Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
Stephen Bouwhuis[*]
States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty — by which I mean the fundamental freedom of each individual, enshrined in the charter of the UN and subsequent international treaties — has been enhanced by a renewed and spreading consciousness of individual rights.
Kofi Annan
This article examines the state of international human rights law at the end of the 20th century, a time that has seen a slow erosion of the shield of state sovereignty and the ability of governments to treat their people with impunity.
Looking back to the early part of the century we see an international system still evolving from the classic Westphalian notion of Nation States as distinct, uniform entities. During this time there were many grievous instances of human rights violations that prompted little response from the international community. Such issues were generally regarded as internal problems not for international consideration.
The world has now moved to a position where those who abuse human rights can no longer assume that the international community will not bring them to justice. Most significant in this regard has been the setting up of the International War Crimes Tribunals for former Yugoslavia and for Rwanda, and agreement to the Rome Statute of the International Criminal Court. The international community has also shown its preparedness to intervene in places such as Kosovo and East Timor, though the record remains somewhat mixed as shown by Rwanda and the safe havens of Bosnia and Herzegovina.
Back in 1900 very little in the way of human rights mechanisms or standards existed at the international level. Though there were a number of treaties signed with regard to the protection of specific minority groups, there were no general multilateral human rights instruments or mechanisms.
It took the destruction wrought by the Second World War to create the willpower within the international community to establish the United Nations in 1945, and to provide the initial impetus for the creation of the major human rights instruments. The Charter of the United Nations itself incorporates human rights standards. One of the purposes of the United Nations is that of ‘encouraging respect for human rights and for fundamental freedoms for all’. Additionally, Articles 55 and 56 of the Charter commit governments ‘to take joint and separate action’ to promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.
With the establishment of the United Nations came the creation of the two primary forums within the United Nations for the consideration of human rights: the Commission on Human Rights, and the Commission on the Status of Women. One of the first tasks for the Commission on Human Rights was drafting ‘an international bill of human rights’, adopted by the United Nations General Assembly in December 1948. While formally non-binding, it was the basis for the two central multilateral human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The immediate post war period also saw the entry into force of the Genocide Convention in 1951, under which the Parties ‘confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish’. Other significant multinational human rights instruments include the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC).
A number of mechanisms have been established to supervise the implementation of international human rights standards. In 1967, the Economic and Social Council of the United Nations, which is charged with improving global social and economic standards, passed Resolution 1235 to authorise the Commission of Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities to study situations which reveal a consistent pattern of violations of human rights.
In 1970, the Economic and Social Council passed Resolution 1503 to provide a confidential system for the examination of consistent patterns of gross violations of human rights as a response to information supplied by non- government sources. These two mechanisms have shown themselves to be limited in nature, particularly the confidentiality of the 1503 procedure.
In addition to these procedures, treaty-monitoring bodies have been established to supervise the implementation of the various human rights conventions. Typically these bodies consist of experts who examine reports submitted by governments outlining their compliance under the various conventions. These monitoring bodies have become immersed in difficulties with respect to both the timeliness of submissions and the consideration of reports. Currently it can take three years for a submission to be considered by a treaty body. That the system continues to function at all is widely attributed to the ‘large-scale delinquency of States which either do not report at all, or report long after the due date’.[1]
In defence of treaty monitoring bodies, these problems seem to derive in large part from the limited resources they are provided to support their work. One response has been a shift by governments towards a greater use of thematic reporting focused around questions asked by the monitoring bodies. Where reports remain outstanding, monitoring bodies can also be expected to continue the emerging trend of examining situations in countries even in the absence of a report by their governments,[2] Additionally, monitoring bodies can be expected to make greater use of ‘special calls’ for reports by governments in addressing critical issues.[3]
Of particular significance has been the development of the individual complaints mechanisms under the First Optional Protocol to ICCPR, Article 14 of CERD and Article 22 of CAT. These mechanisms allow individuals (as opposed to other governments) to make complaints to the monitoring bodies in the event of a perceived breach by their government of the provisions of the treaty. A similar optional protocol mechanism with respect to CEDAW was recently approved by the General Assembly of the United Nations. An optional protocol to ICESCR has also been proposed as has a further mechanism under CAT.
The end of the century has also seen an increased use of specialist mechanisms within the United Nations system such as Special Rapporteurs and specialist working groups. Special Rapporteurs can be either ‘Country Rapporteurs’ or ‘Thematic Rapporteurs’. Country Rapporteurs have inquired into the situations within countries such as Afghanistan, Burundi, Iraq and former Yugoslavia; Thematic Rapporteurs have examined topics such as ‘torture and other cruel, inhuman or degrading treatment or punishment’, ‘violence against women, its causes and consequences’ and ‘effects of foreign debt’.
