Where are we now? Developments in the International Protection of Human Rights

Transcription

1 Where are we now? Developments in the International Protection of Human Rights Bacre Ndiaye Let me congratulate you and your colleagues of the University of Essex (UoE) on the occasion of the 25 th anniversary of the Human Rights Centre. The Centre has produced excellent professionals and researchers, and many of them have become colleagues or even leaders of the Office of the High Commissioner for Human Rights (OHCHR) and other international human rights organisations. Indeed, the UoE has played a pioneering role in attracting and developing human rights expertise all over the world. With the 60 th anniversary of the Universal Declaration of Human Rights (UDHR) falling on 10 December 2010, the worldwide community of human rights activists and experts has much to celebrate. First, we must take pride in this community s own expansion, which was fostered by, and mirrors the growth of human rights law. A wide-ranging web of treaties has fleshed out the content of the rights listed in the UDHR, including civil, political, economic, social, and cultural rights, as well as equality and non-discrimination standards. This protective canvas extends to shield those vulnerable to racism and marginalisation, as well as those who need special protection, such as women, children, and minorities. To date, all states have ratified at least one of the international human rights treaties that have been put in place in the past six decades, and eighty per cent have ratified four or more. The process of adopting the UDHR s norms, translating them into law and giving them effect is still ongoing at the international and national levels, with regional entities increasingly involved as well. To keep pace with such developments and foster further innovation, the UN has extensively reformed its human rights machinery, notably with the creation of the Human Rights Council (HRC), the successor body to the Commission on Human Rights, which was inaugurated in June In the short span of two years, the HRC has built its own procedures and operational capacity, and has virtually become a standing body. Moreover, the HRC has already made its mark in norm-setting by adopting new instruments, such as the Declaration on the Rights of Indigenous Peoples, the International Convention for the Protection of All Persons from Enforced Disappearance, and most recently, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR-OP). Crucially, the HRC has devised a new mechanism, the Universal Periodic Review, which is meant to assess the human rights record of all UN member states at regular intervals of four years. Bacre Waly Ndiaye is the Director of the Human Rights Council and Special Procedures Division at the UN Office of the High Commissioner for Human Rights in Geneva. He has previously served as the Director of the New York Office of the United Nations High Commissioner for Human Rights. From 1992 to 1998 he was the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.This is a transcript of his speech on the occasion of the 25 th anniversary of the Human Rights Centre at the University of Essex. 2

2 The Secretary-General s March 2005 reform report had important implications for other aspects of the UN human rights programme. The report urged the human rights system to move from standard-setting to implementation of human rights on the ground. Moreover, the 2005 World Summit acknowledged that human rights, together with peace and security and development, are the three interlinked and mutually reinforcing pillars of UN action. Accordingly, the Summit endorsed a rights-based approach to security and development and decided to double the OHCHR regular budget over the following five years. The principles and the road map of the reform process inspired the Plan of Action of the High Commissioner in 2005, as well as its focus on deliverables and implementation. Thus, the Plan of Action placed a special emphasis on the notion of country engagement, which encompassed several features: the strengthening of the geographic desks and units in the OHCHR; an increased deployment of human rights staff to the field; the creation of a significant number of new field presences; the establishment of standing capacities for rapid deployment and investigations; capacity building; and work on transitional justice and the rule of law. Three years down the road to reform, we can see a number of other important achievements. Positive trends in the reform process of the HRC include the creation of a number of new Special Procedure expert mandates aimed at both protecting the rights of vulnerable groups, such as migrants and victims of trafficking, as well as upholding rights in the context of the fight against terrorism. On a less positive note, the review and rationalisation of mandates of Special Procedures show a clear trend towards the abolition of country-specific scrutiny. Similarly, the newly introduced Code of Conduct for Special Procedures might infringe upon these experts independence. The procedures through which the experts mandates and their terms may be renewed are also worrisome. In the context of the reform process, the Secretary-General had also recommended that the human rights treaty bodies function as a unified system. The treaty bodies themselves have recognised the need for reform and have progressively expressed support for the Common Core Document, which is supplemented by targeted treaty-specific reports. Representatives of the treaty bodies now work on harmonised reporting guidelines with a view to reducing the reporting burden on States Parties. While some experts welcomed the concept of a unified standing treaty body (USTB), others have opposed it, mostly on the basis that a USTB would risk undermining the specificity of the seven core instruments. Several governments fear that it may lead to the creation of an International Court on Human Rights, which they consider undesirable. A similar division of opinion over the concept of a unified body has become apparent among the community of human rights NGOs. I would like to add that the reform programme embraced by the 2005 World Summit also included a new doctrine, the so-called responsibility to protect civilians against the worst crimes, such as genocide, crimes against humanity, war crimes, and ethnic cleansing. The ensuing debate over how to hammer out the doctrine s specific precepts and operational framework has been inconclusive, however. No matter what position one favours, the fundamental issue and underlying principle of the doctrine rests on the responsibility of all states to protect civilians at risk. 3

