-law, points to the general principles of Community law as the formal source of EU fundamental rights. The ECHR seems to enjoy pride of place (“as guaranteed”), as compared to the constitutional traditions (“as they result from”). If this is so, it would again be in line with the Court’s case-law, as it had evolved between 1974 and 1992.15 That Article F, paragraph 2, was seen as a general political commitment to respect fundamental rights and endorsement of the Court’s case-law rather than as a specific source of law for the Court is evident from the fact that the provision was not included in the list of provisions contained in Article L TEU to which the provisions of the EC Treaty on the powers of the Court of Justice should apply.16 On the other hand, the fact that among international instruments only the ECHR is mentioned has not prevented the Court, also after the entry into force of the Treaty of Maastricht, from citing occasionally some other human rights conventions (such as the European Social Charter of 1961, the International Covenant on Civil and Political Rights of 1966, the Convention on the Rights of the Child of 1989 and International Labour Organization conventions), in line with the formula adopted in Nold.17 In fact, while Article 6 of the EU Treaty mentions the ECHR only, the Preamble to the Single European Act mentioned above and Article 117 (later to become Article 136) of the EC Treaty, as amended by the Treaty of Amsterdam, make reference to the European Social Charter of 1961. In December 2000, the three main political institutions, the European Parliament, the Council and the Commission, proclaimed the Charter of Fundamental Rights of the EU.18 While the Charter is not formally binding per se, it has started to play a certain role in adjudication as a “soft law” instrument, and has been cited, inter alia, by the Court of See e.g. N. Neuwahl and A. Rosas (eds.), The European Union and Human Rights (Martinus Nijhoff, The Hague, 1995); E. Gould and G. Lesieur, The European Court of Justice on the European Convention on Human Rights: Who Said What, When? (Kluwer Law International, London, 1998); P. Alston (ed.), The EU and Human Rights (Oxford University Press, Oxford, 1999). 16 As will be explained below, Article L (later to become Article 46) was amended by the Treaty of Amsterdam to include a reference to Article F (later to become Article 6), para. 2, as well. 17 A. Rosas, ‘The European Union and International Human Rights Instruments’, in V. Kroenenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? (T.M.C. Asser Press, The Hague, 2001) pp. 53–67, here at pp. 57, 58. For a recent example see Case C-540/03m, Parliament v. Council, judgment of 27 June 2006, para. 37, where reference is made, in addition to the ECHR and the EU Charter of Fundamental Rights of 2000 (infra note 18), to the Civil and Political Covenant of 1966 and the Convention on the Rights of the Child of 1989. 18 OJ C 364, 18 December 2000, p. 1. 15
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First Instance and the Advocates General of the ECJ19 as well as by the European Court of Human Rights.20 In a judgment of 27 June 2006, the Charter was, for the first time, cited by the ECJ itself.21 The entry into force of the Treaty establishing a Constitution for Europe, signed in Rome on 29 October 2004, would clearly strengthen the legal status of the Charter, which, with minor modifications, has been integrated into the new Treaty.22 Already long before the proclamation of the Charter, the “as long as” presumption of the Solange I decision of the German Constitutional Court was reversed in Solange II, decided in 1986.23 The Constitutional Court now held that it will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation, and it will no longer review such legislation by the standard of fundamental rights contained in the Basic Law. This was to apply “as long as” the European Communities, and in particular the European Court’s case-law, “generally ensure effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Basic Law, and in so far as they generally safeguard the essential content of fundamental rights”. Clearly the European Court’s case-law from 1974–1986 had convinced the German Constitutional Court that the protection of fundamental rights at Community level now had become “substantially similar” to their protection in German constitutional law. Whereas the Maastricht judgment of the German Constitutional Court24 (relating to the German ratification of the Treaty of Maastricht) may have cast some doubts on the full effect of the Solange II decision, a more recent decision on an EC banana market regulation largely dispels these doubts and states that submissions from German courts 19 As to the opinions of the Court’s Advocate Generals, the first discussion on the legal relevance of the Charter is to be found in the Opinion of Advocate General Tizzano of 8 February 2001 in Case C-173/99 BECTU, where it is held that in proceedings concerned with the nature and scope of a fundamental right, “the relevant statements of the Charter cannot be ignored” and that, where its provisions so allow, it should “serve as a substantive point of reference for all those involved”, para. 28. As to the Court of First Instance, see e.g., Cases T-112/98 Mannesmannröhren-Werke [2001] II-729, para. 76; T-54/99 Max.mobil [2002] ECR II-313, para. 48; T-177/01 Jégo-Quéré [2002] ECR II-2365, para. 42; Joined Cases T-67/00, T68/00, T-71/00 and T-78/00 JFE Engineering Corp., judgment of 8 July 2004. 20 Case of Goodwin v. United Kingdom, judgment of 11 July 2002, Reports of Judgments and Decisions 2002-VI, at paras. 58 and 100. 21 Case C-540/03, supra note 17, para. 38. 22 At the time of writing (December 2006), the fate of the Treaty is uncertain, with 16 out of 25 Member States having ratified it, but with two negative referendums in France and the Netherlands, respectively. For the text of the Treaty see OJ C 310, 16.12.2004, p. 1. 23 Order of 22 October 1986, BVerfGE 73. 24 Judgment of 12 October 1993, BVerfGE 89, p. 155. See also Article 23 of the German Basic Law, added in 1992 and inspired partially by the Solange II decision, according to which Germany participates in the development of the EU which, inter alia, provides a protection of fundamental rights “essentially equivalent” (“die … einen diesem Grundgesetz im wesentlichen vergleichbaren Grundrechtsschutz gewährleistet”).
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questioning the applicability of Community secondary legislation in Germany will be inadmissible unless their grounds state that the European evolution of law has resulted in a decline below the required standard after the Solange II decision.25 While the first fundamental rights cases concerned the conformity of Community acts with fundamental rights as general principles of Community law, a significant part of subsequent cases has also addressed measures taken by Member States in applying or implementing Community law. Starting with Rutili, some of these cases led the Court of Justice to hold that Community law provisions, when applied at the national level, should be interpreted in the light of fundamental rights.26 In some other cases the Court was faced more directly with national measures implementing Community acts or at least falling within the domain of Community law.27 In Wachauf, the Court stated explicitly that the Community law requirements of the protection of fundamental rights “are also binding on the Member States when they implement Community rules”.28 In the ERT case, the test was specified to be whether the national measures “fall within the scope of Community law”.29 In Grogan, the Court stated that it is competent to rule on the interpretation of Community fundamental rights in order to enable the national judge to assess the compatibility with those fundamental rights of national legislation which “falls within the field of application of Community law”, while it is not competent to do so in respect of national measures which fall outside the scope of Community law.30 The borderline between the two situations may be tricky to establish in a concrete case, in view of the grey zone which exists between the scope of Community law and that of purely national law. In some cases, such as Kremzow and Annibaldi, the Court has concluded that the link between the national measure and Community law was not sufficiently strong for a Community law control exercised by the Court.31 In other cases, the Court has tilted in favour of a sufficient link. In Carpenter, it was found to lie in the fact that Ms. Carpenter, a non-EU citizen facing a deportation order in the United Kingdom, was married to Mr. Carpenter, a UK national living in the UK, who carried out a “significant proportion of his business” by providing services to advertisers established in other Member States. He did so both using his establishment in
25 Order of 7 June 2000, BVerfGE 102, p. 147. See also U. Elbers and N. Urban, ‘The Order of the German Federal Constitutional Court of 7 June 2000 and the Kompetenz-Kompetenz in the European Judicial System’, 7 European Public Law (2001) pp. 21–32; F. Hoffmeister, Case Note on Decisions of 17 February and 7 June 2000 of the German Constitutional Court, 38 Common Market Law Review (2001) pp. 791–804. 26 Case 36/75 Rutili, supra note 14; Case 222/4 Johnston [1986] ECR 1651. 27 Case 63/83 Kent Kirk [1984] ECR 2689; Case 249/86 Commission v. Germany [1989] ECR 1263. 28 Case 5/88 Wachauf [1989] ECR 2607, para. 19. 29 Case C-260/89 Elliniki Radiophonia Tileorassi [1991] ECR I-2925. 30 Case C-159/90 Grogan [1991] ECR I-4605, para. 31. See also e.g. Case C-299/95 Kremzow [1997] ECR I-2405, para. 15; Case C-71/02 Karner [2004] ECR I-3025, para. 49. 31 Case C-299/95 Kremzow, supra note 30; Case C-306/96 Annibaldi [1997] ECR I-7493.
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the UK as a base and by travelling to those other Member States.32 The Court held that the separation of the couple would be detrimental to their family life (protected under Article 8 of the ECHR) “and, therefore, to the conditions under which Mr Carpenter exercises a fundamental freedom”. In K.B., at issue was national legislation limiting the right to marry to heterosexual couples where neither partner’s identity was the result of gender reassignment surgery. Such a provision would as such fall outside the field of application of Community law. But marriage was according to United Kingdom national legislation a precondition for the grant of a survivor’s pension. As pensions come within the purview of Community law, the Court held that there was inequality of treatment under Community law, even if the inequality did not relate directly to the award of a pension “but to a necessary precondition for the grant of such a pension: namely, the capacity to marry”.33 The EU Charter of Fundamental Rights of 2000 (Article 51) includes among its addressees the Member States “when they are implementing Union law”.34 The same formula is used in Article II-111 of the Treaty establishing a Constitution for Europe.35 This seems to confirm, at the political level, that there is broad consensus on the applicability, in principle, of Community fundamental rights to the Member States, while the precise delimitation of the field of application of this Community law from the scope of national law falling outside the Community fundamental rights framework continues to provoke discussion in concrete cases. In Pupino, the Court of Justice referred to the need for a Member State to respect fundamental rights in a case falling under the “Third Pillar” of the EU (interpretation of a framework decision adopted under Title VI of the EU Treaty – Provisions of Police and Judicial Cooperation in Criminal Matters).36 The Court referred explicitly to Article 6(2)of the EU Treaty, which is part of the Common Provisions (Title I) and thus covers all parts of the Union Treaty, as well as to a provision in the EU framework decision itself but did not, in this context, recall its traditional case-law on fundamental rights as general principles of Community law. In this context, it should be noted that the limitation of the principle of the protection of fundamental rights to the field of application of Community (or Union) law does not appear in Article 7 of the EU Treaty, which provides for the possibility of sanctions against Member States which are determined to be in “serious and persistent breach” of the principles mentioned in Article 6(1). The latter provision provides that the Union “is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member 32 Case C-60/00 Carpenter [2002] ECR I-6279, paras. 36–39. 33 Case C-117/01 K.B. [2004] ECR I-541, para. 30. 34 On the relationship between this formula and the case-law of the Court on Member States’ obligations see e.g. G. de Búrca, ‘The Drafting of the European Union Charter of Fundamental Rights’, 26 European Law Review (2001) pp. 126–138, here at pp. 136–137; C. Ladenburger, ‘L’application pratique de la Charte des droits fondamentaux par la Commission européenne’, 14 Revue européenne de droit public (2002) pp. 817–837, here at pp. 827–828. 35 See supra note 22. 36 Case C-105/03 Pupino, judgment of 16 June 2005.
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States.” Article 7, which was added to the EU Treaty by the Treaty of Amsterdam, has never been used in practice. To come back to the case-law of the ECJ on fundamental rights, it is today extensive and covers a wide array of Community law areas.37 The fundamental rights upheld by Luxembourg case-law include civil rights (such as the right to fair trial, the prohibition of retroactive penal legislation and the right to privacy and family life), political freedoms (such as freedom of expression, freedom of assembly and freedom of movement) and social rights (such as the right of men and women to equal pay, which has been described by the ECJ as a fundamental right38). The list of fundamental rights does not seem to be closed: As noted above, the Court has stated that it draws inspiration “from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories”. It is, in this context, also significant that the Charter of Fundamental Rights, whatever its precise legal status, lists a broad range of rights as EU fundamental rights and states in its Preamble that it reaffirms rights “as they result, in particular, from the constitutional traditions and international obligations common to the Member States, … the European [Convention on Human Rights], the Social Charters adopted by the Community39 and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights”. According to Article 53 of the Charter, nothing in the Charter shall be interpreted as restricting or adversely affecting human rights as recognised, inter alia, by “international law and by international agreements to which the Union, the Community or all the Member States are party”. The Charter also contains a provision (Article 52(3)) stating that in so far as the Charter contains rights guaranteed by the ECHR, “the meaning and scope of those rights shall be the same as those laid down by the said Convention”. The relationship between the Luxembourg and Strasbourg systems has been one of gradual rapprochement.40 In its first judgments citing fundamental rights, the Court of Justice did not refer expressly to the ECHR. The first reference to the ECHR came in Nold, just after France as the (then) last Member State had ratified the Convention.41 As has already been mentioned, the 37 See e.g. Neuwahl and Rosas, supra note 15; Gould and Lesieur, supra note 15; Alston, supra note 15. 38 See e.g. Case C-13/94 P v. S [1996] ECR I-2143; Joined Cases C-270/97 and C-271/97 Deutsche Post [2000] ECR I-929, para. 57. 39 This refers to the 1989 Community Charter of the Fundamental Rights of Workers, originally adopted in September 1989 by 11 out of 12 Member States, and subsequently mentioned in Article 136 EC. 40 A. Rosas, ‘Fundamental Rights in the Luxembourg and Strasbourg Courts’, in C. Baudenbacher et al. (eds), The EFTA Court: Ten Years On (Hart Publishing, Oxford, 2005) pp. 163– 175. 41 Case 4/73 Nold [1974] ECR 491, para. 12. This reference, it is true, figures in a paragraph citing the assertions of one of the parties. For a reference to be found in the reasoning of the Court itself see Case 36/75 Rutili [1975] ECR 1219, para. 32. In the latter case, the Court noted that the ECHR had been “ratified by all the Member States”.
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Court subsequently characterised the ECHR as an instrument having “special significance”.42 In this context, it is telling that the ECHR is the only international human rights convention mentioned in Article 6(2)of the EU Treaty. And more recently, the ECJ has begun to refer to individual judgments of the European Court of Human Rights.43 One can thus note the following “stages” in the case-law of the ECJ: • fundamental rights outside the competence of the Court • fundamental rights as part of the general principles of Community law (since 1969) • explicit reference to the ECHR (since 1974–1975) • characterisation of the ECHR as having “special significance” (since 1989) • reference to individual judgments of the Court of Human Rights (since the 1990s) Given that the Court has started to refer to individual judgments of the Court of Human Rights, it is not surprising that it has also indicated a willingness to adjust its own case-law in the light of developments in Strasbourg case-law. Thus in Limburgse Vinyl Maatschappij, the Court of Justice noted that there had been, since its Orkem judgment,44 further developments in Strasbourg case-law that the Community judiciary should take into account in interpreting fundamental rights.45 And in Roquette Frères, the Court of Justice referred expressly to the development of ECHR case-law relating to the right to privacy of commercial enterprises, in order to explain why, despite having suggested the opposite in its earlier judgment in Hoechst, such enterprises can, in principle, benefit from Article 8 of the ECHR.46 In the light of this case-law, as well as the case-law of the ECJ in general, the thesis, often put forward in legal literature,47 that there is tension or even conflict be42 The first such statement seems to have been in Joined Cases 46/87 and 222/88 Hoechst [1989] ECR 2859, para. 13. See also Case C-260/89 ERT [1991] ECR I-2925, para. 41. 43 Already in Case 374/87 Orkem [1989] ECR 3283, para. 30, and some other cases decided the same year, the Court noted the absence of relevant case-law of the European Court of Human Rights. And in Case C-13/94 P v. S [1996] ECR I-2143, para. 16, the Court referred expressly to a given judgment of the Court of Human Rights. See also K. Lenaerts and P. Van Nuffel, Constitutional Law of the European Union (Sweet & Maxwell, London, 1999) p. 541 (footnote 89). For more recent citations of Strasbourg case-law, see e.g. Case C-60/00 Carpenter [2002] ECR I-6279, para. 42; the Limburgse Vinyl Maatschappij cases mentioned in infra note 44; the Roquette Frères case mentioned in infra note 46, paras. 29 and 52 of the judgment; Joined Cases C-465/00, C-138/01 and C-139/01 Rechnungshof v. Österreichischer Rundfunk [2003] ECR I-4948, at paras. 77 and 83; Case C-117/01 K.B., judgment of 7 January 2004, para. 33; Case C-71/02 Karner, judgment of 25 March 2004, para. 51; C-540/03 Parliament v. Council, supra note 17. 44 Case 374/87 Orkem [1989] ECR 3283. 45 Joined Cases C-238/99 P Limburgse Vinyl Maatschappij [2002] ECR I-8375, para. 274. 46 Case C-94/00 Roquette Frères [2002] ECR I-9011, para. 29. Cf. Cases 46/87 and 222/98 Hoechst [1989] ECR 2859, para. 18. 47 See e.g. C. Turner, ‘Human Rights Protection in the European Community: Resolving Conflict and Overlap Between the European Court of Justice and the European Court of Human Rights’, 5 European Public Law (1999) pp. 453–470, here at pp. 457–463, with references.
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tween Luxembourg and Strasbourg case-law is somewhat exaggerated, to put it mildly. Harmony, rather than conflict, is a much more likely scenario. On the other hand it is true that the EU is not a Contracting Party to the ECHR, which implies that the Convention is not, in itself, part of binding Community law but plays its role rather as an authoritative guideline for determining the general principles of Community law which the Court applies.48 The importance of the ECHR for the EU legal order has been acknowledged by the European Court of Human Rights, which in a recent judgment dealing with the question of EU Member States’ responsibility for alleged violations of the ECHR in the implementation of Community legislation has confirmed that the protection of fundamental rights by the Community is “equivalent” to that of the ECHR system.49 According to the Strasbourg Court, this creates a “presumption” that an EU Member State does not depart from the requirements of the ECHR when it is implementing legal obligations flowing from its membership in the EU. That the EU, through an interplay of case-law, political declarations and Treaty changes and legislative developments, has developed a system which generally meets European substantive and procedural standards for the protection of human rights has thus been recognised not only by the German Constitutional Court in Karlsruhe but also by the European Court of Human Rights in Strasbourg. According to Article I-9 of the Treaty establishing a Constitution for Europe, the EU “shall accede” to the ECHR. According to Article 59, as amended by Article 17 of its Protocol No. 14, “the European Union may accede to this Convention”.50 As the Constitutional Treaty or Protocol No. 14 to the ECHR are not in force,51 it is too early to say if and when EU accession to the ECHR will take place. The above developments do not imply that the ECJ has become a human rights court in a way comparable to the Strasbourg Court. It is a general court, with jurisdiction over the entire – and today extremely wide – range of Community law matters. Like national courts, the ECJ is called upon to apply and interpret fundamental rights as an integral part of its day-to-day activities. There is no specific human rights/fundamental rights jurisdictional remedy open to the citizen, nor are there any internal organisational mechanisms devised specifically for dealing with fundamental rights cases. Fundamental rights are raised in the context of the normal procedures before the Court, such as actions for annulment (Article 230 of the EC Treaty) and preliminary ruling requests from national courts (Article 234). While fundamental rights figure in perhaps
48 In Opinion 2/94 European Convention on Human Rights [1996] ECR I-1759, the ECJ held that as Community law stood in 1996, the European Community lacked competence to adhere to the ECHR. See also infra, and the following chapter of this volume. 49 Case of Bosphorus Hava Yollari Turizm v. Ireland, judgment of 30 June 2005 (Application no. 45036/98). See also Case of Matthews v. United Kingdom, judgment of 18 February 1999, Reports of Judgments and Decisions 1999-I. 50 Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, Strasbourg 13 May 2004 (not yet in force). 51 December 2006. See also supra note 22, and the following chapter of this volume.
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20 or so judgments per year, that is not a very significant number compared to the overall number of judgments given each year by the Luxembourg Courts.52 The focus so far has been mainly on the ECJ. It should be added that the EU judicial system includes a Court of First Instance (since the late 1980s) and a Civil Service Tribunal (since 2005) and draws heavily upon the national courts in the Member States, which can ask the ECJ for a preliminary ruling on questions of the validity and interpretation of EU law. What has been said above with respect to the case-law of the ECJ applies, mutatis mutandis, to these courts as well. It should be underlined that according to the division of competence between the ECJ and the Court of First Instance, legal actions by private parties are first brought before the Court of First Instance (or, if it is an action brought by an EU civil servant, to the Civil Service Tribunal), the decision of which can be appealed to the ECJ. The latter Court, on the other hand, deals with all preliminary ruling requests coming from national courts. If a private party contests an EU legal act or decision, he or she can under certain conditions bring an action of annulment before the Court of First Instance. If what is at issue is a national legal act, the case can be brought before the national judge, who has the right, and in some instances an obligation, to request a preliminary ruling if the matter raises a question of the validity or interpretation of an EU legal act.53 Finally, it should be noted that the EU judicial system is complemented by the institution of European Ombudsman. According to Article 195 of the EC Treaty, the Ombudsman is empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State “concerning instances of maladministration in the activities of the Community institutions and bodies”.54 He or she is thus not empowered to deal with complaints against the Member States’ institutions, a task which belongs to the national ombudsmen or similar bodies. Since 2002, the European Commission has drawn upon a Network of Independent Experts in Fundamental Rights. This Network has published annual reports on the situation of fundamental rights in the EU and its Member States, with conclusions and recommendations as well as so-called thematic comments and opinions on particular issues or questions.55 The annual reports have been discussed in the Civil Liberties, Justice and Home Affairs Committee of the European Parliament.
52 The number of cases terminated per year is for both the ECJ and the Court of First Instance in the area of 500. In addition, the Civil Service Tribunal deals with more than 100 cases per year. The overall number of cases per year dealt with by the EU Courts is thus more than 1000. 53 See Articles 68 and 234 of the EC Treaty and Article 35 of the EU Treaty. 54 See Article 195 of the EC Treaty and I. Harden, ‘When Europeans Complain: The Work of the European Ombudsman’, 3 Cambridge Yearbook of European Legal Studies (2000) pp. 199–237. In Case C-234/02 P European Ombudsman v. Frank Lamberts [2004] ECR I-2803 it was held that the Ombudsman may incur non-contractual liability for damage caused by his activities. 55 <ec.europa.eu/justice_home/cfr_cdf>.
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In 2005, the Commission proposed the creation of a European Union Agency for Fundamental Rights.56 On 4 December 2006, the Council adopted a new regulation establishing such an Agency. According to Article 2 of the Regulation, the objective of the Agency will be to provide the relevant institutions and bodies of the Community and its Member States when implementing Community law with “assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights”.57 The Agency, which will become operational by 1 January 2007 and will have its seat in Vienna, will replace the European Monitoring Centre on Racism and Xenophobia established in 199758 as well as the Network of Independent Experts mentioned above.59 The new Agency will supposedly increase awareness and expertise concerning the protection of fundamental rights notably in the preparation of EU legislative acts as well as the application and implementation of such acts by the EU institutions and the Member States.
56 Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights and Proposal for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union, COM(2005) 280 final of 30 June 2005. See also P. Alston and O. de Schutter (eds.), Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency (Hart Publishing, Oxford, 2005). 57 Council Regulation (EC) establishing a European Union Agency for Fundamental Rights. At the time of writing (8 December 2006), the exact number reference and date of publication of the new Regulation were not yet known. 58 Council Regulation (EC) No. 1034/97 of 2 June 1997, OJ L 151, 10 June 1997, p. 1. 59 But the new Agency will have not only a Management Board and an Executive Board but also a Scientific Committee and it shall establish a cooperation network called the Human Rights Platform. It shall cooperate with Member States’ institutions and with the Council of Europe and other international organisations.
54
The EU as an External Human Rights Actor Sybilla Fries and Allan Rosas*
The EU and human rights: general considerations European integration started off during the 1950s as an economic project, centred around the three Communities, the Coal and Steel Community (1952), the European Economic Community – EEC (1957) and the European Atomic Energy Community – Euratom (1957). In the external relations of these Communities, the focus was on international trade and commerce, which became a matter of exclusive Community competence, replacing gradually the former competence of the Member States to conclude trade agreements. With the European Single Act (1987), the establishment of the European Union (EU) and the European Community (EC, replacing the EEC) in 1992 and subsequent modifications to the EU and EC treaties, the European integration agenda has broadened considerably and today covers in one form or another practically all areas of human activity, including a common defence policy. The external relations of the EU have un*
Sybilla Fries is First Secretary/Legal Officer of the WTO Section of the Permanent Delegation of the European Commission to the International Organisations in Geneva; Allan Rosas is Judge of the European Court of Justice. Disclaimer: This chapter was written in December 2006 and does not reflect the changes that have taken place thereafter. See in particular Opinion 1/75 delivered by the European Court of Justice on an Understanding on a Local Cost Standard, ECR 1355 (1975). On EC external competence in general, see e.g. P. Eckhout, External Relations of the European Union: Legal and Constitutional Foundations (Oxford University Press, 2004). The Treaty of Amsterdam (1997, entered into force in 1999) and the Treaty of Nice (2001, entered into force in 2003). In the following, we shall use the term EU as an overarching term, covering both the two Communities (the EC and Euratom), regulated by the “First Pillar” of the EU, and Titles V (CFSP or the “Second Pillar”) and VI (Police and Judicial Cooperation in Criminal Matters or the “Third Pillar”), of the EU Treaty. It should be noted that the EU Treaty contains a number of provisions (notably the Common Provisions or Articles 1–7 and the Final Provisions or Articles 46–53) which govern all three Pillars.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 591-604.
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dergone a similar development, although the integration intensity in this respect varies greatly, ranging from an exclusive Community competence in matters of international trade regulated by Article 133 of the EC Treaty to a co-operation framework of a more intergovernmental nature in matters of security and defence policy regulated by Title V of the EU Treaty (a Common Foreign and Security Policy – CFSP, or the “Second Pillar” of the EU). While human rights entered into the picture first in the form of fundamental rights, recognised since 1969 by the European Court of Justice as general principles of Community law and restraining the activities of the EU institutions and the Member States, they have later become an important part of EU external relations as well. In EU terminology, fundamental rights refer to the internal protection of fundamental rights as general principles of Community law and are thus to be seen in a constitutional context, while human rights (including the expression human rights and fundamental freedoms, which appears also in the UN Charter) normally refer to the protection and promotion of human rights in the context of EU external relations. These developments have also been reflected in the text of the EU and EC treaties. According to Article 6 of the EU Treaty, the Union “is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States” (paragraph 1) and it “shall respect fundamental rights”, as guaranteed by the European Convention on Human Rights (ECHR) and as they result from the constitutional traditions common to the Member States, as general principles of Community law (paragraph 2). More specifically in the field of external relations, Articles 177 and 181a of the EC Treaty stipulate that Community policies in the area of development cooperation and in the area of economic, financial and technical cooperation with third countries in general shall contribute to the “general objective of developing and consolidating democracy and the rule of law” and the objective of “respecting human rights and fundamental freedoms”. In the same vein, Article 11 of the EU Treaty provides that one of the objectives of the CFSP is to “develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms”. Especially before the addition of these clauses to the EC and EU treaties, there was disagreement as to whether, and to what extent, human rights were part of the policies and activities that the Communities could lawfully promote and undertake. One of the most contentious issues was whether the EC could adhere to the ECHR. The EU Council asked for an opinion of the Court of Justice of the European Communities (European Court of Justice – ECJ), and in 1996 the Court, in Opinion 2/94, held that as Community law stood at that time, the EC had no competence to accede. This Opinion
See e.g. D. Napoli, ‘The European Union’s Foreign Policy and Human Rights’, in N. Neuwahl and A. Rosas (eds), The European Union and Human Rights (Martinus Nijhoff, Dordrecht, 1995) pp. 297–312; B. Brandtner and A. Rosas, ‘Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice’, 9 European Journal of International Law (1998) pp. 468–490. Opinion 2/94, European Convention on Human Rights, 1996, ECR I-1759.
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probably was due to the specific features of the ECHR, involving as it does a compulsory control system, including the powers of the European Court of Human Rights. Opinion 2/94 did not stop the increasing activities of the EU in the field of external relations and human rights, as witnessed, inter alia, by the inclusion of human rights clauses in bilateral trade and cooperation agreements concluded with third countries and in legislation dealing with development cooperation and financial and technical cooperation with such countries, including the adoption of two human rights regulations of a general nature in 1999, one on cooperation with developing countries and the other on similar cooperation with other third countries than developing countries. A human rights clause included in a trade and cooperation agreement concluded with India was explicitly approved by the ECJ in the same year as it handed down its Opinion on the competence to accede to the ECHR. It should be noted in this context that while the EC or the EU have not formally adhered to any international human rights convention such as the ECHR or the international covenants of 1966, Article 6(2) of the EU Treaty cited above refers to fundamental rights “as guaranteed by” the ECHR, and the case-law of the ECJ has recognised that other international human rights conventions as well may provide guidelines for determining the general principles of Community law whose observance the Court shall ensure. Moreover, the existence of internal Community competences in fields such as gender equality, non-discrimination, social and labour matters or asylum and refugee policy could well imply a competence to adhere to international conventions specifically dealing with such fields.10 It will be noted that the Charter of Fundamental Rights of the European Union, proclaimed as a “soft law” instrument by the European Parliament, the Council and the Commission in December 2000,11 presupposes in its Article 53 that the EU and the EC can be parties to international human rights agreements. True, international human rights conventions are normally open to States only. As the EU or the EC have not been recognised as States within the meaning of the UN Charter, their accession to these instruments would require amendments to each convention’s adherence clause. Such an amendment has, in fact, been recently made to the ECHR. In line with a clause inserted into the Treaty establishing a Constitution for Europe, signed in Rome on 29 October 2004 but not entered into force, according to
Brandtner and Rosas, supra note 4, pp. 471, 472. Council Regulation 975/1999/EC of 29 April 1999, OJ L 120, 8 May 1999, p. 1, and Council Regulation 976/1999/EC of 29 April 1999, OJ L 120, 8 May 1999, p. 8. Case C-268/94, Portugal v. Council, 1996, ECR I-6177. See the preceding chapter of this volume and A. Rosas, ‘The European Union and International Human Rights Instruments’, in V. Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? (T.M.C. Asser Press, The Hague, 2001) pp. 53–67. 10 Rosas, supra note 9, pp. 65, 66. 11 OJ C 364, 18 December 2000, p. 1. On the legal status of the Charter, see the preceding chapter of this volume.
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which the “Union shall accede to the [ECHR]”,12 Protocol No. 14 to the ECHR, adopted in 2004 but not yet in force,13 contains an amendment to Article 59 of the ECHR, stating that the “European Union may accede to this Convention”. And a new Convention on the Rights of Persons with Disabilities adopted in August 2006 by a United Nations ad hoc committee and proclaimed by the General Assembly (not yet in force) on 13 December 2006, contains a clause opening up the Convention to “regional integration organizations”, meaning, inter alia, the EU.14 Apart from treaty law, the EU, as a subject of international law, is bound by general international law in the field of human rights, whether seen as customary international law or general principles of law recognised by civilised nations,15 and including so-called peremptory norms of international law (jus cogens).16 The Charter of Fundamental Rights of 2000 mentioned above recognises (Article 53) the existence of “international law” in the field of human rights and states that the provisions of the Charter should not be interpreted as restricting or adversely affecting such international law. As will be further explained below, many of the human rights clauses inserted in bilateral trade and cooperation agreements include a reference to the Universal Declaration of Human Rights (1948), which is seen by the EU as reflecting by and large general international law of a universal nature. However, the EU is not a human rights monitoring body, but a political and economic union of States which in many respects displays State-like features. There is no specific human rights complaints, reporting or other control mechanism such as those set up under most UN human rights conventions or the European human rights instruments. Human rights and fundamental rights are dealt with by the ordinary political and legal institutions and bodies of the EU, such as the European Parliament, the Council, the 12 Article I-9, paragraph 2, of the Treaty, OJ C 310, 16 December 2004, p. 13. At the time of writing (December 2006), 16 out of 25 Member States have ratified the Treaty. Its fate is uncertain, however, due to two negative referendums (France and the Netherlands). 13 At the time of writing, only one instrument of ratification is needed for the Protocol to enter into force. 14 Adopted without a vote at the eighth session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, New York, 14–25 August 2006. According to Article 44 of the Draft Convention, “regional integration organization” shall mean “an organization constituted by sovereign States of a given region, to which its Member States have transferred competence in matters governed by this Convention.” After the eighth session of the Ad Hoc Committee, a drafting group has been working in order to ensure uniformity of terminology. 15 A. Rosas, ‘International Dispute Settlement: EU Practices and Procedures’, 46 German Yearbook of International Law (2003) p. 287; A. Rosas, ‘With a Little Help from My Friends: International Case-Law as a Source of Reference for the EU Courts’, 5 The Global Community YILJ 2005 (2006) p. 220. 16 In Cases T-306/01 Yusuf and T-315/01 Kadi, judgments of 21 September 2005, the Court of First Instance has examined whether certain sanctions taken against individuals suspected of terrorism are lawful in respect of jus cogens binding on the Community. The judgments are at the time of writing pending on appeal before the ECJ (Cases C-415/05 P and 402/05 P).
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Commission, the EU courts17 and the European Ombudsman. In the “internal” protection of fundamental rights, individuals can turn to these institutions and bodies in fundamental rights-related matters under the same conditions as in other matters. In external relations, initiatives and petitions of an informal character can be addressed to the political institutions and bodies, and, in some very special circumstances, actions before the EU courts might be envisaged as well. This brings us to the question of what are the powers of EU institutions and bodies to act in the case of alleged human rights violations and problems in third countries. These powers may vary depending on the level and intensity of integration in the handling of external relations, including not only so-called Community powers applied in the context of supra-national Community law (the “First Pillar”) but also more intergovernmental forms of cooperation undertaken in the context of the CFSP (the “Second Pillar”) and Police and Judicial Cooperation in Criminal Matters (the “Third Pillar”). It is to such questions of competence, powers and instruments that we shall now turn. The human rights clause Since the early 1990s, the EC has almost systematically included a so-called human rights clause in its trade and cooperation agreements concluded with third countries, including so-called association agreements such as the Europe agreements concluded with the candidate countries (before their accession to the EU in 2004, and in the case of Bulgaria and Romania in 2007), agreements concluded with a number of Mediterranean countries and the Lomé/Cotonou agreements concluded with African, Caribbean and Pacific (ACP) countries.18 It should be noted that all such agreements are concluded in the name of the EC, and in the context of the “First Pillar”. All international agreements concluded by the EC are binding on not only the EU institutions but also the Member States. They are part of the Community legal order, prevail not only over the national law of the Member States, including international agreements they have concluded, but also over EC legislation such as regulations and directives, and may contain provisions which are sufficiently precise and unconditional to have direct effect so that they can be invoked directly before courts and authorities.19
17 In addition to the ECJ, they include the Court of First Instance (set up in 1989) and the Civil Service Tribunal (set up in 2005). Also the national courts of the EU Member States play an important part in the application of EU law. 18 See the Communication from the Commission on the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries, COM(95) 216 final of 23 May 2005; Napoli, supra note 4, pp. 306–308; Brandtner and Rosas, supra note 4, pp. 473–477; F. Hoffmeister, Menschenrechts- und Demokratieklauseln in den vertraglichen Aussenbeziehungen der Eurtopäischen Gemeinschaft (Springer, Berlin, 1998); M. Bulterman, Human Rights in the Treaty Relations of the European Community: Real Virtues or Virtual Reality? (Intersentia – Hart, Antwerpen, 2001); E. Fierro, The EU’s Approach to Human Rights Conditionality in Practice (Martinus Nijhoff, The Hague, 2003). 19 See e.g. Eckhout, supra note 1, pp. 274–344.
