Examiners report 2009

Examiners report 2009 266 0029 International protection of human rights General remarks A number of candidates are obviously reading beyond the prescribed texts and this undoubtedly enhances performance. Legal analysis is not always attempted but an increasing number of candidates do attempt to engage in some analytical argument and those who do generally give an enhanced answer. Candidates generally have mastered time management. It is important that time is allocated appropriately. Creating an answer plan can also be useful as it provides a reference point when writing an answer. The importance of disciplined time management cannot be over emphasised. It is important that the question asked in the exam paper is answered. A competent exam answer demands more than a mere regurgitation of all that one knows about a particular subject. There is a need to be discriminating in the way material is presented so as to answer the question posed. All the questions required an answer in the form of an analytical essay. Specific comments on questions Question 1 The pre-eminent role which States still play on the international stage continues to inhibit the full realisation of international human rights law. This is an interesting question and a well-prepared candidate should be able to write a good answer. The central issue is the problem of the state in international human rights law: human rights law has to rely on the state, yet the state is often in breach of its human rights obligations. The best approach to the question is to agree with the claim that states are still the central actors in international law. There are other important non-state bodies, for example the World Trade Organization (WTO), the World Bank and International Monetary Fund (IMF) and even organisations like the EU, but the state remains the central point of reference. After outlining this thesis, a good answer would then go on to make the following argument. Although states are often in breach of human rights obligations, it would be hard to see how human rights law could operate without the state. 1

266 0029 International protection of human rights Perhaps the most sensible conclusion is to argue that there needs to be enhanced mechanisms for holding states to their human rights obligations. International law should also allow increased opportunities for nongovernmental organisations (NGOs), international NGOs and perhaps even individuals to influence bodies like the World Bank, the IMF and the WTO in order to make human rights arguments in relation to trade and financial policies. Chapters 2 and 3 contain the material of primary relevance to this question. Question 2 In spite of the proliferation of human rights treaties violations remain all too common. Critically discuss with particular reference to two international human rights conventions and their monitoring mechanisms. This question required candidates to identify the main mechanisms within the UN system for the protection of human rights. Candidates should then compare, with reference to two international human rights convention, the monitoring mechanisms of the reporting system and those of individual communication. This comparison should identify the strengths and weaknesses of the relevant mechanisms. The answer could, for instance, focus on the mechanism (Optional Protocol) provided for under the 1966 International Covenant on Civil and Political Rights whereby individuals may seek redress for alleged violations of Covenant rights. The answer demands stating the procedure prescribed namely that under the Optional Protocol and how that has served as a blue print for other international treaties. A good answer would then consider the relative value of individual petition in relation to possible redress by way of a reporting system to a relevant Committee, e.g. the Convention on the Elimination on All Forms of Discrimination against Women. Alternatively the reporting procedure under the Convention on the Rights of the Child may be considered given it is the monitoring mechanism provided. In the light of this a conclusion should be reached as to the effectiveness or otherwise of the UN system for the protection of human rights. Question 3 The public/private dichotomy remains a stumbling block in the realisation of the rights of women contained in the 1979 Convention on the Elimination of All Forms of Discrimination against Women. This answer is straightforward in that it essentially involves consideration as to why the law has been reluctant to become involved in what is regarded as the private arena i.e. the family This is not peculiar to the international stage but is a reflection of the position held by states and mirrors domestic law. The result has been in respect of the Convention on the Elimination of All Forms of Discrimination against Women that states, although signing, have entered reservations to particular provisions. The answer should identify certain instances of such reservations and consider 2

the extent to which this may have undermined the effectiveness of the Convention. A good answer could also consider the Convention s Committee (CEDAW) and note the Committee s elaboration of due diligence regarding a state s responsibility to have in place appropriate measures against domestic violence. The answer could also highlight that the Convention has developed and like all international human rights instruments is a living document which is continuing to evolve. Also some of the goals set out in the Convention are those contained either in the mandate of a Special Representative (e.g. Special Representative on Violence against Women; Special Representative on Trafficking) or in provisions of other human rights instruments. Question 4 Discuss the contemporary legal framework in place prohibiting the use of children as soldiers in view of the fact that child soldiers are used extensively in many conflicts throughout the world. This is a fairly straightforward question but an answer that simply listed the legal framework would not offer a discussion, rather a simple statement of facts. Clearly, this is not what this question requires. In other words, a good answer has to approach the law relating to child soldiers in its context, and reflect on its sources. The enactment of the Optional Protocol in 2002 meant that there was a perception that there was a need to extend the protection offered by the Convention on the Rights of the Child 1989. As far as the 1989 Convention is concerned, the key Articles are 36, 38 and 39 reflecting the wider sense in which children (and women) are given protection in situations of armed conflict (see the Declaration on the Protection of Women and Children in Emergency and Armed Conflict). The 2002 Optional Protocol to the Convention on the Rights of the Child on children in armed conflict outlaws the use of children under 18 in armed forces, whether state-run or irregular. Convention (182) of the International Labour Organization (ILO) also prohibits the recruitment of children under the age of 18. The 1999 African Charter on the Rights and Welfare of the Child also accords with these international standards. The first point that could be made here is that there is clearly a legal framework that draws on a number of international sources of law. The problem is not perhaps lack of law it is the enforcement of these international norms. Dealing with the consequences of the breakdown of civil order in war or civil war is a difficult task for a court. Thus, issues relating to child soldiers may have to be considered as part of a social reconstruction programme that ends armed conflict. The pressing issue here may be as much a question of availability of resources for rehabilitating child soldiers, as prosecuting those responsible for their recruitment and use in armed operations. An interesting point for discussion in relation to the Optional Protocol and the ILO Convention would be the need for the law to take a broad scope covering both state parties and irregular forces as well. In turning to discuss the Rome Statute of the International Criminal Court (ICC), which makes recruitment of children under 15 a war crime, a candidate could reflect on the different norms that make up the law on child soldiers. The ICC Statute makes use of child soldiers a war crime. This is important but, given the nature of the problem, a 3

