For the Rule of L a w

THE REVIEW

INTERNATIONAL COMMISSION OF JURISTS

HUMAN RIGHTS IN THE WORLD Argentina 1 Guatemala 8 Chile 2 Philippines 13

COMMENTARIES The U N Commission on Human Rights and the N ew Working Group on Arbitrary Detention 23

ARTICLES The Draft Declaration of the United Nations on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities Bokatola Isse Omanga 33 Towards a N e w System of Supervision for the European Social Charter In eke BoereGjn, Aalt-Willem Heringa, Jeroen G.C. Schokkenbroek 42

BASIC TEXT Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador" 51

BOOK REVIEW Behind the Disappearances: Argentina's Dirty War Against Human Rights and the United Nations 59

No. 46 June 1991 Editor: Adama Dieng ASSOCIATES OF THE INTERNATIONAL COMMISSION OF JURISTS

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French Court Finds an Argentine Officer Guilty of Serious Violations of Human Rights The Astiz Case

On 16 March 1990, Captain Alfredowere, in fact, crimes of the kind classified Astiz of the Argentine Navy was found as "crimes against humanity”, and in­ guilty in absentia by a French Court of cluded illegal arrests, detention in military Justice and sentenced to life imprisonmentunits and clandestine places; keeping de­ for the illegal arrest, torture and kidnap­tainees in cruel and inhuman conditions; ping which had resulted in the involuntary torture, the assassination of prisoners; and and definitive disappearance of two the definitive disappearance of more than French nuns, the Sisters of Charity Alice15,000 people. During the government of Domon and Leonie Renee Duquet. These Dr. Alfonsin, nine Commanders-in-Chief crimes were committed in 1977 in Buenosof the Armed Forces were tried and sen­ Aires during the military dictatorship. tenced to long terms of imprisonment for It was not possible for Captain Astizsome of these crimes. Nevertheless, they to stand trial in his country and in thewere pardoned by the current President, place where he committed these crimesDr, Carlos S. Menem, at the beginning of because of the impunity guaranteed to 1991. military men and the police forces by the Alfredo Astiz is, thus, in a sense the well-known law of “due obedience".1 personification of the illegal actions of the Alfredo Astiz, who held the rank of special groups. Not because he was the captain in the Argentine Navy, was re­ worst criminal, or bore the main responsi­ sponsible during the military governmentbility, but for two other reasons: a) he for what was known as "special tasks” inwas identified as responsible for the ab­ the Naval Intelligence Service. In Argen­ duction, torture and subsequent defini­ tina at that time such tasks meant “dirtytive disappearance of the two French nuns war” operations conducted by the mili­ and also was singled out as directly re­ tary and police not only against their sponsible for the illegal detention, torture countrymen and women, but also against and execution of the 17-year-old Swedish exiles from neighbouring countries. Theygirl, Dagmar Hagelin; and b) he was taken

1. Law No. 23.521 approved in 1987. It exempts members of the military and police forces for responsi­ bility for crimes committed in order to obey, or in the course of obeying, higher orders. prisoner by the British during the Malvi­and under the protection of the 1949 Ge­ nas (Falklands) War, when he surren­neva Conventions. dered as commander of the Argentine Although France has not signed an ex­ troops on South Georgia Island on 25 Apriltradition treaty with Argentina there was 1982 (see ICJReview, No. 28, June 1982,nothing to prevent France from request­ p. 3). When photographs of him signinging his transfer to serve his sentence. In the Act of surrender were published byany case the French Judiciary has issued the international press, some of his vic­an international order for his capture. tims, who had been kidnapped and held But although the sentence passed in in the High School of Naval Engineering, France has had no practical effect to date, a torture centre in Buenos Aires, recog­it non-the-less constitutes a moral and nized him. France and Sweden then asked ethical victory in the struggle against the the British to be allowed to interrogateimpunity granted to violators of human him, but Astiz contested this on the rights. However, Astiz is safe only so long grounds that he was a prisoner of waras he remains on Argentine territory.

Chile Official Report on Violations of Human Rights During the Military Regime

Shortly after assuming the Presidencythrough by the Chilean people during the of the Republic, Mr. Patricio Aylwin military dictatorship and would exclude established by decree of 25 April 1990,thousands of illegal arrests, cases of forced the National Commission For Truth Andexile and, in general, violations of political, Reconciliation, with the supremely im­ trade union, cultural and social rights. portant mission of reporting on the mostHowever, by decision of the President, it serious violations of human rights com­would include fatal attacks on persons that mitted during the military regime, fromhad been carried out by private individuals 11 September 1973 to 11 March 1990.opposed The to the military regime, provided term ‘serious violations’ was understoodthat they had acted for political reasons. to mean only those that involved the death The latter was an important innova­ of a person, whether by involuntary dis­tion since it is possibly the first time - appearance, execution, assassination orunder a democratic government - that acts death under torture, always provided thatcommitted by individuals who are not in­ the responsibility of the State, of its agentsvested with the authority of the State and or of persons who had acted with its con­whose actions do not have its consent or sent could be shown to be implicated. acquiescence are defined as “violations Consequently, the report would cover no of human rights". Conduct of this kind more than a part of the tragedy lived has traditionally been classified by inter­ governmental organizations such the Or­cial files. No collaboration was forthcom­ ganization of American States and the ing from the Armed Forces or the Security United Nations as a "violation of human Forces, and their unwillingness was par­ rights" when it is committed by govern­ticularly evident when the army and the ment agents or people acting under their "Carabineros” met requests for informa­ aegis, and as a “crime or offence" whention with the statement that all the docu­ it is the work of persons opposing ormentation relating to that period had been fighting against the government. “burnt”. (It should be remembered that Without disregarding the need for General Pinochet is still the commander- profound reflection on this subject, wein-chief of the army). Nor did the army would simply say that the Commissionprovide information concerning the Na­ for Truth and Reconciliation, in faithfully tional Information Centre (CNI), a politi­ adhering to its mandate, but without at­ cal police body which had been directly tempting to establish a theoretical posi­answerable to General Pinochet (then tion, adopted for practical reasons theHead of State), and which for years was broad criterion of considering all situationsthe principal body accused of rights vio­ of that kind as a "violation of human lations and the successor to the infamous rights” based on, in its own words, “theDINA (Direction de Information National). criterion which has been imposed by the consciousness of public opinion” (part I,Subject matter of the report chapter II, para 4 of the report). The Commission was composed of The report first describes the histori­ persons of good standing in Chilean soci­cal, political, legal and institutional ety who represented a broad spectrum offramework in which the acts in question political and ideological beliefs, and in­ took place, then gives an account of each cluded civilians who had been supporterscase in which the Commission unani­ of the military government. It was aided mously decided that a violation of human in its work by 60 officials of different pro­rights had occurred resulting in death or fessions. On 8 February the Commission'sdefinitive disappearance. In the latter case report was placed in the hands of Presi­the Commission concluded that the per­ dent Aylwin, and he informed the coun­ sons who had disappeared were dead and try of this in his historic address of 4 Marchthat their bodies had been disposed of in 1991. secret. The main purpose of the Commission The Commission thus arrived at the was to give the country the full, though conviction that 2,115 persons had been not officially sanctioned, truth, without assassinated by government agents, in detriment to subsequent action by the 642 other cases it did not have the same Administration of Justice in relation toconviction and considered that a further specific offences and without claiming to investigation should be made. It also con­ replace it. cluded that 164 persons had been killed The Commission amassed an enor­by armed opposition groups (that figure mous amount of data, interrogated wit­ included 132 members of the Armed nesses, relatives and survivors, and a Forcesfew and Security Forces). Many other members of the Armed Forces who agreedcases on which the Commission received to testify. It examined documents, reportsinformation were excluded on the grounds of autopsies, hospital records, and judi­that the deaths involved had not been occasioned by a violation of human rights The victims are listed one by one and but by other means (e.g. genuine armed the circumstances and dates relevant to clashes). their death or disappearance are detailed The persons killed by governmentin so far as they are known. The names of agents are classified for the purposesthose of guilty of such heinous crimes, how­ the report as follows: 59 persons shot everafter are N O T made public, although the irregular or illegal War Councils: 101 deadCommission has transmitted them to the in so-called attempts to flee; 815 assassi­Administration of Justice. Nevertheless, nated; 957 who disappeared for ever, afterthe report does indicate the places where their arrest; 90 deaths in various typessuch of acts occurred, the dates, and the attack committed under the protection of branch of the police or Armed Forces to the government apparatus; and 93 deadwhich the locations and agents belonged. owing to the undue use of force in re­ This aspect of the report was criticized in pressing popular protests and demonstra­Chile by the families of the victims and tions. by some human rights organizations. The report dwells at length on the om­ When a press reporter asked one of the nipotence of the dictatorship; its unlimit­ most active members of the Commission ed powers of life or death; the activities the reason for the omission, he was told of the DINA initially and then of its suc­ that “if the Rule of Law is to be upheld, a cessor, the CNI; and those of the respec­Commission of the Executive Power can­ tive intelligence services of the threenot assume the responsibility for stating branches of the Armed Forces and thethat such-and-such a person is a murder­ Carabineros. er, because that person has not been al­ The report describes “involuntary dis­lowed the right of due process’’.1 appearance” as detention followed by the For President Aylwin, in his speech of concealment of the victim and official de­ 4 March 1991, the task of “attributing re­ nials of his or her arrest, and claims thatsponsibility is one that in a Rule of Law the underlying intention was to liquidate devolves on the Courts of Justice...". “The the opposition. Commission could not enter into this as­ It gives a painstaking account of the pect because the very decree that estab­ methods of torture used in questioning,lished it denied it this power on the which were practised systematically andgrounds of clear constitutional principles". as a daily routine; the presence of doctors at the torture sessions or nearby; the cruel, inhuman or degrading treatment meted out to the prisoners and political detain­The judicial power ees; the fake attacks mounted to cover up during the military regime murders; and the methods of executing the prisoners. It indicates the places that In chapter IV (part II) of the report an were used as interrogation, torture andanalysis is made of the way in which the murder centres and the clandestinejudicial power acted. The report concludes prisons. by strongly criticizing its performance as