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According to a standard formula, the principal human rights clause stipulates that respect for fundamental rights and democratic principles, as laid down in the Universal Declaration of Human Rights (in a European context, reference has also been made to the Helsinki Final Act of 1975 and other Organization for Security and Cooperation in Europe instruments), inspire the internal and external policies of the parties and constitute an “essential element” of the agreement.20 Another provision normally to be found among the final provisions of the agreement deals with the possibility of taking measures in cases of non-execution of the agreement (that is, of any provision of the agreement and not just of the human rights clause) by the other side, including suspension of the operation of the agreement, and requires each party to consult the other party before taking measures, save in cases of special urgency. There is normally also an interpretative declaration, specifying that cases of special urgency include breaches of an “essential element” of the agreement, that is, of the human rights clause. As has been recognised by the ECJ, an important reason for including the human rights clause in agreements with third countries is to spell out the right of the Community (and of the other contracting party concerned) to suspend the operation of the agreement or to take other countermeasures in case of non-respect of the clause.21 The human rights clause thus does not seek to transform the basic nature of an agreement otherwise concerned with trade, development cooperation, and so on. Rather than seeking to establish new standards in the international protection of human rights, it constitutes a mutual reaffirmation of commonly shared values and principles and regulates the possibility of taking measures in response to non-compliance with these basic values.22 The EU’s approach to these matters is based on the assumption that the basic terms of reference for the human rights clause, the Universal Declaration of Human Rights, largely reflects general international law on the subject. Its treaty practice, accepted by the third countries parties to these agreements, accordingly contributes to the reaffirmation of the Universal Declaration as an expression of general international law.23 After the mid-1990s, the human rights clause – in variations not deviating too much from the standard clause – has been included in all subsequently negotiated bilateral trade and cooperation agreements of a general nature, concluded with some 150 third countries. The use of the human rights clause has been taken to a more refined level in the context of the association agreement concluded with the ACP countries. This agreement known in previous versions under the names of Yaounde and Lomé agreements was re-negotiated and concluded in 2000 as the Cotonou Agreement and revised again
20 21 22 23
See Bulterman, supra note 18, pp. 151–184. Case 268/94 Portugal v. Council, 1996, I-6177. See also supra note 8. Brandtner and Rosas, supra note 4, p. 474. European Union Annual Report on Human Rights 1998-1999, adopted by the EU Council in October 1999 (Council of the European Union, General Secretariat, Brussels, 1999) p. 22. See also A. Rosas, ‘The Role of the Universal Declaration of Human Rights in the Treaty Relations of the European Union’, in P. Baehr et al. (eds), Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (Koninklijke Nederlandse Akademie van Wetenschappen, Amsterdam, 1999) pp. 201–209.
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in 2005.24 The Cotonou Agreement in its Article 9(2) contains a detailed essential elements clause which, inter alia, affirms the commitment of the parties to the principles of universality, indivisibility and interrelationship of human rights, be they civil and political, or economic, social and cultural, and provides for rule of law-related remedies and guarantees. Article 96 of the Cotonou Agreement provides for a detailed consultation procedure in case of breaches of these essential elements, excepting only cases of particularly serious and flagrant violations. A timeframe of a maximum of 120 days of consultations is established. If these consultations do not lead to a solution acceptable to both parties (the EU and the ACP country concerned), if consultations are refused or in cases of special urgency, appropriate measures (such as suspension of the operation of the Agreement in whole or in part) may be taken. Those measures must be revoked as soon as the reasons for taking them no longer prevail. It is in the context of the Cotonou Agreement that the human rights clause has been applied most often. Thus, appropriate measures have been taken, after consultations have been held under the above provision, against Zimbabwe,25 Liberia,26 the Togolese Republic,27 Fiji,28 Guinea29 and most recently Mauritania.30 These measures usually take the form of suspension of certain funding provided for in the Agreement, and in particular, the European Development Fund (EDF). Outside the Cotonou Agreement, there is the case of Uzbekistan, where the Council, in October 2005, along with measures taken under the CFSP (“Second Pillar”), suspended all scheduled technical meetings under the Partnership and Co-operation Agreement in response to the way a local uprising had been suppressed and the refusal of the government to launch an independent enquiry.31 The measures taken against former Yugoslavia in the early 1990s demonstrate that sanctions (countermeasures) may be resorted to even in the absence of a human rights clause. In 1991, the EC suspended the operation of a cooperation agreement of 1983 (which did not contain any human rights clause) by invoking a fundamental change of circumstances (rebus sic stantibus) and the impossibility to continue applying the 24 ACP-EU Partnership Agreement, signed in Cotonou on 23 June 2000 (OJ L 317, 15.12.2000, p. 1), revised in 2005, (OJ L 209, 11.08.2005, and OJ L 287, 28.10.2005). See also B. Martenczuk, ‘From Lomé to Cotonou: The ACP-EC Partnership Agreement in a Legal Perspective’, 5 European Foreign Affairs Review (2000) pp. 461–487. 25 Council Decision 2002/148/EC, OJ L 50, 21.2.2002, p. 64. Decision amended by Council Decision 2003/112/EC, OJ L 46, 20.2.2003, p. 25, extended several times, most recently by Council Decision 2006/114/EC, OJ L 48, 18.2.2006, p. 26. 26 Council Decision 2002/274/EC, OJ L 96, 13.4.2002, p. 23, terminated by Council Decision 2006/450/EC, OJ L 179, 1.7.2006, p. 51. 27 Council Decision 2004/793/EC, OJ L 349, 25.11.2004, p. 17. 28 Council Decision 2001/334/EC, OJ L 120, 28.4.2001, p. 33. 29 Council Decision 2005/321/EC, OJ L 104, 23.4.2005, p. 33. 30 Council Decision 2006/470/EC, OJ L 187, 8.7.2006, p. 28. 31 See Press Release of External Relations Council, .
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Agreement in the new situation (dissolution of Yugoslavia, war and human rights and humanitarian law violations).32 The EC also imposed a flight ban as a response to violations of human rights and humanitarian law on the Serbian side.33 Human rights clauses have been included also in legislation establishing Community assistance programmes with third countries or groups of third countries. This concerns, inter alia, the TACIS (former Soviet Union countries) and MEDA (Mediterranean countries) programmes.34 Such clauses can be used to suspend cooperation with a partner State in case of serious human rights violations. They can also be used as a basis for certain positive measures aimed at promoting human rights and democracy in a partner country which depart from the normal assistance programme in providing, for instance, for special direct support to non-governmental organisations. In the case of Belarus, this latter possibility was resorted to already in 1997, when a TACIS Civil Society Programme was established for that country, with funds earmarked for democracy-related projects.35 While resorting to the human rights clause may imply the use of the stick, or as the example of Belarus shows a combination of the stick and the carrot, most Community assistance activities in the field of human rights, democracy and the rule of law are primarily using the carrot, that is, providing financial assistance and assistance to various human rights-related projects in the target countries. Apart from the human rightsrelated activities which can be supported under various geographical and sector programmes, the two human rights regulations of 1999 mentioned above36 provide the legal basis for an European Initiative for Democracy and Human Rights (EIDHR), which has an allocation of around EUR 120 million in the EU budget. The Community instruments for the provision of financial and technical assistance to third countries are currently undergoing a major re-structuring, with the texts of seven instruments expected to be adopted before the end of the year 2006. The new instruments, to the extent that they cover financial and technical assistance to third countries, contain provisions similar to the structure of the human rights clause to be 32 These measures were approved by the ECJ in Case C-162/96 Racke v. Hauptzollamt Mainz, 1998 ECR I-3655. See also P. J. Kuijper, ‘Trade Sanctions, Security and Human Rights and Commercial Policy’, in M. Maresceau (ed.), The European Community’s Commercial Policy after 1992: The Legal Dimension (Kluwer, Dordrecht, 1993) p. 431. 33 E. Paasivirta and A. Rosas, ‘Sanctions, Countermeasures and Related Actions in the External Relations of the EU: A Search for Legal Frameworks’, in E. Cannizzaro (ed.), The European Union as an Actor in International Relations (Kluwer Law International, The Hague, 2002) p. 207. 34 Council Regulation No. 1279/96 of 25 June 1996 concerning the provision of assistance to economic reform and recovery in the New Independent States and Mongolia [‘TACIS’], OJ L 165, 4.7.1996, p. 1, replaced by Council Regulation No. 99/2000, OJ L 12, 18.1.2000; Council Regulation No. 1488/96 of 23 July 1996 on financial and technical measures to accompany the reform of economic and social structures in the framework of the Euro-Mediterranean partnership (MEDA), OJ L 189, 30.7.1996, p. 1, amended by Council Regulation No. 2698/2000, OJ L 311, 12.12.2000, p. 1. 35 Council Decision 98/1/EC/EAEC of 18 December 1997, OJ L 1, 3.1.1998. 36 See supra note 6.
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found in previous regulations and in international agreements concluded by the EC.37 For instance, a provision of an instrument regulating financial assistance to developing countries would state that the Community is founded on the values of democracy, the rule of law and respect for human rights and fundamental freedoms and seeks to develop and consolidate commitment to these values in partner countries and regions through dialogue and cooperation.38 A suspension clause would read as follows: Without prejudice to the provisions on suspension of aid in partnership and cooperation agreements with partner countries and regions, where a partner country fails to observe the principles referred to in Article 3 (1), and where consultations with the partner country do not lead to a solution acceptable to both parties, or if consultations are refused or in cases of special urgency, the Council, acting by a qualified majority on a proposal from the Commission, may take appropriate measures in respect of any assistance granted to the partner country under this Regulation. Such measures may include full or partial suspension of assistance.
The human rights clause is thus here to stay, in the context of both international agreements concluded by the EC and Community assistance programmes. The initiative for resorting to the human rights clause may come from various sources, such as Member States, the European Parliament, the Commission, non-governmental organisations or even individuals, but there are no specific procedures for such initiatives and the EU institutions are under no legal obligation to act upon them. This is so, a fortiori, with respect to proposals to initiate or increase positive support programmes. Decision-making is strongly influenced by political and practical considerations, and it would be futile to expect full consistency in this regard. Unilateral trade preferences The EU grants trade preferences to third countries not only in the context of multilateral and bilateral trade agreements but also by autonomous legislative acts in the form of regulations. Already in the early 1990s, tariff preferences originally granted by a trade and cooperation agreement with Yugoslavia of 1983 and later terminated39 were reintro-
37 There will be an instrument for pre-accession countries, one for countries which are part of the European Neighbourhood and one for cooperation with developing countries. There will furthermore be an instrument designed to address crisis situations, one addressing nuclear safety, a thematic instrument for projects in developed countries and an instrument specifically designed to provide assistance to human rights projects, to replace the two human rights regulations of 1999. Together with the instrument on humanitarian aid (Council Regulation 1257/96) there will altogether be eight instruments for external assistance. 38 Article 3, paragraph 1, Common Position adopted by the Council on 23 October 2006, document 11944/06 of 20 October 2006. 39 See supra note 32.
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duced as “positive incentive measures” with respect to those republics which actively contributed to the peace process.40 In 1997, a strategy of “conditionality” was adopted for the EU’s relations with the countries of the Balkans, which provided that relations will be developed within a framework which promotes democracy, the rule of law and higher standards of human and minority rights. On this basis, trade preferences were granted to some countries pending the conclusion of more elaborate association agreements.41 Such schemes have subsequently been overtaken by, on the one hand, Slovenia’s accession to full membership in 2004 and, on the other hand, the conclusion of stabilisation and association agreements (containing human rights clauses) with some of the other countries of the region, with the gradual phasing in of unilateral concessions into a bilateral reciprocal framework. With regard to Serbia, in particular, trade preferences are still mainly based on unilateral concessions and negotiations on a stabilisation and association agreements have been frozen due to lack of cooperation of Serbia with the International Criminal Tribunal for the former Yugoslavia.42 The use, or suspension, of trade preferences may again be inspired by initiatives from various sources, including non-governmental organisations, but those putting forward such proposals have no particular standing before the Commission or other EU institutions. The situation is somewhat different as far as the Community scheme of generalised tariff preferences (GSP) is concerned. This scheme, in fact, has contained a redress system providing for a right of initiative of various actors with respect to the alleged violation by third countries benefiting from the GSP programme of fundamental labour standards. In the earlier texts, benefits granted to a particular country could be temporarily withdrawn if the country was found to violate fundamental labour standards such as to practice any form of forced labour.43 There was also an explicit reference to complaints 40 The first such Regulation was Council Regulation No. 3567/91 of 2 December 1991 concerning the arrangements applicable to imports of products originating in the Republics of Bosnia-Herzegovina, Croatia, Macedonia and Slovenia, OJ L 342, 12.12.1991, p. 1. 41 Council Conclusions on the principle of Conditionality governing the development of the European Union’s relations with third countries of south-east Europe, adopted on 29 April 1997, Bull. EU 4-1996, points 1.4.67 and 2.2.1. See also e.g. Council Regulation No. 70/97/EC of 20 December 1996 concerning the arrangements applicable to imports into the Community of products originating in the Republics of Bosnia-Herzegovina, Croatia and the former Yugoslav Republic of Macedonia and to imports of wine originating in the Republic of Slovenia, OJ L 16, 18.1.1997, p. 1, amended, e.g., by Council Regulation No. 2636/97/EC of 29 December 1997, OJ L 356, 31.12.1997, p. 16. 42 See Council Regulation (EC) No. 2007/2000 of 18 September 2000 introducing exceptional trade measures for countries and territories participating in or linked to the European Union’s Stabilisation and Association process, OJ L 240, 23.9.2000, p. 1, and <www.ec.europa. eu/ enlargment/serbia>. 43 See e.g. Articles 9–10 of Council Regulation (EC) No. 3281/94 of 19 December 1994 and of Council Regulation (EC) No. 1256/96. For the definition of forced labour reference was made to the Slavery Convention, signed at Geneva on 25 September 1926, and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Simi-
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from natural or legal persons who could “show an interest in such withdrawal”. On the basis of a joint complaint by two trade union confederations, the Commission initiated, in early 1996, an investigation against the union of Myanmar (Burma) for alleged use of forced labour. During the investigation, the Commission collected written and oral statements and also attempted to conduct an on-site inspection, which was, however, refused by the Burmese authorities. Having found that the practice of forced labour was “routine and widespread”, the Commission proposed withdrawal of all tariff concessions under the GSP. The concessions were suspended in March 1997.44 The GSP scheme has been amended several times. The regime in force is based on a Regulation of 2005.45 There is, in addition to the general scheme, a special incentive scheme for sustainable development and good governance, devised for countries that have, inter alia, committed themselves to a number of international conventions, including 16 human rights conventions listed in Annex III of the Regulation, including not only international labour conventions on core labour standards but also most of the central UN human rights conventions.46 There is also the possibility to withdraw temporarily the preferences in case, inter alia, of “serious and systematic” violations of the “principles” laid down in the 16 human rights conventions, ”on the basis of the conclusions of the relevant monitoring bodies”. At the time of writing, the Commission has proposed to withdraw temporarily preferential arrangements for products originating in Belarus but the Council has not yet acted upon this proposal.47 CFSP action and political dialogue The above instruments and mechanisms are governed by Community law under the Union’s “First Pillar”. Human rights are also an important part of the “Second Pillar” or the CFSP, and to some extent also the “Third Pillar”. The focus here will be on the CFSP,
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45 46 47
lar to Slavery, adopted on 7 September 1956, and the Forced Labour Convention No. 29 of 1930 and Abolition of Forced Labour Convention No. 105 of 1957 of the International Labour Organization. See also B. Brandtner and A. Rosas, ‘Trade Preferences and Human Rights’, in P. Alston (ed.), The EU and Human Rights (Oxford University Press, 1999) pp. 713–721. Council Regulation (EC) No. 552/97 of 24 March 1997 temporarily withdrawing access to generalised tariff preferences from the Union of Myanmar, OJ L 85, 27.3.1997, p. 8, see also Recital 19 and Article 29 of Council Regulation (EC) No. 980/2005 of 27 June 2005 applying a scheme of generalised tariff preferences, OJ L 169, 30.6.2005, p. 1. Council Regulation 980/2005, supra note 44. See Commission Decision of 21 December 2005, OJ L 337/22.12.2005, p. 50, which lists 15 countries which have been accepted for the special incentive arrangement. See Commission Decision of 29 December 2003 providing for the initiation of an investigation pursuant to Article 27(2) of Council Regulation (EC) No. 2501/2001 with respect to the violation of freedom of association in Belarus, Commission Decision of 17 August 2005, 2005/616/EC, OJ L 213, 18.8.2005, p. 16, and Commission proposal COM (2006)438 final of 4 August 2006.
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as the “Third Pillar” on police and judicial cooperation in criminal matters is predominantly concerned with internal EU developments rather than EU external relations.48 It should be noted at the outset that Title V of the EU Treaty on the CFSP, despite its more intergovernmental nature, enables the taking of binding decisions in the form of Common Strategies, Common Positions, Joint Actions and the conclusion of international agreements.49 This includes the possibility to initiate the interruption or reduction of economic relations, including capital movements, with third countries and to impose arms embargoes and individual visa bans on political leaders of such countries. Economic sanctions need to be implemented by Community law measures, however,50 and visa bans affecting a whole third country also need to be taken under the “First Pillar”.51 Restrictions on admission of political leaders and other special categories of persons and/or arms embargoes have been imposed, inter alia, on Belarus, Bosnia and Herzegovina, Democratic Republic of Congo, Croatia, Ivory Coast, Democratic People’s Republic of Korea, Lebanon, Liberia, Macedonia, Myanmar, Serbia, Sierra Leone, Somalia, Sudan, Syria and Uzbekistan.52 Human rights considerations have certainly played a role in the imposition of most of these sanctions. The main institution responsible for the CFSP is the Council, the Commission being “fully associated” to its work while the European Parliament is merely to be kept informed. The CFSP as such does not fall under the jurisdiction of the EU courts, which means that sanctions undertaken in this framework alone probably cannot be challenged before one of the EU courts (but it is not to be excluded that the matter could be brought before a national court in a Member State).53 If economic sanctions are implemented by a Community regulation, the latter can be challenged by individuals before 48 But see the Thematic Comment on “Fundamental Rights in the External Activities of the European Union in the Fields of Justice and Asylum and Immigration, synthesis report of 2004 from the EU Network of Independent Experts on Fundamental Rights”, <europa. eu.int/comm/justice_home/cfr_cdf/index_en.htm>. 49 See Article 13–15 and 24 of the EU Treaty and R. A. Wessels, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (Kluwer, The Hague, 1999). On the status of human rights in the CFSP see e.g. M. Fouwels, ‘The European Union’s Common Foreign and Security Policy and Human Rights’, 15 Netherlands Quarterly of Human Rights (1997) pp. 291–324. 50 See Articles 60 and 301 of the EC Treaty, which provide that the Council can take such measures only on the basis of a common position or joint action adopted under the CFSP. It should be noted that such unilateral economic sanctions do not include the suspension of the operation of agreements already concluded, which is a measure to be adopted exclusively on the basis of Community law (Article 300, paragraph 2, of the EC Treaty). See also Paasikivi and Rosas, supra note 33. 51 Article 62 of the EC Treaty. 52 See <ec.europa.eu/comm/external_relations/cfsp/sanctions/measures.htm>, which contains a complete list of sanctions or restrictive measures in force adopted in the framework of the CFSP. 53 See the Opinion of 26 October 2006 of Mengozzi, AG, in Cases C-354/04 P Gestoras Pro Amnistía and C-355/04 P Segi (pending).
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the Court of First Instance. Several cases have in fact been brought before the Court of First Instance by persons who believe that they have been wrongfully targeted by EU sanctions applying to terrorist organisations. The most well-known cases concern the legality of EU sanctions implementing UN sanctions implying the freezing of funds of certain individuals living in Sweden. The judgments of the Court of First Instance of 21 September 2005 upholding the legality of the sanctions have been appealed to the ECJ.54 Apart from sanctions and other restrictive measures, a number of human rights initiatives and coordinated action are taken within the framework of the CFSP. A central role in this regard is played by the Council Working Party on Human Rights (COHOM), consisting of representatives of the Member States and the Commission. Since January 2005, the High Representative for the CFSP and Secretary-General of the Council has also had a Personal Representative for Human Rights.55 The European Parliament has a Subcommittee on Human Rights, but as was noted above, the Parliament has no formal decision-making powers with regard to the CFSP. CFSP activities in the field of human rights include human rights dialogues conducted with third countries, either within a broader framework of political and legal cooperation, often taking place on the basis of a cooperation agreement concluded between the Community and the third country concerned, or in the form of a specific and regular string of seminars and meetings devoted to human rights issues (the latter form of cooperation takes place in relation to China, in particular).56 There is also significant coordination of the Member States’ participation in the former UN Commission for Human Rights, in 2006 succeeded by the Human Rights Council, and the Third Committee of the UN General Assembly. The thematic issues highlighted in EU coordination are illustrated by the themes of the general guidelines the Council has adopted: in addition to guidelines on human rights dialogues with third countries, they concern the fight against the death penalty (1998) and against torture and other cruel, inhuman or degrading treatment (2001), children in armed conflict (2003) and the protection of human rights defenders (2004). Civil society has no direct role in CFSP decision-making, and as was noted above, the role of the European Parliament and of the Commission are much more limited than in the Community law framework. Civil society can, of course, try to influence the work of the Council through its own human rights bodies or through the Commission or the Parliament. At the time of writing, the Council has agreed to a Commission proposal to establish an EU Human Rights Agency,57 but its mandate will be focussed on the ques54 Cases T-306/01 Yusuf and T-315/01 Kadi, judgments of the Court of First Instance of 21 September 2005; Cases C-415/05 P C-402/05 P pending before the ECJ. See also supra note 16. 55 The High Representative is Mr. Javier Solana, the Personal Representative for Human Rights is Mr. Michael Matthiessen. 56 See the Annual Reports on Human Rights adopted by the Council and the European Union Guidelines on Human Rights Dialogues of 2001, available on the web site of the Council, <www.consilium.europa.eu>. 57 Commission proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights (COM(2005)280 final of 30 June 2005); the Council Regulation es-
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tion of the protection and promotion of human rights and fundamental rights within the EU (fundamental rights) rather than in the context of human rights in external relations. However, there will be a possibility for candidate countries and countries with which a stabilisation and association agreement has been concluded to participate in the work of the Agency, in which case, if the respective Association Council agrees, the Agency may deal with fundamental rights issues in the candidate or associated country concerned.58
tablishing a European Union Agency for Fundamental Rights was adopted on 4 December 2006. At the time of writing, the date of publication in the OJ is not yet known. See also P. Alston and O. de Schutter (eds), Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency (Hart Publishing, Oxford, 2005) and the previous chapter of this volume. 58 Article 27 of the Regulation. The Commission proposal had foreseen the possibility to request the Agency to provide information and analysis on third countries with which the Community has concluded association agreements or agreements containing provisions on respect for human rights, or has opened or is planning to open negotiations for such agreements, in particular countries covered by the European Neighbourhood Policy (Article 3(4) of the proposal).
55
The European Parliament as a Human Rights Monitoring Mechanism Ana Gomes*
Introduction The European Parliament is, of all the European institutions, the one that is the most suitable from an institutional perspective to reflect on and monitor human rights all over the world. The Council, which is dominated by Member States and their interests, mostly treats human rights as a peripheral aspect of the Common Foreign and Security Policy. Thus, the Council’s human rights approach is regularly taken hostage by national agendas and priorities. Only in the most blatant cases, when the most egregious human rights violations take place, will the Council specifically address human rights. Such is the case with the political declaration in 1989 by which the European Council imposed an arms embargo on China and with the 2005 imposition of an arms embargo on Uzbekistan following the Andijan massacre, for example. In the case of Russia, for example, the Council is unable to take a bold stand on human rights since such a stand would endanger other aspects of the relationship between Moscow and the Member States of the European Union (EU), aspects which are often considered to be more important, such as energy and trade. It is true that the Council produces an Annual Human Rights Report, but there is a gaping disconnection between the content of that Report and EU policy-making with regard to human rights As for the European Commission, it mostly has an executive role in this field and is basically unable to go beyond the lowest common denominator that is set by Member States concerning human rights. Also, there are many competing forces in the Commission that push it in different directions. The approach to Ethiopia is a case in point. After the May 2005 elections, which were monitored by a European Union mission led by myself, the Ethiopian government began a massive campaign of repression against the opposition, journalists, human rights activists, students and ordinary people. The European Commission was put be*
Ana Gomes is a Socialist Member of the European Parliament, representing Portugal. This contribution will mainly focus on my work in the Parliament, and how I approach the issues of human rights globally.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 605-608.
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fore the stark choice of either punishing the Ethiopian government or adopting a ‘business-as-usual’ approach. In the end, the latter option prevailed due to pressure by the Development Directorate-General; the Commission and some Member States merely interrupted direct budgetary support to Ethiopia but otherwise continued dealing with Ethiopia as a privileged partner. So the European Parliament is, in fact, the only institution that can approach human rights from a perspective that is unencumbered by narrow national, bureaucratic and parochial interests. It constitutes a unique forum for non-governmental organisations, policy-makers and the media to have open and transparent debates on the EU’s human rights policies and on human rights in the world more generally. The Subcommittee on Human Rights I am not a member of the Subcommittee on Human Rights, which deals exclusively with this topic and feeds its work into its mother-committee: the Foreign Affairs Committee. The main human rights “monitoring” work, in the institutional sense, is done in that Subcommittee. In fact, the main element of the “monitoring” work done by the European Parliament is the Annual Report on Human Rights in the World and the EU’s policy on the matter. This Report analyses the performance of all three European institutions concerning human rights globally, with many paragraphs dedicated to the implementation (or nonimplementation, as the case usually is) of the human rights clauses with third countries, namely in the context of the Cotonou Agreement with African, Caribbean and Pacific countries. But maybe the bulk of the “monitoring” work done by the European Parliament’s Subcommittee on Human Rights is dedicated to producing opinions for other committees. If, for example, the International Trade Committee is asked about the viability of a trade agreement with a country like Turkmenistan, the Subcommittee on Human Rights will be consulted. Finally the Subcommittee works as a flexible forum for debate on issues currently dominating the international agenda. As an example, Mr. Kesang Yangkyi Takla, the Minister for Information and International Relations of the Tibetan government in exile, was invited in the beginning of May to speak about the human rights situation in Tibet. What should be underlined is the fact that non-governmental organisations are free to attend these meetings and make their voices heard. They are very much the focus of much of the work of the Subcommittee, which depends on them for vital specialised inputs. In that sense, the Subcommittee and the European Parliament more generally allow for civil society to take part in the processes of “monitoring” human rights, and give that process a democratic dynamic, which is lacking both in the other institutions of the European Union and in its Member States. My work on human rights in the European Parliament I should start by describing in which areas I am active as a member of the European Parliament: I am a full member of the Foreign Affairs Committee and of the Delegation
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to the ACP-EU Joint Parliamentary Assembly; I am also one of the vice-chairpersons of the Subcommittee on Security and Defence, which works in support of the Foreign Affairs Committee, just like the Subcommittee on Human Rights; I am a substitute member of the Committees on Development, Women’s Rights and Gender Equality and of the Delegations for Relations with the USA and for Relations with the NATO Parliamentary Assembly. I was also a member of the Temporary Committee on the Alleged Use of European Countries by the CIA for the Transport and Illegal Detention of Prisoners. In a sense, although none of those Committees and Delegations deals explicitly with human rights in the classical sense, they all allow me to introduce human rights aspects into my work. Working in the Committee on the CIA flights in Europe (apart from having allowed me to uncover a never ending list of quite astonishing information, which go very far in confirming much of what the press has been saying and beyond) helped me to dedicate a lot of my time to a classical fight against systematic and systemic violations of human rights and the rule of law right in our backyards, i.e. in the heart of Europe, and by our own democratically elected governments from the left and the right of the political spectrum. Debates concerning the future of European security and defence, for example, regularly give me the opportunity to highlight the importance of human rights in all dimensions of Europe’s foreign policy. The concept of human security, according to Professor Mary Kaldor from the London School of Economics and as it was defined by the 2004 Barcelona Report (and further developed in the 2007 Madrid Report of the Human Security Study Group) is a good example of an approach to security and defence that has human rights in its core. In the context of the work in the Foreign Affairs Committee on a Draft Report on the External Dimension of the Fight Against International Terrorism by my colleague Yañez-Barnuevo, I put forward the following amendment: Whereas the pursuit of security beyond the EU’s borders should be guided by the principles of the Human Security Doctrine as set out in the 2004 ‘Barcelona Report of the Study Group on Europe’s Security Capabilities’, namely the primacy of human rights; the imperatives of multilateralism; a bottom-up approach based on knowledge of the local situation; a regional focus; and the establishment of a clear and legitimate political authority.
In other words, one of the main aspects of my work in the European Parliament is to work according to a principle of cross-fertilisation between all the areas I work in (gender, security and defence, development) while at the same time feeding the promotion of human rights into all of them. I will finish with the example of a cause where I was quite active and where the European Parliament clearly made a difference: the debate about lifting the arms embargo on China, which represented a major victory for the European Parliament and its approach to foreign affairs and human rights. In December 2004, Member States tentatively agreed to lift the 1989 arms embargo, which was originally set up as a political response to the Tiananmen massacre. Soon the
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same Member States were facing a barrage of criticism: they were being accused of getting ready to lift the embargo in return for “nothing”. But, by mid-2005, the discussion to lift the embargo had died down: the Member States that were in favour of lifting the embargo caved in under pressure from the US as well as European public opinion led by the European Parliament. We are well aware that the EU’s own 2004 Annual Report on Arms Exports shows that the value of licenses from Member States to sell arms to China reached EUR 416 million in 2003: in other words, we know full well that the embargo alone cannot prevent arms transfers to China. The embargo was not and is not sacred; rather its political and symbolic character allows us to put pressure on China, above and beyond the essentially narrow economic interests driving the campaign to lift the embargo. And where are we now on this debate? Well, quite simply, the position of the Member States, i.e. the Council, now overlaps completely with what the European Parliament had been pushing for years; at the moment, it seems clear that Member States will only be able to push for the end of the embargo if two conditions are fulfilled: First, China will have to take significant steps towards acknowledging the suffering and the injustice it imposed on its own people during the Tiananmen crackdown; alternatively, Beijing takes tangible steps to improve its human rights situation, such as ratifying the International Covenant on Civil and Political Rights. Second, and most interesting for us, the embargo will only be lifted once the EU’s own 1998 Code of Conduct for Arms Exports becomes legally binding so as to make sure that a vague, political commitment is replaced by a better, more systematic way of controlling arms transfers to China. These two conditions had been the Parliament’s for many years; they are now the EU’s.
56
The Fundamental Rights Agency of the European Union Olivier De Schutter and Valérie Van Goethem*
Even though the idea of establishing an Agency of Fundamental Rights of the European Union (EU) has been formalised only in June 2005, the project of having, within the Union, an institution entitled to monitor the developments of fundamental rights in the Union and the Member States has been under discussion for some time. A proposal for setting up a monitoring centre for human rights within the Union, which could serve to improve the coordination of the fundamental rights policies pursued by the Member States, had already been made, in particular, in a report prepared for the “Comité des Sages” responsible for drafting Leading by Example: A Human Rights Agenda for the European Union for the Year 2000. The main argument in favour of the creation of such a body was that it could encourage the Union to adopt a more preventive approach to human rights. “Systematic, reliable and focused information”, it was then argued, “is the starting point of a clear understanding of the nature, extent, and location of the problems that exist and for the identification of possible solutions”. The proclamation, on 7 December 2000, of the Charter of Fundamental Rights of the European Union at the Nice European Summit as the single most authoritative restatement of the acquis of the Union in the field of fundamental rights also constituted a decisive step in this regard. Its impact on the practice of the institutions was immediate. Since 2000, for instance, the European Parliament’s annual reports on the situation of fundamental rights in the Union used the Charter as their main source of reference. The establishment in September 2002, by the European Commission upon the request of the European
*
The authors are respectively Professor of Law at the Catholic University of Louvain (UCL), Member of the CPDR-UCL, and Co-ordinator of the EU Network of Independent Experts on Fundamental Rights; and Researcher at the CPDR-UCL, Assistant to the EU Network of Independent Experts on Fundamental Rights. See P. Alston and J. H. H. Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights’, in P. Alston et al. (eds.), The European Union and Human Rights (Oxford University Press, Oxford, 1999) p. 3.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 609-615.
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Parliament, of the EU Network of Independent Experts on Fundamental Rights contributed as well to the move towards the implementation of the proposal for a Human Rights Agency. Nevertheless, when the heads of States and governments of the Member States announced at their Brussels European Council of 13 December 2003 their intention to extend the mandate of the EU Monitoring Centre on Racism and Xenophobia (EUMC) in order to create a “Human Rights Agency” entrusted with the mission to collect and analyse data in order to define the policy of the Union in this field, they took most observers by surprise. In order to prepare its proposal following this decision of the Council, the European Commission presented a public consultation document on 25 October 2004. In reply to this consultation document, the Commission received contributions from a wide range of actors and, in order to discuss the modalities of the proposed institution, a public hearing was held on 25 January 2005. On 26 May 2005, in its report on the Promotion and protection of fundamental rights: the role of national and European institutions, including the Fundamental Rights Agency, the European Parliament called on the Commission to submit a legislative proposal concerning the Agency. Pointing out that “establishing the Agency should make a contribution to further enhancing mutual confidence between Member States and constitute a guarantee of continued observance of the principles set out in Articles 6 and 7 of the Treaty on European Union”, the Resolution appended to this report underlines the fact that “the Agency should be designed as a multi-layered structure (‘network of networks’), a specialised body with horizontal competences, in which each of the layers must play a role and contribute to the development of a fundamental rights culture in
The EU Network of Independent Experts on Fundamental Rights is composed of 25 experts and monitors the situation of fundamental rights in the Member States and in the Union, on the basis of the EU Charter of Fundamental Rights. See <ec.europa.eu/justice_home/ cfr_ cdf/index_en.htm>. See also P. Alston and O. De Schutter, Monitoring Fundamental Rights in the EU – The Contribution of the Fundamental Rights Agency (Hart publ., Oxford, 2005); O. De Schutter and V. Van Goethem, ‘The Fundamental Rights Agency: Towards an Active Fundamental Rights Policy of the Union’, ERA-Forum, 2006, which examines the potential complementarities between the EU Network of Independent Experts in Fundamental Rights and the future Fundamental Rights Agency. Resolution of 5 July 2001 on the situation of fundamental rights in the European Union (2000) (rapporteur Thierry Cornillet) (2000/2231(INI)). In its Resolution, “the European Parliament recommended ‘that a network be set up consisting of legal experts who are authorities on human rights and jurists from each of the Member States in order to ensure a high degree of expertise and enable the Parliament to receive an assessment of the implementation of each of the rights laid down in the European Union Charter of Fundamental Rights, taking into account developments in national laws, the case-law of the Luxembourg and Strasbourg Courts and any notable case-law of the Member States’ national and constitutional courts”. The expression “Human Rights Agency” was also used in the Hague Programme on the Strengthening of Freedom, Security and Justice in the Union annexed to the conclusions of the European Council of 4–5 November 2004. COM(2004) 693 final.
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the Union”. On 30 June 2005, the European Commission finalised both its proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights on the basis of Article 308 EC (the implicit powers clause), and for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union (i.e. police and judicial co-operation in criminal matters) on the basis of Articles 30, 31 and 34 EU. The Charter of Fundamental Rights of the European Union would constitute the main instrument of reference of the new institution. The Impact Assessment Report appended to the proposal of 30 June 2005 justifies the establishment of the Agency by the finding that [a]lthough the Member States have developed various strategies, policies and mechanisms to respect and mainstream fundamental rights when implementing Union law and policies, there is a lack of systematic observation of how the Member States do this. Such a lack represents a missed opportunity, as the potential for sharing of experiences and good practices and mutual learning is not met.
Indeed, the decision to establish a Fundamental Rights Agency of the European Union has to be understood in a broader context. Since a few years now, the European Commission has rightly taken the approach that the obligation for the institutions to act in conformity with the Charter required it to anticipate and address the risk of a violation of the Charter by its own proposals. This led the Presidency of the Commission and Commissioner Vitorino, in March 2001, to require that the services of the European Commission accompany all their legislative proposals which could have an impact on fundamental rights with an indication that these proposals are compatible with the requirements of the Charter. Furthermore, in April 2005, the Commission has adopted a Communication by which it seeks to improve the compliance of its legislative proposals with the requirements of the Charter,10 and, on 15 June 2005, it has adopted a new set of guidelines for the preparation of impact assessments.11 Although these new guidelines
European Parliament Resolution on promotion and protection of fundamental rights: the role of national and European institutions, including the Fundamental Rights Agency (2005/2007(INI)). Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights and Proposal for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union (COM (2005) 280 final of 30.6.2005). SEC(2005)849, 30 June 2005, p. 8. Memorandum of M. Vitorino and the Presidency: Application of the Charter of Fundamental Rights, SEC(2001) 380/3. 10 Communication of 15 June 2005 from the Commission, Compliance with the Charter of Fundamental Rights in Commission Legislative Proposals. Methodology for Systematic and Rigorous Monitoring, COM(2005) 172 final of 27 April 2005. 11 SEC(2005)791.