Specialist working groups have commonly had a more limited mandate, typically having been created to focus on a particular issue or task facing the United Nations such as ‘Enforced and Involuntary Disappearances’, ‘Arbitrary Detention’, ‘the Right to Development’ and ‘the Human Rights of Minorities’. Particular tasks assigned to working groups include elaborating on international instruments such as the optional protocol to CEDAW.
These specialist mechanisms are a move away from the problems facing the existing mechanisms for supervision. The primary reason for the shift seems to lie in the difference between the short timeframe in which a Special Rapporteur can produce a report, and the number of years for a country to respond to a country report compiled by one of the monitoring bodies.
Significantly both types of specialist mechanisms have also begun to move away from mere factual reportage to make critical assessments of governments under examination. It can be anticipated that this trend will continue, with assessments becoming more specific and more widely utilised within the United Nations. A number of Special Rapporteurs have also begun to move towards a more interventionist approach in cases — communicating with governments at an early stage when issues emerge.
A further mechanism has been the use of international conferences as a way of developing international human rights standards. Even if formally non-binding in nature, the documents produced at these conferences establish normative standards as a basis for the future development of international law. These conferences have included the United Nations Conference on Environment and Development (Rio de Janeiro 1992), the World Conference on Human Rights (Vienna 1993); the World Summit for Social Development (Copenhagen 1995), and the Fourth World Conference on Women (Beijing 1995).
The expansion of the activities of the specialised mechanisms has coincided with a period of ‘fiscal consolidation’ at the United Nations. The result has been a heightened strain on the ability of the human rights mechanisms to effectively fulfil their mandates. This strain seems unlikely to abate, as it is system-wide and is driven by forces largely external to the organisation. Alternative funding options proposed from time to time to alleviate these problems have not gained the support of governments.
Attempts are being made to better co-ordinate the activities of the various human rights mechanisms. One example was the creation of the Office of the High Commissioner for Human Rights, Mrs Mary Robinson, carries the mandate of the ‘good offices’ function of the Secretary-General and is responsible for the promotion and protection of human rights.
There has also been a strong and continued growth towards the implementation of human rights standards through the inter-American and European human rights systems. Of particular note is that the decisions of the courts within both of these systems are binding on governments. The continuing development of the inter-American and European systems emphasises the growing disparity between regional systems with strong human rights mechanisms and those regions without.
In July 1998 120 nations agreed (7 against and 21 abstentions) to the Rome Statute of the International Criminal Court. This marks probably the most significant development in the implementation of international human rights since the creation of the Charter of the United Nations.
The Statute will enable the Court to try individuals for offences such as genocide, war crimes and crimes against humanity. The powers of the Court will include the ability to levy a fine and to order the forfeiture of any proceeds, property and assets deriving from crime. The Court will also have the ability to ‘make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’.
A significant task remains, however, in securing the 60 ratifications required for the Statute to enter into force: at the time of writing only six governments had ratified the Statute.
Other international developments in this regard include the establishment of ad hoc Tribunals for Yugoslavia and for Rwanda, the establishment of the International Truth Commission in El Salvador and the establishment of the Truth and Reconciliation Commission in South Africa. The former set the precedent for the International Criminal Court, and the latter two perform a valuable function in shedding light on the past in a way that may not be achievable through typical judicial processes.
The establishment of these judicial processes has meant that those who abuse human rights can no longer count on the assumption of impunity, that the international community will not bring them to justice. This deterrent is lessened somewhat by the lack of an effective enforcement regime for these judicial processes.
An additional area in which international human rights standards are increasingly being considered is the practices of multilateral corporations who have come to wield increasing levels of power within the international system. A good indication of this power is that of the world’s 100 largest economic entities over half are corporations.[4]
As corporations have continued to grow and expand internationally, campaigns have increasingly been directed at their activities. These campaigns have been directed externally through the media, the Internet, and through litigation as well as internally through procedures brought by minority shareholders.
The World Bank and the International Monetary Fund (IMF) are also coming under increased scrutiny in an effort to reform their human rights practices. The Bank’s primary function is ‘to reduce poverty and to improve living standards through sustainable growth and investment in people’.[5] The IMF is tasked with helping to maintain an orderly system of payments between all countries including lending money to governments facing serious balance of payments problems.
Given these primary functions and the impact these institutions have on countries through structural reform programs and through development assistance, this scrutiny is not surprising. The World Bank, however, maintains the position that human rights are not a concern for the bank except when they reach ‘pervasive proportions’.[6] For its part the IMF acknowledges that economic programs designed to result in structural adjustment can lead to ‘economic dislocation and social instability’.[7] The IMF also acknowledges the need to address issues such as unemployment, malnutrition, and social marginalisation as elements within its reform programs.