266 0029 International protection of human rights candidate could reflect on the need for the rehabilitation of former child soldiers as well. Clearly this goes beyond the law of war and relates to the point made above about social reconstruction and possibly even truth and reconciliation processes. Chapter 7.4 of the subject guide contains the relevant material for discussion in this essay. Question 5 The 1951 Geneva Convention Relating to the Status of Refugees is out of date and unable to accommodate the demands of the twenty-first century. Initially an answer should address the criticism levied in the question. This would be done by looking at the origin of the 1951 Refugee Convention; the political climate prevailing at the time and the circumstances to which the 1951 Convention was responding. The answer should then address the question as to why the criticism has arisen and should consider the change in the refugee population. In this context the regional approaches to the alleged incomplete protection afforded by the 1951 Refugee Convention should be addressed. A good answer might consider whether the Eurocentric criticism is justified. In this context reference should be made to the 1961 New York Protocol and the extent to which the Refugee Convention has been adopted by many states representing a wide spectrum of political ideologies Question 6 The use of such terms as coercive interrogation techniques by States highlights the fact that the prohibition on the use of torture is absolute. This question would allow a well-prepared candidate to write a good answer. The most important point is to focus on the terms of the question. It is not asking for a general description of the law against torture, but a focused discussion of a particular point. The question can be read as suggesting that the use of terms such as coercive interrogation techniques are an attempt by certain states to avoid or get around the prohibition on torture in Article 1 of the Convention against Torture. If these techniques amount to torture, then it makes a nonsense of the prohibition contained in the Convention. The focus on this essay should thus be on recent allegations that the USA, UK and others have been involved in the torture of detainees. Relevant documents include the Second Periodic Report of the US to the Committee against torture in May 2005, and the Report of the International Committee of the Red Cross Report of the same year. Concerns were expressed in the latter that treatment of detainees in Bagram and Guantanamo Bay amounted to torture. As part of its response to these concerns, the US government attempted to redefine torture, and argued that treatment is merely cruel, inhuman or degrading. A good essay would engage with these documents and come to a conclusion on whether 4

or not the claims of the US government suggested that torture was taking place despite its redefinition. Relevant material for discussion in this essay can be found in Chapter 10.3.2 of the subject guide. Question 7 To what extent does the contemporary international community recognise the right of humanitarian intervention? To answer this question accurately, one has to note that it begins with the words to what extent. The question is asking a candidate to assess whether or not there is a right to humanitarian intervention. Thus, one has to take a position. It would perhaps be wisest to argue that there is not a widely recognised right to humanitarian intervention in international law, despite certain important claims to the contrary. After a brief review of the scholarship of writers like Teson, who argue that international law should include this right, the position in relation to the UN Charter should be assessed. Interventions pursuant to the Charter can probably not be seen as establishing a right to humanitarian intervention and, arguably, the focus on the Charter is the preservation of peace, rather than generally allowing interference into the sovereign affairs of states. The various resolutions made in relation to Iraq and Afghanistan are controversial and probably do not amount to anything like a right to humanitarian intervention. It would also be hard to argue that NATO intervention in Kosovo is evidence that a right to humanitarian intervention exists. Chapter 11 of the subject guide contains relevant material for this answer. Question 8 Regional systems show that human rights protection needs to be sensitive to historical and cultural contexts. Discuss with reference to regional protection of human rights. This a broad question and not a difficult one to answer. The difficulty is perhaps the range of the question; it would thus be wise after some introductory general discussion of the question to offer a focus on a regional system. Note, that the focus on the question is on the contexts out of which regional human rights systems emerge. It would be sensible to agree to the claim that regional systems reflect their local contexts, while stressing that they are also consistent with international human rights norms. To choose one example: the jurisprudence of the Inter-American system reflects the response of the Inter-American Court to the problems of civil war and disappearances in Latin America. If one was examining the African system, one could show how its articulation of human rights norms show an attempt to link them with Pan-African values, whereas the European system, among other concerns, attempts to link the European Convention with the EU. 5