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are still based, as the former impact assessments,12 on a division between economic, social and environmental impacts, the revised set of guidelines pays much greater attention to the potential impact of different policy options on the rights, freedoms and principles listed in the Charter of Fundamental Rights.13 The establishment of a Fundamental Rights Agency, however, could further improve this anticipatory approach to the compliance of the activities of the institutions of the Union with the Charter. As emphasised in the first paragraph of the Explanatory Memorandum appended to the proposals of 30 June 2005, [s]ecuring fundamental rights depends on appropriate governance mechanisms to ensure that they are taken fully into account in policy setting and decision-making in the Union. Not only an adequate legislative framework but also appropriate structures and adequate resource allocations are needed for that purpose.14
According to Article 2 of the Commission’s proposal of 30 June 2005, the objective of the Agency shall be “to provide the relevant institutions, bodies, offices and agencies of the Community and its Member States when implementing Community law with assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights”. The thematic areas of the Agency’s activities, which would always include the fight against racism and xenophobia, within which the Agency shall carry out its tasks, shall be defined through a Multiannual Framework drafted by the European Commission (Article 5 of the proposal). Within these thematic areas, according to Article 4, the tasks and missions of the Agency would essentially consist in collecting, recording, analysing and disseminating relevant, objective, reliable and comparable information and data; developing methods to improve the comparability, objectivity and reliability of data at European level; formulating conclusions and opinions on general subjects, for the Union institutions and the Member States when implementing Community law, either on its own initiative or at the request of the European Parliament, the Council or the Commission; and enhancing cooperation with civil society. Following the presentation by the Commission of its proposals, the debate within the Ad hoc Working Party of the Council – the European Parliament being consulted
12 See Communication of the Commission 5 June 2005 on Impact Assessment, COM(2002)276. 13 Indeed, a specific report was commissioned by the European Commission (DG Justice, Freedom and Security) to EPEC (European Policy Evaluation Consortium): see EPEC, The Consideration of Fundamental Rights in Impact Assessment. Final Report, December 2004, 61 pages. 14 Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights and Proposal for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union (COM (2005) 280 final of 30.6.2005), p. 2.
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on it through an informal trialogue between the three institutions15 – revolved around three issues. The first was that of the structure of the Agency. The Commission had at least two models to borrow from. First, of course, it could seek inspiration from the existing European agencies – in particular the European Foundation for the Improvement of Living and Working Conditions (Dublin).16 But due to the specific mandate of the Fundamental Rights Agency another source of inspiration was the national human rights institutions (NHRIs) based on the United Nations “Principles relating to the Status of National Institutions” (Paris Principles) of 20 December 1993.17 There were two ways by which the Paris Principles could have inspired the structure of the Fundamental Rights Agency. A first interpretation of the Principles would have consisted in considering the future Agency as an institution for the protection and promotion of human rights in the legal order of the Union, which could have sought inspiration for the identification of the guarantees of its independence, for the composition of its organs and for the definition of its powers as well as of its working methods from the practice of the existing NHRIs in the Member States. A second option could have been to conceive the Agency as a body based on the existing network of European NHRIs, and as a forum in which the existing NHRIs (or equivalent institutions in the Member States which have no NHRI in the sense of the Paris Principles) could exchange their experiences and work together in order to contribute, through reports, recommendations and opinions, to improving the protection of fundamental rights in the Union. The structure of the Agency, as proposed by the European Commission on 30 June 2005 – which combines a management board, an executive board, a director and a forum – was a form of compromise or middle way between these two interpretations. The subsequent discussions within the Ad hoc Working Party of the Council led to include within the Agency a Scientific Council of 11 members, whose role it is to ensure that the reports, opinions and recommendations of the Agency are of high scientific quality, and that they reflect On this issue, see in particular the three reports published by the European Parliament: – Report of the European Parliament (Committee on Civil Liberties, Justice and Home Affairs, by Kinga Gál) of 11 May 2005 on promotion and protection of fundamental rights: the role of national and European institutions, including the Fundamental Rights Agency (2005/2007(INI)). – Report of the European Parliament (Committee on Civil Liberties, Justice and Home Affairs, by Magda Kósáné Kovács) of 18 September 2006 on the proposal for a Council decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union (COM(2005)0280 – C6-0289/2005 – 2005/0125(CNS)). – Report of the European Parliament (Committee on Civil Liberties, Justice and Home Affairs, by Kinga Gál) of 25 September 2006 on the proposal for a Council regulation establishing a European Union Agency for Fundamental Rights (COM(2005)0280 – C6‑0288/2005 – 005/0124(CNS)). 16 <www.eurofound.eu.int/>. 17 A/RES/48/134, 85th plenary meeting, 20 December 1993. For an overview of the situation of national human rights institutions in the European Union, see the Opinion 2004/1 of the EU Network of Independent Experts on Fundamental Rights . 15
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a truly independent evaluation of the situation of fundamental rights. The other parts of the proposal of the Commission have been largely retained. In particular, despite a suggestion by certain delegations that the Management Board should be composed of representatives of the Member States, the original idea of the Commission that the Board should be composed of independent persons, for instance heads of national institutions for the promotion and protection of human rights, gained most support. A second issue that the debate focused on concerned the need to avoid duplicating the work of the Council of Europe bodies, and more generally to ensure a proper cooperation and coordination between all bodies entitled to intervene in the field of fundamental rights on the territory of the EU Member States. Partly as a result of certain concerns expressed by the Council of Europe,18 it was decided in the course of the negotiations: first, that the Fundamental Rights Agency would only monitor fundamental rights in European Community law (including the implementation of EC Law by the Member States, but not in other fields); second, that the General Secretary of the Council of Europe would appoint one independent person to the Management Board of the Agency, who would also be allowed to take part in the meetings of the Executive Board. Moreover, again in order to alleviate certain fears of overlapping mandates, the possibilities for the Agency to examine the situation of fundamental rights in third countries was seriously restricted. The only countries, beyond the EU Member States, to which the geographical remit of the Agency shall extend are the countries of the Western Balkans whose natural fate is, in the future, to accede to the European Union, and for whom the conclusion of Stabilisation and Association Agreements are seen as an instrument to prepare themselves as candidate countries.19 These countries are Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Montenegro, and Serbia, who are all considered as potential candidates. Finally, a third issue concerned the extension of the mandate of the Fundamental Rights Agency to “third pillar” issues, i.e. the issues of police cooperation and judicial cooperation in criminal matters which are covered by Title VI EU. Despite the fact that these fields are highly sensitive from the point of view of civil liberties, certain Member States opposed the proposal made by the Commission to allow the Agency to also analyse the situation of fundamental rights under this Title of the EU Treaty. Instead, a political declaration is attached to the adopted Regulation – which limits the mandate of the Agency to Community Law – containing a “rendezvous” clause allowing the man18 On the concerns of the Council of Europe that the European Union Fundamental Rights Agency might duplicate tasks performed by the Council of Europe bodies, see, inter alia, Parliamentary Assembly of the Council of Europe, Resolution 1427 (2005) of 18 March 2005; and the Memorandum of 8 September 2005, submitted by the Council of Europe General Secretariat to the Vice-President of the European Commission in charge of justice, freedom and security, Mr F. Frattini. 19 See, in particular, the Declaration adopted in Thessaloniki on 21 June 2003, following the EU-Western Balkans Summit (doc. 10229/03 (Presse 163)), and the Thessaloniki Agenda for the Western Balkans: Moving Towards European Integration, General Affairs and External Relations Council, 2518th Council session, External Relations, Luxembourg, 16 June 2003. adopted by the European Council on 20 June 2003.
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date to be re-examined in 2009, with a view of possibly extending the mandate of the Agency to third pillar issues. At the time of this writing, the precise wording of this declaration is not known yet. Neither is it possible to anticipate what the impact shall be of the establishment of the Agency on the fundamental rights policy of the Union. It would be surprising, however, if this institutional innovation did not produce a powerful dynamising effect on the exercise by the Union of the competences it has been attributed, in a number of fields, to contribute to the implementation of the values enshrined in the EU Charter of Fundamental Rights. Editors’ postscript The European Union Agency for Fundamental Rights was established through Council Regulation (EC) No. 168/2007 of 15 February 2007. For information on its work please visit the Agency’s website at: <www.fra.europa.eu/fra/index.php>.
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Part X: Other Regional Mechanisms
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Basic Facts of the Individual Complaint Procedure of the Inter-American Human Rights System Diego Rodríguez-Pinzón*
Introduction The Americas has been the unfortunate witness of some of the most egregious violations of human rights ever committed by humankind. It has also been the birthplace of some of the most effective and creative international human rights instruments and mechanisms ever designed to confront such violations. The legitimacy of the so-called InterAmerican human rights system has grown through time, yet currently it is confronting new challenges, born from new hemispheric realities, that are once again testing the resiliency and pro-activeness of its organs. The Inter-American system of protection and promotion of human rights is based in the Organization of American States (hereinafter OAS). The system evolved initially *
Prof. Diego Rodríguez-Pinzón is Co-Director of the Academy on Human Rights and Humanitarian Law and Professorial Lecturer in Residence at American University, Washington College of Law. He holds a Law Degree from Universidad de Los Andes in Colombia, a Masters Degree (LL.M.) from the Washington College of Law and a Doctoral Degree (SJD) from George Washington University Law School. This text has been developed on the basis of a larger document that will be published as a book. For information regarding the structure, history and specific topics in the Inter-American system of protection and promotion of human rights, see also T. Buergenthal and D. Shelton, Protecting Human Rights in The Americas: Cases and Materials (1995) p. 475; T. Buergenthal, International Human Rights in a Nutshell (2002) p. 221; S. Davidson, The Inter-American Human Rights System (1997); H. F. Ledezma, El Sistema Interamericano de Protecction de Derechos Humanos: Aspectos Institucionales y Procesales (2004); R. K. Goldman, ‘The Protection of Human Rights in the Americas: Past, Present and Future’, 5 Center for International Policy Papers (1972); D. J. Harris and S. Livingstone (eds.), The Inter-American System of Human Rights (1998); C. Medina, The Battle for Human Rights: Gross, Systematic Violations of Human Rights and the Inter-American System (1988); C. Medina, La Convención Americana: Teoría y Jurisprudencia. Vida, Integridad Personal, Libertad Personal, Debido Proceso y Recurso Judicial (2003); D. O’Donnell, Proteccion Internacional de los Derechos Humanos (1989); J. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (2003); D. Rodríguez-Pinzón and C. Martin, The Prohibition of Torture and Ill-Treatment in the Inter-
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 619-634.
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from the Charter of the OAS (hereinafter the OAS Charter) that established the obligation of Member States to promote and protect the human rights of persons under their jurisdiction. The American Declaration of the Rights and Duties of Man (hereinafter the American Declaration) sets forth the specific rights referred to by the OAS Charter. In 1969 the OAS adopted the American Convention on Human Rights (hereinafter the American Convention), which entered into force in 1978. The American Convention was modelled after the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the European Convention or ECHR) and the International Covenant on Civil and Political Rights (hereinafter the ICCPR). OAS Member States entrusted the supervision of State compliance with the human rights obligations to two organs: the Inter-American Commission on Human Rights (hereinafter the Commission), which is a Charter and Convention organ, and the Inter-American Court of Human Rights (hereinafter the Court), which is exclusively a Convention organ. According to the OAS Charter, the Inter-American Commission on Human Rights is a principal organ of the OAS, with the sole mandate of promoting the observance and protection of human rights. It also serves as a consultative organ of the OAS in these matters. The American Convention amplifies and specifies the Commission’s functions regarding its mandate to promote and protect human rights. The Court is the judicial body of the Inter-American system, with adjudicatory powers in its contentious jurisdiction and a promotional function under its advisory jurisdiction. The Inter-American Commission on Human Rights The Commission was created by a Resolution of the Fifth Meeting of Consultation of Ministers of Foreign Affairs (Santiago, Chile, 1959). The Resolution provided that the Commission be composed of several human rights experts selected in their personal capacity from candidates presented by the governments of the OAS Member States. Its purpose was to promote respect for human rights. The Council of the OAS approved the Statute of the Commission on 25 May 1960.
American Human Rights System (2006), C. Martin el al., Derecho Internacional de los Derechos Humanos (2004). Buergenthal and Shelton, supra note 1, p. 475. Article 3(k) of the OAS Charter states: “The American States proclaim the fundamental rights of the individual …” Buergenthal, supra note 1, p. 225. T. Buergenthal, ‘The American and European Conventions on Human Rights: Similarities and Differences’, 30 American University Law Review (1980) p. 155. Paragraph 1 of Article 111 of the OAS Charter states “There shall be an Inter‑American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.” For a discussion on the history of the Commission, see Buergenthal, supra note 1, p. 228, and Davidson, supra note 1, p. 15.
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Since then the Statute of the Commission has undergone several transformations, the most important being the new Statute of 1979. At its ninth regular session in 1979, the OAS General Assembly approved the Commission’s new Statute. Article 1 of the Statute defined the Commission as “an organ of the Organization of American States, created to promote the observance and defence of human rights and to serve as a consultative organ to the Organization in this matter”. The new Statute responded to the need to articulate the relationship between the existing Declaration system and the new Convention structure. Human rights were defined for the State Parties as the rights set forth in the American Convention and for those OAS Member States not Parties to the American Convention as the rights recognised in the American Declaration. This effort to harmonise the legal framework of the Commission’s functions required a clear distinction between those States that pending ratification of the Convention would remain under the supervision of the Commission based on the Declaration and those States that by ratifying the Convention would be subject to the new provisions of the Convention.10 It is worth noting that the Commission is the only international human rights body that can receive individual complaints against the United States. Under its current Statute, the Commission represents all the Member States of the OAS and acts in their name.11 The Commission is comprised of seven members of different nationalities, who are “persons of high moral character and recognized competence in the field of human rights”.12 They act in their personal capacity,13 are elected for a term of four years and can be re-elected only once.14 States can nominate as candidates nationals of any Member State of the OAS.15 The Commission is based in Washington, D.C. The Commission’s functions and powers with respect to all the Member States of the OAS are set forth in Article 18 of its Statute. Those that apply to State Parties to the American Convention are established in Article 19. The Commission’s functions and powers regarding Member States that are not yet Parties to the Convention are stated in Article 20. The Commission’s functions and powers can be categorised as both political and judicial, as the Commission is a quasi-adjudicatory body. The political dimension of the Commission’s functions and powers refer to its ability to discharge its mandate of promoting and protecting human rights by resorting to See ‘Charter of the OAS’ in Basic Documents Pertaining to Human Rights in the Inter-American System, Inter-Am. C.H.R., OAS/Ser.L/V/I.4 rev.10, 31 May 2004, hereinafter Basic Documents. R. E. Norris, ‘The New Statute of the Inter-American Commission on Human Rights’, 1 Human Rights Law Journal (1980) p. 379. 10 Ibid., p. 381. 11 Article 35 of the American Convention and Article 2(2) of the Statute of the Commission. 12 Article 34 of the American Convention and Article 2(1) of the Statute of the Commission. 13 Article 36(1) of the American Convention and Article 3(1) of the Statute of the Commission. 14 Article 37(1) of the American Convention and Article 6 of the Statute of the Commission. 15 Article 36(2) of the American Convention and Article 3(2) of the Statute of the Commission.
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political tools and mechanisms, such as negotiation and international pressure, to seek improvement of the human rights conditions in a Member State. During the 70s and the 80s, the Commission confronted massive and systematic human rights violations mainly by using its political tools and mechanisms. The Commission regularly used its authority to issue general reports on country situations as a means to exert pressure on the authorities of a State with a negative human rights record. Consequently, individual cases were not a priority; in many instances immediate political action proved to be the most effective weapon to protect persons and to seek change in several countries. Individual cases were then used as dossiers to support the Commission’s claims and urgent requests. The Commission did not intend to adjudicate these cases under a strict judicial analysis. The judicial dimension of the Commission’s functions and powers consists of its ability to adjudicate cases filed by States, individuals or private institutions against States. Recently the Commission has increasingly moved toward this judicial dimension. The hemispheric trend towards democracies in most OAS Member States requires the Commission to have a more rigorous legal approach to the petitions filed by individuals or private institutions. In this setting, the clear application of international legal standards and a predictable set of procedural rules are fundamental for the Commission’s work. Political considerations are left primarily to exceptional countries in which there are gross and/or massive violations or where authoritarian regimes still threaten the most basics rights and the rule of law. Under its adjudicatory powers, the Commission has a considerable docket of individual cases. From 1997 to 2007, the Commission received 14,311 petitions, including 3,783 cases related solely to the human rights situation in Argentina of persons affected by the country’s banking measures (“corralito”).16 According to the Commission’s statistics, the number of petitions has increased constantly each year, from 435 petitions in 1997 to 1,456 petitions in 2007, clearly a dramatic increase in the caseload of the Commission. It is worth noting that after the adoption of the new Rules of Procedure in 2001 the Commission is no longer issuing decisions on the merits (so-called “Article 51” reports) for most States, but instead is submitting most of this caseload to the Court. This is also dramatically changing the Court’s docket workload. The Commission should be very cautious in moving toward its judicial function. The democracies of the hemisphere are still very fragile, and in many instances the Commission’s political mechanisms can prove to be more effective than its adjudicatory tools. Furthermore, the legal framework of the Inter-American system suggests a desirable two-tier structure that permits the Commission to employ both juridical and political mechanisms and thereby develop less rigid strategies to confront certain situations. In this way, the Commission’s functional mechanisms operate as a cushion or pressure valve that can prove helpful in confronting a recurrence of massive human rights violations in certain countries.
16 See statistics of the Commission at <www.cidh.org/annualrep/2005eng/chap.3.htm# Statistics>, visited on 9 October 2006.
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Inter-American Court on Human Rights The Inter-American Court on Human Rights was established under the American Convention on Human Rights in 1979 following the Convention’s entry into force. Article 33 of the Convention provides that the Court, along with the Commission, “shall have competence with respect to the matters relating to the fulfilment of the commitments made by the State Parties …”. The structure of the Court is set forth in Articles 52 to 60 of the American Convention and Articles 3 through 10 of its Statute. The Court is composed of seven judges of different nationalities elected by OAS Member States Parties to the American Convention. Only State Parties to the American Convention may nominate and elect candidates to sit as judges on the Court. The Court is based in San Jose, Costa Rica. According to the American Convention, the Court interprets and applies the Convention in individual cases referred to it by the Commission or a State Party for adjudication.17 The Court’s decisions in individual cases are legally binding; the concerned State Party must comply with the decision in accordance with Article 66 of the Convention. Article 66 also provides for compensatory damages to be enforced by the domestic legal mechanisms in the country concerned. Since its creation, the Court has decided 74 cases on the merits as of July 2006, all of which were filed by the Commission against a State. In each of these cases, the Court issued several decisions regarding, for example, preliminary objections filed by the respondent State or reparations due under Article 63(1) of the American Convention. In some cases, the Court also interpreted the meaning of one of its previous decisions. Altogether, the Court has rendered more than 150 decisions in its history pursuant to its contentious jurisdiction. This number does not include several interlocutory resolutions issued by the Court that ordered provisional measures in a case or addressed other procedural matters. The Court’s decisions are binding, but their enforcement still relies on the States’ willingness to comply with them. Compliance by States has been improving slowly. Although several countries have implemented the Court’s decisions, there are obstacles due to insufficient legal framework and lack of political will in some States.18 Nevertheless, the Court relies upon both its moral and legal status to induce countries to abide by its decisions. It may also resort to political methods such as issuing press releases, and must report to the OAS General Assembly when a State fails to comply with a decision of the Court.19 Furthermore, the Court is now issuing Resolutions to “Monitor Compliance with Judgment” in an effort to secure implementation of its decisions. 17 Article 62(3) of the American Convention. 18 For example, under Alberto Fujimori’s regime, Peru refused to fully comply with the decisions of the Court, as stated in the Court’s press release CDH‑CP9/98 of September 1998. Furthermore, in 1999 Peru tried unsuccessfully to withdraw its consent to the contentious jurisdiction of the Court (see Ivcher Bronstein case, Competence, Judgment of 24 September 1999, Inter-Am. Ct.H.R., Series C No. 54, and the Constitutional Tribunal case, Competence, Judgment of 24 September 1999, Inter-Am. Ct.H.R., Series C No. 55). 19 Article 65 of the American Convention.
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The Court also has the power to render advisory opinions at the request of any OAS Member State, the Inter-American Commission on Human Rights or one of the organs indicated in Chapter X of the OAS Charter.20 The Court has issued 19 Advisory Opinions, which constitute an important portion of the Court’s substantive jurisprudence to date. Its advisory jurisdiction, as defined in Article 64 of the Convention, is very broad. The Court can interpret not only the American Convention, but also any treaty relevant to the protection of human rights in the Americas. The Inter-American system has a two-tier system (Commission and Court), similar to the one initially adopted in the European system. However, the roles of the political bodies in the Inter-American and the European systems differ. In Europe’s previous institutional structure, the Committee of Ministers monitored compliance by States of the Court’s judgments, and in cases that were not referred to the Court, the Committee decided whether there was a violation of the European Convention.21 In the InterAmerican system the General Assembly or the Permanent Council of the OAS have more limited powers related to the adoption and enforcement of decisions of the Court and the Commission. Those powers have yet to be exercised to their full extent. Individual complaint procedure of the Commission and the Court Examination of petitions by the Commission The Commission examines petitions in accordance with the procedures established in the American Convention, the Commission’s Statute and its Rules of Procedure.22 The individual petition mechanism is gaining importance in the Inter-American human rights system. Under the petition system, the Commission can issue public reports on its findings of fact and law in each individual case and can file cases before the Inter-American Court. The Commission’s individual complaint jurisdiction must not be confused with its authority to issue reports on the general human rights situation in a specific country or on a particular human rights issue.23
20 Article 64 of the American Convention. See Burgenthal, supra note 1, pp. 267–270. 21 Under Protocol 11 only the first function remains regarding the new Court as the European Commission ceased to exist. P. van Djik and G. J. H van Hoof, Theory and Practice of the European Convention on Human Rights (1998) pp. 36–38. 22 Current Statute and Rules of Procedure of the Commission can be found in Basic Documents, supra note 8. For further discussion, see C. Cerna, ‘The Inter-American Commission on Human Rights: Its Organization and Examination of Petitions and Communications’, in D. J. Harris and S. Livingstone (eds.), The Inter-American System of Human Rights (1998) p. 65. 23 These can be found in separate “Special Reports”, which usually follow an onsite visit to a country, or in “General Reports”, which are included in the Annual Report of the Commission.
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Petitions before the Commission are filed through written submissions. Victims, other persons or groups of persons as well as any non-governmental entity24 have standing before the Inter-American Commission pursuant to Article 44 of the American Convention. States can also file petitions against another State, only if both States have expressly recognised the competence of the Commission to hear such cases.25 Once a petition is filed, the Commission will examine the formal admission requirements for the communication and will transmit it to the respondent State for its observations. Registration of petitions Petitions are to be submitted to and received by the Secretariat of the Commission for its initial processing.26 The Secretariat will review the complaint to establish whether it meets the formal admission requirements set in Article 28 of the Commission’s new Rules of Procedure.27 Once the State has presented its views to the Commission, a decision on admissibility of the petition can be made.28 The Commission has taken serious steps to modify its long-standing practice regarding admissibility. On 1 May 2001 the new Rules of Procedure of the Commission entered into force.29 These Rules expressly establish a separate admissibility phase for most cases.30 It now adopts separate admissibility decisions in the first stages of the proceedings.31 The decisions are immediately released to the public and announced through a press 24 It is a unique provision in international human rights systems. The European system and the UN Human Rights Committee only give standing to victims or their representatives. 25 Article 45(1) and (2) of the American Convention. Only one inter-State has been filed in the system. It is the recent petition of Nicaragua v. Costa Rica, filed in 2006, which is still in the initial phases of the Commission’s procedure. 26 Article 26(1) of the Commission’s Rules of Procedure. 27 Article 28 of the Commission’s Rules of Procedure. This provision refers to requirements such as name, nationality, profession, address, legal representatives if it is a non-governmental entity, account of the events denounced, name of victim, indication of State presumably responsible and information regarding exhaustion of domestic remedies. Exceptions to the formal requirements may be considered in view of their nature. In Canuto de Oliveira v. Brazil the Commission estimated that even though the petition did not include the name and signature of the legal representative of the institution that filed the claim, it was sufficient for the information to be included in the Court papers attached to the petition. (Canuto de Oliveira v. Brazil, Case No. 11.287, Inter-Am. C.H.R., Annual Report 1997, OEA/Ser.L/VII.98, Doc. 7 rev. (1998) p. 379.) 28 Before the new Rules of Procedure of the Commission entered into force, reconsideration of an admissibility decision was only possible for States that were not Parties to the American Convention, but this possibility has been excluded in the new Rules. State Parties to the American Convention, however, have never had the possibility to request reconsideration of admissibility decisions. See discussion in Juan Carlos Abella v. Argentina, Case 11.137, InterAm. C.H.R., Annual Report 1997, OEA/Ser.L/VII.98, Doc. 7 rev. (1998) pp. 348–351. 29 Rules of Procedure of the Inter-American Commission, Basic Documents, supra note 8. 30 Articles 30 to 37 of the new Rules of Procedure. 31 Article 37 of the new Rules of Procedure.
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communiqué. Only then will admissible petitions be assigned a case number for further proceedings. Admissibility decisions are subsequently published in the Commission’s Annual Report for the corresponding year.32 Timeframe, precautionary measures, hearings and friendly settlement The Commission has certain ancillary powers that it can employ in appropriate circumstances. It can issue precautionary or interim measures of protection “in serious and urgent cases, … to prevent irreparable harm to persons”.33 The Commission will request the State concerned to adopt necessary measures to prevent a violation of the rights of a person. To issue precautionary measures, it is necessary to make a prima facie finding of jurisdiction in the case.34 Later in the proceedings, such finding of jurisdiction could be questioned by the State concerned and the petition could eventually be dismissed. Furthermore, granting such measures will not constitute prejudgment on the merits of the case.35 Precautionary measures have the important legal effect of obliging the State concerned to prevent the occurrence of a specific situation in a matter that is being reviewed by the Commission. In this regard, the Commission is signalling that the international community is interested in the particular case and requires action by the State to avoid irreparable damage. Lack of action will, of course, place the State in an unfavourable position before the Commission and before the international community. Moreover, non-compliance could compel the Commission to request the Court to order provisional measures against the State in the matter, further embarrassing the concerned State. This would create a new juridical situation in the case as the Commission will be expected to later submit the matter to the Court.36 In order to establish the facts of a claim, the Commission may call the parties for hearings.37 The hearings usually take place in the March and September sessions of the Commission in Washington D.C.38 Under Article 48(1)(e) of the Convention, the Commission can hold hearings in a case whenever it considers it necessary to receive new and additional information. In practice, the Commission holds its hearings with both 32 Article 37(1) of the new Rules of Procedure. For further discussion see J. M. Vivanco and L. L. Bhansali, ‘Procedural Shortcomings in the Defense of Human Rights: An Inequality of Arms’, in Harris and Livingstone, supra note 1, pp. 426–432. 33 Article 25 of the new Rules of Procedure. 34 A. Aguiar-Aranguren, ‘Apuntes sobre Medidas Cautelares en la Convención Americana sobre Derechos Humanos’, at pp. 26, 27, and R. Nieto Navia, ‘Las Medidas Provisionales en la Corte Interamericana de Derechos Humanos: Teoria y Praxis’, at p. 386, both in R. N. Navia (ed.), La corte y el Sistema Interamericano de Derechos Humanos (1994). For further discussion, see E. R. Cantor and A. M. R. Anaya, Medidas Provisionales y Medidas Cautelares en el Sistema Interamericano de Derechos Humanos (2005). 35 Article 25(4) of the Rules of Procedure. 36 Colotenango case, Resolution of 1 February 1996, Inter-Am. Ct.H.R., Series E No. 1, “considering” paras. 4–6 and “decides” para. 5. 37 Article 48(1)(e) of the American Convention. 38 The Commission may convene extraordinary sessions during the year.
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parties of a case present. Generally the hearings are confidential, but the Commission will allow third parties to be present only if all parties in the case consent. Parties may refer to admissibility issues during the hearing of a claim only if the Commission expressly authorises it.39 Unlike the UN Human Rights Committee (hereinafter HRC) of the ICCPR, the Commission has a long-standing practice of receiving petitioners and States involved in a case. This procedure is similar to that of the European Commission on Human Rights (hereinafter European Commission), which was developed by that body through its Rules of Procedure. At all stages of the proceedings, the Commission must “place itself at the disposal of the parties concerned” in order to seek a friendly settlement in the case.40 It has assumed this duty in such a way that the Commission itself considers that there is a “new tendency to attempt friendly settlements of cases”.41 The Commission has undertaken this duty with flexibility and creativity, which has produced interesting outcomes that have provided for adequate protection of human rights.42 Under the friendly settlement procedure, some States, such as Colombia and Ecuador, have agreed to settle several cases. Remedies in these cases included payment of damages to victims, and in some instances acceptance of international responsibility for violation of the American Convention by the State concerned. In one particular case the Colombian authorities directed government funds for a programme of regional development in a zone where a massacre had taken place, as a form of social reparation.43 Onsite investigations The Commission is authorised to carry out “onsite investigations” in individual cases if “necessary and advisable”.44 According to the Convention, if the petition has been declared admissible, the Commission does not require the consent of the State concerned to carry out such investigations. In such circumstances, it is only required to inform the parties and request that the States collaborate with the investigation. States must furnish “all necessary facilities” to the investigation. The Commission has rarely used this power, however. In fact, in practice, the Commission often requires the State to release evidence of events argued by the petitioners when such evidence is under the control
39 Annual Report of the Inter-American Commission on Human Rights 1997, Inter-Am. C.H.R., OEA/Ser.L/VII.98, Doc. 7 rev. (1998) p. 1130 (hereinafter Annual Report 1997). 40 Article 48(1)(f) of the American Convention. 41 Annual Report of the Inter-American Commission on Human Rights 1996, Inter-Am. C.H.R., OEA/Ser.L/VII.95, Doc. 7 rev. (1997) p. 17 (hereinafter Annual Report 1996). 42 Annual Report 1997, supra note 39, p. 1130. 43 Interview by the author with Alejandro Valencia Villa, Representative of the Defensor del Pueblo of Colombia to the Special Commission on the massacres of Trujillo, Los Uvos and Villatina, Washington D.C. (September 1997). See also US State Department, Colombia Country Report on Human Rights Practices for 1998. 44 Article 48(1)(d) of the American Convention.
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of the authorities and petitioners have no access to it.45 Additionally, on rare occasions when a State has denied its consent to an onsite visit or abstained from responding to a request for an onsite visit, the Commission has not undertaken such an investigation but rather has shifted the burden of proof to the State in adjudicating the complaint.46 Similarly, before a petition is declared admissible, the Commission can carry out an in situ investigation in “serious and urgent cases”. Before doing so, the Commission requires the consent of the State concerned,47 and the petition must fulfil “all the formal requirements of admissibility” which are spelled out mainly in Article 46(4) of the American Convention and Article 28 of the Commission’s Rules of Procedure. In practice, the Commission rarely uses this mechanism. One of the few exceptions in which the Commission exercised its powers is Case No. 1684,48 regarding serious violations of basic rights (arbitrary executions, torture and arbitrary detentions) of many individuals in Brazil. In this case, it requested the government to authorise a visit to collect evidence, but Brazil denied its consent. In some instances, the Commission will collect information on specific cases when conducting a different type of in situ visit known as an “onsite observation”, which also requires the consent or invitation of the State.49 The main purpose of such a visit is to verify the general situation of human rights in a country. However, the Commission may also receive individual complaints during an onsite observation. Interestingly, the Commission has been willing to exercise its statutory power to conduct onsite observations in States but has refrained from exercising its Conventional power to conduct onsite investigations in specific cases.50 This discrepancy may be due to the lack of State consent in the latter instances, as well as the Commission’s very limited resources, which in turn requires the Commission to rely heavily on the parties to provide the necessary evidence in the proceedings. The Commission’s reliance on the parties to produce information in individual cases also results from the fact that petitioners have the burden 45 In Velásquez Rodríguez case the Court stated: “134. The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible. 135. In contrast to domestic criminal law, in proceedings to determine human rights violations the State cannot rely on the defence that the complainant has failed to present evidence when it cannot be obtained without the State’s cooperation. 136. The State controls the means to verify acts occurring within its territory. Although the Commission has investigatory powers, it cannot exercise them within a State’s jurisdiction unless it has the cooperation of that State.” Velásquez Rodríguez case, Judgment of 29 July 1988, Inter-Am. Ct. H.R., Series C No. 4, paras. 134–136). 46 Inter-American Commission on Human Rights, Ten Years of Activities, 1971-1981 (1982), pp. 114–127, hereinafter Ten Years. 47 Article 48(2) of the American Convention. 48 Ten Years, supra note 46, p. 116. 49 Article 18(g) of the Statute of the Commission. 50 Ten Years, supra note 46, p. 116.
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of proof in their claims, and States are required under the Convention to furnish all information requested by the Commission. Admissibility of individual petitions In the Inter-American system complaints are filed by individuals or private groups or entities against a State with the Inter-American Commission on Human Rights in accordance with Article 44,51 which reads as follows: “Any person or group of persons, or any non-governmental entity legally recognized in one or more member States of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violations of this Convention by a State Party.” Pursuant to its authority under Articles 41(f) and 44 to 51 of the American Convention, Article 20(b) of the Commission’s Statute and Article 37 of the Commission’s Rules of Procedure, the Commission must determine whether the petition is admissible.52 In this phase of the proceedings, the Commission seeks to reject those petitions that do not comply with the admissibility requirements set out in the aforementioned articles.53 These requirements in turn do not, in principle, address the merits of the case. The admissibility requirements are established in Articles 46 and 47 of the American Convention, and Articles 28, 31, 32, 33 and 34 of the Commission’s new Rules of Procedure, which basically extend the application of the provisions of the Convention to OAS Member States not Party to the Convention.54 Article 46 refers mainly to information that must be present in the petition itself, while Article 47 refers to those circumstances in which a petition must be declared inadmissible. Articles 50 and 51 reports If a petition is admissible, the Commission will review the merits of the case and request the views of the parties. Finally, it will take a decision on the merits in accordance with Article 50 of the American Convention, which may include issuing recommendations to the State concerned. States will then be given a period of time (usually 45 to 90 days) from the date the State received the Article 50 report to comply with the Commission’s recommendations. Formally these recommendations are not binding. However, if the 51
Article 45 of the Convention establishes an inter-State complaint procedure, but considering that no inter-State complaints have been lodged in the Commission we will only focus on the petitions brought by persons or groups of persons. 52 Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41,42, 44, 46, 47, 50 and 51 of the American Convention on Human Rights), Advisory Opinion OC-13/93, Series A No. 13, paras. 23, 40, 44, hereinafter Advisory Opinion OC-13. 53 On admissibility in the Inter-American system, see T. Burgenthal et al., Manual International de Derechos Humanos (1990); O’Donnell, supra note 1; J. M. Pasqualucci, supra note 1; M. Pinto, La Denuncia Ante La Comision Interamericana de Derechos Humanos (1993); B. Santoscoy, La Commission Interamericaine del Detroits de l’Homme el le Developpement de sa Comperence par le Systeme des Petetions Individuelles (1995). 54 Buergenthal et al., ibid., p. 100.