With a few notable successes, the overall record in the corporate challenge is not strong. Though a number of high profile campaigns have drawn media attention on various corporate practices, such attention has been sporadic at best. However the new focus on corporations has at least provided those corporations not already sensitive to human rights concerns with added incentive to examine their practices more closely.
An essential condition for the respect of human rights is the ability to exercise them. This condition is not met for the vast bulk of the world’s six billion people, as indicated by:
• nearly 1.4 billion people lacking access to clean water;
• three billion people living without access to basic sanitation; and
• three billion people living on less than two dollars a day, and 1.4 billion living on less than one dollar a day.[8]
Despite statistics such as these, it is estimated that the total additional investment required to achieve universal access to basic social services — education, health, nutrition, reproductive health, family planing, safe water and sanitation — would be roughly $40 billion per year.[9] This sum is less than half of the estimated worth of Bill Gates who, on paper at least, could provide this sum and still remain the world’s richest person.
Progress in implementing international human rights law into domestic law has been slow, and the record mixed, due to a general reluctance by domestic courts to accept the relevance of international law.
Progress has been made in the United States through the use of the Alien Tort Statute. The previously under utilised statute dates back to 1789, and provides that:
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or of a treaty of the United States.
In the Second Circuit case of Filartiga v Pena-Irala [1980] USCA2 576; 630 F.2d 876 (2d Cir. 1980), a plaintiff who was not a citizen of the United States successfully used this statute to sue, in the United States, a person who was in the jurisdiction but was not a citizen of the United States, for acts of torture committed outside the United States in violation of international law. In Kadic v Karadzic [1996] USCA2 16; 70 F.3d 232 (2d Cir. 1995), cert. denied, 116 S. Ct. 2524 (1996), a case brought against Radovan Karadzic, President of the self-proclaimed Republic of ‘Srpska’ in Bosnia and Herzegovina, the court confirmed that the statute extends to private as well as state acts. The status of the Alien Torts Statute has not been confirmed by the United States Supreme Court, and that Court may unravel progress in this regard by adopting a more restrictive interpretation of the Statute than have the Courts of Appeal.
Human rights principles also featured in the consideration of the request from the government of Spain for the extradition of Senator Augusto Pinochet from the United Kingdom. In March 1999 the House of Lords overturned its previous decision which had held by a 3 to 2 margin that Senator Pinochet did not have immunity as a former Head of State for internationally-recognised crimes.[10]
Although the House of Lords again denied Senator Pinochet immunity for acts of torture and conspiracy to commit torture, they did so for the crimes alleged to have been committed only after the passage of legislation within the United Kingdom to implement the provisions of CAT into domestic law.[11] The March decision was narrower in terms than its earlier decision, depending on the passage of domestic legislation to give effect to the Convention rather than recognising these acts as international crimes for which universal jurisdiction is available.
Within Australia progress has been equally mixed. The Federal Court in Nulyarimma v Thompson [1999] FCA 1192 held that the crime of genocide is not part of the common law of Australia, reinforcing the general view that international human rights standards can not be incorporated into Australian domestic law in the absence of an act of Parliament. This view regarding the separation of international law and domestic law, and the requirement for an act of Parliament for its incorporation, was also the central holding in Minister for Immigration and Ethnic Affairs v Teoh ([1995] HCA 20; 1995) 183 CLR 273.
Despite this unwillingness on behalf of the courts to incorporate international human rights standards into domestic law, major steps towards the implementation of international human rights have been taking place through the creation of national institutions within domestic legal systems. These mechanisms are concerned with both the protection and the promotion of human rights standards, and their activities range from human rights education to the consideration of individual human rights complaints.
Some 22 such institutions have been created around the world, 16 of which have been established since 1991.[12] A further 40 such institutions are in the process of being established or are under serious consideration by governments.[13] These institutions are established under ‘the Paris Principles’, requiring the establishment by legislation of an independent human rights mechanism with a broad human rights mandate.
The strong growth of national human rights institutions suggests that they will remain a primary mechanism through which international human rights standards can be implemented. The strength of these mechanisms is shown by the willingness of countries such as Nigeria and Indonesia to establish functioning institutions in accordance with the Paris Principles. Additionally, the ability of these institutions to educate and to assess human rights standards makes it more likely that human rights issues will be addressed domestically rather than criticised internationally.
Developments in technology are increasingly being used to promote human rights. From the radio to the television and now to the Internet, the speed and volume of information conveyed via technology continues to grow exponentially. In particular, access to the Internet has allowed people unrestrained access to the views of others without much in the way of censorship. This has meant that people have been able to bypass traditional structures to gain access to a wider range of perspectives and to find others with similar views with whom to exchange information. Internet technology has also meant greater freedom for journalists in repressive regimes to provide uncensored information.
