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Alternative Law Journal |
Stephen Bouwhuis
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.
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:
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 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 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) 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.
[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] 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] 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.