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concerned State fails to comply with the recommendations, the Convention grants the Commission the power to publish its decision or to refer the case to the Inter-American Court. Consequently, failure to implement a Commission’s decision is not a violation of the Convention per se, but exposes the State to public embarrassment, if the decision is published, or may lead to a binding judicial decision by the Court. Moreover, States that opt to subject themselves to the supervision of the Inter-American Commission by ratifying the Convention leave little room to make a credible argument that the conclusions of the Commission are not authoritative. The Commission has three months to refer the case to the Court from the moment it serves the State with the Article 50 report.55 States may request an extension of this period for reasonable matters, and if granted by the Commission the running of the prescribed period is suspended.56 If the Commission submits the case to the Court, it is precluded from publishing the report. If it decides not to send a case to the Court, it will publish the decision under Article 51(1). However, by publishing the decision, the Commission does not waive its power to file the case before the Court, although in so doing the Commission would be acting against the Convention’s provisions, thus affecting the juridical value of the report.57 In principle, States cannot request the reconsideration of an Article 50 report as it can have a “negative effect of the petitioner’s right to obtain the international protection offered by the Convention within the legally established time frames”.58 However, the State, in practice, can request reconsideration of an Article 50 report under exceptional circumstances. A request for reconsideration must be made “within certain timely and reasonable limits” and there must be a well-founded interest in seeing the case resolved before the Commission.59 The Commission announced in 1997 that it would guide itself by five main criteria to file cases before the Court: 1) prioritising rights regarding the most serious cases; 2) the impact on the system as a whole; 3) the completeness of the file of the case; 4) the human and material resources of the Commission; and 5) an adequate distribution of cases regarding issues and countries (broken down by subjects and country).60 The rationale behind these criteria was that, while the system reached a high level of development, it was reasonable to have in mind the seriousness of cases, the integrity of the system and the availability of information and resources. The fifth criteria, however, is very problematic. The balance between countries and legal issues should not guide the basic aim 55 Article 51(1) of the American Convention. 56 Neira Alegría et al. case, Preliminary Objections, Judgment of 11 December 1991, Inter-Am. Ct. H.R., Series C No. 13, paras. 34 and 35. 57 Velásquez Rodríguez case, Preliminary Objections, Judgment of 26 June 1987, Inter-Am. Ct. H.R., Series C No. 1 paras. 75 and 76. 58 Ibid., para. 69. It must be recalled that regarding those States that are not Parties to the American Convention (e.g. United States), Article 54 of the old Commission’s Rules of Procedure established a reconsideration procedure, which has now been eliminated. 59 Velásquez Rodríguez case, supra note 57, para. 69. Juan Carlos Abella v. Argentina, supra note 28, p. 348. 60 Annual Report 1997, supra note 39, p. 1131.
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of the system, which is the protection of human rights. The “most serious cases” criteria, for example, would almost always affect the balance of such distribution, considering that the system should allocate its scarce resources where the human rights situation is more serious. These criteria would work better in a region with a more homogeneous human rights situation. Overall, these broad guidelines by themselves were not very useful to predict if a case would be submitted to the Court, but they do represent an initial effort by the Commission to establish a test that could guide petitioners and States in making sound decisions regarding their cases. However, the Commission made a very important modification in this regard in its new Rules of Procedures. Article 44 of the Rules of Procedure established the principle that all cases involving States that have accepted the Court’s jurisdiction must be referred to the Court unless an absolute majority of the Commission (four Commissioners) decide, with a reasoned statement, that the case should not be submitted. In fact, the petitioners have the right, under Article 43(3) of the new Rules of Procedure of the Commission, to present their views and arguments on whether the case should be referred to the Court. It is to be expected that the criteria previously developed may be the basis of the “reasoned decision” of a majority of the Commission not to send certain cases to the Court. The Article 50 report is confidential. The Court has interpreted the Convention as requiring the Commission to transmit the report only to the State concerned, not to the petitioners.61 The Commission previously amended Article 47(6) of its Rules of Procedure to conform to the Court’s interpretation of the Convention in this respect. And Article 43(2) of the new Rules of Procedure includes such provision. The Commission is nevertheless making efforts to adopt practices that will reconcile the need of confidentiality and the need of access to information by the parties.62 In fact, pursuant to Article 43(3) of its new Rules of Procedure, the Commission now informs petitioners of the fact that an Article 50 report has been issued and of the date on which the report was submitted to the State.63 Submission of applications to the Court The Commission or States Party to the American Convention that have accepted the contentious jurisdiction of the Court can file cases before the Court. Petitioners do not have standing to file cases before the Court. However, the new Rules of Procedure of the Court allows victims and their representatives to participate independently in all phases of the proceedings.
61 Advisory Opinion OC-13, supra note 52, paras. 48 and 49. 62 Annual Report 1997, supra note 39, p. 1131. 63 J. E. Mendez, ‘Una Aproximación Crítica a la Interpretación Vigente de los Artículos 50 y 51 de la Convención’, in El Futuro del sistema Interamericano de Protección de los Derechos Humanos (1998) p. 246.
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Preliminary review and admissibility of the application Once the case is filed, the Secretariat of the Court reviews the “basic requirements” of admission of the Application.64 If the Application meets the requirements, it is communicated to, among others, the respondent State, the Commission, the original petitioner and/or the victim or relatives.65 The State will then designate its Agent and the Commission its Delegate. The State may file preliminary objections questioning the admissibility of the case, or it can address the case on the merits. If it objects to the admissibility of the case, the Court will render a preliminary judgment on the contended issues.66 However, such objections do not suspend the proceedings on the merits of the case.67 There is a four month time limit from the moment the application is notified for the respondent State to file preliminary objections, and 30 days for the other parties to the case to file their written allegations regarding the respondent’s preliminary objections. These time limits have been extended upon the request of one of the parties. The Court can conduct a special hearing where it will decide such objections.68 Hearings, provisional measures and evidence The Court normally holds hearings to receive witnesses and expert evidence, as well as to hear the parties’ legal and factual arguments.69 As mentioned above, the Court may convene a special hearing on preliminary objections if necessary. Unlike the Commission’s practice on hearings, the Court’s oral proceedings are generally public, unless “exceptional circumstances” require otherwise. The Court can order interim or provisional measures70 of protection in “cases of extreme gravity and urgency and when necessary to avoid irreparable damages to persons” on matters involving a case pending before the Court or in cases not yet submitted to the Court at the request of the Commission.71 Through this mechanism, the Court has ordered interim protection of victims, their relatives, their representatives or witnesses from harassment or threats to their lives or personal integrity. States are bound to comply with the Court’s provisional measures because a judicial body issues such 64 Article 34 of the Rules of Procedure of the Court. On Preliminary Objections see J. M. Pasqualucci, ‘Preliminary Objections Before the Inter-American Court on Human Rights: Legitimate Issues and Illegitimate Tactics’, 40 Va. J. Int.’l L. (1999) p. 100. 65 Article 35 of the Rules. 66 See generally discussion in Pasqualucci, supra note 1. 67 Article 36(3) of the Rules of Procedure of the Court. 68 Article 36(5) of the Rules of Procedure of the Court. 69 Articles 14 and Articles 40–43 of the Rules of Procedure of the Court. 70 See generally discussion in T. Buergenthal, ‘Interim Measures in the Inter-American Court of Human Rights’, in R. Bernhardt (ed.), Interim Measures Indicated by Indicated by International Courts (Springer, Berlin, 1994) p. 86. 71 Article 63(2) of the American Convention and Article 25 of the Rules of Procedure of the Court.
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orders. These measures are one of the decisions (“judgments”) that are binding for States according to Article 68(1) of the American Convention.72 Failure to do so will constitute a clear violation of the Convention and can be declared as such by the Court in its decision in the particular case, arguably with further consequences regarding the assessment of compensation to the victims. Provisional measures are an exceptional mechanism that should be requested in very urgent cases by the Commission and used by the Court with caution in order to ensure their effectiveness.73 The Commission has its own interim powers (precautionary measures) that are exercised more frequently than those of the Court.74 It should only request provisional measures to the Court in cases that involve extremely urgent situations in certain States.75 In principle, each party has the burden of proving the facts it claims.76 States bear a significant burden, however, in producing certain evidence under the presumption that they have control over relevant information in their jurisdiction.77 Elements such as judicial decisions or official reports not available to the petitioners and public officials who could serve as witnesses, among others, are some of the possible sources of information that the concerned State is required to present if the Court considers it necessary. Furthermore, if the applicant argues denial of justice, lack of due process, lack of access or unjustified delay in domestic proceedings, the State is required to prove that its domestic remedies are available and/or effective. Proceedings on the merits In the Court, unlike the Commission, there is no clear timeframe to conclude a case. The only time limit established requires the respondent State to file a written answer to the application within four months following notification thereof.78 The parties are therefore subject to the Court’s discretionary power to set dates for oral proceedings, for reading its judgments and for other phases of the procedure, such as the reparation phase.
72 Buergenthal, supra note 70, p. 86. 73 Ibid., p. 93. 74 See Precautionary Measures, supra p. 9 (what are you referring to here, please provide more info)? 75 Buergenthal, supra note 70, p. 93. 76 Velásquez Rodríguez case, Merits, supra note 45, paras. 22–26. Godínez Cruz case, Judgment of 20 January 1989, Inter-Am. Ct. H.R., Series C No. 5, paras. 128–132 (hereinafter Godínez Cruz case). Fairén Garbi and Solís Corrales case, Judgment of 15 March 1989, Inter-Am. Ct. H.R., Series C No. 6, paras. 125–129. 77 Velásquez Rodríguez case, Merits, supra note 45, paras. 135 and 136, and Godínez Cruz case, ibid., paras. 141 and 142. 78 Article 38 of the Rules of Procedure of the Court.
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The judgments of the Court on admissibility, on the merits, on reparations and noninterlocutory resolutions79 are not subject to appeal.80 The decision on the merits can only be re-interpreted if the parties disagree as to their meaning or scope or if they do not understand the meaning of a decision. The request for interpretation will not suspend the effect of the corresponding judgment.81 Additionally, as an exception, the Court has accepted the possibility of reviewing a decision when a new fact that was not known before and is essential to the decision is presented to the Court.82 Conclusion The Inter-American human rights system has come a long way since its creation and is now an important legal reference for many States of the Americas. The best expression of its evolution has been the rapid development and refinement of its individual complaint procedure, while preserving other crucial political tools, particularly of the Commission, designed to confront structural failures of the rule of law and the protection of human rights. Victims’ access to most stages of the proceedings before the Commission and the Court has been greatly improved. At the same time, the judicious treatment of petitions has preserved the jurisdictional rights of States. This has contributed to an increased participation of States in the adjudication of cases and a better implementation of the Court and Commission’s decisions. There is always room for improvement, which will require careful but decisive action to further promote and protect the human rights of the peoples of the Americas.
79 80 81 82
Loayza Tamayo case, Resolution of 27 June 1996, Inter-Am. Ct.H.R., para. 6. Article 67 of the American Convention. Article 59(4) of the Rules of Procedure of the Court. Genie Lacayo case, Resolution of 13 September 1997, Inter-Am. Ct.H.R., paras. 6–12.
58
The Commission and the Court under the African Human Rights System Muna Ndulo*
The African human rights system The African human rights system encompasses two major instruments: the African Charter on Human and Peoples’ Rights, adopted on 27 June 1981 in Nairobi by the Assembly of African Heads of State and Government (in force 21 October 1986), and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the Assembly of the African Union in Maputo in 2000 (in force on 25 November 2005). The African Charter on Human and Peoples’ Rights guarantees, without qualification, the right to equality before the law, human dignity and inviolability. It prohibits all forms of degrading treatment and exploitation, especially slavery, torture and degrading punishment. The Charter also stipulates the right to a fair hearing, the presumption of innocence, the right to counsel and prohibits retroactive criminal legislation. Other rights in the Charter are qualified. The right to life, liberty and freedom of conscience, expression, association, assembly and movement may be limited or derogated by law. There is no expressed derogation, rather such phraseology as “except for reasons and conditions laid down by law” (Article 6), “subject to law and order” (article8) and “within the law” (Article 9) is used. The use of these ambiguous formulations undermines the rights guaranteed in the Charter and needs to be addressed in any future revision of the Charter. They are a reflection of the compromises made in 1981 when the Charter was elaborated, a time when very few African States were democratic. Further, the Charter guarantees the right to participate in government, directly or indirectly, through freely chosen representatives; freedom of movement; independence of the judiciary; equal access to the public service and public property; right to information; *
Professor of Law, Cornell Law School and Direcor of Cornell University’s Institute for African Development. O.A.U Doc. CAB/LEG/67/3 Rev. 5 (1981). Adopted by the Second Ordinary Session of the Assembly of the Union, Maputo, CAB/ LEG/66.6.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 635-640.
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freedom of expression; and the right to property. On social and economic rights, the Charter guarantees the right to work; equal pay for equal work; the right to enjoy the best state of physical and mental health; the right to education; and the right to self-determination and development. The Charter departs from other international and regional human rights instruments by including individual duties in its provisions. It recognises the duties of the individual to the family, to the nation and to the international community. The following duties are significant: the preservation of positive African cultural values and the commitment to achieve African unity. It is unlikely that the aim of the provisions relating to duties was to serve a set of justiciable duties but rather merely to oblige States to inculcate these values in their subjects. The Charter has other shortcomings as well. It does not, for example, contain or adequately cover some of the internationally recognised civil and political rights. For example, neither the right to privacy nor protection against forced or compulsory labour are explicitly recognised, and the provisions relating to political participation are incomplete by international standards. The provision in the Charter guaranteeing free association could be used to undermine free association as it restricts the free association that is protected to that “allowed within the law” (Article 10) and the right to participation in governance is restricted to that “within the provisions of the law” (Article 13). The Protocol to the Charter on the Rights of Women in Africa is designed to supplement the provisions of the Charter that deal with women’s rights and outlaw discrimination. The Protocol calls on all signatories to it to combat all forms of discrimination against women through appropriate legislative, institutional and other measures. It requires States to include in their national constitutions the principle of equality between women and men; enact legislation to prohibit harmful practices which endanger the health and general well-being of women; and conduct educational policies to eliminate the same. It further provides the right to dignity, life, integrity and security of person; provides for equal rights in marriage; the right to participation in the political and decision-making process; and the right to peaceful existence, education and training. The Protocol also stipulates the right to work and career advancement and development; the right to equal pay; health and reproductive rights; the right to food security and housing; the right to a positive cultural context; the right to a healthy and sustainable environment; the rights of widows; the right to inheritance; special protection for elderly women and women with disabilities; and the protection of women in distress. The Protocol provides a comprehensive framework for dealing with impediments to women’s equality such as gender role stereotyping, traditional thinking and cultural practices. The enforcement and monitoring mechanisms for both the Charter and the Protocol are the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights. The African Commission on Human and Peoples’ Rights Monitoring or compliance with the Charter by State Parties is entrusted to the African Commission on Human and Peoples’ Rights. The Commission makes decisions in respect to complaints it receives from individuals about violations of the Charter by State
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Parties (inter-State complaints are also possible but are rare). It reviews reports which State Parties are required to submit biannually. It also appoints special rapporteurs on specific themes such as prisons and extra-judicial executions. When the Charter was drafted in the early 1980s, a decision was taken to create a commission without the power to make legally binding decisions. Consequently, it did not follow the European and American model of having a regional human rights court as well as a commission whose decisions are legally binding on Member States’ powers. The rules of procedure of the Commission were adopted in pursuance to Article 42(2) of the Charter. The Commission, headquartered in Banjul, The Gambia, holds two sessions per year. It can also meet in extraordinary sessions. It can hold sessions in Banjul or elsewhere in Africa. The Commission is composed of 11 members elected by the Assembly of African Heads of State and Government. The members of the Commission sit on the Commission in their personal capacity. The Commission may during a session, if it deems it necessary for the exercise of its functions, set up committees or working groups, composed of the members of the Commission. The committees may sit when the Commission is not in session. The meetings of the Commission are private, unless the Commission decides otherwise. Typically, at the end of each session, the Commission issues a communiqué. The Commission submits its reports on the deliberations of each session to the current chairperson of the African Union. This report contains a brief summary of the recommendations and statements on issues to which the Commission would like to draw the attention of the current chairperson of the African Union and Member States of the organisation. Representatives of inter-governmental organisations to which the African Union has granted permanent observer status and other organisations recognised by the Commission may participate, without voting rights, in the deliberations of the Commission on issues falling within the framework of the activities of those organisations. Articles 48 and 49 of the Charter allow for the submission of communications by any one of the States Parties if a State Party has good reason to believe that another State Party has violated the provisions of the Charter, through a communication addressed to the chairman of the Commission, the Secretary General and the State Party concerned. The communication is required to contain the following information: measures taken to try to resolve the issue pursuant to Article 47 of the Charter including the text of the initial communications; measures taken to exhaust local procedures for appeal; and any other procedure for the international investigation or international settlement to which the interested States Parties have resorted. Notwithstanding the above procedure, a State Party may refer the matter directly to the Commission (Article 49). The Commission will only consider the communication when it is certain that all the available local remedies have been exhausted, in accordance with the generally recognised principles of international law, or that the application of these remedies is unreasonably prolonged, or that there are no effective remedies available. State Parties to the communication concerned have a right to be represented during the consideration of the issue by the Commission and to submit observations orally, in writing or in either form. Sessions of the Commission or its subsidiary bodies during which the communications are examined are private. The Commission is also permitted to receive other communications provided that the majority of the Commission decides to consider the communication
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and provided that the communication is not anonymous and is sent after exhausting local remedies, if any. In addition, it must be shown that this procedure is not unduly prolonged, is submitted within a reasonable period from the time local remedies were exhausted or from the date the Commission is informed of the matter. Where it appears that one or more communications relate to special cases which reveal the existence of serious or massive violations of human and peoples’ rights, the Commission may draw the attention of the Assembly of African Heads of State and Government, who may decide to request the Commission to do an in-depth study of the situation and make a report accompanied by recommendations. The Commission’s reports following investigations of situations and reports on its activities are not made public until after the publication has been authorised by the Assembly of African Heads of State and Government. The African Court of Human Rights The Protocol Establishing an African Court on Human and Peoples’ Rights was adopted on 9 July 1998 in Ouagadougou and entered into force on 1 January 2004. Unlike the European and Inter-American systems, the establishment of the African Court of Human Rights came 12 years after the entry into force of the African Charter on Human and Peoples’ Rights. The aim of the Court is to “complement the protective mandate of the Commission”. The jurisdiction of the Court extends to all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other relevant human rights instruments ratified by Member States concerned. It consists of 11 judges who should be jurists of high moral character and recognised practical, judicial or academic competence and experience in the field of human and peoples’ rights. They must be nationals of African Union States, but no two judges should be from the same State; they must serve in their personal capacities, and are supposed to be independent of governments. In the nomination process, there is an expressed requirement that there be adequate gender representation and that main regions of Africa and principal legal traditions be reflected. Judges serve for six years and can be re-elected once. The Court has power to give advisory opinions on an issue relevant to the African Charter or any other relevant human rights instrument. The advisory opinion may be requested by African Union States, the African Union or any of its organs or any African organisation recognised by the African Union. It can hear cases submitted to it by the Commission, a State which has lodged a complaint with the Commission, a State against whom a complaint has been lodged at the Commission, a State whose citizen is the alleged victim of a violation or African inter-governmental organisations. The Court has jurisdiction to hear individual petitions. Individuals and non-governmental organisations can apply directly to the Court alleging violations of rights under the Charter as long as States have agreed to be bound by the Protocol and made a separate declaration that they allow the Court to hear such cases. The Court first tries to reach an amicable settlement between the parties. It can receive written and oral evidence, and although its
Reprinted in I. Brownlie and G. S. Goodwin-Gill, Basic Documents on Human Rights (Oxford University Press, New York, 2002) p. 741; 20 HRLJ (1999) p. 269.
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hearings are generally in public it can also hold private hearings if necessary. Free legal representation may be provided if the interests of justice so require. The Court can order a remedy if it finds a violation of the African Charter, and this can include compensation or reparation. Judges are allowed to give separate and dissenting opinions, although the Court will give a majority decision. The Court’s jurisdiction sets it apart from the other regional courts, the American and European courts. In particular, the Protocol provides that actions may be brought before the Court on the basis of any instrument, including international human rights treaties which have been ratified by the State Party in question (Article 3). Furthermore, the Court can apply as sources of law relevant human rights instruments ratified by the States concerned in addition to the African Charter (Article 7). Another peculiarity of the Court concerns the standing of African organisations in the matter of advisory opinions. Unlike any other judicial body, advisory opinions can be requested not only by Member States and African Union organs but also by any African organisation recognised by the African Union (Article 4). It may provide an opinion on any legal matter relating to the Charter or any relevant human rights instruments (Article 4). The States Parties to the Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution. The Council of Ministers of the African Union shall be notified of the judgment and shall monitor its execution on behalf of the Assembly of African Heads of State and Government. Conclusions The African human rights system now has in place a Commission and a Court as enforcement mechanisms for human rights. Whether or not the Commission and the Court play a significant part in the protection and promotion of the respect for human rights in Africa will depend on how effective and accessible these two bodies are. This will in large part depend on the independence of the commissioners and the judges and the ability of the institutions to effectively address human rights violations in Africa. The Commission was set up soon after the Charter entered into force in 1986. Its influence has increased in recent years with growing acceptance of democracy in Africa. Although its charter is now in force and the judges have been appointed, the Court is not yet operational. Arrangements are being made to remedy this. The lesson from the Commission is that the major challenge to African institutions is securing financial support to finance their operations. For many years, the Commission has been handicapped in its operations by inadequate funding. The effectiveness of the Commission and the Court will depend on the extent to which sufficient resources are provided for them to carry out their mandates.
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Further reading M. Evans and R. Murray (eds.), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Cambridge University Press, 2002). O. U. Umozurike, The African Charter on Human and Peoples Rights (Martinus Nuhoff Publishers, The Hague, 1997). L. Stone, ‘The 38th Ordinary Session of the African Commission on Human Rights and Peoples’ Rights, November 2005, Banjul, The Gambia’, 6 African Human Rights Law Journal (2006) pp. 225–236.
59
Human Rights Monitoring in the AsiaPacific Region Vitit Muntarbhorn*
In the Asia-Pacific region, as elsewhere, the national framework for the promotion and protection of human rights, and related monitoring, interrelate most directly with the lives of the population in each country. Today the system consists of a variety of mechanisms. The more formal machinery or mechanisms include the national courts system, national human rights commissions and/or ombudspersons. For instance, in recent decades, national human rights commissions have grown in numbers in East Asia and the Pacific, in countries such as Australia, New Zealand, Fiji, India, Sri Lanka, Thailand, Malaysia, Indonesia and the Republic of Korea. There is also a gradual spread of such commissions in West Asia, such as in Palestine, Jordan, Qatar and Afghanistan. The non-formal actors which offer human rights monitoring include members of civil society, such as non-governmental organisations (NGOs), media and concerned individuals. Generally, they act as checks and balances to ensure equilibrium in the use of State power and to advocate and/or provide redress where there are grievances in relation to the implementation of human rights. Their roles as guardians of human rights vary in scope and content – and the quality of their impact varies according to the context in which they operate. Yet, at times, the national systems are inadequate – especially if they are unable or unwilling to act to monitor potential or actual transgressions and to offer redress in the case of violations. There is thus a need for a regional/sub-regional level system or mechanism to overcome or prevent lacunae, while not neglecting the need to adhere to the multilateral/international system of human rights treaties and related monitoring.
*
Professor of Law at Chulalongkorn University, Bangkok; UN Special Rapporteur on the sale of children, child prostitution and child pornography from 1990–1994; from 2005 Special Rapporteur on the Situation of Human Rights in Democratic People’s Republic of Korea; in 2004 awarded the UNESCO Prize for Human Rights Education.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 641-648.
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It should be noted, however, that the only human rights treaty to which all Asian and Pacific countries are Parties to is the Convention on the Rights of the Child. Since the end of the Second World War, that national protection system has been accompanied by the rise of various inter-governmental regional systems to promote and protect human rights. These regional systems are now found in Europe, the Americas and Africa. They are established by regional treaties stipulating key norms and setting up machinery or mechanisms which range from regional human rights commissions to regional human rights courts. The common feature enjoyed by these regional mechanisms is that they help to review the human rights situation and fill in gaps – in the absence of national remedies or where the national mechanisms are inadequate. In effect, they offer access to justice through pressure for accountability where the national system does not provide the necessary redress. Asia and the Pacific do not yet have an inter-governmental regional human rights machinery parallel to those of the other regions mentioned. This region is perhaps too large and heterogeneous to have such a system in a broad and comprehensive sense. The vastness of the terrain, the diversity of the political systems ranging from democracies to absolutist regimes, the socio-economic and cultural divergences and the lack of political will may explain the absence of such a system. Yet, various entry points can be identified for human rights monitoring in the region. For several decades, there have been initiatives on the part of the United Nations (UN) to promote regional arrangements and cooperation to protect human rights in the region. The UN General Assembly (UNGA) and the Commission on Human Rights (until its recent demise under UN reform) have passed various resolutions to invite the region to look to the possibility of such arrangements and cooperation. In this regard, to what extent has there been progress? To date, there have been step-by-step developments in terms of cooperation in the Asia-Pacific region, although not to the extent of witnessing the setting up of a regional machinery in the form of an Asia-Pacific Commission (or Court) on human rights to review the human rights situation and to provide redress where the national setting is
UN, Human Rights: A Compilation of International Instruments, Volume II Regional Instruments (United Nations, New York/Geneva, 1997). See further for the Asia-Pacific region V. Muntarbhorn, Dimensions of Human Rights in the Asia-Pacific Region (National Human Rights Commission of Thailand, Bangkok, 2002). For instance, in the middle of the 1980s, the UN General Assembly began to pass resolutions more specifically on the Asia-Pacific region. Resolution 41/153 titled Regional Arrangements for the Promotion and Protection of Human Rights in the Asian and Pacific Region called upon States from the region to respond to the call for “regional arrangements” (UN Doc. A/RES/41/153, 4 December 1986). Likewise UN Doc. A/RES/43/140, 8 December 1988; Commission on Human Rights resolution 1989/50, 7 March 1989; UN Doc. A/RES/45/168, 18 December 1990; UN Commission on Human Rights resolution 1990/71, 7 March 1990; Commission on Human Rights resolution 1991/28, 5 March 1991; Commission on Human Rights resolution 1992/40, 28 February 1992; Commission on Human Rights resolution 1993/57, 9 March 1993; Commission on Human Rights resolution 1994/48, 4 March 1994; Commission on Human Rights resolution 1995/48, 3 March 1995; Commission on Human Rights resolution 1997/45, 11 April 1997; Commission on Human Rights resolution 1998/44 17 April 1988.
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unable or unwilling to deliver justice. Progress has been seen through the evolution of three tracks. Regarding the first track, under the umbrella of the Office of the United Nations High Commissioner for Human Rights (OHCHR), in 1998 governments of the AsiaPacific region adopted a framework for technical cooperation at the regional level at the Tehran workshop, whereby the UN brought together a broad range of countries from the region to adopt a common strategy – known as the Tehran Framework – based upon a step-by-step approach with four “building blocks” or “pillars” to develop: – national human rights institutions, such as national human rights commissions; – national human rights action plans; – human rights education ; – the realisation of economic, social and cultural rights and the right to development. The first phase of that framework was of two years’ duration, and it has been extended by subsequent two-year plans of action as a result of various workshops: in Beijing (2000), Beirut (2002) and Doha (2004). Until recently, there were annual workshops to provide an avenue for promoting implementation of these pillars with Asia-Pacific governments; the most recent was in Beijing in 2005. There have also been inter-sessional or sub-regional workshops linked with one or more of the pillars. Help has also been provided by the OHCHR through technical cooperation programmes at the country level, e.g. on the development of national human rights action plans and human rights education plans in cooperation with other agencies, particularly the United Nations Development Programme (UNDP) through its Human Rights Strengthening (HURIST) project. The most successful building block has been the first pillar: the setting up of national human rights institutions, such as national human rights commissions, and related activities. This is a growth industry, and national commissions have proliferated in recent years; this has been partly helped by the OHCHR-supported framework for the Asia-Pacific region. There are now nearly 20 national human rights commissions or equivalents such as the ombudsperson in Timor Leste. The cooperation and networking between these institutions has grown, backed by the Asia-Pacific Forum of National Human Rights Institutions (APF) whose secretariat is in Sydney; activities are partly funded by the OHCHR. The member institutions have set up an Advisory Council of Jurists, consisting of jurists nominated by each member institution, to provide advice on human rights issues. The Council has provided advisory opinions on topics ranging from the death penalty to child pornography on the Internet, anti-terrorism measures and the rule of law and the right to education. Once the opinions are given, member institutions are supposed to report back in regard to follow-up measures. The APF and its network of national human rights institutions are the closest that the Asia-Pacific region has come to a regional arrangement or machinery for the promotion and protection of human rights. The work of the AFP and OHCHR stimulates countries without national institutions to establish them. It should be noted that the APF is a
For report, see UN Doc. E/CN.4/2006/100, December 2005. See <www.asiapacificforum.net>.
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forum of national institutions which aim to be independent of the executive branch of government and to be pluralistic in composition (consistent with UN principles on the subject). However, the APF is not inter-governmental along the line of the regional human rights systems found in Europe, the Americas and Africa. Regarding the second track, various sub-regional initiatives to promote and protect human rights have burgeoned; they correspond encouragingly, at least in principle, to part of the original rationale for “regional arrangements” in the sense of reviewing the human rights situation and/or providing access to redress where the national setting is unable to deliver justice. However, the geographic scope is smaller in scale and less ambitious than the aspiration to encompass the totality of the Asia-Pacific region. There are at least four sub-regions of note which have various inter-governmental organisations which could be instrumental in promoting and protecting human rights: West Asia, particularly its link with the League of Arab States (“Arab League”), South Asia, particularly its link with the South Asian Association for Regional Cooperation (SAARC), Southeast Asia, particularly its link with the Association of Southeast Asian Nations (ASEAN) and the Pacific region, particularly its link with the Pacific Islands Forum (PIF). The organisations mentioned were not set up specifically to deal with human rights, and at times they may even be reticent about human rights. However, they may be entry points for the promotion and protection of human rights, if the political will permits. With respect to West Asia, in 1994 the Arab Charter on Human Rights was finalised by the Arab League. This was the first inter-governmental treaty in the region laying down human rights standards and a monitoring mechanism in the form of an Arab Human Rights Committee. However, the treaty never attained the necessary ratifications to enter into force, and it was criticised by commentators as falling below international standards. More recently, in 2004 the treaty was revised and the OHCHR provided support for its improvement. The new treaty has improved on many fronts, despite some grey areas. It is more consistent with international human rights standards, e.g. while the old treaty was vague on constraints on human rights, the new treaty offers clearer parameters concerning permissible limits in times of public emergencies. The machinery under the treaty is an Arab Human Rights Committee with a monitoring role based on the obligation of Member States to submit periodic reports to the Committee and the Committee’s power to make concrete recommendations to the State Party. Now adopted by the Arab League, this revised treaty awaits the needed number of ratifications for its enforcement. The current text offers a monitoring process without enabling individuals to complain to the Committee in order to seek redress. However, the Charter provides for the possibility of Protocols to add elements to the Charter. This could provide space for future channels for individuals to seek redress where the national level does not have the capacity to deliver justice. On a related front, Qatar is the home of the UN Regional Centre for Human Rights for South-West Asia which helps to build capacity on human rights promotion and protection.
Reprinted in 18:151 Hum. Rts. L.J. (1997). Reprinted in 2:893 Hum. Rts. L.J. (2005).
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On another front, the SAARC has adopted a more focused approach of concretising treaties linked to specific human rights issues rather than general human rights treaties. In 2002 it adopted two treaties with impact on human rights: the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution and SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia. The former Convention calls for laws to criminalise the phenomenon and for cross border cooperation to tackle the issue. It also calls for care, treatment, rehabilitation and repatriation of the victims, with the possibility of bilateral arrangements. The latter Convention provides for “regional arrangements” as follows: Article V. Regional Arrangements To ensure consistent focus on and pursuance of the regional priorities delineated above, States Parties shall promote solidarity, cooperation and collective action between and among SAARC Member States in the arena of child rights and development. States Parties view such cooperation as mutually reinforcing and capable of enhancing the quality and impact of their national efforts to create the enabling conditions and environment for full realization of child rights and attainment of the highest possible standard of child well being. In pursuance hereof, States Parties shall: (a) Provide opportunities for appropriate bilateral and multilateral sharing of information, experience and expertise. (b) Facilitate human resource development through planned annual schedule of SAARC Advanced Training Programme on Child Rights and Development. (c) Make special arrangements for speedy completion and disposal, on priority basis, of any judicial or administrative inquiry or proceeding involving a child who is a national of another SAARC Member State, and for the transfer of children who are nationals of SAARC countries, accused of infringing the penal code, back to their country of legal residence for trial and treatment, provided that the alleged offence has not imperiled the national security of the country where it has been allegedly committed. (d) Strengthen the relevant SAARC Bodies dealing with issues of child welfare to formulate and implement regional strategies and measures for prevention of inter-country abuse and exploitation of the child, including the trafficking of children for sexual, economic and other purposes. (e) Set up a South Asian nutrition initiative aimed at enhancing knowledge and promoting greater awareness, practice and attainment of higher levels of nutrition, particularly for children and women, through mass education, adequate training and ensuring food security and equitable distribution of food at the family level.
In addition, in 2004 the SAARC adopted the SAARC Social Charter with impact on many economic, social and cultural rights. In particular, there are commitments to eradicate poverty, improve health services, foster educational access and promote the status of women and children, population stabilisation and drug de-addiction. Members are supposed to set up national coordination committees to exchange information with the SAARC Secretariat, coupled with national plans. While the SAARC treaties are more
See <www.saarc-sec.org>.
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on cooperative activities than on the setting up of a sub-regional machinery to deliver justice where the national setting is unable or unwilling to do so, the treaties open the door for engaging the sub-region on specific human rights issues and providing space for related discourse and cooperation. In Southeast Asia, as far back as in 1993, ASEAN foreign ministers made a statement citing the possibility of a human rights mechanism at the sub-regional level. However, that commitment was laid aside, and the ASEAN governmental setting did not followup the issue. The initiative to explore a possible mechanism came from a non-governmental Working Group for an ASEAN Human Rights Mechanism. To press for a genuine mechanism, it submitted to the ministers a draft convention to set up an ASEAN Human Rights Commission. The idea was similar to the regional commissions found in Europe (now abolished), the Americas and Africa. However, the governments did not respond readily to the proposal. The Working Group then modified the proposal to become an ASEAN Commission on Women’s and Children’s Rights. This was discussed informally with government representatives in various annual informal seminars held in the sub-region. Most promisingly, in 2004 the ASEAN Summit adopted the ASEAN Security Community Plan of Action which listed as part of needed activities the establishment of an ASEAN Commission on Women’s and Children’s Rights. However, this Plan does not indicate the mandate, form, content and powers of such Commission; this has yet to be evolved concretely. Interestingly at the ASEAN Summit in 2007 ideas were put forward for the drafting of an ASEAN Charter which may include a reference to a human rights mechanism, although no definite specifics have yet been given. At that Summit, there was also the adoption of the ASEAN declaration on the rights of migrant workers calling for improved protection for the group. The PIF has become more open to sub-regional and national human rights mechanism(s). In 2004, impetus was provided by the Eminent Persons’ Group Review of the Pacific Islands Forum, the Auckland Declaration and Leaders’ Decisions and the Pacific Human Rights Consultation, interlinked with these developments. First, the subregion is increasingly establishing national human rights commissions, with the most recent being the initiative from the Solomon Islands. Second, it is open to a sub-regional machinery or mechanism; this may be more cost effective than the establishment of national commissions in all Pacific countries since many are minute countries covering vast distances with very limited resources. In retrospect, several decades ago, some civil society actors put forward the idea of a Pacific Human Rights Charter, but this has not materialised. Regarding the third track, one of the key developments in the Asia-Pacific region is the increasing presence of the OHCHR in the region, in addition to other UN bodies taking up human rights as part of their country and regional programming.10 The OHCHR presence varies from a stand-alone country office, as in Cambodia and Nepal, to units attached to peace-keeping operations, as in Timor Leste, Iraq and Afghanistan, See <www.aseansec.org>. See <www.asiapacificforum.net>. 10 See OHCHR, Annual Report 2005 (OHCHR, Geneva, 2006).