The use of technology to spread human rights standards is a technique now strongly embraced by the United Nations. The various human rights websites established by the United Nations, including the Homepage of the United Nations and the Homepage of the High Commissioner for Human Rights, reflect this strategy. With the establishment of human rights sites, other actors, such as Human Rights Watch and the University of Minnesota Human Rights Library, have also become prominent.
This expansion of Internet sites dedicated to human rights issues can only be expected to grow as the Internet grows, and to provide a major source of information for the dissemination of human rights standards.
At the end of the century we see a world in which international human rights standards and mechanisms are coming increasingly to the fore. In particular, significant progress has been made through agreement to the Rome Statute of the International Criminal Court, and through specialist mechanisms. Non-government organisations and the community sector have been crucial in their efforts to promote human rights and to draw attention to continuing violations of human rights.
Despite these advances most of the challenges still lie ahead. Although progress has been made in the advancement of human rights standards, there are still those who try to portray human rights as a negative force for change and who misunderstand the ability of human rights to empower people to take up challenges for greater justice.[14]
The scale of these challenges should not be underestimated. Existing mechanisms remain very limited in resources and, in particular, in enforcement. It would be a positive development to see existing mechanisms expanded and given the power and resources to properly investigate and report on human rights violations.
Without these enhancements, the existing machinery will remain inadequate, and most grievous instances of human rights abuse will remain unaddressed.
Even with the necessary machinery in place, it remains essential to ensure that people have access to the basic social services to enjoy the rights to which they are entitled. In this regard there is also a need to ensure that institutional mechanisms are effective for those who are the most disadvantaged, and to ensure that articulated human rights standards are actually implemented.
Note: Further references for this article are available from the author by email: slb@ozbytes.net.au or the Editorial Co-ordinator tel 03 9905 3362.
[*] Stephen Bouwhuis works for the Department of the Prime Minister & Cabinet and is on secondment with the Attorney-General's Department.
The views expressed in this article are expressed in a personal and not an official capacity. The author would like to thank Jane Hearn, Fiona Dalton and Josephine Brook for comments on a previous version of this article. This article originated from a submission to the Commonwealth Young Lawyers Legal Writing Competition.
[1] ‘Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments’, Report by Independent Expert, Mr Philip Alston, E/CN.4/1997/74 7 March 1997 unedited draft at para 48.
[2] See ref. 1 at para 45.
[3] See, for example, Higgins, Rosalyn, DBE, QC ‘Opinion: Ten Years on the UN Human Rights Committee: Some Thoughts upon Parting’ (1996) 6 European Human Rights Law Review 570 at 572.
[4] Facts From the Corporate Planet: Ecology and Politics in the Age of Globalization: Fact Sheet Number One — Corporate Globalization <http://www.igc.org/trac/feature/planet/fact_1.html>
[5] What does the World Bank do? <http://worldbank.org/html/ extdr/whatdoes.htm>
[6] Questions and Answers about the World Bank, Fall 1998: Human Rights <http://www/worldbank.org/html/extdr/faq/faqf98-134.htm>
[7] See, for example, Social Dimensions of the IMF’s Policy Dialogue <http://www.imf.org/external/np/exr/facts/social.htm>
[8] Wolfensohn, James D. and Carey, George, ‘Creditors of the Poor — Yes, All of Us’, 15 June 1999 <http://www.worldbank.org/html/extdr/ extme/jdwsp061599.htm>
[9] Kofi Annan Outlines Priorities to Economic and Social Council to Eradicate Poverty (SG/SM/99/199, 5 July 1999).
[10] Regina v Bow Street Metropolitan Stipendiary Magistrate and Others; Ex Parte Pinochet Ugarte [1998] UKHL 41; [1998] 3 WLR 1456 per Nichols, Hoffmann and Steyn LL (Slynn and Lloyd LL dissenting).
[11] Regina v Bow Street Metropolitan Stipendiary Magistrate and Others; Ex Parte Pinochet Ugarte (No 3) [1999] UKHL 17; [1999] 2 WLR. 827 per Browne- Wilkinson, Hope, Hutton and Saville LL (Goff (that Senator Pinochet is entitled to state immunity), Millet and Phillips LL dissenting).
[12] Lindsnaes, Birgit and Lindholt, Lone, ‘National Human Rights Institutions — Standard Setting and Achievements’, Danish Centre for Human Rights, 1999, p.10.
[13] Kjaerum, Mortem, Director, Danish Centre for Human Rights, lecture 7 June 1999, Oxford University.
[14] See, for example, Gentry, John A., ‘The Cancer of Human Rights’, (1999) 22(4) The Washington Quarterly 95.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2000/7.html