3 Whereas military intervention for humanitarian purposes is almost invariably controversial, initiatives that strengthen the international capacity to prevent the escalation of conflict are promising ways to advance the right to protect. One important effort to strengthen the international community s machinery for preventing large-scale atrocities is the creation by Secretary-General Kofi Annan of a UN Special Adviser on the Prevention of Genocide. The UN system does not always effectively use information from its many human rights mechanisms to provide early warning for UN peace and security mechanisms. The Special Adviser can make use of the recommendations from the treaty bodies and the Special Procedures to enhance the system s responsibility to prevent. While a shared understanding of the implications and operational requirements of the responsibility to prevent will undoubtedly require more time, let me point out that on another vital human rights topic states have instead speedily reached an agreement. I am referring to the Optional Protocol on the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (OPCAT), which entered into force 30 months after its adoption by the General Assembly on 18 December Such speed and unity of purpose highlight the commitment of States Parties to the implementation of practical measures to eradicate torture. It also testifies to the dedication of the international and national non-governmental organisations, and national human rights institutions whose activism and advocacy helped to achieve ratification. In its innovative approach, OPCAT creates a two-pillar system that envisages regular visits to places of detention on the part of the Subcommittee on Prevention of Torture, an international body, as well as by independent national preventive mechanisms, which must be established by States Parties within one year of ratification. By including oversight by national mechanisms, the OPCAT emphasizes that the implementation of human rights obligations is first and foremost a national responsibility that should be overseen by impartial national protection systems. In this context, I would like to underline the increasing role of National Human Rights Institutions (NHRIs) in addressing new topics, such as migration, as reflected in the Santa Cruz Declaration in the Eighth International Conference of National Institutions for the promotion and Protection of Human Rights, in Since December 2005, the High Commissioner has developed an advocacy strategy for direct involvement in key legal proceedings through the submission of amicus curiae, which allows third party interventions before the court. These interventions can encourage courts to focus their attention on the international legal dimensions of their proceedings. Consequently, amicus curiae briefs have been submitted to the Special Court for Sierra Leone (on immunity from coerced testimony of human rights officers), the International Criminal Court (ICC) (on investigative strategies in Darfur), the Iraqi High Tribunal (on the capital sentencing of a codefendant in the trial of Saddam Hussein), the Supreme Court of the United States (on habeas corpus rights of Guantanamo Bay detainees), and the Cambodia Supreme Court (on fair trial standards, including evaluation of coerced evidence). This brings me to my next topic of discussion, namely the development of international justice. In this context, high hopes had been placed on the ICC to ensure accountability for genocide, crimes against humanity, and war crimes. The ICC is still in the process of developing its modus operandi and leverage. To help in its vital tasks, the ICC is in urgent need of support from the international community, particularly with regard to resource allocation, collaboration in evidence-gathering and in the surrender or arrest of suspects, as well as in persuading reluctant governments to comply with the ICC s requests. 4