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and human rights advisers attached to the UN Country Team(s) (UNCT) (e.g. Nepal and Sri Lanka) – under the UN resident representative (usually from the UNDP). The OHCHR presence is to help promote and protect human rights; inevitably there is an implied monitoring role in the process. One of the OHCHR’s comparative advantages is that it acts as an umbrella to support human rights activities carried by the government at times, by national human rights institutions at times and by civil society at times, while being open to a variety of monitoring processes and institutions. In recent years, the OHCHR set up a regional office in Bangkok for the Asia-Pacific region, now as a sub-regional office focused on Southeast Asia, another in Beirut to cover the Arab region (a part of which is in the Asian region) and another in Fiji for the Pacific islands, each with an OHCHR representative. These regional/sub-regional offices help to cover countries where there is no OHCHR presence at the national level, backstop national human rights advisers sent by OHCHR to other countries and/or address regional issues which cannot be dealt with only at the national level. The Bangkok office has also initiated a practitioners’ forum on the rights-based approach to human development, thus offering a forum for sharing good practices and other lessons between UN agencies and other partners. Planning for 2007 and beyond suggests closer cooperation with initiatives on a human rights mechanism in ASEAN, advocacy and capacity-building for ratification of international human rights treaties and follow-up of recommendations from international monitoring bodies such as the Child Rights Committee under the Convention on the Rights of the Child and various special procedures such as special rapporteurs of the UN. In addition, even without an OHCHR presence in a country, there may be various technical cooperation programmes to help the country improve the human rights situation, e.g. in relation to administration of justice reform in the People’s Republic of China. Mongolia, Timor and Yemen have also benefited from such programmes in recent years. Collateral to the above, increasingly UN agencies are integrating human rights into their programmes, spearheaded by the Secretary-General’s call for all UN agencies to mainstream human rights into their work, such as to promote accession to human rights treaties, and to implement the various norms and recommendations from the UN human rights system, particularly the human rights treaty bodies and special procedures. There is now an inter-agency plan between the OHCHR and other UN agencies to work as UNCTs, including through capacity-building and joint programming to strengthen national protection systems. Operationally among many UN agencies, there may be country programming/offices, on the one hand, and regional/sub-regional programming/offices, on the other, with more focused monitoring and programming. For instance, the UN Children’s Fund (UNICEF) has both country programming/office as well as regional programming/office dealing with child rights (although not exclusively). On another front, in recent years UNDP has supported various human rights activities at the national level, e.g. support for national human rights commissions and human rights action plans. It is particularly driven by the Millennium Development Goals (2000). In addition to its country offices, UNDP has started to set up regional centres which also cover human rights issues. A regional centre was recently established in Bangkok to cover the Asia-Pacific region in the areas of access to justice, human rights and indigenous peo-
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ples under the general umbrella of “governance”. Many of the planned activities are in relation to comparative research, e.g. case studies on projects from eight countries on rights-based approaches with a view to including women’s rights issues, and country case studies on policies for inclusive governance for disadvantaged groups, including indigenous peoples, and related training workshops and public awareness programmes and evaluation. On a related front, one should not underestimate the financial clout and impact of global financial institutions, such as the World Bank, which have also started to take an interest in access to justice and rule of law issues related with human rights. The challenge for UN agencies is to maximise coordination and cooperation to sustain such activities, particularly where there is no regional monitoring system and where the national setting is weak. From an intra-UN family angle, the OHCHR’s added value is possibly to nurture effective integration of international human rights standards into all UN agencies and act as a check-and-balance within the UN family itself to influence respect for human rights, in addition to catalysing the national and regional actors and organisations. In sum, in the Asia-Pacific region where there is no inter-governmental human rights protection system apart from some nascent sub-regional initiatives, the OHCHR presence and the totality of the UN family have a key role to play as a complementary system for the promotion and protection of human rights – given each agency’s added value. This should not be envisioned as an alternative to building national human rights protection systems and regional/sub-regional systems. Rather, it should be seen as complementary to the need to build such national and regional/sub-regional systems for the comprehensive monitoring and protection of human rights for all.
Part XI: Other Institutions and Organisations
60 Parliamentary Human Rights Mechanisms Anders B. Johnsson*
Parliament is the principal guardian of human rights. It adopts the laws that enshrine human rights standards. It provides the legal framework for the judiciary to administer justice and uphold human rights and fundamental freedoms. Parliament exercises direction and control by participating in the formulation of government policy and by overseeing the action of the executive branch of government and its administration. This essay examines how parliaments organise their work in the field of human rights, both nationally and internationally. It is worth recalling first that members of parliament have a wealth of opportunities to promote and monitor human rights. To mention the most important: parliamentarians can introduce private member bills. They can address oral and written questions to government officials. Through interpellations they can invite the government to explain its policies in a certain domain. Members of parliament can request the establishment of parliamentary enquiry committees to look into particular human rights issues. Moreover, as opinion leaders, they can do much to raise public awareness about human rights and influence the agenda of their political parties. Human rights in parliamentary structures Parliamentary work is carried out primarily in committees, which are parliament’s “engine rooms”. It is in committees that legislative proposals are studied, government departments are scrutinised and recommendations are made to the plenary. Parliaments have adopted one of three approaches to integrate human rights into their committee work. The first takes human rights as a crosscutting issue that should be taken into account by all parliamentary committees. The second approach consists of setting up a parliamentary committee with an exclusive human rights mandate, while *
Anders B. Johnsson is the Secretary General of the Inter-Parliamentary Union. For a more exhaustive treatment of parliamentary oversight of the executive see R. Pelizzo and R. Stapenhurst (eds.), Legislatures and Oversight (World Bank Institute, 2004).
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 651-657.
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the third approach takes a middle road by integrating human rights issues into an existing committee. As the surveys undertaken by the Inter-Parliamentary Union (IPU) since 1990 have shown, the majority of parliaments tend to opt for this latter approach. Only some 30 parliaments have established a standing committee that deals exclusively with human rights. Some parliaments, such as Denmark or South Africa, explicitly consider human rights as a crosscutting issue and have therefore not established specialised human rights committees. The latest survey undertaken by the IPU in 2004 reveals that there were then 164 parliamentary committees with an explicit human rights mandate. This represents a four-fold increase over 15 years earlier. Committees are not the only mechanism by which parliaments promote and protect human rights. An increasing number of parliaments have set up the institution of Ombudsman. This office, which is normally responsible for ensuring fairness and legality in public administration and government compliance with human rights obligations, usually reports to parliament. Even more common are the informal groups, caucuses or all-party groups set up by members who are keen to pursue specific human rights issues in parliament. Parliamentary committees with an explicit human rights mandate have normally both legislative and oversight functions and enjoy the powers attached to those functions. Increasingly, they focus also on international human rights activities. Parliaments are generally not directly involved in the drafting and political decision-making processes underpinning international and regional treaties. Since it is parliament that has to adopt implementing legislation, it is all the more important that parliamentary human rights committees are informed of the status of negotiations, that they have the opportunity question ministers on progress made in negotiations, debate the issue and even accompany government delegations to familiarise themselves with the issues at stake. Their involvement does not end with the conclusion of a treaty and its subsequent ratification in parliament. As stated above, parliaments are concerned with implementation and compliance. The parliament in South Africa, for example, examines the country’s report to the United Nations Committee treaty bodies, holds public hearings and provides input to the national report, accompanies the delegation that meets with the Committee and examines its recommendations from the perspective of follow-up and implementation. Some parliamentary human rights committees or groups focus on international human rights issues. This is the case, for example, of the All-Party Parliamentary Human
See I. Schwarz, Parliamentary Human Rights Committees, Rule of Law Series Paper, National Democratic Institute for International Affairs (NDI), 2005. Parliamentary Human Rights Bodies, Inter-Parliamentary Union, 2004. Schwarz, supra note 2. Parliament and Democracy in the Twenty-first Century: A Guide to Good Practice, Inter-Parliamentary Union, 2006, pp. 158–160. Strengthening Parliament as a Guardian of Human Rights: The Role of Parliamentary Human Rights Bodies, IPU, Reports and Documents No. 48, 2004, p. 44.
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Rights Group in the United Kingdom. It is mandated by its some 135 members to raise awareness of international human rights issues in the Houses of Parliament, to work for the implementation of the International Bill of Rights by all governments and to encourage debate, research and further action on such matters. It organises missions to collect evidence, communicates its concerns to the concerned governments and requests its own government to explain foreign policy in the light of human rights objectives, amongst other things. Human rights in international parliamentary institutions With the growing interest of parliaments for the international dimension of human rights, small wonder that human rights figure prominently in the work of international parliamentary institutions. Whether or not the defence and promotion of human rights are explicitly part of the statutory goals and objectives of these institutions, all of them deal with human rights issues at one time or another. General human rights issues are frequently discussed at their respective conferences and meetings. This is the case for both the Union of African Parliaments (UAP) and the ASEAN International Parliamentary Organization (AIPO), both of which address human rights issues in their debates, although neither has a special human rights committee. Even though these institutions have not as yet set up specific human rights committees, human rights issues regularly come up in the work of their committees, such as in the Juridical Committee of the Andean Parliament or in the Political Committee of the International Assembly of French-Speaking Parliamentarians, to mention but two examples. In some instances, they are dealt with by human rights committees established by one or more of their member parliaments. This is the case in the Commonwealth Parliamentary Association (CPA) where some national or local branches of the organisation have established human rights committees. Moreover, these organisations provide unparalleled opportunities to pursue parliamentary diplomacy on specific human rights concerns. Human rights receive more systematic and in-depth treatment in those regional parliamentary institutions in Europe and Latin America which have established permanent bodies specifically for this purpose: the Amazonian Parliament, the Latin American Parliament, the Parliamentary Assembly of the Organization on Security and Cooperation in Europe, the Parliamentary Assembly of the Council of Europe and the European Parliament. As to the Inter-Parliamentary Union, it has not only a standing committee dealing with human rights, but also a Special Committee on the Human Rights of Parliamentarians.
Schwarz, supra note 2, p. 15.
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European examples The Parliamentary Assembly of the Council of Europe has by far the longest and most extensive experience of permanent committees on human rights. Its Committee on Legal Affairs and Human Rights was established in August 1949 and has appointed a sub-committee which deals exclusively with human rights issues. In addition, a number of other committees, such as the Political Affairs Committee, the Committee on Social, Health and Family Affairs, the Committee on Economic Affairs and Development, the Committee on Culture and Education and the Committee on Migration, Refugees and Demography, also address human rights questions. Over the years, the work of these committees has had a profound impact on human rights protection in Europe. It has laid the ground for the adoption of a number of human rights conventions, agreements, resolutions and recommendations through the Committee of Ministers. The abolition of the death penalty in times of peace, the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the Framework Convention for the Protection of National Minorities are examples of proposals which were prepared in these Committees, followed up in the Assembly and eventually adopted by the Council of Ministers. Following the admission into the Council of Europe of many countries belonging to the former socialist bloc, the Assembly established on 25 April 1997 a new permanent committee, the Monitoring Committee.10 It is responsible for verifying the fulfilment of obligations assumed by Member States, most importantly in the field of human rights. The European Parliament has several mechanisms addressing human rights issues, including standing committees: the Committee on Civil Liberties, Justice and Home Affairs is inter alia responsible for the protection within the European Union (EU) of human rights and for combatting discrimination. The Committee on Women’s Rights and Gender Equality deals among others with the promotion and protection of women’s rights in the EU, the promotion of women’s rights in third countries and the implementation of international agreements involving women’s rights. The Foreign Affairs Committee has a Sub-Committee on Human Rights which is responsible for human rights issues, the protection of minorities and the promotion of democratic values in third countries. Moreover, the Petitions Committee handles all petitions submitted to the European Parliament by persons residing in the Union. The Committee undertakes the initial examination of these petitions and can establish a report, solicit advice from another Commission, hold hearings, undertake on-site missions, request information from the
The Parliamentary Assembly is made up of representatives from the parliaments of 46 European countries. Human Rights Every Day: The Impact of the Council of Europe’s Work in the Field of Human Rights, Council of Europe, Strasburg, 1996. 10 This procedure was instituted by Resolution 1115 (1997), adopted by the Assembly on 29 January 1997, and replaces a previous procedure established under Order No. 508 (1997), which called for monitoring by the Political Affairs Committee and the Committee on Legal Affairs and Human Rights.
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European Commission and, of course, submit reports and recommendations to the plenary of the Parliament for adoption.11 Second, the European Parliament appoints a European Union Ombudsman. He or she acts independently, but reports to Parliament. Like in many countries, the Ombudsman acts on complaints submitted by citizens or on his or her own initiative.12 The third and most recent European inter-parliamentary institution is the Parliamentary Assembly of the Organization for Security and Cooperation in Europe. Set up in 1991, it has three Standing Committees, one of which addresses issues relating to Democracy, Human Rights and Humanitarian Questions. The subject matters dealt with by the committee largely coincide with the humanitarian questions which were contained in the “Third basket” of the Helsinki Final Act, and the Committee therefore works closely with the OSCE Office for Democratic Institutions and Human Rights in Warsaw. Latin American examples In 1991 the Amazonian Parliament13 established a Standing Committee for Social Affairs and Human Rights to promote full respect for human rights and fundamental freedoms, to provide support to the struggle of the indigenous communities of the Amazon to preserve their geographical areas and to favour the free expression of their culture. The following year, the Latin American Parliament14 set up a Standing Committee on Human Rights. It was later merged with the Special Committee on Prison Policies in Latin America, and is now responsible for studying and investigating issues regarding human rights, the justice systems and all issues relating to prisons in Latin America.15 Latin America has also seen the creation of a separate standing human rights committee which is not linked to any existing inter-parliamentary institution, the Latin American Inter-Parliamentary Commission for Human Rights. The Commission was established in 1991 and is composed of representatives from the Latin American parliaments. Its primary mandate consists of promoting respect for the American Declaration on the Rights and Duties of Man and the Universal Declaration of Human Rights, as well as other pertinent instruments and covenants of the United Nations and the Organization of American States. The Commission also monitors the human rights of members of parliaments in Latin America.16 11 A. Terrenoire (le Cherche Midi éditeur), Le Parlement Européen. Cet inconnu (1994). 12 European Ombudsman/National Ombudsmen or similar bodies, European Parliament, People’s Europe Series W-6, January 1995. 13 The national parliaments of Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Surinam and Venezuela are represented in the Amazonian Parliament. 14 The Latin American Parliament is composed of representatives from the national parliaments of all the 20 Latin American countries, plus the parliaments in Aruba and the Netherlands’ Antilles. 15 World Directory of Parliamentary Human Rights Bodies, Inter-Parliamentary Union, 2004. 16 Report on meeting of VI Commission on Human Rights, 13–15 March 1997, San José, Costa Rica.
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The Inter-Parliamentary Union (IPU)17 The main statutory body of the IPU, the Assembly, is assisted in its work by three standing committees, one of which is on Democracy and Human Rights. It is a plenary committee that meets twice a year to discuss a human rights subject and prepare a draft declaration or resolution for the consideration of the Assembly.18 Recent years’ debates have focused on national human rights institutions, the rights of women and children and HIV/Aids. It is, however, the Special Committee on the Human Rights of Parliamentarians which is the most advanced of the IPU’s mechanisms for the defence and promotion of human rights. Set up in 1976, the Committee investigates complaints submitted to the IPU about human rights violations affecting members of parliament. The complaints must be presented by a qualified source and meet specific criteria for admissibility. They are dealt with by the Committee during its four annual meetings in accordance with a confidential procedure which involves constant crosschecking of information and dialogue with the complainants and the authorities. The Committee obtains its information mainly through written submissions and hearings with parliamentary delegations and others. It can also undertake on-site missions.19 When the Committee considers that no satisfactory progress is made in dealing with particular case or in instances involving particularly serious allegations, the Committee publicises its findings and recommendations in a report submitted twice a year to the IPU’s Governing Council for its adoption. In this manner, not only does the Governing Council – which is a plenary body – lend its collective support to the Committee’s recommendations, but individual members follow them up through separate representations and interventions with the concerned authorities. The reason underlying the Committee’s creation is the IPU’s belief that parliament and its members are key to upholding human rights in their countries. To do so, however, their rights must be respected. Members of parliament who are not free and cannot express themselves freely can hardly carry out their mandate. During its thirty-year existence, the Committee has dealt with the situation of close a thousand members of parliaments from over 80 countries. Although it is difficult to evaluate precisely the result of its work, both because the IPU often acted together with 17 146 national parliaments are currently represented in the Inter-Parliamentary Union. 18 It may be of interest to note that the three-member Bureau of the Standing Committee (president and two vice-presidents) also functions as a separate Committee to Promote Respect for International Humanitarian Law. This Committee was set up in 1994 on a trial basis to follow “the question of respect for international humanitarian law, particularly the status of ratification of international instruments on this question and the implementation of measures at the national level, disseminate information and make observations with a view to promoting respect for international humanitarian law”. 19 For a more extensive treatment of the subject, see L. Despouy, Functioning and “Jurisprudence” of the IPU Committee on the Human Rights of Parliamentarians, 1 January 1977–4 February 1993, IPU, 1993, and P. Cornillon, ‘Defending the Human Rights of Parliamentarians’, in 89:1 Bulletin of Human Rights (United Nations, New York, 1990).
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others and because it is not always possible to measure the alleviation of suffering, it can nevertheless be said that in a significant number of cases, the Committee’s action has contributed to obtaining the release of detained parlamentarians, the restoration of their rights or simply the pursuit of proper investigations into serious human rights violations leading to the identification of the perpetrators and reparations for the victims. The very fact that the Committee has pursued human rights issues in an impartial, objective and persistent manner for 30 years constitutes in itself a significant contribution to human rights protection.
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National Human Rights Institutions Brian Burdekin*
Building strong human rights institutions at the country level is what in the long run will ensure that human rights are protected and advanced in a sustained manner. The emplacement or enhancement of a national protection system in each country, reflecting international human rights norms, should therefore be a principal objective of the Organization. These activities are especially important in countries emerging from conflict. (Kofi Annan, “Strengthening of the United Nations: An Agenda for Further Change”, Report of the Secretary-General, 9 September 2002)
In the last four decades most countries have signed, ratified or acceded to the major human rights treaties negotiated over the past 60 years under the auspices of the United Nations. When it comes to honouring their commitments to implement the rights embodied in those instruments, however, most States have fallen short in important respects. Many States, in all regions, have also failed to honour their obligations to cooperate with the international monitoring mechanisms established pursuant to these treaties. Regional human rights arrangements have been set up in all parts of the world, except in the Asia-Pacific region. These encompass: courts, commissions and related institutions to monitor human rights protection at the regional level. The diversity, complexity and sheer size of the Asia-Pacific region make similar institutions in this region unlikely or in the event that they are established make it likely they will be relatively weak and ineffective.
*
Visiting Professor at the Raoul Wallenberg Institute in Sweden, teaches in the post-graduate programme at Melbourne University Law School, and is International Adviser to a number of National Human Rights Institutions in Africa, Asia and Central and Eastern Europe. For further information on NHRIs please see B. Burdekin, assisted by J. Naum, National Human Rights Institutions in the Asia-Pacific Region (Martinus Nijhoff Publishers, 2006).
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 659-663.
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The reality is that no matter how sophisticated they are international and regional mechanisms are, and will remain, inaccessible to the overwhelming majority of the world’s population – two thirds of whom live in Asia. This is particularly true for the most vulnerable and disadvantaged groups in the poorest countries – those whose human rights are most frequently violated and who are therefore most in need of protection. Effective implementation and monitoring of international human rights standards must therefore be accomplished primarily at the national level. Almost since its founding the United Nations considered, albeit sporadically, the subject of national human rights institutions (NHRIs); indeed the first recorded discussion took place in the Economic and Social Council in 1946. However, apart from diplomatic debates and occasional resolutions, there was little significant progress for the next 30 years. This was in spite of the growing number of important international human rights treaties and the fact that many diplomats and human rights advocates recognised the need for national monitoring mechanisms to complement the international mechanisms being established to monitor these treaties. In 1991 a conference convened by the UN drafted the “Principles Relating to the Status of National Institutions” (now commonly referred to as the “Paris Principles”). Up until this point only eight independent NHRIs had been established – three in the Asia-Pacific region: Australia, New Zealand and the Philippines; three in the Americas: Canada, Mexico and Guatemala; and two in Europe: France and Denmark. Three African countries had allegedly established NHRIs – Togo (1987), Benin (1989) and Morocco (1990). However, the Togolese institution was effectively abolished after a brief period (when its reports embarrassed the government) and replaced with an institution which was not genuinely independent. Neither the institution in Benin nor the institution in Morocco originally complied with the most rudimentary standards for NHRIs. The World Conference on Human Rights in 1993 reaffirmed the importance of NHRIs, and there are now over 50 which comply with the Paris Principles – at least in terms of their legislative mandate. In practice, the effectiveness of these institutions varies enormously. The Principles are not exhaustive, nor indeed are they particularly coherent – but they do prescribe several criteria essential for NHRIs to be effective. These include: a clearly defined, broad-based human rights mandate – incorporated in legislation or, preferably, constitutionally entrenched; independence from government; membership that broadly reflects the composition of society; appropriate cooperation with civil society, including non-governmental organisations; and adequate resources. (The Principles do not, however, address in any detail several issues which are essential for a national institution to be effective. These include the necessity for it to be readily accessible.) The Principles also require that NHRIs perform a wide variety of functions in promoting and protecting human rights. These include: research; public education; promoting the ratification of international human rights treaties; ensuring that national legislation, policies, programmes and practices are consistent with international norms; contributing to reports to United Nations treaty bodies and investigating complaints concerning violations of human rights.
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With respect to investigating individual complaints, the Principles envisage that NHRIs may have “quasi-judicial” powers – to compel the production of evidence and the attendance of witnesses – in order to work effectively. While some NHRIs have “quasi-judicial” powers in relation to obtaining evidence, they are clearly not judicial bodies, and they do not purport to make enforceable decisions. Generally they operate by way of recommendations; proceed far less formally than courts; frequently resolve complaints by mediation or conciliation; and do not charge fees. They generally have the power to refer appropriate matters to other State agencies, for example the Ombudsman or Director of Public Prosecutions, where these are more appropriate. Some NHRIs do have the power to make “orders”, “determinations” or “findings”, and, if relevant parties do not respect these, they have standing to seek enforcement by the courts. In a number of countries NHRIs are also empowered to intervene in court proceedings, with the leave of the court, to present arguments on relevant human rights issues. While independence enshrined in an adequate constitutional or legislative mandate is essential, the effectiveness of NHRIs ultimately depends on the integrity, ability and commitment of those appointed to lead them. It is essential that civil society has some significant influence in the appointment process – otherwise governments have a tendency to appoint inappropriately qualified people – or to replace those who prove to be vigorous human rights defenders with more compliant individuals when reappointments are made. Many NHRIs were originally established by governments with dubious motivations – to alleviate international pressure for reform or otherwise impress potential donors. However, most of the NHRIs in the Asia-Pacific region and Central and Eastern Europe, many of those in Latin America and some of those in Africa have now evolved into credible protagonists for human rights. In 1995 the First High Commissioner for Human Rights, Jozé Ayala Lasso, appointed a Special Adviser on National Institutions and Regional Arrangements, following which the UN actively facilitated international and regional cooperation among NHRIs. An International Coordinating Committee was actively supported and, with the High Commissioner’s report, NHRIs in the Asia-Pacific region established a regional organisation to facilitate their work. This body, the Asia-Pacific Forum (APF), is the most effective such association in any region. Membership of the APF is open to all NHRIs in the region that comply with the normative standards prescribed in the Paris Principles. One of the APF’s most important initiatives has been to establish an Advisory Council of Jurists (ACJ) comprising one eminent lawyer nominated by each of the APF’s full members. The ACJ prepares opinions and provides advice on the development of human rights-related law and practices. Its advices to date have included reports on: the death penalty; child pornography on the internet; trafficking in women and children; questions related to the rule of law and the impact of terrorism; and torture. The APF is playing an increasingly important role in many areas – including: the identification of “best practices” for NHRIs; facilitating their access to relevant information; assisting, through the Advisory Council of Jurists, in enhancing regional understanding of relevant international norms; and, through staff exchanges and training pro-
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grammes, enabling NHRIs to strengthen their professional expertise. The APF is also playing a critical “gatekeeper” role in accrediting as members are only NHRIs which actually comply with the Paris Principles. National human rights institutions have come a long way in little more than a decade. Since the United Nations General Assembly adopted the Paris Principles in 1993, the number of NHRIs in every region has increased dramatically. Substantial challenges remain in strengthening the legislative mandates of many NHRIs, improving their accessibility and enhancing their effectiveness. Nevertheless, in many countries they have become a major force in monitoring governments’ compliance with their international treaty obligations, promoting an understanding of human rights and addressing and redressing human rights violations. However, these national institutions are evolving in an international and regional context which is changing rapidly. They will continue to confront numerous and sometimes complex challenges – such as operating in an environment of armed conflict, for which they are not designed. Other “institutions” on which NHRIs’ capacity to carry out their mandate heavily depends – including the legislature and the judiciary – are still weak or corrupt in many developing countries. While NHRIs must not intrude on the important “monitoring” functions of these institutions and of other independent agencies, their responsibility for ensuring equal protection of the law and the harmonisation of domestic legislation with international human rights norms means that they will continue to have a substantial stake in assisting to improve the performance of these other institutions and co-operating with them in appropriate ways. At the national level, NHRIs – in countries as diverse as South Africa, Mongolia, Australia, India and Fiji – have played a very significant role in assisting courts to interpret and appropriately apply international human rights treaties. Many of the cases in which NHRIs have intervened concern civil and political rights. However, NHRIs have also been instrumental in securing landmark decisions relating to the interpretation of international instruments concerning economic, social and cultural rights and the rights of particularly vulnerable groups such as children, the homeless and those affected by mental illness. In several important cases, these decisions by national courts have been followed in other countries – thus contributing to the development of regional and international jurisprudence. NHRIs have also demonstrated the capacity to develop innovative and effective new strategies for promoting and protecting human rights – most notably the technique of conducting national inquiries. These have not only produced important legislative and policy reforms; they have also demonstrated NHRIs’ capacity to educate public opinion on important human rights issues and, in several cases, mobilise hundreds of millions of dollars for programmes to improve the plight of particularly vulnerable groups – such as homeless adolescents, people with disabilities and indigenous communities. NHRIs are playing an increasingly active and important role in assisting the international treaty bodies mandated to monitor the most important human rights instruments – both by providing them with information and by following up their recommendations. They are also assisting the United Nations Special Rapporteurs in a number of important areas and contributing significantly to debates in several international fora. The role of NHRIs in developing appropriate international norms is increasingly being
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recognised; they most recently played a significant part in the development of the new international instrument to protect and promote the rights of people with disabilities. The Optional Protocol to the Convention Against Torture accords them an important prevention and monitoring role. The Paris Principles were intended to be, and indeed still are, only minimum normative standards for NHRIs. Other guidelines subsequently developed by practitioners are more detailed, more rigorous and sometimes more relevant to current challenges than the United Nations Principles. The latter have, however, played a critical role in setting basic benchmarks which governments must comply with if they wish to establish an institution which can be effective and command public confidence. NHRIs and good governance The assumption that democratically elected legislatures, an independent judiciary and executive governments subject to the periodic discipline of the ballot box guarantee respect for human rights has been replaced by a recognition that this “division of powers”, while fundamentally important, has frequently failed to protect human rights – even when these were constitutionally entrenched. The recognition that governments courting political popularity have frequently been prepared to sacrifice respect for the human rights of unpopular or marginalised minorities in their quest to retain power has been one impetus in the movement to create independent national human rights institutions. There has been a growing recognition – by the United Nations, international financial institutions and most wealthy donor governments – that human rights are an integral element of “good governance” and that good governance is essential for sustainable development. There has also been increasing recognition that systemic discrimination and widespread violations of human rights, including the rights of ethnic, religious or linguistic minorities, invariably lead to political turmoil and conflict – with serious implications for national stability and, in some cases, regional security. In recognition of these realities, development assistance has since the end of the Cold War increasingly been conditioned, by both multilateral and bilateral donors, on respect for human rights and reforms designed to enhance good governance – with significant effects in many (but not all) new, emerging or restored democracies. NHRIs which protect the rights of minorities have now been recognised as an important element in contributing to national stability and security. The impact of globalisation (and in particular the communications revolution) on the world’s major legal systems has been to raise the level of scrutiny from a human rights perspective – and to expose the inadequacies of traditional systems which are, at best, reactive and often inaccessible. There has been a growing awareness of international human rights jurisprudence and a greater recognition that remedies must be made more accessible if human rights are to be protected. This has been accompanied by the development of alternative investigation and dispute resolution mechanisms with a proactive mandate, such as national human rights commissions. As the first UN High Commissioner for Human Rights, Jozé Ayala Lasso, recognised, human rights are enjoyed on the ground, and it is for NHRIs to make these rights real in all regions of the world.
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The Role of Bar Associations and Law Societies in the Implementation of Human Rights Ragnar Aðalsteinsson*
This article addresses the question whether bar associations and law societies have a role to play in the implementation of human rights, and, if so, what this role is. An independent legal profession is regarded as a condition sine qua non for upholding human rights. It is the duty of the government in any country to ensure for anyone, without distinction or discrimination, proper access to legal counsel. It is vital for every country to have an organised legal profession, where lawyers are free to manage their own affairs without external interference. This includes the right to decide who is qualified to conduct cases before the courts as well as the right to impose disciplinary sanctions on members of the profession. Such organisations must be independent of the executive branch and the private sector, and they must be capable of providing adequate protection to individual members when they are subjected to unacceptable limitations and pressures as a result of their work as attorneys, whether from the government or from other powers. Some governments, however, regard actions by lawyers and bar associations in support and protection of human rights as equivalent to political interference. Although it may be acknowledged that in certain cases the boundaries between the issues of politics and human rights are indistinct, it should be borne in mind that after World War II a transformation took place with the effect that rules on human rights became an integral part of international law, were introduced into domestic legislation and procedures were established for people to seek redress. Thus, human rights no longer rest on political views based on ideological premises but rather on long-term commitments undertaken by States. Moreover, all human rights are now perceived as indivisible and interrelated. Discussions by bar associations and positions on legislation are not regarded as political interference or outside the terms of reference of bar associations. The attitude of some political leaders to the participation of bar associations in the protection and promotion *
Ragnar Aðalsteinsson: 1935, Iceland. Senior Partner in the law firm Adalsteinsson & Partners, Reykjavík. Formerly the President of the Icelandic Bar Association and Chairman of the Board of the Icelandic Human Rights Centre. Law degree, University of Iceland, 1962.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 665-671.
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of human rights can only be explained by their fear that the promotion of human rights could undermine their power. Lawyers and bar associations must reject any suggestion that discussion of these aspects of law lie outside their terms of reference. The various organs of the United Nations have long been interested in the independence of judges and lawyers. Conclusions of these activities are laid out in the UN Basic Principles on the Independence of the Judiciary (1985), the Procedures for the Effective Implementation of the Basic Principles of the Independence of the Judiciary (1989), the UN Basic Principles of the Role of Lawyers (1990) and the UN Guidelines for the Role of Prosecutors (1990). The Basic Principles on the Role of Lawyers were adopted by the Eighth UN Congress on the Prevention of Crime and Treatment of Prisoners at Havana in 1990. In December 1900 the United Nations General Assembly welcomed their adoption. The Principles can be traced to the decision of the UN Sub-Commission on the Prevention and Protection of Minorities to instruct Dr. L. M. Singvi, president of the Bar of the Supreme Court of India, to examine the independence and impartiality of judges and lawyers and to return recommendations. Dr. L. M. Singvi submitted his recommendations entitled “Draft Universal Declaration on the Independence of Justice”, and in 1989 the Commission on Human Rights invited governments to take account of the principles set out in the draft in the implementation of the UN Basic Principles on the Independence of the Judiciary, adopted in 1985. The chapter on lawyers, paragraph 74, says: “The independence of the legal profession constitutes an essential guarantee for the promotion and protection of human rights.” At the same time, work was in progress on the Basic Principles on the Role of Lawyers within the UN Congress on the Prevention of Crime and Treatment of Offenders, and the Commission on Human Rights requested those who were working on the rules to take into account the principles contained in Dr. Singvi’s draft in the course of their work in putting together the Basic Principles. In the final stages, the Centre for the Independence of Judges and Lawyers was requested to suggest a new text based on the ideas and suggestions presented, and this text was largely incorporated in
A. Dieng, ‘Hvert er hlutverk lögfræðinga og samtaka þeirra í mannréttindastarfi?’, Úlfljótur (1995) pp. 463–465; J. R. Harper, ‘Hvert er hlutverk lögfræðinga og samtaka þeirra í mannréttindastarfi?’, Úlfljótur (1995) pp. 461–463. (Contributions to a debate by Icelandic law students on the question whether human rights belong to law or politics.) Adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held at Milan on 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Adopted by the Economic and Social Council in resolution 1989/60, and endorsed by General Assembly resolution 44/162. Adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. Adopted at the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. The Independence of Judges and Lawyers: A Compilation of International Standards, Special Issue of CIJL Bulletin Nos. 25–26 (1990) pp. 38–58.
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the new draft. The General Assembly of the United Nations welcomed the rules adopted by the Congress and invited governments “to be guided by them in the formulation of appropriate legislation and policy directives and to make efforts to implement the principles contained therein … in accordance with the economic, social, legal, cultural and political circumstances of each country”. The General Assembly welcomed the rules, and invited governments “to respect them and to take them into account within the framework of their national legislation and practice”. In the introduction to the Principles on the Role of Lawyers it is stressed that appropriate protection of human rights, whether political, civil, economic, social or cultural, to which all men have a right, requires that everyone has proper access to legal counsel provided by an independent legal profession. As regards bar associations, the rules specify that they “have vital a role to play … providing legal services to all in need of them, and co-operating with governmental and other institutions in furthering the ends of justice and public interest”. Paragraph 9 of the rules states inter alia that bar associations, together with the State and educational institutions, should ensure that lawyers “be made aware of the ideas and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law”. Paragraph 14 says that lawyers, in the course of their work, should “seek to uphold human rights and fundamental freedoms …”. Paragraph 23 emphasises that freedom of expression, opinion, association and assembly of lawyers is the same as the freedoms of other citizens. It goes on to say: “In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights …” The chapter on bar associations (paragraphs 24 and 25) prescribes “self-governing” bar associations, where the executive body “shall be elected by its members and shall exercise its function without external interference”. It also says that bar associations should work with governments to ensure that all men have proper access to legal counsel and lawyers are given the opportunity to assist their clients in accordance with law and recognised professional standards and ethics. It is clear from the above that the rules on lawyers place responsibilities on the shoulders of bar associations as regards human rights and require that they inform their members about the human rights norms recognised by domestic and international law. The rules further stipulate that governments shall take them into account in the legislative work of their respective countries and in the implementation of the law. While the rules are not binding under international law, the UN General Assembly endorsed them unanimously, and General Assembly resolutions are often the first step in the direction of establishing rules which enjoy recognition as customary law.10 States are bound to ensure the independence of bar associations as an element in reinforcing the rule of law. At the same time, bar associations have the task of pro 10
B. Reed, ‘Introduction’, in ibid. General Assembly resolution 45/121 of 14 December 1990. General Assembly resolution 45/166 of 18 December 1990. R. Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, Oxford, 1995) pp. 22–28.
