Examiners report 2010

Transcription

1 Examiners report 2010 Examiners report International protection of human rights Introduction International protection of human rights remains a popular subject, reflecting the topicality of the course and the heightened awareness of human rights issues internationally. The standard of performance in the examination remains consistently competent, reflecting candidates enthusiasm for the subject and a commensurate understanding of the issues involved. Candidates generally identified the relevant issues to be addressed and many had very obviously read beyond the prescribed texts. However, this year it was apparent that many candidates who possessed the required knowledge found it difficult to relate that knowledge to the question asked. The questions posed demanded an analytical essay. There was often a clear lack of discrimination in selecting the material included in answers. As spelt out more fully in the general remarks below, it is very important to read the question carefully and answer the question asked. Simply writing down everything you know about a subject does not necessarily make for a good answer to the question set. General remarks On the whole most candidates provided competent answers, and there were some very good ones. However there were no first class marks, and the average mark remained around the 2.2 level. This suggests that candidates might be missing the focus of the questions and preferring to list information, rather than offer arguments. Note that all the questions in the exam ask you to assess a fairly specific point. The correct approach is to identify the real issues in the question. Do not become distracted by just trying to show the Examiner that you know the material. A good way to ensure that you are answering a question in the right way is to ask yourself whether you are offering a convincing argument about human rights issues, rather than just a description of the human rights in question. 1

2 International protection of human rights Specific comments on questions Question 1 One of the fundamental problems in the international law of human rights is knowing which rights create legal commitments, and which merely state unenforceable ideals. A good answer would probably agree with this statement. It is accurate to argue that some sources of human rights are undoubtedly binding norms, while others are not. (Chapter 2 of the subject guide explains this matter in detail.) The issue of the effect of human rights incorporated into national constitutions should also be discussed. Why does this problematic question of the nature of human rights arise? As Chapter 2 of the subject guide explains, human rights have to be seen in the context of international law and as something of a latecomer to this field. Thus, the question of the binding nature of human rights relates to issues such as whether or not the Universal Declaration contains binding norms because the rights in question are already norms of customary law. It would be wise to review the various arguments and, perhaps, point out that the jurisprudence in this field is developing quickly. A first class answer might also make some reference to the International Criminal Court The core material for this answer can be found in 2.4 of the subject guide especially and Question 2 The reporting obligations incumbent upon States by United Nations Human Rights treaties have resulted in a paper mountain : whether they have contributed to improved human rights compliance by States is somewhat less clear. This is a fairly straightforward question to answer, provided that the response is focused. Note that the question itself is asking for an assessment of the effectiveness of the UN reporting system. This means that a good answer cannot simply describe the system it must offer a judgment of the system and support this judgment with relevant evidence. A good way to approach the question would be to ask about the way in which the various reporting or investigative systems work. They are clearly not aimed at providing legal remedies. Rather they attempt to create an international environment in which human rights breaches are publicized. In some instances, this might lead to international pressure being brought to bear; in others this might not be the result. The problem is how to assess the systems, given the confidentiality that characterizes the 1503 procedures and the lack of systematic studies of reporting systems under the Covenants. Any assessment is bound to be provisional. However, it is also worth noting that reforms are ongoing 2

3 Examiners report 2010 and this itself may lead to clearer procedures, even if it remains difficult to state finally whether or not they are effective in encouraging state compliance. The sections of the subject guide that contain information most relevant to this question are 5.3.2, and 5.8. Question 3 To what extent did the recognition of women s rights present a challenge as to how human rights are understood? Answer with reference to The Convention on the Elimination of All Forms of Discrimination against Women The only real difficulty with this question is ensuring that the key issues that it raises are correctly identified. The question relates to the extent to which women s rights are a challenge to how human rights are understood. It would not be appropriate to simply write out a catalogue of women s rights as this is not what the question asks for. Instead it requires an assessment of the nature of women s rights. To some extent, women s rights demand the extension of human rights principles to issues and concerns that impact on women rather than men. Reproductive rights would be a good example, but, of course, there are others such as property rights, for instance (especially in the event of widowhood). Women s rights tend to work by expanding the notion of the dignity of the human being to include matters of particular relevance to women. As such, it might be going too far to suggest that women s rights are a challenge to the very idea of human rights; they are a demand to make the concept of rights more inclusive. In other words, a good answer would show an understanding of this underlying concern of women s rights. The material relevant to this question is largely contained in 6.1 of the subject guide. Question 4 The 1951 Geneva Convention and the 1967 New York Protocol relating to the Status of Refugees are no longer adequate to deal with the contemporary problems faced by refugees. As with many examination questions, this question required an assessment of a statement. Of course, this means that candidates need to show a knowledge of the subject. However, the question is not asking for a description of the Geneva Convention or the 1967 Protocol. A good answer would begin by making it clear to the Examiner that the candidate has taken a position on the key issue: are the Convention and the Protocol adequate to deal with the contemporary realities faced by refugees? It would perhaps be hard to argue that the Convention and the Protocol do not need some updating, so the better answers would have largely followed this approach to the question. The relevant section of the subject guide is primarily