1. Interview with the lawyer Jose Zalaquett, published Biecha, in Montevideo, 5 April 1991. Mr. Zalaquett is a member ofthe International Commission of Jurists. regards the protection of human rights. ceptionIt to the President's words as offen­ points out that, faced with serious andsive to its dignity. W e need only recall repeated violations of these rights, “thetwo facts: out of 8,700 requests for amparo Judicial Power failed to act with the nec­ and habeas corpus that were submitted essary vigour" and that this led to “the...during that time by the Pro Peace Com­ intensification of the process of systemat­mittee and then by the Vicariate of Soli­ ic violations of human rights, both in im­ darity, only ten were accepted by the mediate terms by not safeguarding the courts. In the other cases - and it must be persons detained in the cases denouncedremembered that lives were at stake - they and also by giving the forces of repressionwere either rejected forthwith or the pro­ an added certainty of their power to com­ ceedings were purely a formality and the mit offences with impunity." petitions were halted and filed in view of President Aylwin associated himselfthe invariable reply from the military that with this opinion in stating that he had they knew nothing about the arrest of the sent the text of the report to the Supremeperson in question or that the CNI could Court, requesting “that, in the exercise ofnot furnish any information for “reasons its powers, it should instruct the relevantof security". The second fact to remember courts to expedite pending cases on vio­is that the Supreme Court accepted as lations of human rights as speedily aslegal and constitutional the self-amnesty possible, as well as to institute proceed­for which General Pinochet obtained ap­ ings in other cases on the basis of theproval in 1978, and then went even further information communicated to it by the in stating that such an amnesty implied Commission for Truth and Reconciliation”. not only immunity from punishment but The President added that “the amnesty also that there would be no investigation in force which the Government is honour­of the acts committed. Moreover, the Su­ ing must not become an obstacle to the preme Court obviously neglected to use institution of judicial inquiries and the the powers of “supervision over all courts” determination of responsibilities, espe­(including military tribunals) invested in cially in the cases of persons who haveit by the Chilean Constitution. disappeared”. The report also describes the activities The report and the views expressedof the War Councils and the execution of by the President discomfited several ofprisoners, sometimes as the result of death the High Court judges who refused to ac­sentences passed by the Councils, and knowledge that they had neglected their sometimes as the result of sentences pro­ duty during the dictatorship, and consid­nounced outside the competence of the ered - according to certain versions inCouncils. the Chilean press - that the President’s As the Commission for Truth and Rec­ words constituted an unwarranted inter­onciliation has sent all the background ference by the executive power in juris­information to the judicial power, it will dictional matters. become clearer in the next few months It is surprising that the Supreme Courtwhat attitude the Supreme Court will which, throughout the military regime, adopt, what use it will make of the infor­ adopted a complaisant attitude - in the mation and how far it will go to elucidate opinion of the ICJ - and failed to protect the truth and put the guilty parties on the rights that were being seriously vio­trial. Two lines of action can be envis­ lated day after day should now take ex­ aged: 1. The Judiciary should now - under aState (fourth part, chapter I). As a general democratic regime - take a stand on policy, it recommends, among other the validity of the self-amnesty of 1978things, that: and, in any case, on all that it implies and comprises punishment of the guilty- the responsibility of the State towards parties, investigation of the facts or those who died in such circumstances both. should be publicly acknowledged: 2. As regards offences committed after- the dignity and good name of the vic­ 1978, in which the problem of self-am­ tims who were belittled by the accu­ nesty does not arise, President Aylwin sations of crimes that were never has spoken about the intervention of proved or against which they were the parties called upon to prosecute powerless to defend themselves, on behalf of society and about the im­ should be publicly restored. perative need for the co-operation of With respect to the persons who dis­ the authorities in the investigations to appeared: be undertaken by the courts of justice, both in pending cases and in proceed­ - they should be presumed dead, and ings that should be instituted in the no further evidence demanded than the light of the information amassed by inclusion of their names in the report. the Commission. When these were not included, their families would be given the possibility of proving their death. The presump­ Other aspects of the report tion of death would have the usual le­ gal consequences of such a declaration The report analyses the attitude as regards questions of succession, adopted towards the military regime at civil status, martial status, etc; the time by the different social sectors in- the State should grant the families a order to give a clearer picture of the con­ single pension for life as material rec­ text in which the events in question took ompense. place. It also examines the impact of the violations that occurred on the victims' In order to prevent future violations of families and on society in general; the human rights, the Commission recom­ constant state of anguish in which the mends ratifying or acceding to interna­ families and relatives lived, the uncer­tional agreements, covenants and con­ tainty as to the fate of the victims and the ventions on human rights; bringing do­ refusal of the authorities to give them anymestic legislation into line with the provi­ information, the mourning they were un­ sions of such human rights instruments; able to exteriorize, and even the indiffer­ establishing adequate and effective ence and denigration they had to endure mechanisms for safeguarding human from the authorities for so many years. rights; assuring the independence of the judicial power; and including the teach­ ing of human rights in the training pro­ Proposals grammes of the Armed Forces and Secu­ rity Forces. The Commission concludes by putting In concluding, the National Commis­ forwardproposals for reparations by the sion for Truth and Reconciliation asserts that: “strictly from the preventive point forced nothing less than a veritable policy of view, the Commission considers that aof extermination of its opponents. indispensable element for achieving na­ The report is illuminating in showing tional reconciliation and thereby averting that when a political regime loses the a repetition of the events that occurredyardsticks that govern the life of a civilised would be the comprehensive exercise bynation and its rulers become obsessed by the State of its punitive powers". W e re­the existence of national and internation­ gard these words as a refutation of impu­al enemies whom they see on all sides, nity as regards the most serious crimesanyone who defends justice and human and more particularly as regards the needrights may very soon come to be regard­ to ascertain the truth. ed as an enemy of the regime and as such President Aylwin, in his address to theliquidated. country of 4 March 1991, asked the victimsIn embarking upon a course of exces­ for their pardon in view of the guilt bornesive and illegitimate repression, it is only by the State whose agents had committed too easy, as in the case of Chile, to cross so many crimes. He called on the people the border line not only of legality but to accept the truth which the report had also of ethics and humanitarian conduct. brought to light and which, although not The report succeeds in conveying the official - since an ‘official version of the terror to which the Chilean people were truth’ could not be imposed - was the truthsubjected, although this did not prevent that had emerged from a far-reachingthem from democratically breaching the analysis of the facts “so that nothing ofwalls raised by the dictatorship and, at that kind may ever take place again in the first opportunity, rejecting the regime Chile”. and its representatives through the ballot In short, in its impressive report, box. the Commission for Truth and Reconciliation It must be recognized, that the present has presented a comprehensive picturetransitional regime has obvious limita­ of torture, killings, executions and disap­tions, two of the most disquieting being pearances carried out in a planned, sys­the impunity from which the Armed Forc­ tematic and continuing fashion by high- es benefited and will probably continue ranking dignitaries of the State, whoseto do so, and their success in imposing physical agents were also State officialsAugusto Pinochet as Commander-in-Chief performing military and police functions. of the Army. From that vantage point he The conclusion reached by the Commis­ may well continue to be a threat to de­ sion was that the dictatorship had en­mocracy. Guatemala Massacre of Santiago Atitlan and Peace Talks