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moting knowledge and enforcement of all human rights. Even though reference here is made only to the Basic Principles on the Role of Lawyers, it should be noted that those rules are rooted in previous UN instruments, such as the UN Charter and the Universal Declaration on Human Rights, and emphasised in the Vienna Declaration and Programme of Action (1993).11 The Committee of Ministers of the Council of Europe adopted Recommendation on the freedom of exercise of the profession of lawyer (2000)21 on 25 October 2000, in which the fundamental role of lawyers and professional associations of lawyers in ensuring the protection of human rights and fundamental freedoms is underlined. Numerous international associations of lawyers and jurists have conducted detailed discussions and adopted positions on the role of lawyers and bar associations as regards human rights. The International Bar Association (IBA) adopted at the Annual General Meeting of the IBA held in September 1990 the Standards for the Independence of the Legal Profession. The preamble to the Standards contains the following passage: “The independence of the legal profession constitutes an essential guarantee for the promotion and protection of human rights and is necessary for effective and adequate access to legal services.” Paragraph 14 says that lawyers shall in particular have the right to “propose and recommend well considered law reforms in the public interest and inform the public about such matters”. Paragraph 18 enumerates the functions of lawyers’ associations in ensuring the independence of the legal profession such as “(a) to promote and uphold the cause of justice without fear or favour; … (f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters; (g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation”. The Standards complement the Basic Principles on the Role of Lawyers. The International Commission of Jurists (ICJ) “is dedicated to the support and advancement of those principles of justice which constitute the basis of the Rule of Law”.12 The Commission has stated that it is “essential to the maintenance of the Rule of Law that there should be an organized legal profession free to manage its own affairs”13 and that “to maintain the respect for the Rule of Law the legal profession should be free from any interference”.14 Furthermore, the Commission states that lawyers should be active in law reform and that to “discharge their obligations under the Rule of Law they will need … to act through every available organization, including in particular self-
See also Article 14 of International Covenant on Civil and Political Rights (ICCPR); Human Rights Committee, General Comment No. 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.8, Part II, (2006). 12 Statute of the International Commission of Jurists, Article 4. 13 The Rule of Law and Human Rights: Principles and Definitions as Elaborated at the Congresses and Conferences Held under the Auspices of the International Commission of Jurists, 1955–1966 (International Commission of Jurists, Geneva, 1966) p. 33. 14 Ibid., p. 34. 11
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governing lawyers’ associations”.15 In the Bangalore Declaration and Plan of Action of October 1995, dealing with the realisation of economic, social and cultural rights, it is said that among the necessary steps to ensure real progress in the attainment of the ends described is the “provision by Bar Associations and Law Societies of pro bono services and the enlargement of their agendas in the field of human rights to involve the services of their members in this regard”. Lawyers are encouraged to take “action within Bar Associations and Law Societies to add focus upon economic, social and cultural rights to their agenda for the attainment of human rights in full measure”. The Union Internationale des Avocats has issued an International Charter of Legal Defence Rights (Statement of Aims) in which it is stated that the functions of the Bar are inter alia “to promote and defend the cause of law without fear and with total impartiality” and “to promote and uphold reform of the law, to comment upon and encourage public discussion of the substance, interpretation and application of existing or projected legislation”.16 The members of CCBE (Conseil des Barreaux de la Comunauté Européenne / Council of European Bars and Law Societies) agreed in October 1988 on a Code of Conduct applicable for the cross-border practice of the legal professions of the European Economic Area (the European Union bars and the bars of Iceland, Lichtenstein and Norway). In the preamble of the Code it is provided that a lawyer’s function entails a variety of legal and moral obligations inter alia towards “the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in the face of the power of the State and other interests in society”. Numerous national bar associations and law societies are members of the international organisations mentioned, and one may unreservedly draw the conclusion that these national bar associations agree in principle with the positions taken by the international organisations regarding the role of lawyers and lawyers’ organisations in the field of human rights and adhere to similar policies domestically. As an example it may be mentioned that the Danish, Finnish and Norwegian bar associations have all published detailed human rights protection programmes containing their views on the human rights situations in their respective countries and proposals for reforms.17 This survey of the position of the United Nations and international and national bar associations indicates that the international community, as well as lawyers and their associations, are unanimous in the opinion that bar associations have a role to play with regard to human rights. The question is why the bar associations have a role to play concerning human rights and what that role is. Persons whose rights and freedoms are violated shall have an effective remedy, and they shall have their rights determined by competent, independent and impartial courts established by law. Such remedies when 15 Ibid., p. 35. 16 International Charter of Legal Defence Rights, Article 16(a) and (g), published in CIJL Bulletin, supra note 6. 17 The Danish Bar Association, Advokatrådets Retssikkerhedsprogram, 1994; The Finnish Bar Association, Finlands Advokatförbunds Rättskyddsprogram, 1995; The Norwegian Bar Association, Rett og Rettferd: Et program for ökt rettssikkerhet.
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granted shall be enforced. All persons are equal before the law, and they are entitled to the equal protection of the law. They shall be equal before the courts and tribunals, and they are entitled to a fair and public hearing. The right of equal access to justice can only be ensured if those who seek the protection of the courts enjoy adequate legal representation. Lawyers have both the right and the duty to provide such legal representation, both in civil and criminal proceedings. It is important for the legal profession to have in its ranks people with varied skills and interests so that the greatest possible number of people can have access to adequate legal counsel. Lawyers are regularly called upon to handle cases before courts and administrative organs which arouse opposition from the public, government or other entities and run a constant risk of being identified with the parties or the cause they represent before the courts even though it is their right not to be so identified. The greatest danger of this is in countries where the rule of law does not enjoy unqualified respect and opposition to government is met by illegal detention, torture, disappearances or even summary executions. Lawyers conducting the defence under such circumstances are often persecuted by the authorities.18 In such situations it is important for lawyers to be members of organised and independent associations which will take up the cause of lawyers who are subjected to persecution, whether by government authorities or others. The only way that those who are subjected to human rights violations can claim their rights is that there are lawyers prepared to provide adequate legal counsel, and that these lawyers have the support of an organised and independent bar association which is prepared to defend human rights when the need arises. In order to promote and protect human rights, bar associations must promote the knowledge, both of lawyers and the public, of human rights under their constitutions and international conventions. This can be done through courses, lectures, seminars and publication activities promoting on the one hand current rules on all human rights, political, civil, economic, social and cultural, and on the other hand explaining in what ways the legislation is defective. Thus, bar associations have the duty of debating the substance of current legislation, its interpretation and implementation. Furthermore, they should discuss pending legislation and take up the struggle for reform in this area, inter alia by participating in public debate. They should promote the assurance of equal access to the courts for the economically disadvantaged and fair treatment before competent, independent and impartial courts. Bar associations should not limit their participation in the area of human rights to administration of justice, but discuss all substantive rules of national or international human rights instruments. Human rights are now the subject of legislation and not simply of ideology. States have agreed on the universality of human rights legislation and undertaken to take up the rules of international law in their domestic legislation. Human rights are therefore in the domain of lawyers when it comes to their interpretation and implementation. Lawyers are in the best position to monitor the implementation of human rights legislation, the need for amendments and the need for reform. It is the role of bar associations to ensure through the continuous education of lawyers that they are familiar with international developments in the field of human rights so that they can invoke international 18 M. A. Rishmawi and L. Hastings (eds.), Attacks on Justice: The Harassment and Persecution of Judges and Lawyers (Centre for Independence of Judges and Lawyers, Geneva, 1997).
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rules on human rights before courts and administrative authorities as appropriate, and influence legislation. Lawyers are often the first to discover human rights violations, both in their capacities as defence counsel in criminal cases and also because those who believe that their rights have been violated seek the counsel of lawyers to ascertain their rights and to obtain assistance in the exercise of their rights. It is the role of lawyers to test the rights of citizens before the courts, and by taking on such cases they participate in the essential process of developing the rule of law. Bar associations have the duty of supporting lawyers in their professional work and no division can be effected between the lawyers themselves and their associations. According to the rule of law, bar associations must enjoy freedom of association, as well as the freedom of expression of their spokespersons, in order to enable them to fulfil their role. In conclusion lawyers have a pre-eminent role in promoting the development of human rights both individually and with the support of their associations.
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The Role of NGOs – An Overview Rachel Brett*
Using the UN’s own procedures, [Amnesty International] has subjected the actions of governments to the scrutiny of their fellow governments and the rest of the world. When looked at in this light, it is extraordinary that NGOs like Amnesty are respected and taken seriously at the UN and have been able to exert considerable influence there. Yet over the years NGOs have come to be recognised as important participants in their own right.
Introduction It is now widely accepted that without non-governmental organisations (NGOs), the United Nations (UN) human rights machinery would not be able to function. They have *
Representative (Human Rights & Refugees), Quaker UN Office, Geneva. H. Cook, ‘Amnesty International at the United Nations’, in Peter Willetts (ed.), “The Conscience of the World”: The Influence of Non-Governmental Organisations in the UN System (Hurst & Company, London, 1996) pp. 181–213, 184. For more information on human rights NGOs in general, see Willetts, ibid.; T. C. van Boven, C. Flinterman, F. Grunfeld, R. Hut (eds.), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors (Netherlands Institute of Human Rights, Utrecht, 1997); R. Brett, ‘Non-Governmental Actors in the Field of Human Rights’, in R. Hannski, M. Suksi (eds.), An Introduction to the International Protection of Human Rights (Institute for Human Rights, Abo Akademi University, Turku/Abo, 1997) pp. 327–340; D. Otto, ‘Nongovern mental Organisations in the United Nations System: The Emerging Role of International Civil Society’, 18 Human Rights Quarterly (1996) pp. 107–141; R. Brett, ‘The Role and Limits of Human Rights NGOs at the United Nations’, 43 Political Studies, special issue (1995) pp. 96– 110; R. Brett, ‘A New Role for NGOs in the CSCE’, in A. Bloed (ed.), The Challenges of Change (Martinus Nijhoff, Dordrecht, 1994) pp. 359–382; R. Brett, ‘The Contribution of NGOs to the Monitoring and Protection of Human Rights in Europe’, in A. Bloed, L. Leicht, M. Nowak, A. Rosas (eds.): Monitoring Human Rights in Europe (Martinus Nijhoff, Dordrecht, 1993) pp. 121–144; L. S. Wiseberg, The Importance of Freedom of Association for Human Rights NGOs (International Centre for Human Rights and Democractic Development, Ottawa, 1993); H. J.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 673-680.
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been involved in initiating and drafting standards, in establishing machinery for implementation and monitoring, and in providing those mechanisms with the information essential to their functioning. This does not alter the fact – indeed it may be a contributory factor in it – that the involvement of NGOs is a continual source of controversy and irritation. Some of this is deserved: too many NGOs use the opportunities presented by consultative status at the UN to publicise themselves rather than to serve the cause of human rights. Sometimes it is not so much the NGOs that are to blame but the governments which as the UN Secretary-General delicately phrased it “are sometimes tempted to try to utilize or control non-governmental organisations in order to place them indirectly in the service of their own national policies”. Much of the annoyance, however, is intrinsic to the very nature of human rights NGOs and their activities: their independence from governmental control; their role as exposers of human rights violations by governments; their constant criticism of governments, international institutions and other bodies for their actions or inaction; and their typically anarchic character, which does not sit well with the expectation that they should be well-behaved “partners” of the governments. Given the continual tensions, it is perhaps as well that NGO involvement is written into the UN Charter, Article 71 of which states: “The Economic and Social Council may make suitable arrangements for consultation with non-governmental organisations which are concerned with matters within its competence...”. This provision has been the basis for a succession of Economic and Social Council (ECOSOC) resolutions detailing those arrangements. Under the most recent of these resolutions, 1996/31 of 25 July 1996, there are three categories of NGO consultative status: General Consultative Status, Special Consultative Status and the Roster. Most human rights NGOs come into the second category being concerned with “only a few of the fields of activity covered by the Council and its subsidiary bodies”. The practical differences between the categories are negligible as far as human rights NGOs are concerned; more significant to them is the stipulation that “[o]rganisations to be accorded special consultative status because of their interest in the field of human rights should pursue the goals of promotion and protection of human rights in accordance with the spirit of the Charter of the United Nations, the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action”. Although this provision is open to many interpretations, it is unlikely to be invoked unless the status of a particular NGO is in question, and although
Steiner, Diverse Partners: Non-Governmental Organisations in the Human Rights Movement (Harvard College, Cambridge, MA, 1991); D. Weissbrodt, ‘The Contribution of International Nongovernmental Organisations to the Protection of Human Rights’, in T. Meron (ed.), Human Rights in International Law (Clarendon Press, Oxford, 1984). See for example N. S. Rodley, ‘Human Rights NGOs: Rights and Obligations (Present Status and Perspectives)’, in van Boven et al., ibid., pp. 41–60. Statement by the UN Secretary-General, Boutros Boutros-Ghali, at the UN Department of Public Information 47th Annual Conference on Non-Governmental Organisations, We the Peoples: Building Peace, New York, 20 September 1994. ECOSOC resolution 1996/31 of 25 July 1996, para 23. Ibid., para 25.
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human rights NGOs would have preferred not to be singled out in this way, this wording was seen as being better than that contained in the previous ECOSOC resolution which, if strictly applied, would have precluded NGOs working on human rights issues in only one country or region. The pattern of NGO access set by the UN has been copied to different degrees in the plethora of subsequent inter-governmental organisations with competence in the field of human rights (such as the Council of Europe and the Organization of African Unity). The situation is a dynamic one, and any specific references to human rights monitoring procedures and NGO access to them are likely to be out of date before they appear in print. Furthermore, although consultative status can be important, enabling such NGOs to attend and submit written and oral statements to, for example, the former UN Commission on Human Rights and now the UN Human Rights Council, there are many parts of even the UN human rights system which are accessible to NGOs whether or not they have consultative status. Rather than consider each procedure separately, and also those of the various regional human rights systems, this chapter will focus on the kinds of roles which NGOs can and should play in the context of reporting procedures and complaints procedures. NGOs and reporting procedures There are essentially two kinds of reports: those prepared and presented by the government itself (such as the State reports under the human rights treaty body system) and those prepared by others (for example, Special Procedures of the UN Human Rights Council, OSCE Missions, Inter-American Commission on Human Rights, Parliamentary Assembly of the Council of Europe, European Parliament). Reports by States Some would contend that the idea of asking a government to report on the situation of human rights in its own country is breathtaking in its naivety and would hardly prove to be an effective method of implementing its human rights obligations or even of getting at the truth. Governments rarely report honestly on the domestic human rights
ECOSOC resolution 1296 (XLIV) of 23 May 1968, para. 17: “Organisations accorded consultative status in Category II because of their interest in the field of human rights should have a general international concern with this matter, not restricted to the interests of a particular group of persons, a single nationality or the situation in a single State or restricted group of States. Special consideration shall be given to the applications of organizations in this field whose aims place stress on combating colonialism, apartheid, racial intolerance and other gross violations of human rights and fundamental freedoms.” See Working with the Office of the United Nations High Commissioner for Human Rights: A handbook for NGOs for detailed information about using the UN human rights system, available from the Office website: <www.ohchr.org>. Of no more than 1,500 words for those in Special Consultative Status, which are distributed as UN documents.
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situation, even if they are fully aware of it. When they do not deliberately lie or cover up, there is a tendency to play down or ignore problems in favour of either saying nothing, presenting a glowing picture or merely reciting the legal and constitutional provisions. To enable serious consideration of the human rights situation, information from other sources is required to supplement, challenge or interpret a State report. No matter how independent and expert the members of the human rights treaty bodies may be, even as a group they could never muster expertise on every country in the world at the level of detail required to cover all the relevant law and practice in relation to e.g. the Convention on the Rights of the Child. Although originally most of the human rights treaty bodies did not formally provide for input from “other sources”, NGOs have in practice always played a role. In October 1992, the chairpersons of the UN human rights treaty bodies formalised this involvement by jointly urging both national and international NGOs to provide information on a systematic and timely basis.10 This is not limited to NGOs in consultative status with the UN. To enable this to happen, the NGO Group for the Convention on the Rights of the Child has a system for alerting national NGOs to the procedure, encouraging and assisting the submission of information to the Committee, and funding (if necessary) one NGO representative from each reporting country to attend the working group of the Committee in order to supplement the written material and respond to questions from the Committee members. The value of this has been recognised by both NGOs and treaty bodies resulting in the development of similar facilitation, although in different formats, in relation to other treaty bodies. In addition sometimes international NGOs alert national NGOs with whom they are in contact, or their own national sections or members, and help or encourage them to become involved. Seen from the international perspective, there is a tendency to focus on the consideration by the Committee of the State’s report, and on the role of NGOs in enhancing that process. This is, however, a grossly misleading picture of the role of NGOs in State reporting procedures since the process both starts and finishes not in the Committee, but in the country concerned, which is where the role of national (as opposed to international) NGOs is crucial. Under the best scenario the preparation of the report is publicised within the country and becomes the focus of a debate on the state of human rights in the country, both within the government itself and between government and civil society. In some instances (some) NGOs have been involved in the preparation of the report itself. This may create its own problems: NGOs may then feel unable to criticise the report or submit alternative or additional information even when they have not had the final say about the content of the report. Better models may be to have open discussions on the issues or to present the draft report for comments by NGOs. In any case, the objectives at this stage should be not just to improve the quality of the report but also to give to the human rights situation in the country serious consideration which might, amongst other things, enables the government to take steps to remedy deficiencies or problems before its appearance in front of the relevant treaty body. Both at this preliminary stage and at the Committee stage, it is important for all parties to keep in mind that the report 10 See the International Service for Human Rights, No. 19 Human Rights Monitor (1992) p. 13.
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is meant to be a means (of ascertaining, considering and therefore improving the human rights situation in the country) and not an end in itself. At the other end of the procedure, all the UN human rights treaty bodies now adopt concluding comments or observations, but they have no means to enforce them or even to supervise the government’s response. Although some governments may seriously and promptly consider and act on such observations, the temptation is simply to breathe a sigh of relief that the reporting process is over for another four or five years. The importance of national NGOs accessing these observations and following up on them with the government cannot, therefore, be overemphasised. And the stress has to be on national NGOs: for although international NGOs can bring (some) pressure to bear on governments, they have many conflicting demands on their time, which means that any one country is less likely to receive the concentrated attention which follow-up requires. Furthermore, although outside pressure (from international NGOs, other governments, international or regional human rights bodies) may help, in the final analysis real change in a country has to come from within. Report by others Where the report is prepared by someone other than the government itself (such as Special Procedures of the UN Human Rights Council, many of which result from NGO lobbying), the dynamic is somewhat different but the basic problem remains of where the information is to come from. This is particularly true where the report is (completely or predominantly) dependent on the information being provided rather than having to be sought by the rapporteur or equivalent. At issue is not only who has the information, but also who has the commitment to invest the time and effort in submitting it to the relevant person or body at the right time and in an appropriate form. Few international human rights mechanisms have their own fact-finding capacity although more human rights monitors are now being placed in situ. Even if the author of the report has the possibility of visiting a country on a short mission, NGOs are likely to be the best guides as to the places to be visited and the persons to see. This is true even in the case of preventive visits, such as those of the European Committee for the Prevention of Torture, although, as in this case, the Committee itself (or its secretariat) may over time develop its own knowledge and sources and thus become less dependent on NGOs. Complaints procedures Complaints procedures may be divided between those based on specific cases (whether individual or groups) and those concerning general or systematic violations of human rights. Individual/group complaints Most of the current procedures do not allow NGOs to lodge complaints unless they themselves are claiming to be the victim of the violation or are the authorised representative of the victim (e.g. Article 25 of the European Convention for the Protection of
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Human Rights and Fundamental Freedoms, First Optional Protocol to the International Covenant on Civil and Political Rights, Convention Against Torture, Convention on the Elimination of Racial Discrimination). In such instances, the major role for NGOs may be in ensuring that potential victims know about the complaint procedures and how to access them unless they specialise in assisting with litigation. There are, however, exceptions. Under the European system there is also the possibility of submitting amicus curiae briefs to the European Court of Human Rights. The Inter-American Human Rights Convention (Article 44) permits “any non-governmental entity legally recognised in one or more member States” of the Organization of American States to lodge petitions about any violations of the Convention. Similarly the African Charter on Human and Peoples Rights (Article 55) permits NGOs to submit communications without requiring the organisation itself to be the victim of the alleged violation. NGOs in consultative status with the Council of Europe, as well as employers’ and workers’ organisations, can submit complaints under the Additional Protocol to the European Social Charter providing for a system of collective complaints (Article 1) as can national NGOs if the State makes the requisite declaration (Article 2). General/systematic violations Where the complaint is not based on the situation of an individual victim or group of victims, but addresses systematic or wide-scale violations, the role of NGOs is crucial. Other governments may from time to time take up such situations and lodge inter-State complaints (e.g. under the European Convention on Human Rights), but no such complaint has been made under any of the international human rights treaties. Governments may also take up country situations in political fora such as the UN Human Rights Council, but usually do so spontaneously only when they have political motives. Otherwise they act under pressure from public opinion, usually expressed through national or international NGOs. However, many possibilities exist for NGOs to raise such situations directly. The most formal is under the Convention Against Torture (Article 20), which empowers the Committee Against Torture to investigate if it receives “reliable information” of torture being systematically practiced by a State Party to the Convention which has not opted out of this provision. In the only known cases to date (Turkey, Egypt), the information came from NGOs.11 A procedure which applied to all human rights in all States was the “1503” confidential procedure of the UN Commission on Human Rights (known by the number of the ECOSOC resolution which established it), now replaced by the Confidential Complaints procedure of the Human Rights Council. Although it is open to anyone to provide reliable information of gross and systematic violations of human rights, most information again in practice comes from NGOs. Although the procedure is “confidential” and therefore considered behind closed doors with no documents available to the public, governments have access to (and some are indeed participants 11
As was the first inquiry under the newer similar inquiry procedure created by the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women.
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in) the proceedings and the potential for causing political friction thus remains a disincentive for governments to use this procedure, even when they wish to take up human rights violations. Although not formal complaint procedures, there are other opportunities – in some ways more traditional for NGOs – to raise issues in general or in specific countries. Notable among these are at various governmental meetings, such as the UN Human Rights Council (for NGOs in consultative status) or at OSCE human dimension meetings (at which self-definition of NGOs applies provided the organisation does not publicly condone terrorism).12 In some respects these are the easiest ways to raise human rights issues, and where the focus is on a specific country there may be some media interest, thus harnessing the traditional NGO forces of public opinion and the mobilisation of shame. The problem is that the effect may be no more than a mild irritant to the government unless considerable effort (and a measure of luck or opportune timing) enables some kind of follow-up procedure to be established, e.g. a resolution which appoints a UN Special Rapporteur on the country or requests a visit from one of the thematic special procedures, or a Secretary-General’s report (thus ensuring not only a report but that the issue will be on the agenda the following year). Since NGOs themselves can neither table nor vote for resolutions, much effort within countries and internationally is likely to be necessary to gain sufficient governmental support to achieve such a result. At the same time, the public exposure even by one or more NGOs should not be too quickly dismissed. Many human rights situations have only remained on the agenda or in the public consciousness because of the persistence of NGOs and their refusal to accept defeat in the face of the overwhelming reluctance or inertia of States. Clearly, the greater the number and credibility of the NGOs involved will be major factors in ensuring that their concerns cannot be dismissed even if they are not going to be acted on. Conclusion No study of NGOs can fail to note the importance of individuals with vision, or dedication to an ideal, or dogged determination, or all three, who identify an objective, who refuse to accept discouragement and who have the charisma to inspire followers to continue the fight until the goal is achieved.13
The primary focus of this chapter has been on the role of NGOs as providers of information. Where human rights monitoring at the international and regional level is concerned, the timely provision of reliable information is the major role of NGOs without which the systems would cease to function effectively or at all. However, it must not be forgotten that this is by no means the only role of NGOs. Without the publicity and human rights education provided by NGOs, people would not know about the standards 12 Conference on Security and Cooperation in Europe, Helsinki Decisions 1992, Part IV, para. 16. 13 J. Sankey, ‘Conclusions’, in Willetts, supra note 1, pp. 270–276, 274.
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and monitoring procedures. Many of the monitoring procedures only exist because of the determined lobbying and human rights expertise of the NGOs; much of the pressure for governmental implementation of the results of the monitoring mechanisms remains in the hands of the NGOs, and many of the standards which the procedures monitor are also the result of NGO initiatives and lobbying. It is impossible to overestimate the importance of the human rights NGOs, local, national, regional and international. At the same time, it must never be forgotten that the responsibility for implementing human rights, and the ultimate power in relation to the promotion and protection of human rights, rests with governments. Postscript In 2006, the United Nations abolished the Commission on Human Rights and replaced it with a new Human Rights Council. Since the Council is a subsidiary of the General Assembly rather than of the Economic and Social Council, specific provision had to be made for NGOs in General Assembly resolution 60/251. Paragraph 11 states: “the participation of and consultation with … non-governmental organisations, shall be based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996 and practices observed by the Commission on Human Rights, while ensuring the most effective contribution of these entities”. In this way, the principle of NGO access was ensured. After the initial transition phase, the practice is beginning to settle into a pattern broadly similar to that with the Commission. A small but important difference is that the Confidential Complaints procedure which replaced ‘1503’ now requires the person or NGO submitting the complaint to be kept informed of progress. However, the most significant development has been in the Universal Periodic Review system under which every UN Member State is reviewed during a four year period. Although superficially resembling the Treaty Body system in that the State under review prepares a report, a major difference is that NGOs can submit information to the Office of the UN High Commissioner for Human Rights which compiles a ten-page summary of this information, as well as a separate ten-page summary of UN human rights information on the country. These are public documents and the three documents form the basis for the review (which is undertaken by the States, members and observers of the Human Rights Council in a working group of the whole). Although NGOs cannot speak in the working group (only briefly in the plenary when the working group reports are presented), their information, and questions and recommendations suggested to government representatives, are an important factor. In addition, a lesson carried over from the experience of Treaty Body reporting is reflected in the encouragement to States for broad national consultations before preparing the State report.
64 Minority Rights Group International Clive Baldwin*
Minority Rights Group International (MRG) is the only worldwide organisation that works on minority rights, and, more generally, on the spectrum of minorities issues as well as on indigenous peoples. Forty-two years after its founding, MRG recently decided to transform its approach to become a campaigning organisation, combining a variety of methods with the one goal of bringing about real change in the lives of minorities and securing them the rights to which they are entitled. A brief history MRG began in 1965. For many years it was a very small organisation, largely based on commissioning and publishing reports describing the situation of minorities around the world. Over the years, the situation of hundreds of different minority groups has been described and recorded, often for the first time in English. MRG became known as an authoritative voice. MRG’s work has expanded into new areas, becoming involved in the formulation and development of international standards on minority rights, and contributing to the ability of international institutions to protect and apply these rights. MRG’s efforts bore particular fruit in the early 1990s, when minority issues were briefly at the centre of world attention upon the end of the Cold War, and notably as a contributing factor in the outbreak of war in the former Yugoslavia. MRG played a role in the development of the first new international standards in minority rights in many years, the UN Declaration on the Rights of Persons Belonging to Ethnic or Religious, Linguistic or
*
Senior Legal Advisor, Human Rights Watch; former Head of Advocacy, Minority Rights Group International. Disclaimer: The opinions of the author are his own and do not necessarily reflect the opinions of Human Rights Watch or Minority Rights Group International.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 681-686.
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Religious Minorities, and the Council of Europe’s Framework Convention, and their monitoring bodies. Moreover, MRG began to work increasingly with minority groups themselves, largely through training them on using the international mechanisms and standards. Although still working worldwide, MRG developed particular regional focuses: South and Southeast Asia; East Africa; and Central and Southeast Europe. Two notable communities MRG has worked with for many years have been the Twa of Central Africa and the Roma of Europe. One project, bringing minorities to Geneva to train them on minority rights and enabling their participation in the annual session of the UN Working Group on Minorities has been particularly successful; thanks to MRG many minorities have henceforth been able to articulate their problems before UN fora. In more recent years, MRG has undertaken two new types of activities. The first was direct working in and with the media, in having its first official media officer (albeit part time) in the 1990s, which by 2006 had become a full department. In 2002, MRG began its first work on litigation, assisting minorities to bring legal cases for the implementation of their rights, with the aim also of helping set precedents for minority rights. Bringing it all together – the campaigning approach In 2004, MRG made a fundamental shift in its strategy. This was based on a comprehensive review of MRG’s work, and the situation in the world in the 21st century. In effect, MRG asked itself what its actual purpose should be, and it was felt as a human rights organisation with strong links on the ground that this should be about securing real implementation of rights. This was a significant shift for the organisation, which effectively had spent its first four decades with the much more limited aim of raising awareness of minorities and minority rights. Having decided to focus on change, the organisation decided that the best way to do this would be to become a campaigning organisation. This was based on an assessment of MRG’s work over the years. It was seen that whilst the organisation could produce what were acknowledged to be very good reports, trainings, etc., it was not clear what, if any, impact these had had. For example, a report could be acknowledged as very good, but then be simply filed away. An excellent training session would still only last a few days, without any guarantee as to what would be done afterwards. Similarly the media is notorious for only addressing an issue for a day or two, whilst minority issues take years to resolve. And there are plenty of wonderful legal judgments that have not been implemented. Therefore, MRG decided to officially “campaign” for change. By campaigning it does not necessarily mean public campaigns (indeed sometimes publicity is not desired). Campaigning means having a specific goal and a time-limited period in which a variety of methods are used to build up towards achieving that change. These methods can include publishing information and solutions; using international mechanisms; using the media and litigation; and others. MRG now aims that all of its work will be part of campaigns. Finally, at the same time, MRG decided to focus its work around five major themes, which themselves became the long-term campaigns. These were done so the organisa-
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tion could develop real expertise on all aspects of the most critical issues affecting minorities. The five were chosen after extensive consultation with minorities on the most important issues affecting them, and with MRG and other experts’ own knowledge, and are: conflict and genocide prevention; education; land and property rights; gender; and development. Minorities and indigenous peoples One might think that Minority Rights Group International starts with a handicap in its name and constituency. The term “minority” is one of much controversy and is often said to lack a definition. In many parts of the world the term is extremely negative, with governments denying that minorities exist, and groups who are a minority saying they are not. In fact, MRG’s experience over the years is that this issue is much more of a theoretical problem than a genuine obstacle. There is a clear international understanding of who is a minority: persons who perceive themselves to be a group based on language, religion, culture or ethnicity and who happen to be a minority, and, most importantly, lacking power. National definitions and understandings may vary from it, but MRG, as an international organisation, uses the international understanding. Where the issue is particularly sensitive, notably when a group rejects the term minority because it fears to be seen as making a political statement about its position (e.g. at different times Albanians and Serbs in Kosovo), MRG simply informs them of the international position and lets them decide whether they want to benefit from international minority rights to which they are entitled. In recent years, MRG also decided to work with and on behalf of the rights of indigenous peoples. This was because indigenous peoples, although not always a minority, do have many of the same issues and rights as minorities. Methods Deciding on the desired change MRG’s campaigning, based on securing rights, is a comprehensive approach. The essential first step is determining what change is to be campaigned for. This requires three steps. First finding out the situation on the ground and what minorities want. MRG has a series of partners, largely minority organisations, but often conducts its own investigations. MRG’s reports are very useful source material. Next, the minority rights issue at stake must be identified. MRG is a rights organisation – it works only on human rights issues as they apply to minorities (including specific minority rights). Therefore not everything of concern to minorities will be an issue MRG can take up – e.g. we cannot address general issues of unemployment (although we can focus on discrimination in employment). Finally, a reasonable solution to the issue that can be campaigned for must be determined. This requires not only understanding the minimum required to end any violation of rights, but also taking the best practices from similar situations elsewhere in the
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world and crafting a solution that will be acceptable to all sides. For MRG it is often better to come up with a solution that will solve the underlying problem. For example, when dealing with a specific community that has lost its ancestral lands, as well as a solution that will return the community to their lands, it will be better to have new land policies and laws that give adequate ownership and restitution and compensation to all communities in that country. Campaigning for change Having determined what needs to be achieved, a campaign must then decide on how to achieve this. The most essential steps in this are to identify who has the power to make the necessary change and then persuade that “decision-maker” to act (or cease acting in an objectionable way). It is this act of persuasion which is the most important in campaigning. To persuade a decision-maker one must have a powerful argument as to why a change is needed, and understand that decision-maker’s motivations. As stated above, MRG has come to the view that only a comprehensive approach to using different methods at different stages of a campaign can be effective. MRG’s main methods are first: the provision of information, through means such as formal reports, informal briefings and, increasingly, our website. Providing information is almost always a necessary early step, but it is far from sufficient. A classic mistake in advocacy organisations is to assume that “raising awareness” will be enough to bring change. Notwithstanding the strength of MRG’s arguments, nearly always further proactive strategies are needed. One of these methods is using the media, and thereby influencing “public opinion”. This is extremely important, bearing in mind that the purpose is not an end in itself. Raising an issue in the media may indeed persuade the decision-makers of the need for action. This is often the case, as many decision-makers do listen to the media. But to be effective it must be the right media in the right country at the right time. Organisations like MRG, based in London, must not assume that the UK media is the most important for any particular issue. On some issues, minorities will not want nor benefit from any publicity. Another method, still largely underused but which can be very effective is litigation. MRG practices “strategic” litigation – i.e. supporting legal cases which are likely to have a wide impact, such as by setting precedents or leading to major policy changes. Litigation can often be the only way to make decision-makers listen, and can be particularly important for minorities, who by definition will lack the political power to make their voices heard. However, it will not be appropriate everywhere. Litigation can be resource intensive, and the timing is often very uncertain. Most importantly, it will be difficult to justify conducting litigation in societies where there is no respect for the rule of law – so if a case is won, it will be ignored. A further method is to put pressure on the actual decision-makers by persuading those who have influence on them. At the international level this can be international institutions, such as the UN or regional bodies, important governments or the European Union or development actors who provide funding. Again this has to be carefully con-
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sidered for each case. International organisations may often have formal human rights procedures which can lead to good recommendations, but these are rarely implemented. On the other hand, a clear and strong informal recommendation from a United Nations Development Programme or European Union office in some countries may be extremely powerful. Finally, in all MRG campaigning working with minorities is vital. It is they who determine what the issues are, and they who will continue to campaign for the very longterm. Therefore a critical issue for MRG is to ensure that minorities are able to continue any campaign in the long-term. This requires “capacity building” in the widest sense of the term, both formal training on all the above, but even more so learning by doing. Five campaigns MRG has focused its work into five thematic areas, or long-term campaigns: First, land and property rights, where the main aim is to campaign for the protection of existing land and property rights of minorities and indigenous peoples, and to ensure lost land is restored and/or compensation given. Specific campaigns include that of the Endorois people in central Kenya, and the Chagossians of the Indian Ocean. Second, is gender and minorities, where the campaign is to address the many issues of double discrimination on the grounds of gender as well as being a member of a minority. Thirdly, the development campaign aims to ensure a more equitable access to development resources for minorities, and an end to development projects that have a negative impact on minorities’ culture and way of life. Fourth, the education campaign aims to ensure that minorities have equality in fact in education, which will also reflect their language, culture and religion, and an end to educational practices (including textbooks) that discriminate against minorities. Fifth, using minority rights to prevent conflict and genocide, currently MRG’s largest campaign, aims to ensure that those working on conflict prevention, whether globally or in specific situations, understand and apply minority rights in a way that will prevent conflict. Conclusion – three aspects Becoming an effective campaigning organisation is a significant shift for MRG. It has become apparent that campaigning requires combining three levels of approach which MRG needs to do in a much deeper way than in the past. Working with minorities. Whilst MRG has done this for many years, achieving change on the ground requires a much deeper and long-term engagement with specific groups, to understand their issues, working with them on adapting campaigns to changing circumstances and ensuring they are left with a legacy of knowledge they can take forward in subsequent campaigns. This requires considerably more work from MRG at “grassroots” level, away from capital cities and international meetings. Rights and best practices. MRG’s essential raison d’etre and certainly the main benefit it can bring to specific situations is the understanding of minority rights and the best (and
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worst) practice on how (not) to apply them. Again effective campaigning requires this to be taken to a new level of understanding, and it is important for MRG to be able to justify why lessons from elsewhere in the world can be applied in specific circumstances. MRG also needs to campaign to ensure that minority rights standards continue to be developed at the international level, so that they can be applied in real situations. Engaging with decision-makers. This is the biggest change of all for MRG. It requires serious and ongoing analysis of who are the actual decision-makers and how to influence them. The temptation will always be to influence the easy targets, rather than those who matter. The outcome should be effective change, the essence of all human rights activism. One inspiration can come from the civil rights movement in the United States in the 1950s and 1960s, where a variety of methods, litigation, media, use of international and domestic actors, ongoing training and mass movements were used by an oppressed minority with a common and clear goal to end discrimination and reclaim their rights. The success of that movement can and should be duplicated in many situations in the world.