4 Formal ICC investigations are underway in Darfur, the Democratic Republic of Congo, Northern Uganda, and the Central African Republic, covering some of the world's worst human rights abuses in recent years, including sexual slavery and the recruitment of child soldiers. However, there is still work to be done; the ICC has yet to hold its first trial. All of the formal investigations are in Africa, even though atrocities within the ICC's jurisdiction have been, and continue to be, perpetrated elsewhere. Additionally, it has been difficult for the ICC to investigate those who hold the reins of power. This is perhaps why, so far, only rebels, warlords and opposition leaders have been indicted, in these three countries. Another concern is the fact that, despite the many years and resources devoted to the task of delivering justice, the ad hoc tribunals for Rwanda and the former Yugoslavia have tried few criminals. Overall, international justice has not yet detached itself from the suspicion that it enforces victor justice. Moving now to the discussion of economic, social and cultural rights, I note with satisfaction the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR-OP) in the last HRC session, which is a veritable breakthrough in the affirmation of the indivisibility of all human rights. International human rights law confers equal status and importance to the basket of economic, social and cultural rights (ESCRs), as well as to the basket of civil and political rights (CPRs). However, the former set of rights has historically received less attention than the latter. It also lacked the appropriate enforcement mechanisms at the international level that other human rights treaties possessed. The ICESCR-OP corrects this imbalance by providing for a compliant mechanism that allows victims to bring to the surface abuses that their governments inflict, fail to stop, or neglect to redress. In sum, it provides a way for individuals, who may otherwise be isolated and powerless, to make the international community aware of their plight. The ICESCR-OP will also encourage states to establish similar procedures at the national level. And this will be a vital development since most States Parties to the International Covenant on Economic, Social and Cultural Rights have yet to implement appropriate domestic legislative measures to give effect to these rights. Judicial remedies to violations of ESCRs have also been sorely inadequate thus far. These measures are both crucial and urgent. As the current food crisis has starkly highlighted, cumulative failures to address abuse in the economic and social spheres of rights have the potential to lead to large-scale disasters. The escalating food prices have compounded the critical vulnerabilities of the poor and the marginalised in countries across the globe. Only recently, however, has international attention focused on the structural causes of the crisis, that have triggered not only severe hardship for many, but also violence and riots in several countries with concomitant abuse of CPRs. States need to live up to their human rights obligation to grant adequate nutrition. There is also a need to put into sharper focus the role and responsibilities of private actors in the current emergency. This said, I hasten to add that the UN also needs to upgrade its contribution to measures that can help address the crisis and ensure that a more solid foundation for social and economic justice is put into place. How to achieve this is, however, highly contentious. In a recent discussion of the 5

5 work of the United Nations Development Programme in the field of human rights, a number of states expressed their clear opposition to a rights-based approach to development. Funds supporting the work of Human Rights Advisers to UN country teams are also running the risk of being cut completely by the end of this year. This puts into question the implementation of the commitments of the 2005 World Summit and the very notion of the interlinkage of human rights, security, and development. There is also a need to augment and diversify the roster of donors that contribute to human rights work in order to ensure that resources match needs on the ground more closely. To complicate matters even further, political polarisation along regional lines and cleavages may also re-emerge in human rights discourse and jeopardise the unity of purpose that the advancement of human rights requires. For example, a number of countries have been withholding funds for activities of the HRC or the Durban Review Conference. As a result, the effectiveness of these mechanisms may be undermined. Issues such as human rights violations committed in the war against terrorism are equally divisive. In this context, I have already mentioned torture. Of particular concern are also restrictions of fundamental freedoms, such as the right to a fair trial and the freedom of assembly. Another controversial issue is the so-called defamation of religion. From a legal perspective, there is only limited international or regional jurisprudence on the issue of incitement to racial or religious hatred. Consequently, OHCHR is currently preparing an expert meeting for 2-3 October 2008 in Geneva on the links between articles 19 and 20 of the International Covenant on Civil and Political Rights, which, as you know, address freedom of expression and the issue of advocacy of religious hatred that constitutes incitement to discrimination, hostility, or violence. The food and oil crises, increasing awareness of global challenges such as extreme poverty, migration, climate and environmental changes, call for a new vision of how to implement article 28 of the UDHR, the right of every woman and man to a legal and social environment in which they can enjoy their rights. International solidarity and a stronger UN are necessary to address these challenges in a cooperative and coherent way. I am looking forward to discussing these pressing present day issues with my fellow panelists and I thank you for your attention. Thank you. 6