For some years the International Com­tion (insurgents), who are themselves mission of Jurists (ICJ) has been closelyarmed when confronting the Armed Forc­ following the development of the situation es. of human rights in this Central American Events of this kind have obstructed and country. It has publicly drawn attention imperilled the peace-seeking agreements to the numerous violations of these rightssigned in Esquipulas by the five Central and has given precise and factual infor­American Heads of State in 1987. In the mation on them to the international su­ Esquipulas II agreements, a “national di­ pervisory bodies - the United Nations andalogue" was envisaged for Guatemala in the Organisation of American States. Suchwhich the government, the Armed Forces, violations have included assassinations;the business sectors, trade unions, reli­ torture; involuntary disappearances; un­gious groups, etc. would take part with lawful arrest; forced recruitment of thethe armed opposition, the Guatemalan rural civil population, who are mainly of National Revolutionary Unit (URNG); this indigenous origin, to serve in civil self-dialogue would be centred around and Defence patrols (now known as "Volun­ promoted by a National Reconciliation tary Self-Defence Committees"); and Commission. population transfers to so-called "model The dialogue for peace has been im­ villages”. peded from the outset by the Armed Violations of human rights continue to Forces. Nevertheless, progress has been take place, mainly by the Armed Forces made, and a new impetus was given to it who have not complied with the efforts in Oslo, Norway, in 1990. From the agree­ made by the Government of Guatemala ment reached in Oslo between the Na­ to control the situation, and also becausetional Reconciliation Commission - which of the acknowledged ineffectualness of a had a broad government mandate - and judicial power that fails to carry out itsthe URNG, a commitment emerged for a duty to safeguard human rights and tonumber of meetings to be held at which investigate and punish those guilty of vi­ an observer for the Secretary-General of olating them, with the result that violatorsthe United Nations would be present. are confident that they can act with im­ Meetings were subsequently held be­ punity.1 tween the political parties and the URNG Excesses have also been committedin El Escorial, Spain; the business sectors and innocent people killed by the opposi­ and the URNG in Ottawa, Canada; reli-