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Monitoring Human Rights in Post-war Bosnia and Herzegovina: The Human Rights Chamber and Its Contribution to the Establishment of Rule of Law in Post-war Bosnia and Herzegovina Ekkehard Strauss*
Establishment and mandate of the Human Rights Chamber The Human Rights Chamber for Bosnia and Herzegovina (the Chamber) was established by Annex 6 to the General Framework Agreement for Peace, signed in Paris on 14 December 1995, (the Dayton Peace Agreement) that ended the conflict in Bosnia and Herzegovina (BiH). The Chamber was established as one of the two parts of the Commission on Human Rights, which has assisted the State and the two Entities of BiH – the Republika Srpska (RS) and the Federation of BiH – in honouring their obligations under the Dayton Peace Agreement. While the Office of the Ombudsman was expected to investigate allegations of human rights violations, the Chamber was to issue final and binding decisions in a judicial procedure on cases referred to it by the Office of the Ombudsman or directly from any Party to the Dayton Peace Agreement or individual. The Chamber had jurisdiction to consider alleged or apparent violations of the European Convention on Human Rights (ECHR) and the discrimination with regard to those rights guaranteed by international instruments referred to in the Appendix to the Dayton Peace Agreement. At the end of its mandate, the Chamber had registered 15,191 applications and resolved 6,242. The Chamber had passed 2,667 separate decisions, thereby implementing *
The author was Senior Legal Adviser on Human Rights Institutions with the OSCE Mission to Bosnia and Herzegovina from 1999 to 2001. The chapter reflects his personal opinion. Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. See for more details Z. Pajic, ‘An Overview of the Substantive Human Rights Regime After Dayton: A Critical Appraisal of the Constitution of Boenia and Herzegovina’, in M. O’Flaherty and G. Gisvold (eds.), Post-War Protection of Human Rights in Bosnia and Herzegovina (1998) pp. 198 et seq.; R. Aybay, ‘A New Institution in the Field: The Human Rights Chamber of Bosnia and Herzegovina’, 15:4 NQHR (1997) pp. 529 et seq. Monthly Statistical Summary, December 2003, <www.hrc.ba/ENGLISH/stat_summaries _eng/summary.asp>.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 687-693.
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the obligation of the State and the Entities under the Dayton Peace Agreement to ensure the highest standard of internationally recognised human rights and fundamental freedoms. As these decisions are final and binding upon all powers of a respondent Party, i.e. judiciary, executive and legislative power, the application by the Chamber of international human rights standards to situations in BiH has served as an important precedent for the implementation of human rights obligations in the country in general. The mandate of the Chamber was rather unique for several reasons. First, the Chamber could be considered a judicial organ sui generis as it was established as an institution of BiH, while, at the same time, its membership included international judges appointed by the Council of Europe. Secondly, the Chamber fulfilled the function of the European Court of Human Rights on the national level of a State not a Member of the Council Europe at that time. Third, the mandate of the Chamber included the application of a list of international human rights treaties that had not entered into force at that time, like the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, nor did it foresee individual complaints procedures, like the purposed protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Key challenges for the implementation of the mandate of the Human Rights Chamber In order to exercise its jurisdiction effectively, it was important for the Chamber to establish an effective distribution of work with the Ombudsman, explain the limits of its mandate in an environment overwhelmed by past and ongoing human rights violations and to be able to show that its decisions were respected and implemented. The relationship with the Ombudsman for Bosnia and Herzegovina The relationship with the Ombudsman, expected to fulfil a function similar to the European Commission of Human Rights at that time, developed differently than expected. Rather than using its extensive investigative powers and transmitting cases for precedent decision to the Chamber, the Ombudsman provided legal opinions on the interpretation of the ECHR in reports on individual applications and thematic reports. A close cooperation with the Chamber was not established, and the two institutions developed quite independently.
See for details Article VII of Annex 6 to the Dayton Peace Agreement. BiH joined the Council of Europe on 24 April 2002. See e.g. M. Nowak, ‘Individual Complaints Before the Human Rights Commission for Bosnia and Herzegovina’, in G. Alfredson et al. (eds.), International Human Rights Monitoring Mechanisms (2001) pp. 771 et seq.; G. Haller, ‘The Human Rights Regime in Bosnia and Herzegovina in the European Context’, in W. Bendek (ed.), Human Rights in Bosnia and Herzegovina after Dayton – From Theory to Practice (1999) pp. 25 et seq.
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Consequently, the Ombudsman was transferred separately to the authority of BiH, on 3 January 2001, according to the Law on the Human Rights Ombudsman of Bosnia and Herzegovina, which replaced the relevant part of Annex 6 of the Dayton Peace Agreement. In November 2003, after the end of a transitional period, the first three nationals of BiH were appointed Ombudsman by the Parliamentary Assembly. The new institution started its work on 1 January 2004. Limitations to address human rights violations The Chamber was able to establish a comprehensive case law on the most relevant legal challenges for the implementation of human rights in post-war BiH. While the Chamber was established to address human rights violations committed after the signature of the Dayton Peace Agreement, important cases of ongoing human rights violations dating back from the conflict could be addressed through the Chamber’s interpretation of its competence ratione temporis. In its first decision, the Chamber decided that RS authorities violated the right to liberty and security of a Catholic priest, who was arrested and disappeared during the conflict and where evidence suggested that he was offered for exchange with other prisoners after Dayton. The Chamber found itself competent as well to examine whether the continued enforcement of an ordinance closing a Muslim cemetery and issued prior to the entering into force of the Dayton Peace Agreement constituted a violation. However, it was difficult for the people of BiH to understand that the Chamber was not competent e.g. to have the pre-war name of municipalities and settlements restored; to award to an applicant a re-opening of court proceedings,10 amnesty11 or pardon;12 or review domestic legislation in abstracto.13 Also, the Chamber had to reject complaints directed against the Republic of Croatia,14 the Federal Republic of Germany15 or British SFOR16. Dominant areas of alleged violations included the right to property and housing, the right to return, discrimination on the basis of ethnicity and the right to a fair trial in an almost dysfunctional national justice system. While in these cases the Chamber tried to follow closely the jurisprudence of the European Court for Human Rights, later, the Chamber took the challenge to enter into areas rather unknown to human rights case law at that time and offered innovative and forward-looking interpretations of interna 10 11 12 13 14 15 16
Matanovic, Case No. CH/95/1, 18 HRLJ (1997) p. 299. The Islamic Community in BiH, Case No. CH/99/2177, Decisions January–June 2000, pp. 509, 589. Sljivo et al., Case Nos. CH/00/4424-30. Majstorovic, Case No. CH/97/61, 17, Decisions and Reports 1998, p. 267. Rizvanovic, Case No. CH/98/807, Decisions January–July 1999, p. 373. Idrizovic, Case No. CH/98/1412, Decisions January–July 1999, p. 453. Vujmilovic, Case No. CH/98/192, Decisions and Reports 1998, p. 323. Elez, Case No. CH/99/1657, Decisions January–June 2000, p. 439. Avdagic, Case No. CH/00/5911, p. 2. Radic, Case No. CH/00/4194, p. 7.
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tional human rights obligations. The Chamber addressed the removal of graveyards and the construction on and occupation of sites of former buildings of the Islamic community as interference with the peaceful enjoyment of possessions.17 In another important decision the Chamber considered that the respondent Parties did not only have to pass legislation, but that the legislation also had to be implemented to guarantee the right to housing effectively.18 This could include a positive obligation of the provision of necessary assistance in the recovery of property by means of eviction.19 The Chamber also addressed complex questions related to the privatisation process.20 Implementation of decisions The Office of the High Representative (OHR) monitored the implementation of the decisions of the Chamber. However, it appeared quite soon after the first decisions were passed that even in the rare presence of political will for implementation the amount of compensation and the steps necessary to be taken under national law often exceeded the authority and qualification of the agents representing the Parties in the proceedings. Consequently, OHR and the OSCE Mission to BiH (OSCE) established monthly meetings with the agents of the respondent Parties to the Chamber to discuss the implementation of decisions and mutually agree on steps to be taken towards implementation before any sanctions were applied. The registrar of the Chamber and a representative of the Ombudsman participated in the meetings ex officio. While this practice offered valuable insight into the functioning and difficulties within the governments in question, the deadlines for implementation could not be met and the authority of the Chamber might have been undermined in this regard. Notwithstanding the obligations of the Parties to Annex 6 of the Dayton Peace Agreement, as of today, the implementation of decisions of the Chamber has been very limited. There have been particular concerns about the lack of implementation of decisions with regard to missing persons and enforced disappearances. The number of individual applicants who have applied to the Chamber and the Ombudsman totals almost 500 persons. Domestic authorities were ordered to carry out investigations on the fate of the missing persons and to provide reparations to the families. In the overwhelming majority of cases the authorities failed to ensure the families’ right to know and to conduct full and thorough investigations in these cases. Ad hoc investigative bodies with a focus on particular cases have been created, but they did not solve the underlying political problem of addressing the legacy of the conflict.
17 18 19 20
The Islamic Community in Bosnia and Herzegovina, Case No. CH/98/1062, p. 112. Petrovic, Case No. CH/00/6142, p. 48. Blentic, Case No. CH/96/17, Decisions on Admissibility and Merits 1996-1997, p. 32. Poropat et al., Case Nos. CH/97/48 et al., Decisions January–June 2000.
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End of mandate and transfer of the Human Rights Chamber According to Article XIV of Annex 6 the responsibility for the continued operation of the Commission was to be transferred to the national institutions of BiH after five years. However, surprisingly little planning was done prior to that date. After an extension of the mandate of the Chamber for an additional year by the Peace Implementation Council, OHR and OSCE requested the support of the Venice Commission in drafting the relevant legislation for a transfer of the Chamber. The Venice Commission, in its working papers, proposed the transfer of all competences of the Chamber to the Constitutional Court in order to ensure in the future the highest level of protection of human rights in BiH.21 On 22 and 25 September 2003, the Parties to Annex 6 entered into the Agreement Pursuant to Article XIV of Annex 6 to the General Framework Agreement for Peace in Bosnia and Herzegovina. According to this agreement, the Chamber’s mandate expired on 31 December 2003. The Agreement established the Human Rights Commission to operate between 1 January 2004 and 31 December 2004 within the Constitutional Court of BiH. The Human Rights Commission had jurisdiction to consider pending cases received by the Chamber on or before 31 December 2003; after 1 January 2004, new cases alleging human rights violations have been decided by the Constitutional Court. Proposals for a transfer met with fierce opposition from within the Chamber, while donors made clear that the continuing functioning of the Chamber was not an option. In June 2003, the Chamber issued an Opinion, in which it challenged the proposed agreement by the OHR, arguing that the suggested disbanding of the Chamber and transfer of cases to the Constitutional Court would violate the Dayton Peace Agreement and the Constitution. At the same time, the accession of BiH to the Council of Europe could have lead to duplication of the function of the European Court of Human Rights on the level of BiH. Unfortunately, international human rights NGOs and the United Nations High Commissioner for Human Rights did not address the question until it was too late and a decision on the modalities of the transfer had been made.22 While concerns about a decrease in human rights protection were evidently relevant, at least for the mere fact that the main human rights protection mechanism was discontinued, the transfer of the functions of the Chamber to the Constitutional Court has proven a valuable option. The continuity of personnel allowed judges from BiH to apply their experience gained during their work in the Chamber. Furthermore, the transfer made the case law and pending decisions of the Chamber part of the national jurisprudence. The Constitutional Court was able to reduce the caseload to 854 pending applications by September 2006. Finally, the provisions of the agreement on the transition tried to address some of the difficulties regarding the lack of implementation of decisions 21 See in particular Venice Commission, Proposal for a Law on the Merger of the Human Rights Chamber and the Constitutional Court of Bosnia and Herzegovina, adopted by the Venice Commission at its 48th Plenary Meeting (Venice, 19–20 October 2001), CDL-INF(2001)020 of 23 October 2001. 22 Amnesty International, Bosnia-Herzegovina, Abolition of Human Rights Chamber leaves citizens unprotected, Press Release, 11 June 2003; Amnesty International, Bosnia and Herzegovina, Human Rights Chamber abolished, Press Release, 16 June 2003.
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by the Chamber. Now, the respondent Party is obliged to submit information on the measures undertaken to enforce the decisions of the Commission. In the case of failure to enforce or delay in implementation, the Commission can adopt a ruling establishing that its decision was not enforced. This ruling is submitted to the public prosecutor and the representative of the respondent Party. The failure to enforce a decision could constitute a criminal offence in accordance with the Criminal Law of BiH. Contribution of the Human Rights Chamber to the development and realisation of the rule of law in Bosnia and Herzegovina While a final assessment of the contribution by the Chamber to the development of the rule of law in BiH is still outstanding, some preliminary conclusions should be drawn. Through its case law, the Chamber made important contributions to the application of the ECHR and international human rights treaties on human rights issues in postwar BiH. These contributions were effective on different levels within BiH. First, according to its role and mandate as established in Annex 6, the Chamber provide precedent for the application of the ECHR to national courts and other authorities.23 In this regard, it was important for the decisions of the Chamber not only to reflect the legal findings, but to describe the procedure and methodology applied to arrive at a particular interpretation. Second, throughout the years, the Chamber and the Ombudsman trained national members and staff on the work and functioning of an international court. Thus, the institutions provided BiH with a number of highly qualified and experienced professionals, who could be used for the establishment of a functioning national court system. It should be considered a success of the work of both institutions that its former staff members can be found today in key positions within the Constitutional Court of BiH, the constitutional courts of the Entities and the ombudsmen of the Entities. Third, the decisions of the Chamber provided legal guidance to human rights components of international organisations and to national and international NGOs, thus supporting a certain degree of complementary interpretation within the development and implementation of projects addressing the political and economic post-war needs.24 In addition, with regard to the clarification of the factual background of a case, the Chamber invited the Ombudsperson, the OSCE or the Office of the High Representative to make interventions amicus curiae, either in writing or during a public hearing.25 On a more general level, the Chamber contributed to the clarification of the relationship and scope of application of the ECHR and international human rights treaties. The Chamber defined provisions of the ECHR by referring to international standards, such as “forced and compulsory labour” as in International Labour Organization Convention 23 See for more details C. Harland et al., Commentary of the European Convention on Human Rights as Applied in Bosnia and Herzegovina and at Strasbourg (2004). 24 See for details L. Berg and E. Strauss, The Human Rights Chamber of Bosnia and Herzegovina. A Handbook for Practitioners (2000). 25 Secerbegovic et al., Case Nos. CH/98/706 et al., Decisions and Reports January–June 2000, pp. 7–9, 11, 37.
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No. 29 of the Concerning Forced and Compulsory Labour.26 Furthermore, the Chamber laid the foundation for the enforcement of economic, social and cultural rights through its competence to consider alleged or apparent discrimination in the enjoyment of rights, including those within the ICESCR.27 In this regard, United Nations human rights treaty bodies and the European Court of Human Rights should be encouraged to consult the decisions of the Chamber when developing their own case law. The Chamber was successful and courageous in developing the application of the ECHR and international human rights treaties to new areas. In addition, the Commission developed working methods of individual complaints mechanisms that should be consulted when developing procedural rules within the broader framework of the creation of a unified human rights treaty body.28
26 Hermas, Case No. CH/97/45, Decisions and Reports 1998, p. 177. 27 Janjic, Case No. CH/01/6742, p. 5. 28 See Report by the Secretarit, Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, U.N.Doc. HRI/MC/2006/CRP.1 of 14 March 2006.
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Part XII: The Future
66 Eight Reasons Why We Need a World Court of Human Rights Manfred Nowak*
Human rights without a remedy are like the United Nations without Jakob Möller: an empty promise The very idea of a right means that somebody has a claim against somebody else, and the other one has a duty to meet this claim. If the duty-bearer does not live up to his or her obligations, the rights-holder has a remedy to hold the duty-bearer accountable. Otherwise, the right would be meaningless. A remedy means that the rights-holder can sue the duty-bearer before an independent neutral body, which has the power to decide in a binding manner whether or not the duty-bearer violated his or her obligations. Such an independent neutral body is usually called a court. If the court finds that the duty-bearer violated certain obligations, it has the power to order the duty-bearer to provide reparation to the rights-holder. A human right constitutes a special, particularly important claim of a human being relating to fundamental values, such as life, liberty, human dignity, work, health, social security or education. Under international human rights law, States have specific corresponding obligations vis-à-vis human beings under their jurisdiction to respect, fulfil and protect all human rights enumerated in binding treaties to which they are parties. If States violate a human right, the individual concerned can lodge an individual complaint before a domestic court. If the domestic courts, for whatever reason, are not able or willing to provide redress to the claimant, he or she, after having exhausted all relevant domestic remedies, should be able to lodge an individual complaint against the respective State before an independent and neutral international body. This body should be able to establish the facts, decide on the alleged violations and, in case of violations, provide adequate reparation to the applicant. *
Professor for International Human Rights Protection, University of Vienna; Director, Ludwig Boltzmann Institute of Human Rights; UN Special Rapporteur on Torture. Disclaimer: Please note that some time has passed between the submission of this chapter and the date of publication of this volume and hence developments, e.g. with regard to the Human Rights Council, may have taken place that are not fully reflected here.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 697-706.
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This is the simple logic of rights and duties, human rights and State obligations, responsibility and accountability. Reality looks, however, somewhat different, above all in the United Nations (UN). That the United Nations, nevertheless, developed a system of individual complaints against States which, at least in principle, follows this simple logic is to a great extent the result of the work of Jakob Möller, to whom this book is dedicated. As long time chief of the so-called Individual Communications Unit of the United Nations, he simply ignored the numerous obstacles against dealing effectively with individual complaints and proceeded as if he was preparing judgments for a World Court of Human Rights. That is why he deserves further editions of this book in his honour until a World Court of Human Rights is finally established by the United Nations. Final views on communications are nice, but legally binding judgments on complaints are simply better During the time of the Cold War, when most of the United Nations human rights treaties were drafted, this drafting followed a certain logic which was not always easy to understand. First of all, States did not like international human rights because human rights restrict their sovereign power to deal with their own people as they see fit and, therefore, unduly interfere with their internal affairs. But, in reaction to the Nazi Holocaust, they had agreed to include the promotion and respect of human rights as one of the main purposes of the United Nations. This had created hopes among the oppressed people in the world that the United Nations would help them to enforce their human rights against their governments. The newly created Commission on Human Rights received thousands of individual petitions from all regions of the world crying for help and protection. Since States, when drafting the UN Charter, had avoided the words “protection of human rights” and, in addition, had included language to the effect that human rights, in principle, would fall exclusively within the “domestic jurisdiction” of States, the Commission quickly agreed on the so-called “no power to take action” doctrine. In other words, thousands of individual human rights petitions were simply shelved because the United Nations, created in response to egregious human rights violations, had decided that it lacked any power to protect these human beings against violations of their human rights. But something needed to be done to show that human rights were taken seriously. The Commission decided that protection was only possible on the basis of binding human rights treaties voluntarily agreed to and ratified by sovereign States. This was the beginning of a long process of drafting an “International Bill of Human Rights”. The first step, the adoption of a non-binding “Universal Declaration of Human Rights”, was quickly achieved on 10 December 1948. But the adoption of a “Universal Convention on Human Rights” with a proper implementation mechanism, such as binding judgments by the International Court of Justice or effective action by an Attorney General or High Commissioner for Human Rights as proposed by Uruguay, was obstructed and considerably delayed by Cold War politics. In 1951, the Western States succeeded by a small majority with their demand for splitting the Universal Convention into two separate “Covenants”, each with a different set of monitoring procedures. This was based on their conviction that only civil and political rights were real human rights which
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could be enforced by means of individual complaints before an international court, such as the European Court of Human Rights established by the European Human Rights Convention of 1950. The Socialist and most of the other States disagreed with this distinction and the lower status accorded to economic, social and cultural rights. But, according to the Socialist concept of human rights, individual complaints against States constituted a bourgeois concept which undermined State sovereignty. Human rights were to be protected by the State, and not against the State! To find a compromise between these two conflicting views was not an easy task. Nobody wanted to create an individual complaints mechanism for economic, social and cultural rights. The only monitoring mechanism created by the International Covenant on Economic, Social and Cultural Rights, therefore, was the State reporting procedure before the Economic and Social Council! Although States finally realised that this was not the best idea and, in 1985, created an independent expert Committee on Economic, Social and Cultural Rights, the proposal to establish an individual complaints mechanism by means of an Optional Protocol has been under consideration by the Commission (and now by the Human Rights Council) for a considerable time. In relation to the International Covenant on Civil and Political Rights, the Netherlands, with the assistance of various other States, including Nigeria, Lebanon, Canada, the Philippines, Costa Rica and Uruguay, finally managed a compromise of an optional individual complaints procedure before an independent expert body, the United Nations Human Rights Committee. But the language of the first Optional Protocol to the International Covenant on Civil and Political Rights, adopted together with the Covenants on 16 December 1966, illustrates that States finally agreed on the lowest common denominator. Rather than including the individual complaints system with an optional clause in the text of the Covenant itself (similar to the optional inter-State complaints system in Article 41 of the Covenant or in other UN human rights treaties), the Socialist States insisted that it had to be moved to a separate treaty. Rather than using the usual terms “complaints”, “petitions” or “applications”, the Optional Protocol only speaks of “communications from individuals”. Rather than establishing the facts of a case by means of an oral and public hearing with witness and expert evidence, the Human Rights Committee is restricted to gather “written information” from both parties and to consider this information in “closed meetings”. Rather than deciding on a complaint, the Committee shall “forward its views to the State Party concerned and to the individual”. It is not difficult to guess that these “final views” are not legally binding, and that the Committee has no power to order the respondent State to provide any particular form of reparation to the victim in case a violation of the Covenant has been found. In other words, a State might ratify the Optional Protocol and thereby accept the right of individuals to lodge a communication to the Committee, but nevertheless inform the Committee, should it find a human rights violation in a particular case, that it simply does not agree with the “views” of the Committee and, therefore, refrains from implementing these “views”. In fact, the Committee recently received such a reaction even from a highly democratic and human rights minded country, the Netherlands. Other States Parties, including Austria, simply ignore “views” of the Committee that they dislike.
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Although the United Nations still maintains a strict separation between East and West, we can’t deny it: the Cold War is over It is a cold and grey day in Geneva. The Czech ambassador to the United Nations, who recently has been appointed chairperson of the Working Group of the Human Rights Council entrusted with the important task of reviewing, streamlining and making more effective a bunch of so called experts calling themselves “Special Procedures”, is on his way to the daily European Union (EU) morning meeting, where EU Ambassadors regularly remind each other of the unfortunate fact that the Organization of the Islamic Conference has removed them from the driving seat of the UN human rights train. After the meeting his German and French colleagues run to the coordination meeting in the WEOG (Western and Others Group), but he will meet in the Eastern European Group in order to find a common position with his colleagues from Belarus and the Russian Federation. It is this spirit of keeping up the good old divide between Eastern and Western Europe which reminds us that a World Court of Human Rights is nothing but utopia. At least this is the usual response I receive even from well-intended Western diplomats when I raise the need for a World Court of Human Rights. This seems to be a highly interesting idea, I am told, but a little too revolutionary and utopian for the United Nations. As a human rights “expert”, I should be experienced enough to understand that the time is simply not yet ripe for such a big step. In nice diplomatic words, I am told that we should not alienate the Russians, the Americans, Africans and, above all, the Asians with such untimely and unrealistic ideas. Even the Secretary General and the High Commissioner for Human Rights, in their recent and far-reaching proposals aimed at reforming the United Nations and, in particular, its discredited human rights performance, did not dare to raise this issue. All that the High Commissioner suggested in her Plan of Action was the creation of a consolidated treaty body. But nobody seems to remember that the idea of a World Court of Human Rights is neither new nor revolutionary, but was in fact already discussed in the late 1940s and then defeated by the political realities of the Cold War. The United Nations might learn from regional organisations Why is the proposal of a World Court of Human Rights with the power to decide in a legally binding manner on individual complaints unrealistic if it has been accepted in all world regions where a regional system for the protection of human rights exists? Western diplomats who had raised the need for an individual complaints system in the early 1950s usually referred to the model of the European Convention and the European Court of Human Rights. At that time, the jurisdiction of the Strasbourg Court was still optional and only accepted by a few pioneering States. The main responsibility of dealing with individual petitions, which also was an optional procedure, rested with the European Commission of Human Rights, which was only entrusted with issuing non-binding decisions and reports. Final and legally binding decisions on individual petitions were reserved to the Court and, in the absence of a respective optional declaration, to the Committee of Ministers as the highest political decision-making body of the
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Council of Europe. The Committee of Ministers could only find a violation of human rights by a two-thirds majority of Member States. By the end of the Cold War, this pioneer system of dealing with human rights complaints had generally been considered as over-cautious and a little old-fashioned. With the entry into force of the 11th Additional Protocol to the European Convention in 1998, the Council of Europe removed the dust of the 1950s (all optional clauses, the European Commission of Human Rights and the decision-making role of the Committee of Ministers) and created a single and full-time European Court of Human Rights. Today, all individuals in the 47 West, Central and Eastern European Member States of the Council of Europe, including the Russian Federation, Turkey, Cyprus and the Caucasus Republics, enjoy the unrestricted right to lodge an individual application against their respective States, and the European Court of Human Rights decides by a final and legally binding judgment whether or not the respective government violated any of the rights contained in the Convention and its Additional Protocols. If the Strasbourg Court finds a violation, it has some power to afford just satisfaction. The Committee of Ministers is entrusted to supervise the execution of final judgments of the Court. In recent years, the Court delivered roughly 1,000 final judgments and several thousands of procedural decisions per year. Already in 1969, the Organization of American States adopted the American Convention on Human Rights on the model of the European Convention on Human Rights. After its entry into force in 1978, the Inter-American Court of Human Rights was established in San José, Costa Rica, which has similar powers to the old European Court of Human Rights. Although the time seems ripe to also remove some of the Cold War dust from the Inter-American individual complaints system, it needs to be stressed that the Inter-American Court delivered a considerable number of landmark judgments and interpreted its power to afford fair compensation and reparation to the victims of human rights violations in a broad and innovative manner. When the Organization of African Unity, the predecessor of the African Union, adopted the African Charter of Human and Peoples’ Rights in 1981, the monitoring of States’ compliance with their obligations was entrusted primarily to the African Commission on Human and Peoples’ Rights. But in 1998, i.e. the year in which the single and full-time European Court of Human Rights was established, the African States adopted a Protocol on the Establishment of an African Court on Human and Peoples’ Rights with similar powers to decide on individual complaints as its European and American counterparts. Although the actual process of establishing the African Court in reality turns out somewhat slower than expected, this important development illustrates that the idea of entrusting an independent court with the power to decide in a final and binding manner on individual human rights complaints is not just an utopian idea of a few Western European human rights activists, but enjoys equal support in the American hemisphere and in Africa. The only world region without a regional human rights court is Asia and the Pacific, but this region, primarily because of its diversity, could not even agree on founding a proper regional organisation. The lack of any regional organisation and regional human rights monitoring mechanism in Asia and the Pacific, which will hardly change in the foreseeable future, should, in my opinion, be considered as an incentive, rather than a
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disincentive, for the United Nations to consider the establishment of a World Court of Human Rights and to let itself be inspired by the experiences in the three regional human rights courts mentioned above. Since the European Court of Human Rights was the pioneering body after World War II, and has again assumed this role after its reform of 1998, it certainly is best suited to serve as a model for the future World Court. The powerful Human Rights Council needs an even more powerful Human Rights Court as an independent counterpart As we all know, the United Nations Commission on Human Rights became a victim of its own success. Inspired by an ever-growing number of so-called special procedures, i.e. independent human rights activists travelling around the globe and assisting governments in their untiring efforts to improve human rights and to bring all perpetrators of human rights violations to justice, the Commission relentlessly exposed and condemned those few remaining States, where some exceptional human rights violations still might have occurred. Since it unfortunately lacked the power to take binding decisions against governments and in view of the fact that some of its Member States allegedly had not yet succeeded in eradicating all human rights violations in the territories under their control, it was decided in early 2006 to further strengthen the United Nations human rights system by replacing the Commission with an even more powerful and less selective Human Rights Council directly subordinate to the General Assembly. As the composition of the newly created Human Rights Council illustrates, only Member States with the highest standards of human rights protection were elected. This ensures that the deliberations about the human rights situation in other countries of the world are based on no considerations other than objective universal standards of human rights. As the decisions adopted so far show, in particular with respect to the serious human rights violations committed by Israel as one of the few States in which such violations still occur, political considerations no longer play any role. In order to further strengthen the non-selective and truly objective decision-making function of the Council, the General Assembly entrusted the Council with a new procedure, the Universal Periodic Review. This means that all States will regularly be reviewed by their peers in order to avoid the impression that single States are picked out for scrutiny and condemnation. Although the 47 Member States of the Council are, of course, beyond any suspicion of possible human rights violations, the General Assembly decided that they should be the first ones subjected to this peer review. The Member States of the Council and the distinguished ambassadors representing them are, of course, best qualified to critically and objectively assess the overall human rights situations in other States. But in order to avoid any appearance that they might be motivated by political considerations, it is suggested that they might be assisted in this noble task by independent experts. In the former Commission, the special procedures and the Sub-Commission on the Promotion and Protection of Human Rights carried out this advisory function. But since the Human Rights Council is a much more important and distinguished body than the Commission, only the most distinguished of all expert bodies might be qualified to assist the Council in the Universal Periodic Review. The reader might have guessed already that I am referring to the future World Court
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of Human Rights. The United Nations might simply follow the model of the European Convention on Human Rights. An independent court assesses the human rights situation in Member States on the basis of individual (or eventually also collective) complaints, and the highest political body supervises the execution of final and binding judgments. This would also have the advantage that the distinguished ambassadors, rather than having to carry out difficult fact-finding missions by themselves, having to study the legal situation in all States and to assess the factual situation on the basis of hundreds of reports by relevant governmental, non-governmental and inter-governmental organisations and bodies, could simply rely on the judgments of the World Court and assess whether or not these judgments were implemented by the respective governments. The creation of the World Court is easier than we might think and does not even require any treaty amendment One of the standard arguments against the creation of a World Court of Human Rights is the cumbersome procedure of UN treaty amendment. Fortunately, this argument is the easiest to refute. On the contrary, while the creation of a unified treaty monitoring body, as proposed by the High Commissioner for Human Rights, would require to amend all UN core human rights treaties with the exception of the International Covenant on Economic, Social and Cultural Rights, the establishment of a World Court of Human Rights can be achieved smoothly without any treaty amendment and without abolishing the present treaty monitoring bodies. This also means that the present members of treaty bodies do not need to fear getting replaced by another body. The World Court would only gradually take over one of the functions of UN treaty monitoring bodies, namely dealing with individual and possibly also collective and inter-State complaints. The Court will be based on a new treaty, similar to the Rome Statute of an International Criminal Court of 1998. The future Statute of a World Court of Human Rights will enter into force after a certain number of States have deposited their instruments of ratification. With the ratification, States accept the binding jurisdiction of the Court. But they are free to decide on the rights which they wish to subject to the Court’s jurisdiction. Certain Western States might prefer to restrict the jurisdiction of the Court at the beginning only to civil and political rights, as laid down in the Covenant on Civil and Political Rights or the Convention Against Torture. As soon as they accept this jurisdiction, they should denounce the first Optional Protocol to the Covenant and withdraw their respective declarations in accordance with Article 22(8) of the Convention Against Torture. Certain African States might prefer to start by accepting the Court’s jurisdiction in relation to the Racial Discrimination Convention and by withdrawing their declarations in accordance with Article 14(3) of this treaty. More courageous States might already take the step of accepting the jurisdiction of the Court in relation to economic, social and cultural rights, as laid down in the Covenant on Economic, Social and Cultural Rights or in the Convention on the Rights of the Child. This would also solve the endless story of drafting an Optional Protocol to the Covenant on Economic, Social and Cultural Rights and all the traditional arguments against the justiciability of economic, social
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and cultural rights. The World Court would simply decide on respective complaints in relation to States that accept its jurisdiction, and all sceptical States would see that the alleged non-justiciability of these rights is nothing but an ideological left-over from the times of the Cold War. Earlier than later the professionalism of the Court will convince States that the danger of accepting a comprehensive jurisdiction of the Court, which might also include older treaties which were never subject of an independent international monitoring, is much smaller than originally expected. The Statute of the World Court can be opened for ratification by non-State actors Nothing prevents the drafters of the Statute of a World Court of Human Rights from inviting certain non-State actors to ratify and thereby accept the binding jurisdiction of the Court. This would be an important step towards holding non-State actors accountable in relation to international human rights law. As the International Criminal Court has the power to try and convict individual perpetrators of gross and systematic human rights violations, irrespective of whether they acted as agents of a government, an inter-governmental or non-governmental organisation, the World Court of Human Rights could become the focal point for non-criminal accountability of both States and non-State actors. Individual victims of human rights violations might be empowered to lodge human rights complaints, e.g., against the United Nations and its specialised agencies, the World Bank and other international financial institutions, the World Trade Organization, the North Atlantic Treaty Organization (NATO), the European Union and similar inter-governmental organisations. Furthermore, transnational corporations which adopt voluntary codes of conduct with reference to international human rights standards in the framework of their corporate social responsibility (CSR) and which become members of the Global Compact of the United Nations might be invited and encouraged to accept the binding jurisdiction of the World Court in relation to selected human rights in the sphere of their respective influence, such as the prohibition of forced or child labour, the right to form and join trade unions, the right of collective bargaining, the prohibition of discrimination, protection of the rights of minorities and indigenous peoples, etc. Other powerful nongovernmental actors, both in the business and the non-profit sector, might follow the example of inter-governmental organisations and transnational corporations. Why should non-State actors be interested in ratifying the Statute of the World Court? Is it not totally unrealistic to expect NATO, the World Bank or Shell to undertake binding human rights obligations and to voluntarily subject to the jurisdiction of a World Court? The answer does not differ fundamentally from the reasons why States voluntarily accept such obligations and monitoring under international law. Human rights constitute the only universally accepted value system of our time. In a globalising world, States are no longer the only actors which have the power to violate human rights and at the same time have the capacity to respect, fulfil and protect human rights.
In the meantime, on 18 June 2008, the Human Rights Council finalized the text of an OP which will hopefully be adopted by the General Assembly in December 2008.