4 International protection of human rights Question 5 EITHER (a) Despite arguments concerning the UN resolutions relating to Afghanistan and Iraq, contemporary international law does not allow military intervention for the protection of human rights. OR (b) The war on terror shows that the prohibition on torture is of no real use if States feel that vigorous interrogation techniques are justifiable in preventing terrorism. a) This is a provocative question, given the ongoing arguments about the legality of the invasion of Iraq. A good answer would deal directly with the question. It should argue either that there is now recognition for military intervention in human rights law, or that there is not. It is necessary, of course, to deal with the relevant UN resolutions, and other matters such as the legality or otherwise of the NATO bombing in the former Yugoslavia. However, it is unlikely that some of the earlier debates on humanitarian intervention have much relevance to this question and are best not discussed. It would also be worth pointing out how arguments about the legality of the invasion have changed their terms somewhat, moving away from weapons of mass destruction (WMDs), and more towards explicit claims about human rights. Section 12.3 of the subject guide contains the most useful material about the issues that this question raises. b) This was another provocative question that addresses matters of current concern. Note that this is not a general question about torture, but a very specific one about whether or not certain interrogation techniques amount to torture. If they do, then it would appear that certain nations are in breach of their human rights obligations. One would be forced to conclude that the prohibition on torture has been dangerously qualified if not directly breached in pursuit of the so-called war on terror. Even if the language has fallen out of use, there appears to be compelling evidence of the use of vigorous interrogation techniques and widespread extraordinary renditions. Question 6 In terms of international regional systems for the protection of human rights, there are great variations in terms of the role to be played by a court and reporting obligations that fall short of legal remedies. Evaluate with reference to the Inter-American, OR the European OR the Inter- African system for the protection of human rights. Note the precise terms of the question asked: candidates must discuss the issues raised with reference to one regional system. The question asks candidates to assess the variation in the way in which regional systems for the protection of human rights operate and the extent to which they employ either the sanctions of the court or reporting 4

5 Examiners report 2010 obligations that are not attached to legal remedies. When discussing variation, a good answer needs to include some kind of comparative material. Even if it was focused, for example, on the African system, a good answer would make a comparison with the European system, to suggest that the role of the court was perhaps more developed under the ECHR than under the African Charter, which tends to avoid legal remedies. A very good answer might then offer reasons for this kind of variation, looking at the different cultural/social and political contexts in which the systems operate. This question is perhaps the most demanding on the paper as, to successfully answer it, candidates would have to be familiar with Chapters 13, 14 and 15 of the subject guide while, of course, keeping the answer focused on one regional system. Question 7 The 1966 Convention on the Elimination of All Forms of Racial Discrimination heralded a new phase in the international protection of human rights. This question is in some ways similar to question 3. If question 3 concerned the challenges raised by women s rights, this question asks candidates to make a similar judgment on the elimination of racial discrimination; specifically, whether or not the 1966 Convention opened a new era in the protection of human rights. The question is not asking candidates simply to write out a catalogue of the rights that the Convention contains. Rather it is asking them to place the Convention in context and to assess its impact. The 1966 Convention builds on the Universal Declaration and reflects the fact that the post-war world was still one in which apartheid and colonialism were a reality. If rights are based on a claim to universal dignity of the human being, then the UN had to act against regimes that were based on systematic discrimination on the grounds of race. In this sense the new phase heralded by the 1966 Convention was perhaps most strictly a realization of the real potential of human rights: their proper articulation rather than, perhaps, a radical departure from human rights norms and principles. The prohibition on racial discrimination, just like the protection of women s rights, represents the proper realization that rights are universal. Chapter 8 of the subject guide is the major point of reference for this question. Question 8 Discuss how concern for the best interests of the child is reflected in the 1989 UN Convention on the Rights of the Child (CRC) and evaluate the effectiveness of the monitoring mechanism provided under the CRC. This is a fairly straightforward question that covers two discrete but linked areas of concern. A good answer must first of all discuss the key concept of the best interests of the child. Note that the question is asking about the extent to which this concept is reflected in the CRC. 5

6 International protection of human rights It would obviously be important to argue that it was a key underlying concept. The point is that candidates are not being asked merely to show that it is there in the Convention. In fact a good answer has to show that the concept structures the Convention it underlies the concept of the rights of the child and reflects the fact that the Convention must deal with a subject of rights who is not yet adult; i.e. the Convention must work with concepts that are to some extent distinct from other human rights documents. Having discussed the best interests of the child, a good answer should then turn to an assessment of the effectiveness of the CRC. The key thing is (to stress the point) you must make a judgment: the monitoring methods work well, they work badly or they are satisfactory. Support your argument with evidence. Don t tell the Examiner everything you know about the monitoring mechanisms remain focused on what you have been asked to do! This question is based on material contained in Chapter 7 of the subject guide. 6