1. General Juan J. Marroquin Siliezer, on 6 December 1989, in a graduation address to soldiers w h o had specialized in counter-insurgency methods (kaibiles), told them; “Kaibile soldiers are trained to lose all vestige of hum an feeling. This is w h y they will be called masters of the art of war and messengers of death”, quoted by Americas Watch, Messengers of Death, 1989. gious groups and the URNG in Quito, Ec­ themselves in cases in which charges are uador; and the trade union movement and made of serious violations of human rights. the URNG in Mexico. Efforts are now be­ After the Ombudsman made his report, ing made to reach the decisive stage of the subsequent proceedings were left in negotiations between the government and the hands of the judicial power even al­ the Armed Forces on one side of the tablethough there was a well-founded fear that and the URNG on the other side. a military tribunal would be considered In this respect, too, advances havecompetent to judge the case which would been made through "the Mexico agree­ undoubtedly dash all hopes of obtaining ment" signed in Mexico on 26 April 1991,justice. which endorses such negotiations. Some passages from the report of the However, while the peace talks ad­ Ombudsman for Human Rights are quoted vance and retreat, the armed struggle isbelow, as they are thought to be particu­ being pursued and extremely grave formslarly illuminating: “ of repression continue to be carried out against the population. "OM BUDSM AN FOR H U M A N RIGHTS: Gn 3 December 1990, the GuatemalanGuatemala, seven December of the year Army carried out a new massacre of un­one thousand nine hundred and ninety. armed indigenous peasants in the village CONSIDERING: That the Ombudsman of Panabaj in the municipality of Santiago for Human Rights, as has been pointed Atitlan. There were 24 deaths as a resultout on many occasions, is a Commissioner (several people died in hospital from theirof the Congress of the Republic for the bullet wounds) and 19 people were in­protection of the Human Rights estab­ jured. Among those dead were three chil­lished in the Political Constitution and in­ dren and four children were injured. ternational instruments relating to this The facts of and the responsibility forsubject; the relevant law establishes the this event were established beyond doubtrights safeguarded by the Ombudsman through the rapid, determined and coura­and instructs him to protect the individu­ geous investigations carried out by theal, social, civic and political rights en­ Ombudsman for Human Rights in Guate­ shrined in the Political Constitution of the mala, Mr. Ramiro de Leon Carpio. ThisRepublic, and, in particular, life, liberty, official, who was appointed by the legis­ justice, peace, and the dignity and integ­ lative congress to a post created by De­rity of the human person, as well as the crees 54/86 and 32/87, has, among rightsother defined in the Universal Declaration obligations, the duty of monitoring the of Human Rights, and international trea­ observance of human rights and safe­ties and conventions signed and ratified guarding them. He acts independently and by Guatemala. has a role similar to that of the Scandina­ The role of the Ombudsman is to de­ vian Ombudsman or the Defender of the fend and protect. It is clearly defined with Spanish People. His opinions are notpowers and duties that have nothing in binding, he is not endowed with authori­ common with those of other State bodies. ty but he carries great moral weight. For the exercise of his functions the law The outstanding part he played in the itself lays down a procedure that is devoid Santiago Atitlan case highlights the way of formalities, is both simple and effective, in which the authorities, and more partic­and differs from normal judicial procedures ularly the judicial power, should conduct in that the Ombudsman's rulings are not binding nor do they emanate from the tempted to talk to the soldiers at the en­ power delegated by the State to the bodies trance but had received no answer, and concerned with the administration of jus­that the Mayor himself had tried to do so, tice. The Ombudsman's task, and his de­but at that moment the detachment began cisions, are intended to evoke a moral re­to fire indiscriminately on the crowd, action which constitutes the true force ofwhich then turned to flee; that, as a re­ such rulings. sult of this, eleven persons were killed CONSIDERING: That, in the present and nineteen more were wounded, in­ instance, a case file was opened in view cluding children. This is a summary of of the objective fact that on the first day the facts that motivated the opening of a of December of the present year, in the case file. municipality of Santiago Atitlan, depart­ CONSIDERING: That, in the present ment of Solola, at nine o'clock in the case, the Ombudsman for Human Rights evening, an unspecified number of sol­ confirmed from the beginning the way in diers attempted unlawfully to take A N ­ which the events occurred, having gone DRES SAPULU A JU C H A N into custody personally for that purpose to the munici­ who, realising their intentions, began topality of Santiago Atitlan on the second shout for help and, on hearing his cries,day of the current month approximately all the neighbours began to come out of at midday. On that occasion he heard the their houses whereupon the soldiers de­testimony of the Mayor of the municipali­ cided to withdraw but, before doing so, ty, DELFINO RODAS TOBIAS, and of the fired at a person giving him two bullet elected Mayor, SA L V A D O R RAMIREZ wounds; that, in view of these circum­ RAMIREZ, as well as of a large number of stances, several of the neighbours beganneighbours who had gathered in the town to ring the church bells in order to gathersquare. All of them concurred in stating the inhabitants together, and succeeded that the responsibility for the tragic deaths in doing so since a large number of peopleof their neighbours, and of the injuries emerged into the street to discover whatcaused, lay with the members of the na­ had happened; that they first went to the tional Army serving in the military de­ residence of the Mayor of the municipali­ tachment stationed in the hamlet of ty, DELFINQ RODAS TOBIAS, who, ac­ PANABAJ. He personally inspected the companied by a large group of neighbours, situation and the place where some bod­ attempted to determine what had oc­ ies had been found in front of the military curred by visiting the wounded man, and detachment, all with wounds caused by when the elected Mayor, SA LVA DOR firearms, which had undoubtedly been RAMIREZ RAMIREZ, also arrived, both of fired by that detachment. He confirmed them, together with other members of thethat the original action had taken place municipality, accompanied thousands of as a result of the illegal attempt, by sol­ neighbours to the military detachment diers of the Guatemalan Army, to take stationed in the hamlet of PANABAJ, with into custody an inhabitant of the locality, the object of speaking to the Commandant ANDRES SAPALU AJUCHAN, that all the of the detachment about the events of the inhabitants of the village had opposed night; that they had previously decided this, had organized themselves and had to carry white nylon flags in moving to­ gone peacefully towards the detachment wards the said detachment; that, on in question to speak to the military au­ reaching it, Mr. Ramirez Ramirez had at­thorities on the subject and, with that aim in mind, had marched along peacefully isolated action committed by soldiers in a carrying some white nylon flags; that the drunken state, the investigations under­ moon had been full that night, giving good taken by the Ombudsman have totally visibility and that not only had they been disproved these explanations. Similarly prevented from speaking but had been the Army Department of Information and met by a hail of bullets instead. Publicity issued a press release in which CONSIDERING: That, in this case, we the Army claimed that there had been an are in the presence of an odious event,uprising by the local inhabitants against described as a massacre of indigenousthe military authorities, and that this had peasants; in international law, this quali­led to the events in question. Such argu­ fies as GENOCIDE and is governed byments, as explained above, are false since the Convention for the Prevention and what actually occurred was proven by the Punishment of the Crime of Genocide. In Ombudsman through his personal inter­ the present case, the Ombudsman, as in­vention and the investigation undertaken dicated above, confirmed that there had by the staff of his Institution. been a massacre of indigenous inhabitants CONSIDERING: That, under the Politi­ (belonging to the Tzutuhil ethnic group) cal Constitution of the Republic of Guate­ in the municipality of Santiago Atitlan, mala, the Army is an institution intended that eleven people had originally been to maintain the independence, sovereignty killed but that two of the wounded had and honour of Guatemala, its territorial also died, bringing the number of dead integrity, and internal and external peace up to thirteen, with seventeen personsand security; that it is one and indivisible, wounded; and that this action had oc­ is fundamentally professional and apoliti­ curred at close quarters with no justifica­cal, obeys orders and is not a deliberative tion whatsoever, since it was confirmedbody; that it is organised hierarchically that it had not been preceded by any act and is based on the principles of discipline of violence against the soldiers of theand obedience; and that, because of its Guatemalan Army; this consequently de­ single and indivisible nature, responsibil­ fines and determines the gravity of theity for the violations of human rights indi­ events. The neighbours all agreed in stat­cated below cannot be attributed solely ing that the detachment mentioned above to the persons who actually committed forced local inhabitants who passed bythe actions but that institutional respon­ with a load of firewood to leave part of sibility clearly exists and this should their load with them, that peasants going therefore be placed on record. to the fields to work and taking food with Infantry Colonel (DEM) Gustavo Adol­ them had part of it confiscated on the fo Mendez Herrera reported that the pretext that it might help to feed the Commandant of the Military Detachment guerrillas, and that the inhabitants werestationed at Panabaj is Lieutenant (Re­ not allowed to go outside a predetermined serve) of Army Infantry JOSE ANTONIO territorial area to work the land, with theORTIZ RODRIGUEZ and that the officers result that many of them had had to of the detachment are Sub-Lieutenant of abandon their crops and sites. Engineers JUAN M A N U E L HERRER A CONSIDERING: That, although the C HACON and Sub-Lieutenant (Reserve) military authorities have made statementsof Army Infantry SERGIO JULIO MAAZ concerning this affair in an attempt to OCHOA. Given the structure and princi­ minimize the facts by dismissing it as anples of the Army, there is no doubt that the officers named above are also respon­tlan is far from signifying the possibility sible for the facts related, either by actionof establishing peace and security, as it is or omission, in that they were in com­rejected by part of the population. The mand of the troops. Consequently a Ombudsman can do no less therefore than statement should also be made to this interpret the outcry of the people and rule effect so that the competent tribunals may on the specific petition addressed to him hear, judge and, in due course, rule onand signed by thousands of people for the charge against the person or personsthe immediate withdrawal of the detach­ found to have been directly implicated in ment in question from the municipality of the affair. A n affair such as this compelsSantiago Atitlan, a matter on which deci­ the Ombudsman for Human Rights to be sion to that effect must also be taken. severe as regards its dimensions andLEGAL INSTRUMENTS REFERRED consequences, because it is not simply aTO: Articles, 1,2, 3, 4, 5, 152, 153, 154, matter of various persons killed or244, 274 and 175 of the Political Constitu­ wounded, but of the proven responsibilitytion of the Republic; 8, 13, 14, 20, 21, 24, of the Guatemalan Army in the affair. For 27, 29(c), 30 and 31 of the Law on the these reasons, an occurrence of this kindCommission for Hum an Rights of the is qualified under international law as Congress of the Republic and on the Om ­ CRIMES AGAINST HUMANITY; this in­ budsman for Human Rights; 1, 3, 7, 9, 13 clude GENOCIDE, which cannot be toler­ and 29 of the Universal Declaration of ated, minimized or covered up and much Human Rights; and 1, 2 and 36 of the less cloaked in IMPUNITY. The right to Convention on the Rights of the Child. life and to physical integrity are the hu­ WHEREFORE, THE OMBUDSMAN man rights violated in the present case;FOR H U M A N RIGHTS, in ruling on the the victims were all members of an indig­matter, enous community of the Tzutuhil race, and the perpetrators members of the Guate­DECLARES: I. That, in the present case it malan Army. has been found that the right to life of the CONSIDERING: That it is recognized inhabitants of Santiago Atitlan who died that international law imposes duties andhas been violated, and that the right to responsibilities on individuals as well asphysical integrity of the persons who were States, that crimes committed against in­wounded has been violated; ternational law are committed by human H. INDICATES the G U A T E M A LA N beings, and only by punishing the indi­ ARMY AS AN INSTITUTION, as well as viduals who commit such crimes is itthe officers Lieutenant (Reserve) of the possible to enforce compliance with the Army Infantry JOSE ANTONIO ORTIZ provisions of international law. The Unit­RODRIGUEZ, Commandant of the Military ed Nations General Assembly in its reso­Detachment of the Panabaj canton, and lution 96 (I) has stated that genocide is athe officers JUAN M A N U EL HERRERA crime in international law, whose authorsCHACON, Sub-Lieutenant of Engineers should be punished, be they statesmen, and SERGIO JULIO MAAZ OCMOA, Sub- public officials or private persons. Lieutenant (Reserve) of Army Infantry, as CONSIDERING: That, in view of all the responsible for the violations mentioned foregoing, it is also necessary to considerabove; that the presence of the military detach­ HI. ORDERS, in view of the gravity of ment in the municipality of Santiago Ati­ the violations, that the persons responsi­ ble indicated above, and the other mem­ LAN ARM Y to rectify its behaviour in such bers of the Army who may have been respects so that acts of that kind may not directly implicated in the events that oc­ recur; curred both on the first day and on the VI. REQUESTS the Army high com­ second day of the current month, shouldmand that the military detachment at be immediately sent for trial in the com­ Santiago Atitlan be withdrawn from that petent courts; locality. IV. PUBLICLY CENSURES THE GUA­ TEM A LA N A RM Y for the acts under con­ Om budsm an for Hum an Rights sideration, in view of their serious nature; Ramiio de Leon Carpio V. RECOMMENDS the GUATEMA­ Guatemala, 7 December 1990."