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The responsibility to ensure the security, development and survival of humankind in a manner that respects human dignity and the desire of human beings to enjoy freedom from fear and want, i.e. freedom from global violence and poverty, has become a joint global responsibility of both State and non-State actors. As democratic governments are motivated by their constituencies, i.e. the people from whom they derive their power and to whom they are accountable, to accept domestic and international human rights obligations as well as respective monitoring and accountability mechanisms, transnational corporations and similar non-State actors are motivated by their respective constituencies and stakeholders, whether they are shareholders, clients, business partners, governments or global civil society. At the end of the day, both governments of States as well as chief executive boards of inter-governmental organisations and transnational corporations will realise that a global world, in which fundamental human rights are respected and ensured, is a more secure world and simply a better world to live in, to govern and to invest. As States have moved from non-binding moral and political commitments to legally binding obligations, monitoring and accountability, the non-State and business sector is gradually moving from voluntary codes of conduct and similar expressions of corporate social responsibility to binding obligations, which by their very nature demand monitoring and accountability. The World Court can enforce the right of victims to adequate reparation As I have stated at the outset, human rights require corresponding obligations of dutybearers which in turn demand enforcement through an effective remedy and reparation. The remedy of an individual complaint to a future World Court of Human Rights would only be effective if the Court is entrusted with two separate functions: to decide through a legally binding judgment whether or not a duty-bearer violated his or her obligations to respect, fulfil or protect human rights; and in case such violation has been established, to provide the victim with a proper reparation. The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law , adopted by the General Assembly in December 2005, provide for various types of reparation, such as restitution, rehabilitation, compensation, guarantees of non-repetition and other forms of satisfaction. What victims perceive as adequate reparation is different in each case and largely depends on the type and gravity of the human rights violation, but also on the way the persons affected perceive justice. In many cases the mere fact that a human rights violation has been recognised as such by a future World Court of Human Rights might be considered sufficient satisfaction. In addition to establishing the truth, an apology by the person or organ responsible for the human rights violation, criminal investigations against the perpetrators with the aim of bringing them to justice or certain legislative measures as a guarantee of non-repetition are enough to provide a feeling of justice and satisfaction to the victim. In those cases in which the prevention of an imminent violation of human rights (e.g. through a provisional measure ordering the non-execution of a death sentence or an eviction order) or full restitution is possible (e.g. restitution of expropriated property, release of arbitrarily detained prisoners, reemployment of arbitrarily dismissed workers, re-instatement of a displaced person into
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his or her home, granting equal access to public service, social security services or an educational or health facility, etc.), this is by far the most effective form of reparation. If restitution is not possible (e.g. in the case of torture, summary executions, enforced disappearances, the arbitrary dissolution of a peaceful demonstration, secret surveillance measures violating the right to privacy, etc.), other forms of reparation need to be sought. A victim of torture most often is in need of long-term measures of medical, psychological and social rehabilitation which need to be provided or paid by the person or organisation responsible for the torture inflicted. Finally, financial compensation for the pecuniary or non-pecuniary damages resulting from the human rights violation often seem to be the only feasible or still available form of reparation. Traditionally, regional human rights courts focused their attention on deciding whether or not a human rights violation was established. The implementation of such judgment by means of adequate reparation is, in principle, left to the discretion of the respondent State. The European Court of Human Rights is only competent to afford just satisfaction (which, in practice, means monetary compensation only) if the domestic law does not provide for adequate reparation. The Inter-American Court of Human Rights enjoys a somewhat broader power to also rule on a remedy for the consequences of the human rights violations found. In practice, the possibilities of human rights courts to order the respondent State to provide a particular type of remedy have proven extremely limited. United Nations treaty monitoring bodies, such as the Human Rights Committee, are even less effective as they lack any legally binding decision power and therefore can only indicate to the respondent State which type of domestic remedy and reparation they would consider adequate in response to a particular human rights violation. This weakness of the individual complaints system prompted the United Nations Commission on Human Rights and its Sub-Commission in the 1990s to draft the above mentioned Guidelines on the Right of Victims to a Remedy and Reparation which were finally adopted in 2005. These Guidelines are a major step forward, but they lack a proper international body to ensure their implementation in practice. A future World Court of Human Rights with a proper mandate to order States and relevant non-State actors to provide victims of human rights violations adequate reparation in accordance with their individual needs, their sense of justice and the gravity of the particular human rights violation would be the ideal solution for filling this significant gap in the international human rights regime.
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National Protection Systems Bertie G. Ramcharan*
Introduction The protection of human rights should take place in one’s country, where one lives and comes face to face with authority or power. The concept of the national protection system is therefore one of the most strategic for the universal realisation of human rights. It is thus understandable that the Summit of world leaders, meeting on the occasion of the 60th anniversary of the United Nations (UN) in 2005, highlighted the right to be protected and that Secretary-General Kofi Annan, in his last report on conflict prevention, emphasised the responsibility to prevent gross violations of human rights. Even before the adoption of the Universal Declaration of Human Rights, the Economic and Social Council, in 1946, had recognised that national implementation arrangements and human rights information and education would be essential to take forward the task of implementing the provisions of the Declaration universally. The Council invited Member States to consider the desirability of establishing information groups or local human rights committees to collaborate with them in furthering the work of the Commission on Human Rights. The Commission on Human Rights early on highlighted these two aspects and decided to give them particular attention. The attention given to both subjects, however, would be spotty in subsequent years. The Commission did call for reports from the Secretariat on the topic and also mandated the organisation of world-wide seminars on the role of national institutions in the promotion and protection of human rights. One such seminar, held on the occasion of the 30th anniversary of the Universal Declaration, in 1948, adopted farsighted recommendations on the topic. Subsequently, the General Assembly adopted the Paris Principles on National Institutions and a solid pattern of cooperation was worked out
*
Professor, Geneva Graduate Institute of International Studies. Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law. A/61/891, 18 July 1961.
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 707-712.
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between the Commission and representatives of national human rights commissions. The Vienna World Conference on Human Rights noted the constructive contribution of national human rights institutions. In this essay we shall look briefly at the history and elements of the concept of a national protection system before proceeding to examine its constitutional, legislative, judicial, institutional, educational and monitoring aspects. Finally, we shall look at ideas for bringing the concept more to the fore in the future of international cooperation for the universal realisation of human rights. History and ingredients of the concept of a national protection system In 1946, the Economic and Social Council invited Member States to consider establishing local human rights committees to collaborate with them in supporting the Commission on Human Rights. A UN Seminar on National Institutions for the Promotion and Protection of Human Rights held in 1978 put forward a set of helpful guidelines for the functioning of national human rights institutions. Those guidelines were further built upon in the Principles Relating to the Status of National Institutions (The Paris Principles), which were endorsed by the General Assembly in its resolution 48/134 of 20 December 1993. The Paris Principles called for national institutions to have responsibilities such as: submitting recommendations, proposals and reports on matters relating to human rights to the government, parliament or other competent bodies; promoting conformity of national laws and practices with international human rights standards; encouraging ratification and implementation of international standards; contributing to the reporting procedure under international instruments; assisting in formulating and executing human rights teaching and research programmes and increasing public awareness of human rights through information and education; and cooperating with the United Nations, regional institutions and national institutions of other countries. In 2003, this author in his capacity as the then High Commissioner for Human Rights wrote to all governments inviting them to provide concise summaries of their national protection systems under the following headings: 1. In what ways are the provisions of the principal human rights instruments and treaties reflected in the constitution of the country? 2 Is there an oversight process on the reflection of international human rights norms in national legislation? 3. What is the experience of the judiciary in drawing upon the provisions of international human rights norms when considering cases before them? 4. Are there any specific arrangements to promote human rights education in the country? 5. What specialised national human rights institutions are in existence and which of their good practices can be highlighted? 6. Are there arrangements to detect and anticipate threats to human rights of groups at risk?
See generally B. G. Ramcharan (ed.) The Protection Role of National Human Rights Institutions (Martinus Nijhoff, 2005).
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A report that the Office of High Commissioner submitted to the Commission in 2004 summarised the replies of some three dozen countries. It showed that each country had positive experiences to report but that few of them had previously thought methodically about the six questions in their policy and governmental frameworks. The aim of the exercise was precisely to encourage each country to consider the six questions as a policy framework and, eventually, to publish a world report on the national protection systems of each country. As part of his reform programme, and as suggested by the Office of the High Commissioner for Human Rights, Secretary-General Kofi Annan had called on the different parts of the United Nations system to concert their efforts to support the efforts of governments to develop, or enhance, their national protection systems. Pursuant to this decision of the Secretary-General, a programme of cooperation has been developed to help support the enhancement of national protection systems. The aim of the process is two-fold: to respond positively to requests by governments for support in strengthening their national protection systems; and to follow the recommendations of the human rights treaty bodies and the human rights special procedures and to see discreetly in what areas a government might be in need of assistance. A national protection system, as advanced by the Office of the High Commissioner and by the Secretary-General, has six dimensions, which we will discuss briefly in turn. Constitutional Dimension The constitutional structure of a country is a matter for the sovereign choice of its people. However, three issues require particular attention and scrutiny from the perspective of international human rights law: first its fundamental human rights guarantees; second its judicial institutions; and third its national institutions for the protection of human rights. Fundamental human rights guarantees in the constitution or the bill of rights, if there is one, should not be less but may be more than what is provided for in international human rights law. Each country should be able to show that it has done two things: first that it has methodically made a comparison between the provisions of its fundamental human rights guarantees and those in the principal international human rights instruments; second that rights guaranteed in international customary law, particularly norms of jus cogens, are among its constitutional human rights guarantees. The Third Restatement of the Foreign Relations Laws of the USA (1987) provides a good summary of rights that are guaranteed in international law: A state is obliged to respect the human rights of persons subject to its jurisdiction that it has (a) undertaken to respect by international agreements;(b) that states generally are bound to respect as a matter of customary international law; and (c) that it is required to respect under general principles of law common to the major legal systems of the world
Article 701.
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A state violates international customary law if, as a matter of state policy, it practices, encourages, or condones: a) Genocide. b) slavery or slave trade. c) the murder or causing the disappearance of individuals d) torture or other cruel, inhuman or degrading treatment or punishment. e) prolonged arbitrary detention f) systematic racial discrimination, or g) a consistent pattern of gross violations of internationally recognized human rights.
Legislative dimension International law gives discretion to States whether they would make treaties they have accepted to be bound by directly applicable in their legal systems or whether they would reflect the provisions of those treaties in national legislation. Whichever route a country chooses there is an obligation to make sure that its national laws correspond to its legal commitments under international human rights law or international human rights treaties. National parliaments should monitor whether this obligation has been met and where action is required see to it that legislative changes or enactments are done. The human rights treaty bodies operating under particular international conventions often make suggestions for legislative updating, and national parliaments should require regular reports from the executive about the recommendations of the human rights treaty bodies. There is a role for parliamentary oversight over governmental compliance with international human rights obligations; each parliament should ideally establish a human rights committee to perform this role. Judicial dimension The judicial dimension requires that courts be independent and effective. There are United Nations declarations and statements on the meaning of judicial independence and effectiveness. As already indicated, international law leaves it to the choice of a government whether it makes a treaty directly applicable in its legal system or whether it enacts legislation incorporating the obligations under the treaty. It would be our submission, however, that international human rights norms of jus cogens status and human rights norms that have the status of international customary law should be directly applicable in national courts. International law makes it obligatory that each State provide adequate guarantees for human rights violations. This responsibility falls, in the first place, primarily upon the national judiciary. In the event that there is a failure to protect, there may be remedies under international law. The Third American Restatement, which we cited earlier, summarised these remedies as follows:
Article 702.
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(1) A state party to an international human rights agreement has, as against any other state party violating the agreement, the remedies generally available for violation of an international agreement, as well as any special remedies provided by the agreement; (2) Any state may pursue international remedies against any other state for a violation of the customary international law of human rights. (3) An individual victim of a violation of human rights agreement may pursue any remedy provided by that agreement or by other applicable international agreements.
It is of great importance that judges and legal practitioners be provided with access to the key decisions of international human rights bodies in local languages so that they may be aware of them and may draw upon them. This is a task with which international human rights organisations and non-governmental organisations may assist. Also important is that national ministries of justice, or their equivalent, pay attention to this matter so that judges may have access to the latest human rights precedents and reasoning. Institutional dimension Experience has shown that, in addition to the courts, institutions such as national human rights commissions, national human rights commissioners or ombudspersons can be quite helpful in advancing and protecting human rights. International law does not make such institutions mandatory, but, as a matter of policy, a country should periodically assess its institutional arrangements, or lack thereof, to see whether the establishment of national human rights bodies could be helpful for the protection of human rights. The Paris Principles provided that national human rights institutions could perform, in addition to the function listed earlier, key tasks such as: seeking an amicable settlement of human rights grievances through conciliation, binding decision or other means; informing the complainant of his or her rights and of available means of redress, and promoting access to such redress; hearing complaints or referring them to a competent authority; and making recommendations to the competent authorities, including proposals for the amendment of laws, regulations or administrative practices that obstruct the free exercise of rights. Monitoring dimension The responsibility to protect and to prevent demands that every country monitor itself to detect situations of distress and to address them well before they erupt into violations of human rights or conflict. This calls for independent bodies which will systematically watch out for such distress situations and draw attention to them. A national human rights commission could be given the mandate to do this. In multi-ethnic countries special arrangements may need to be devised. But the concept of self-monitoring is a vital part of a national protection system.
Article 703.
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Future cooperation As mentioned earlier, in 2003 this author in his capacity as the then High Commissioner for Human Rights issued a questionnaire to all governments inviting them to summarise their national protection systems. It was his intention to publish all the replies received and to encourage further replies in the coming years. Then he would have issued a world report on national protection systems highlighting success stories, pointing out good models and where needed interceding behind the scenes to encourage governments to act for the strengthening of their national protection systems. It would be important to develop international cooperation in this area. One way forward could be for a human rights body to initiate the publication of a world report on national protection systems, describing the system of each country, pointing out good models and indicating areas where a government might act constructively to strengthen the national protection system. If the Office of High Commissioner for Human Rights does not take the initiative in this matter a human rights research body could take the idea forward. One or more of the leading university human rights centres or institutes might do it. Conclusion The concept of the national protection system is, strategically, one of the most important for future human rights strategies. It is a key concept towards preventive human rights strategies, another approach that should be emphasised in future human rights work. Based on the work of international human rights treaty bodies, special procedures and the empirical work of UN institutions like the United Nations Development Programme and Office of the High Commissioner for Human Rights, more efforts should be deployed on the strengthening of national protection systems in the future.
68 Early Warning and Prevention Bertram G. Ramcharan*
Introduction Preventive human rights strategies must be the decisive new frontier in the struggle for the universal realisation of human rights. Whether it be in relation to economic, social and cultural rights, or civil and political rights, it is unacceptable that one waits until the violation has occurred before reacting to it. One must strive to prevent the violations from taking place in the first place. In short, one must place increasing emphasis on what Secretary-General Kofi Annan has termed the responsibility to prevent. Secretary-General Ban ki Moon has also stressed the preventive dimension of international efforts for the universal realisation of human rights. In the human rights literature to date there is little on preventive human rights strategies. This is still uncharted territory. In this essay we shall seek to place some markers on the road to the development of preventive human rights strategies. In our view the following elements would deserve priority attention in the development of preventive human rights strategies: national preventive strategies; the concept of preventable poverty; regional preventive strategies; international preventive strategies; and non-governmental preventive strategies. We shall discuss each of these in turn. National preventive strategies In another essay in this volume we discuss the concept of the national protection system, and we argue that it should be one of the foundation concepts in future human *
Professor, Geneva Graduate Institute of International Studies. Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law. See UN Doc. A/61/891, 18 July 2006. See his address to the General Assembly in the 2006 general debate. See L-A. Sicilianos (ed.) The Prevention of Gross Violations of Human Rights (Martinus Nij hoff, 2001); B.G. Ramcharan (ed.) Conflict Prevention in Practice. Essays in Honour of James S. Sutterlin (Martinus Nijhoff, Leiden, Boston, 2005).
Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 713-718.
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rights strategies. The rationale for this is simply stated: The protection of human rights needs to take place at home. This calls for anticipatory, prompt, adequate and effective arrangements and institutions within each country to make sure that violations of human rights do not take place in the first place. An essential requirement of any national protection system is that it monitor potential or actual grievances and make recommendations for addressing them so that they do not deteriorate into clashes, conflicts or violations of human rights. It is this aspect that we address here. In his last report on the prevention of conflict, Secretary-General Kofi Annan saw a reciprocal relationship between human rights and conflict prevention. Violations of human rights, he noted, were a root cause of conflict as well as a common consequence of it. It was therefore imperative that resilient national human rights institutions and protection systems be established to safeguard those rights. In his recommendations he invited the international community to embrace more explicitly the “responsibility to prevent” and invited Member States to consider creating elements of a national infrastructure for peace. He called for a more robust and strategic approach to assistance in democracy-building, elections and constitutional capacity. He requested the Human Rights Council “to include in the implementation of its important new mandate recommendations on specific conflict-prevention measures to Member States, the United Nations system and other actors.” In the same vein, he called on the Peace-Building Commission to provide recommendations on the prevention of the recurrence of conflicts. He called on Member States and relevant parts of the United Nations (UN) system to launch a dialogue on conflict prevention. In a recent essay we discussed the role of human rights in risk analysis and suggested that those interested in the prevention of human rights violations or the prevention of conflicts pay attention to the following questions: 1. What is the ethnic composition of the country? Is there a minority population? Is there an indigenous population? Is there a migrant population? 2. Is there a unifying vision of the country? 3. What is the state of governance? Is there a functioning democracy? 4. What is the state of the rule of law and the courts? 5. Is there an effective national protecting system? 6. Are there major grievances within the population? 7. Is there an internal system of early warming and alert to head off grievances? 8. Is there a de jure or de facto state of emergency? 9. Are there gross violations of human rights? 10. What is the state of human rights of women? 11. Is there a problem of human trafficking in the country? 12. What is the state of respect for the rights of the child? 13. What is the state of freedoms of expression, religion or belief? 14. What is the national security doctrine of the State? 15. What are the UN human rights treaty bodies and the UN human rights investigations reporting about the country?
UN Doc. A/61/891, 18 July 2006.
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16. What are the leading international human rights organisations reporting about the country? 17. Are there reputable human rights non-governmental organisations in the country, and what are they reporting? 18. Are perpetrators of gross violations of human rights being brought to justice? Ideally, it is an institution such a national human rights commission that should undertake ongoing analyses on questions such as these and that should monitor situations across the country with a view to making recommendations to head off potential problems. A properly functioning government should itself be able to detect problems and act to head them off. Preventive strategies are particularly important in multi-ethnic countries. Using the resources of the nation to head off extreme poverty should be a leading priority for all countries. The concept of preventable poverty The scheme of the United Nations Charter and of the International Covenant on Economic, Social and Cultural Rights is that governments should use their own resources to maximum effect in meeting the needs of their people; that there should be no discrimination in the allocation of resources; and that governments should cooperate for mutual benefit in the realisation of the rights stated in the Charter, the Universal Declaration of Human Rights, and the International Covenant. Nowadays there is understandable emphasis on the implementation of the right to development, on how globalisation impacts on the ability of governments to fulfil their human rights obligations and on the adverse effects of an inequitable international economic order. These are all deserving issues, but they do not gainsay the obligation of a government to meet the basic needs of the people, especially those in extreme poverty. The concept of preventable poverty, in our submission, requires that for all countries there be monitoring of situations of extreme poverty and national strategies to tackle them. Regional and international assistance should be targeted to such situations as a matter of priority. There are national, regional, and international bodies that can help identify such situations and call for action to redress them. The Committee on Economic, Social and Cultural Rights can take the lead on this. The Human Rights Council’s Special Rapporteur on Extreme Poverty can do likewise. UNDP, the World Bank, and regional development banks or institutions can also play a part. It surely must be fair to expect priority attention to be devoted to the alleviation of extreme poverty as an issue of prevention, protection and justice. Regional prevention mechanisms can also play their part.
See ‘Human Rights and Risk Analysis’, in Ramcharan, supra note 3.
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Regional preventive strategies Regional mechanisms for the prevention of conflict presently exist in Africa, Asia, Europe and the Americas. They are for the most part focused on the prevention of inter-State conflicts although there is also significant attention to the prevention of intra-State conflicts. Particular attention is being given in some instances to the situation of minorities. The Organization for Security and Co-operation in Europe High Commissioner on National Minorities has pioneered the way in dealing with situations involving minorities. At the bilateral level, there are some instances where two or more countries have concluded treaties to deal with cross-border issues in situations where a border cuts through people of the same ethnic or cultural group. It would be fair to make the comment, however, that regional mechanisms have so far not given much attention to human rights situations or issues per se with a view to preventing violations of human rights or conflict. However, as we noted earlier, Secretary-General Kofi Annan highlighted the nexus between human rights violations and conflicts. Regional mechanisms would be well advised to develop a stronger human rights focus in their work. There are understandable political sensitivities in such an approach, but it is our view that it can be followed to advantage. There are, for example, thematic issues that could well be studied with a view to sensitising governments to potential problems. Regional or sub-regional migration is an example of one such issue that featured prominently in conflicts in West Africa. Cross-border population issues are another. In the eastern region of the Democratic Republic of the Congo where it meets Burundi, Rwanda and Uganda, issues of nationality, status, property rights and similar issues have given rise to many vexing problems. Detached study and policy recommendations on issues such as these could help to head off disputes and conflicts. The danger or early signs of gross violations of human rights in a particular country should lead to immediate intercession on the part of a regional conflict prevention mechanism to help prevent the situation. Admittedly, this is not as easy as it sounds. But there is a duty to give the alert, to act diplomatically and, if need be, to call for regional or international attention to it. International assistance might be particularly required if the situation is one that requires the attention of international bodies such as the Human Rights Council, the High Commissioner for Human Rights or the Security Council. International preventive strategies The logic that we should act to prevent violations of human rights before they take place should surely be a basis for consensus on the part of all governments and all actors in international society. There are many debates at the United Nations these days over the contention of developing countries that the United Nations should be a forum for cooperation rather than confrontation on human rights issues. Developing countries object to the discussion of situations of violations of human rights in the Human Rights
See Ramcharan, supra note 3.
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Council and also object to the activities of UN country investigators into allegations of gross violations of human rights. Whatever the merits or demerits of such arguments, it must be right to argue as a matter of policy that the Human Rights Council, its Special Rapporteurs and Working Groups and the High Commissioner for Human Rights should have as their core strategy the prevention of gross violations of human rights. How might such an approach be put into place? In the first place, we would argue for the periodic publication of a world report on national protection systems. Such a report would highlight successes and call for attention to gaps. Gaps could engage the attention of the High Commissioner and the Human Rights Council. In the second place, we would submit that special procedures of the Human Rights Council should increasingly have a preventive focus in their work, whether it be in analysing thematic issues or responding to particular country situations. This should be done with tact and diplomacy. Human rights preventive diplomacy must be carefully developed on the part of these and other human rights actors. In the third place, based on indications provided by human rights field offices, the UN system, special procedures of the Human Rights Council or non-governmental sources, the High Commissioner for Human Rights should engage in preventive human rights diplomacy to head off or contain situations. Preventive human rights diplomacy should be a leading focus of the activities of the High Commissioner within the framework of efforts to advance the strengthening of national protection systems. Fifth, the Human Rights Council could give across-the-board stimulus to preventive human rights strategies through policy debates on preventive approaches, through cooperation with regional prevention bodies and through the designation of human rights envoys charged with discreet preventive human rights diplomacy. The deliberations of the Human Rights Council could be assisted by policy reports on preventive strategies submitted by the Secretariat. Finally, the Secretary-General and the Security Council in cases involving, say, the prevention of genocide would have an important role to play in future preventive strategies. The Secretary-General’s Special Adviser on the Prevention of Genocide can be of particular value in providing information, analyses and in engaging in discreet preventive human rights diplomacy. Non-Governmental preventive strategies To date, non-governmental organisations (NGOs) have been mainly reactive in dealing with human rights problems. There are some organisations that have sought to perform a preventive role. International Alert is one such body. The International Crisis Group is another. Its activities have blazed a new path in preventive work. However, in the future more emphasis is needed on preventive human rights strategies on the part of non-governmental actors. In the first place, academic and research institutions can contribute through analyses of situations and root causes of violations. In the second place non-governmental sources can provide sub-regional, regional or global alert reports. They are best placed
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to do this since they have the freedom to act and do not engage the responsibility of governments. In the very act of publishing reports they would provide an alert service and governments called upon to react to such reports would implicitly be engaged in preventive approaches. In the third place, a leading NGO should, in the future, devote its annual report to situations of concern that would call for preventive human rights diplomacy. International Alert was established with such objectives in mind. Conclusion Through preventive approaches such as the foregoing, the human rights movement would embark on a new frontier of human rights action, a frontier that is also increasingly being emphasised when it comes to issues of international peace and security. The call of our time is for preventive human rights strategies. The human rights movement must rise to that challenge.
Jakob Th. Möller Curriculum Vitae
Born
28 October 1936
Nationality
Icelandic
Education and Functions in Iceland
Candidatus juris, University of Iceland, 1967 District court magistrate, 1967–1971
United Nations Functions (1971–1996)
Assigned to the Communications Branch, Centre for Human Rights in 1971. Chief, Communications Branch, 1974–1996, responsible for the handling of complaints on alleged human rights violations received by the United Nations under various existing procedures. Secretary of the Commission on Human Rights, 1995 and 1996.
Human Rights Chamber for Bosnia and Herzegovina (1996–2003)
Judge on the Human Rights Chamber for Bosnia and Herzegovina, an international human rights court established under the General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Peace Agreement).
Human Rights Commission within The Constitutional Court Of Bosnia and Herzegovina (2004–2005)
President of the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina, a human rights court succeeding the Human rights Chamber for Bosnia and Herzegovina.
Lectures
Various speaking engagements and lectures, during UN tenure and thereafter, at United Nations or governmentsponsored training courses and seminars and at universities and human rights institutions, mostly in Africa, Asia and Europe, on the UN human rights programme in particular and international human rights law in general, with emphasis on international human rights monitoring mechanisms.
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Jakob Th. Möller
Articles
Universal Human Rights, Vol. 1, No. 4, Oct.–Dec. 1979, Petitioning the United Nations; Mennesker og Rettigheter, No. 4, 1984, Klagesaker i Memmeskerettskomitéen, with Opsahl and de Zayas; German Yearbook of International Law, Vol. 28, 1985, Application of the International Covenant on Civil and Political Rights Under the Optional Protocol, with Opsahl and de Zayas; Nordic Journal of International Law, Vol. 55, 1986, Optional Protocol Cases Concerning the Nordic States, with de Zayas; Canadian Human Rights Yearbook, 1991–1992, Recent Jurisprudence of the Human Rights Committee; Scandinavian University Press, 1992, The Universal Declaration of Human Rights: A Commentary, Article 7; From Human Wrongs to Human Rights – Part IV, United Nations Human Rights Protection Mechanisms, publ. by the Centre for Human Rights, Faculty of Law, University of Pretoria, 1995; Úlfljótur, Nos. 3–4, 1996, The Human Rights Programme of the United Nations (in Icelandic), with G. Alfredsson, publ. by Orator, Association of Law Students, Faculty of Law, University of Iceland (reissued by the Human Rights Office of Iceland, 1997); The Universal Declaration of Human Rights – A Common Standard of Achievement, eds. G. Alfredsson and A. Eide, (a) How the Process Started – A Brief Overall History, (b) Article 7, (c) The Right of Petition: General Assembly Resolution 217B, Martinus Nijhoff publ., 1999; Festschrift for Thor Vilhjámsson, President of the EFTA Court, Optional Protocol to the Convention on the Elimination of Discrimination Against Women – A New International Petitions Procedure (in Icelandic), Bókaútgáfa Orators publ., 2000;
Curriculum Vitae
The Inspection Panel of the World Bank: A Different Complaints Procedure, eds. G. Alfredsson and R. Ring, The Independent Inspection Panel of the World Bank – Comparison with Other International Complaints Procedures, Martinus Nijhoff publ., 2001; Human Rights and Criminal Justice for the Downtrodden, Essays in Honour of Asbjörn Eide, ed. Morten Bergsmo, Treatment of Persons Deprived of Liberty: Analysis of the Human Rights Committee’s Case Law Under Article 10 of the International Covenant and Civil and Political Rights (ICCPR), Martinus Nijhoff publ., 2003.
721
Index
A
African Commission on Human and Peoples’ Rights, 50, 382, 636, 640 African Court on Human and Peoples’ Rights, 157, 636, 638 asylum, 39, 47, 58, 69, 76, 105, 267, 327, 328, 331, 332, 334, 337, 382, 543, 576, 593
B
bar associations, 665–670
C
Convention on the Elimination of Discrimination against Women, 18, 19, 21, 28, 35–37, 50, 84, 85, 91–97, 110, 114, 122, 124–126, 133, 137, 140–144, 164, 506 Convention on the Rights of Persons with Disabilities, 133–148 Convention on the Rights of the Child, 18, 19, 21, 23, 109–116, 119–121, 124, 126, 133, 136–140, 144, 332, 333 corporate social responsibility, 386, 705 Council of Europe, 9, 76, 159, 382, 399–401, 404, 439, 443, 445, 449, 450, 454, 455, 459, 461, 465–471, 478, 483, 484, 487–490, 493, 494, 502, 503, 506–513, 515–517, 519, 521, 523–528, 530, 539, 541, 542, 545, 550, 551, 558, 565, 571, 573, 579, 586, 614, 653, 654, 675, 678, 688, 691, 701
E
early warning, 328, 372, 374, 555, 562, 563, 567, 568 Economic and Social Council, 11, 35, 117, 151, 153–155, 169–172, 178, 225, 674, 675, 678 EU Network of Independent Experts, 571–575,
577, 602, 609, 610, 613 European Commission against Racism and Intolerance, 17, 527, 541–546 European Convention on Human Rights, 79, 258, 401, 420, 432, 441, 443, 445–447, 449, 451, 453, 455, 457, 459, 461, 463, 465, 467, 469, 471, 473, 475, 477, 479, 481, 483, 485, 503, 506, 513, 525, 571, 573, 575, 577, 582, 588, 592, 624, 687 European Court of Human Rights, 33, 50, 159, 255, 403, 418, 420, 441, 469, 471, 477, 480, 487, 489, 491, 501, 513, 515, 520, 523, 526, 529, 531, 533, 535, 537, 539, 540, 574, 586–588, 593, 678, 691, 700–702, 706 European Court of Justice, 579–581, 583, 586– 589, 592–596, 598, 603 European Parliament, 482, 523, 576, 581, 582, 589, 593, 599, 602, 603, 605–610, 612, 613, 653–655, 675 European Social Charter, 159, 503, 505–507, 509–511, 513, 571, 581, 582, 678
F
field operations, 207, 208, 211, 213–217, 362 follow-up activities, 26–28, 30–33 Fundamental Rights Agency, 17, 574, 604, 609–611, 613–615
G
Global Compact, 385–391, 393, 395–397, 704
H
Human Rights Chamber for Bosnia and Herzegovina, 382, 687, 689, 691– 693, 719 Human Rights Committee, 25, 26, 28, 32, 36–39, 41, 43–45, 47, 49, 51, 53, 55–57, 59, 61,
724
Index
63, 65, 67, 69, 71, 73–75, 77–79, 81, 85, 86, 93, 136, 138, 140, 141, 159, 169, 205, 257, 333, 366, 370, 380, 410–412, 415, 418, 430, 437, 573, 625, 644, 699, 720, 721 Human Rights Council, 4–8, 11, 13, 14, 25, 27, 29, 31–33, 67, 130, 151, 153, 155, 157, 159, 161–168, 171, 173, 175, 177–179, 181, 183, 185–189, 193, 194, 200, 202, 203, 217, 225, 235, 261, 289, 298, 327, 331, 334, 337, 338, 341, 342, 360, 361, 365, 366, 369, 374, 416, 424, 433–436, 603, 675, 677, 678, 680, 699, 702, 704, 714, 717 human rights education, 8, 203, 349–352, 643 human rights indicators, 421, 422, 424–428
I
indigenous peoples, 298, 351, 355–358, 360–367, 648, 681, 683, 685, 704 individual complaints, 10, 17, 25, 26, 31, 36, 50, 68, 110, 115, 131, 147, 158, 164, 170, 260, 296, 339, 404, 468, 483, 516, 621, 628, 693, 698–701, 706 Inter–American Commission on Human Rights, 50, 441, 620, 621, 624, 625, 627–630, 675 Inter–American Court of Human Rights, 105, 277, 418, 619, 620, 623, 624, 632, 701, 706 internally displaced, 233, 326, 334, 339, 340, 342, 372, 375–382 International Court of Justice, 37, 249–251, 253, 255, 257, 259–261, 305, 467, 698 International Covenant on Civil and Political Rights, 18, 25, 26, 28, 29, 31, 36–38, 42, 48–51, 58, 69, 77, 79, 81, 83–85, 114, 119–121, 122, 124–126, 136, 140, 142, 153, 164, 265, 333, 369, 371, 402, 404, 405, 411, 412, 415, 430, 431, 435, 620, 627, 668, 721 International Covenant on Economic, Social and Cultural Rights, 18, 19, 80, 114, 122, 126, 129, 130, 140, 153, 158, 159, 688, 693 International Covention on the Elimination of Racial Discrimination, 18, 19, 83, 84, 85, 87, 89, 90, 119–122, 124–126, 136, 137, 140, 141, 145 international criminal adjudication, 274 international criminal tribunals, 200, 279, 284 inter–State complaints, 125, 144, 145, 258, 404, 415, 455, 468, 629, 637, 699, 703
L
law societies, 665, 669
M
Migrant Workers Convention, 117, 119, 120, 126, 129, 130 mainstreaming human rights, 13, 166, 232, 235, 289 migrants, 5, 58, 87, 118, 128–131, 202, 508, 543 minorities, 6, 130, 154, 171, 253, 258, 358, 369–373, 379, 429, 527, 553, 554, 565, 572, 654, 666, 682, 683, 716 Minority Rights Group International, 681, 683, 685
N
national human rights institutions, 22, 23, 134–146, 563, 613, 659–663 national protection systems, 5, 647, 709, 712, 717 non–governmental organisations, 10, 12, 14, 21–23, 111–113, 115, 128, 131, 134, 135, 138, 139, 147, 172, 174, 178, 180, 192, 222, 227, 260, 292, 296–300, 308, 310, 311, 316, 328, 329, 358, 387, 392, 406, 556, 557, 575, 641, 673–680, 691, 692, 717
O
Office for Democratic Institutions and Human Rights, 550, 553, 554, 556, 558, 561–568 Office of the High Commissioner for Human Rights, 10, 37, 103, 116, 163, 175, 189, 191, 194, 199, 224, 228, 233, 286, 328, 363, 364, 379, 709, 712 Optional Protocol procedure, 36, 420 Organisation for Security and Co-operation in Europe, 206, 213, 549–559, 561–568, 655, 675, 679, 687, 690–692
P
petitions, 3, 4, 5, 10, 35, 36, 63, 203, 204, 303, 441, 595, 622, 624–626, 629, 634, 638, 654, 678, 698, 700 pilot–judgment procedure, 537, 538 post–conflict, 206, 209, 212, 228, 229, 265, 267, 269, 284, 336, 555, 562
R
refugees, 76, 118, 206, 233, 325, 326, 328, 330– 335, 337, 339, 340, 344, 345, 351, 378, 379, 381, 382, 437, 483, 543 right to food, 173, 313–317, 319, 322, 323, 424, 636
Index
S
Security Council, 7, 8, 37, 173, 175, 200, 206, 207, 215, 231, 234, 241–247, 250, 251, 254, 257, 260, 263, 267, 270, 276, 278–283, 328, 364, 373, 400, 401, 411–415, 716, 717 sexual orientation discrimination, 430, 437 special procedures, 11, 12, 14, 32, 33, 36, 169, 172–174, 176, 178, 180, 182, 183, 186, 187, 189, 190, 194, 203, 334, 374, 377, 416, 433, 435, 482, 647, 679, 702, 709, 712, 717 State reports, 10, 18, 23, 97, 131, 139, 145, 147, 330–332, 380, 423, 508, 675
T
technical cooperation, 10, 164, 219, 220, 223, 225–229, 315, 592, 643, 647 terrorism, 4, 5, 156, 157, 161, 193, 200, 201, 241, 244, 399, 400–404, 407–409, 411–414, 416, 417, 483, 558, 563, 577, 594, 643, 661, 679 torture, 5, 8, 42, 52, 72, 73, 99, 100, 101, 103–106, 119, 157, 173, 175, 181, 192, 193, 255, 350, 405, 406, 429, 435, 442, 450, 453, 455, 457, 461, 466, 478, 493, 494, 499–501, 553, 562–564, 603, 628, 661, 678, 706, 710
U
UN Children’s Fund, 110, 212, 233 UN Commission on Human Rights, 50, 151, 153, 155, 157, 159, 161, 163, 177, 271, 435, 642, 675 UN Development Programme, 201, 232, 285, 357, 372, 712 UN Educational, Scientific and Cultural Organization, 111, 117, 118, 221, 260, 301–306, 350, 352, 353, 372, 641 UN High Commissioner for Refugees, 111, 212, 325–345, 375, 376, 380–382, 437 UN Permanent Forum on Indigenous Issues, 355, 356, 361–364 urgent action, 37, 194, 364
W
World Bank, 201, 232, 289, 307–309, 311, 312, 409, 410, 422, 648, 651, 704, 715, 721 World Court, 245, 249, 261, 419, 420, 697–706
725