Philippines

The International Commission of Ju­ rule of President Marcos. It, however, rists (ICJ) sent a four-member delegationconfirms that grave violations of human to the Philippines in September 1990 torights have continued in the Philippines, assess the human rights developments includingin torture, arbitrary and summary the country during the five years sincekillings, disappearances and forced evac­ President Aquino took office. This is theuation and displacement of civilians. The third report on the situation in the Philip­government has largely failed to fulfil its pines by the ICJ.1 stated objective of curbing human rights In 1977, the first delegation document­abuses. ed serious violations of human rights oc­ curring under the state of martial lawEconomic and Social Conditions proclaimed by President Marcos. A second delegation was sent in 1984 to assess thePervasive inequality and poverty are human rights situation since the lifting ofthe major causes of social and political martial law. In February 1986, Presidenttensions faced by the country. The Philip­ Marcos was forced to leave the countrypines is unable to educate and house its by a non-violent revolution - the People's population adequately. One of the causes Power Revolution - which promised the is the country’s foreign debt burden. The restoration of human rights. ICJ delegation recommends that, in view The third delegation concluded that of the complexity and seriousness of its President Aquino and her administrationdebt burden, the government should strive have restored institutional democracy andfor maximum consensus at the national have repealed most of the repressive de­level and seek international assistance and crees and laws promulgated during theco-operation to deal with the problem.

1. Copies of the report can be obtained from the ICJ Secretariat in Geneva

THE REVIEW -No. 4 6 / 1991 Employment and Labour problem of minorities. Human rights vio­ lations, however, continue in areas where Trade union leaders and workers areindigenous peoples are found. They are targets of attack by the military and para­particularly affected by forced evacuations military forces and related vigilante groupsand indiscriminate logging and mining of and are among the main victims of ab­ their areas. The ICJ delegation recom­ duction and disappearances. The delega­ mends that the government should evolve tion recommended that the government a comprehensive policy for dealing with should amend existing provisions of thethe rights of indigenous Filipinos to land Labour Code that are inconsistent withand natural resources and should also re­ standards set by the International Labourevaluate its present development policies Organisation (ILO) and should take meas­in tribal areas. ures to prevent human rights violations against trade unionists. Women

Agriculture, Fisheries and Land Reform The Philippine Development Plan for Women for the period 1989 to 1992 for­ Land rights and reform for fanners wasmulated by various government agencies one of the major mandates and promisesand non-govemmental organisations was of the Aquino administration. The gov­ approved and adopted by the President. ernment has enacted the ComprehensiveIt provides comprehensive information on Agrarian Reform Program (CARP) whichthe status of Filipino women and deals is a breakthrough in comparison to thewith violence against women and other previous land reform programmes. relevant issues. The ICJ delegation wel­ However, agrarian reform is proceed­comed the preparation of the plan and ing too slowly; the procedures are toourged its full and prompt implementation, complex and real reform is easily sabo­with the participation of women’s organi­ taged. The programme has also sufferedsations. from frequent changes in leadership. In addition, the strong resistance to the pro­Urban Poor gramme by powerful landowners has frustrated progress. The administrationIn the Philippines the urban poor nor­ and Congress have failed to remedy thesemally live in ramshackle structures and problems. comprise about 4 million households. They The delegation recommends an inquiry are subject to numerous human rights vi­ into the successes and failures of CARPolations. In particular, the demolition and led by a respected individual such as adislocation of squatter settlements con­ Supreme Court judge. tinue unabated. The policy of the Marcos’ government Cultural Minorities was to demolish and dislocate the squat­ ter settlements rather than deal with the The creation of autonomous regions ingenuine problems of the people. As a re­ Muslim Mindanao and the Cordilleras sult, the urban poor were vehement op­ represents a positive measure indicatingponents of Marcos and, thus, supporters that the present government is concernedof Mrs Aquino. with and serious about dealing with the Initially, President Aquino created the Presidential Commission for the Urbanmolestation, indiscriminate firing and Poor to co-ordinate various activities andforced displacement. services rendered to the urban poor by The Philippines has ratified the United governmental and non-governmental or­ Nations Convention on the Rights of the ganisations. The 1987 Constitution alsoChild. All of the current abuses being suf­ contained provisions protecting the rightsfered by children contravene the Conven­ of the urban poor. tion as well as Article 24 of the Fourth Despite such categorical commitment Geneva Convention and Article 77 of the to protecting the rights of the urban poor,First Additional Protocol to the Geneva no major changes in their conditions Conventions. seemed to have occurred. The ICJ dele­ The delegation recommends that re­ gation had an opportunity to hear from ports of child abuse be investigated by representatives of a settlement that wasrelevant governmental, non-governmental demolished on 14 and 15 September 1990and international agencies. in Quezon City. The demolition was car­ ried out without a court order, without any notice to the residents and without Insurgency and Counter-Insurgency any plans for relocation. The ICJ delegation recommends that Under President Marcos, the Philip­ the practice of demolishing urban poorpines was faced with two major insur­ settlements and evicting the inhabitants gencies; one waged by the N ew People’s should be discontinued and compensation Army (NPA), the armed wing of the Com­ and proper alternative sites be providedmunist Party of the Philippines (CPP) and for the victims. The government shouldanother in Mindanao spearheaded by the also repeal Presidential Decree 772 whichMuslim Moro National Liberation Front makes squatting a criminal offence and (MNLF). At present, the M N LF threat should enact a new law to take into ac­ seems to be dormant and the CPP-NPA count the genuine problems of shelterlessinsurgency dominates the country's polit­ urban poor communities. ical environment. The nature of the continuing struggle between the NPA and the Armed Forces Children of the Philippines (AFP) is an armed con­ flict to which the Geneva Conventions During the 14 years of martial law un­apply. Though forbidden by Common Ar­ der President Marcos, approximately 4.5ticle 3 of the Geneva Conventions, the million children were directly or indirectlyN PA has subjected civilians and persons affected adversely by internal armed con­“hors de combat” to “violence to life and flict. The increasing militarisation underperson." The NPA has also taken civilian the five years of the Aquino government hostages, passed sentences on civilians has already produced an additional 2 mil­and executed them without fair trial pro­ lion child victims of the conflict. Violations cedures. Furthermore, the NPA has often of international human rights and hu­ endangered civilians, thus violating Arti­ manitarian law by military and paramili­ cle 13 of Protocol n, which provides that tary groups against children include mas­the civilian population be given protection sacres, severe woundings when parentsagainst attack. were killed, arrests and torture, sexualThe NPA sometimes conducts trials in “people's courts” of suspected spies, in­issuing Executive Order No. 275, Presi­ formers and those charged by the NPAdent Aquino issued another executive or­ with having exploited their communities. der creating a “Citizens' Armed Force”. These “courts" have been criticised forTo implement this executive order, a sep­ lack of “judicial guarantees which are arate order was issued in June 1988. Un­ recognised as indispensable" by the com­der this order, the Citizens’ Armed Force munity of nations in the form of Common Geographical Unit (CAFGU) is a reserve Article 3. unit organised within a locality and con­ sisting of officers and soldiers in the active force and qualified reservists residing in The Militarisation of Philippine Society the locality. The CAFGUs maintained in an inactive state are called CAFGU Inac­ President Marcos used the military astive Category. The CAFGU Active Auxil­ his private army and as a tool of oppres­iary (CAA) are those who are called upon sion as a result of which the militaryto assist the regular forces of the Philip­ gradually became a politicised institution. pine army. Unlike the inactive CAFGUs The People’s Power Revolution raised thewho receive small food allowances from hope that the military would revert to itsthe AFP, members of the Special CAFGU role during pre-martial law days and thatActive Auxiliaries (SCAAs) are paid by militarisation would end. private employers. The developments in the last four years Private armed groups known common­ show that human rights violations by thely as “vigilantes" have been actively as­ military and paramilitary continue. More­sociated with the military in its counter­ over, several coup attempts by some sec­insurgency operations. In April 1988, the tions of the armed forces have threatenedSenate Committee on Justice and Human the very democratic framework reinstatedRights conducted an inquiry into vigilante after the February 1986 Revolution. groups which documented vigilante The Philippine army has always in­ abuses and called for the dismantling of cluded paramilitary forces. Presidentall such groups. Responding to the Senate Marcos created the Civilian Home Defence Committee findings and the international Force (CHDF) which was notorious foroutcry on vigilante abuses, President human rights abuses. Opponents of Pres­Aquino announced that she had instruct­ ident Marcos, including Mrs Aquino, de­ed the Army Chief of Staff to begin dis­ manded the dismantling of the CHDF. banding all vigilante groups. The ICJ del­ Subsequently, the drafters of the 1987egation found that the groups still exist Constitution included a provision specifi­and continue to operate with the knowl­ cally banning the use of private armies edge and active involvement of local mili­ and paramilitary forces. On 15 July 1987,tary units. There is ample evidence that President Aquino issued Executive Ordervigilante groups are responsible for wide­ No. 275 stating “ all paramilitary unitsspread human rights violations. including the CHDF, shall be dissolved The ICJ delegation recommends that within one hundred and eighty days from the government should implement the the effectivity of this Executive Order," recommendations of the Senate Commit­ even after which the CHDF was not im­ tee on Justice and Human Rights that mediately dismantled. SCAAs and vigilante groups be disarmed On 25 July 1987, a mere ten days afterand disbanded. Violations of International Human Rights Aquino administration. Many of the vic­ and Humanitarian Law tims have disappeared altogether and must be presumed dead. Seeking infor­ The 1987 Constitution provides that the mation about such people is futile. The Philippines "adopts the generally accept­ police regularly refuse to investigate dis­ ed principles of international law as part appearances and the Commission on Hu­ of the law of the land". man Rights (see below) rarely does so. Although the Philippines has ratified the four Geneva Conventions of 1949 and Summary and Arbitrary Executions the additional Protocol II of 1977, the Phil­ ippine Government has not been willing Despite the obligations of the Philip­ to recognise the application of Common pines under the human rights treaties, Article 3 of the four Geneva Conventions interviews conducted by the ICJ delega­ or the application of additional Protocol II tion reflected a widespread practice of to the non-international armed conflict summary and arbitrary executions. which has been occuring in the country. The ICJ delegation recommends that Forced Evacuation and Displacement Common Article 3 of the Geneva Conven­ of Civilian Population tions and Additional Protocol n should be declared applicable to the current armed Forced displacements continue under conflict in the Philippines. the present administration as they did under that of Marcos. It appears that the Torture evacuating of the civilian population is a Interviews conducted by the ICJ dele­ deliberate strategy of the military de­ gation revealed a consistent pattern ofsigned to deny the insurgents a mass torture and ill-treatment by military andbase. The Department of Social Welfare particularly intelligence personnel. Theand Development has admitted that mili­ pattern indicated that the lower the social tary offensives are the main cause of status of the accused, the greater theevacuations. Conditions in the evacuation chance and severity of ill-treatment. It facilities are overcrowded and there is not appeared to be the custom of military adequate food, sanitation or health care. personnel to obtain a statement by what­ One report about the evacuation camps ever force was required. attributed the death of more than 300 The ICJ delegation recommends that children to measles, diarrhoea, poor sani­ the government should comply with its tation and lack of medical care. The mili­ obligations under the Convention against tary reportedly tortured some evacuees Torture and Other Cruel, Inhuman or De­to force them to identify NPA suspects grading Treatment or Punishment andamong the evacuees. There were also re­ should ensure that all those responsibleports that church workers and represent­ for torture or ill-treatment are brought ativesto of non-governmental organisations prompt and effective justice. were denied access to the camps and harassed by the military on the basis that Disappearances, Abductions and Killingsany help provided to the evacuees is sup­ port for the NPA. There have been a significant number The forced evacuation and displace­ of abductions and kidnappings under the ment of people is considered a counter­ productive strategy, as the government isquest) after the arrest. Close co-ordination spending millions of pesos to remedy thebetween the military and the prosecutors damage caused by its own military. Moreexists and is now institutionalised by the importantly, forced evacuations and dis­creation of Regional Legal Action Com­ placements violate the basic human rights mittees (RELAC). Each RELAC is com­ of the displaced persons. Used as a delib­posed of prosecutors and local military of­ erate strategy of war, forced evacuationsficials and its purpose is to increase co­ and displacements also violate the laws ordination between the two departments of war. concerning prosecution of cases. There can thus be no expectation that the fis­ Criminal Law and Procedure cals will demonstrate independence and including Right to Fair Trial impartiality. Habeas Corpus Petitions When the prosecutor commences the inquest after the arrest, he relies princi­ While illegally detaining a person, the pally upon affidavits to justify the arrest police or military may sometimes coerceand support a criminal charge. This de­ confessions and collect information whichpendence on affidavits has resulted in will retroactively justify the arrest. If several a problems, inter alia, the affidavits detained individual retains an attorney to can be and are often faked. Since affidavits file a habeas corpus petition, the prose­ need not be produced before an arrest cutor ordinarily responds by filing criminalwarrant is issued, law enforcement per­ charges against the detainee without fur­sonnel have a strong motivation to justify ther investigation (the so-called “in­ the arrest by producing affidavits to quest”). Upon the filing of a criminal strengthen the case against the accused. charge the courts deny relief throughha­ Law enforcement affidavits are often beas corpus, even if the accused has been found to be without support when tested held for a prolonged period.^ at trial. The ICJ delegation found no indi­ Existing Filipino jurisprudence thuscation that the authors of falsified affida­ generally renders habeas corpus petitionsvits are subjected to prosecution for per­ ineffective in dealing with illegal arrestsjury. and detention. Consequently, there is vir­ tually no sanction against many human Independence of the Judiciary rights violations of this type. and the Legal Profession

Investigation and Prosecution In one of her earliest actions, President Aquino restored the independence of the Under the Rules on Criminal Procedurejudiciary. The 1987 Constitution reaffirmed the so-called “fiscal" prosecutor is ex­the separation of powers and contains pected to investigate an offence before some additional safeguards to protect the issuing an arrest warrant. 3 Since a pre­independence of the judiciary. arrest investigation is a rarity, the prose­The 1987 Constitution has also cutor usually begins the investigation (in­strengthened the independence of the ju-

2. Cruz v. Director ofNBI, 136 SC R A 511 (1985)). 3. Rule 112, Sections 3 and 6 of the 1989 Rules in Criminal Procedure. didary by establishing a Judicial and Barrant for the killing of two Capital Region­ Council to recommend to the President al Command (CAPCOM) soldiers. The Su­ suitable candidates for appointment to the preme Court held that the arrest of Rolan­ Supreme Court and lower courts. Thisdo Dural without warrant was justified. move is considered very important sinceThe Court reasoned that as subversion under the previous government onlywas a continuing offence and as Duval President Marcos and his close associateswas arrested for being a member of the chose the appointees. As a result, thereNPA it could be said that he was commit­ were improper appointments to the judi­ting an offence when arrested. ciary which led to further erosion of confi­ Human rights lawyers and activists dence in the judiciary. expressed to the delegation the fear that the decision of the Supreme Court inUmil v. Ramos and other related cases would Delays, Corruption and Inefficiency pave the way for further abuse by the military. Some of the cases brought to the The salaries of Philippine judges are attention of the ICJ delegation seem to not attractive enough for successful law­ justify these concerns. yers to join the bench. Consequently, the The ICJ delegation recommends that a filling of vacancies is believed to be a ma­ Criminal Law and Justice Inquiry, headed jor problem. There are 762 vacancies in by a respected individual such as a former courts, excluding the Supreme Court. Supreme Court Judge, should be urgently The problem of delay is recognised and established to examine all aspects of the measures have been taken by the Su­ criminal justice system. The inquiry should preme Court and the Department of Jus­ focus on the way in which legal proce­ tice but nevertheless, delays continue. In dures, the legal profession and the courts cases involving criminal offences, innocent are failing to provide equality before the individuals can be, and have been, de­ law, and fair, impartial, speedy and inde­ tained without justification for prolonged pendent justice and should be required to periods of time. report within a brief period, for example, six months. The Supreme Court’s Recent Judgments The Legal Profession Some of the cases decided by the Su­ preme Court in the last year or so seem to Imposition of martial law by Marcos have created much public debate and and the repression that followed led to concern as to its commitment to human the emergence of a group of committed rights. Many NGOs and lawyers expressedhuman rights lawyers and several human concern to the ICJ delegation about some rights lawyers organisations were estab­ of these judgments, in particular, the Su­lished. preme Court’s ruling on warrantless ar­Many human rights victims are con­ rests inUmil v. RamosA sidered by the military to be identified In this case the principal accused, Ro­with the CPP-NPA. Since even trade un­ lando Dural, was arrested without war­ions and other peoples’ organisations are

4. G R No. 81567, July 19, 1990). branded as communist fronts, lawyersconsidered by human rights activists as who defend members of legal organisa­an indication of the official protection giv­ tions have found themselves also labelleden to members of the armed forces who communist sympathisers. had committed human rights violations. The consequences of identifying law­ Therefore, when Mrs Aquino came to yers with their clients has been tragic.power, there was a strong demand for Killing and intimidation of lawyers in­ the repeal of P.D. 1850. creased to an unprecedented level as It is widely believed that Mrs Aquino compared with the Marcos period. Thehas been pressured by at least some of ICJ delegation understands that com­ the military to retain P.D. 1850. The Senate plaints of harassment and even seriousand House agreed on a Consolidated Bill threats against lawyers are normally notrepealing P.D. 1850 and restoring juris­ investigated by law enforcement agencies diction to civilian courts to try members and that the Integrated Bar of the Philip­ of the armed forces when civilians are pines (IBP) has not taken any major stepseither co-accused or victims, unless the to protect the security of its members oroffence is “service-connected". In the to care for the widows and families ofwake of the December 1989 coup attempt, those killed. The delegation recommends however, President Aquino vetoed the Bill, that the government should ensure thatjustifying her action by citing the state of all persons who kill, threaten or harassemergency imposed after that coup at­ judges and human rights lawyers are vig­tempt. orously investigated and prosecuted. The The government's failure to repeal or delegation also recommends that the IBP significantly amend P.D. 1850 is at vari­ and all bar associations should have aance with its claim that it will not tolerate functioning committee for human rights human rights violations by members of and defence to receive, examine and re­ the security forces. The continued exist­ port promptly on all complaints by lawyersence of P.D. 1850 remains a blot on the of violations of their human rights by mil­newly restored institutions of democracy. itary, paramilitary and police forces. The violations should be immediately prose­ cuted at the initiative of bar associations Presidential Waiver where a prima facie case is found. P.D. 1850 as amended by P.D. 1952 empowers the President to waive the de­ Presidential Decree N 9 1850 cree to enable civil courts to try military defendants. President Aquino has exer­ Under Presidential Decree N 91850 (P.D.cised this power in only a few celebrated 1850) promulgated by Marcos and still cases.not repealed by Mrs Aquino, members of the Human rights lawyers contend that the armed forces and Integrated National Po­administration has not evolved a policy lice (INP) must be tried only by military concerning the exercise of presidential courts regardless of the offences for whichwaiver and has not been consistent in they are accused. Under President Marcos,establishing accountability of security there was not a single prosecution orforces. This view was also confirmed by conviction of military personnel for thelawyers of the Commission on Human violation of human rights. P.D. 1850 wasRights. The ICJ delegation recommended that creating the Presidential Committee on P.D. 1850 be repealed. 5 Human Rights. This n e w Committee functions as a forum for representatives Commission and Committees of various government departments and on Human Rights NGOs to meet and formulate steps to deal with human rights problems. The Com­ The 1987 Constitution^ provided formittee does not have a secretariat and is the establishment of a Commission onserviced by the Department of Justice. The Human Rights (CHR). It consists of aSecretary of Justice chairs the Committee Chairperson and four Commissioners. Ms.and the other members are the Chairper­ Mary Concepcion Bautista has been the son of the Commission on Human Rights, Chairperson since the Commission’s in­the Presidential Legal Counsel, a repre­ ception in May 1987. sentative of the Department of Defence, Despite the CHR’s constitutional sta­representatives from both Houses of Con­ tus and relatively substantial finances,gress and two representatives from pri­ many Filipino human rights lawyers andvate human rights organisations. advocates and many other leaders of The Committee assesses and monitors thought and opinion in the country, in­ the Philippine human rights situation, ad­ cluding people in the Commission itself, vises the President on measures to be told the ICJ delegation that they consid­ taken and assists relatives of disappeared ered the CHR’s performance to be dismal.persons to locate the disappeared and It is the conclusion of the ICJ delega­ those believed to be detained illegally. tion that the CHR's leadership itself does not possess adequate clarity concerningSenate Committee on Justice the mandate or the priorities of the Com­and Human Rights mission. The CHR has failed to generate confi­ Under the 1987 Constitution7, commit­ dence among victims, their families and tees of the Senate or the House of Repre­ human rights activists. It has not used itssentatives are allowed to conduct enquir­ powers to protect human rights and seemsies. Pursuant to this authority, the Senate to have become formal, bureaucratic and Committee on Justice and Human Rights marginal. Most importantly, the Commis­under the Chairmanship of Senator Wig- sion - and particularly its leadership - hasberto E. Tanada has conducted two major failed to establish its independence fromhearings concerning human rights. The the military and to secure its status as Committeean issued its first report in April impartial agency. 1988, after holding hearings on the issues of vigilantes. The second set of hearings New Presidential Committee was on the general Philippine human on Human Rights rights situation, and the Committee issued its report in March 1990. President Aquino issued Administra­ The Senate Committee on Justice and tive Order N s 101 on 13 December 1989,Human Rights, unlike the Commission on

5. P.D. 1850 w as repealed on 20 June 1991 through Republic Act No. 7055. 6. Article XIII, Section 17. 7. Article VI, Section 21 Human Rights, appears to have contrib­Freedom of Religion uted to regaining the confidence of Phil­ and Expression ippine non-go vemmental organisations. in the Philippines

Human Rights Organisations The 1986 Philippine Constitution pro­ vides for the free exercise of religion and A remarkable feature of Philippine so­prohibits discrimination on the basis of ciety is the existence of a wide range of religion. When members of any denomi­ non-governmental organisations (NGOs).nation encourage community development With the advent of the “People’s Revolu­ projects or protect human rights, howev­ tion", NGOs expected that their role would er, they become potential victims of hu­ be recognised and that they would be­ man rights violations. Layworkers are also come more effective in pursuing theirtargets of abuse. goals. President Aquino’s initial appoint­ ments to her administration and to theFreedom of Expression Constitutional Commission indicated her faith in NGOs and other people's organi­ According to the Philippine Movement sations. The 1987 Constitution also for ac­ Press Freedom, the average number knowledged the “Role and Rights of Peo­ of slain journalists has risen from 2.3 per ple’s Organisations” - a provision whichyear in 14 years of President Marcos' ad­ did not exist in the previous two constitu­ministration to six in the first four and a tions. However, the collaborative rela­half years of President Aquino’s adminis­ tionship between NGOs and Presidenttration. Journalists have also reported Aquino's administration did not last long. cases of abduction, torture, physical and Organisations that took up the cause ofverbal harassment and threats by mem­ different disadvantaged sectors of socie­bers of the military. ^ ty were suspected of supporting the CPP- Philippine journalists contend that a NPA. Human rights organisations docu­policy of self-censorship is maintained and menting violations by the military, and encouraged. Internal memoranda within human rights lawyers who defended thenewspaper offices request media person­ rights of victims, became the most sus­nel to “tone down" or “play safe".9 The pect. Church organisations are also sus­existence of self-censorship would seem pected of being CPP-NPA fronts. to explain why major newspapers often Evidence received by the ICJ delega­ tend to report counter-insurgency efforts tion indicates that NGOs and trade unionswithout mentioning related human rights are facing frequent threats and are func­abuses. Many media reports appear to tioning under pressure. The attackscontain little more than government press against NGOs and church workers, how­releases and do not reflect independent ever, totally contradict the views of vari­investigation of the events or the contrary ous government departments that theyviews of human rights, church and other need the assistance of NGOs to imple­informed organisations. ment their programmes.

8. Article 19 World Report, Philippines (1990) 9. Article 19, World Report, Philippines (1990) COMMENTARIES

The UN Commission on Human Rights and the new Working Group on Arbitrary Detention

The United Nations Commission on family reunification in the Israeli-Occupied Human Rights, which met from 28 JanuaryTerritories; (c) the violence in the town­ to 8 March in the shadow of the on-going ships in South Africa; and (d) the working Gulf War, nevertheless completed whatgroup on arbitrary detention, the draft many observers considered its most pro­declaration on disappearances and the ductive session in recent history. TheSub-Commission’s special rapporteur on Commission took action on a record 19judges and lawyers. More importantly, the country situations, began plans for a 1993ICJ lobbied for the creation of the new World Conference on Human Rights and working group and confirmation of the set up an inter-sessional working grouprapporteur on judges and lawyers and to finalize a draft declaration on disap­ carried forward the resolution on Iraq. pearances. The most important long-term accomplishment of the Commission was the creation of a five-member working Country Situations group to investigate cases of arbitrary detention throughout the world. The Gulf conflict resulted in the ap­ Mr. Enrique Bernales Ballesterospointment of a new special rapporteur to (Peru), the Commission's special rappor­monitor and report back on the human teur on mercenaries, was elected Chair­rights situation inIraq and another to as­ man of the session. Mr. Kojo Amoo-Gott-sess violations by Iraqi forces in occupied fried (Ghana), Mr. Goetz-Alexander Mar-Kuwait. Other special rapporteurs will tius (Germany), and Mr. Vladimir A. Va­continue to follow the situations inA f­ silenko (Ukrainian SSR) were elected as ghanistan, Myanmar (Burma ) (under the Vice-Chairmen and Mr. Masahiro Tauchiconfidential “1503" procedure),El Salva­ (Japan) was rapporteur. The Commissiondor, ban, and Romania. A six-member adopted 82 resolutions and 8 decisions,team of will again report onSouth Africa. Of which 65 resolutions and 7 decisions werethese latter resolutions, only the one on adopted by consensus. Iran created controversy as Pakistan in­ The ICJ intervened on four issues on:troduced a draft resolution proposing the (a) the question of impunity for human termination of the mandate of the special rights violators (citing the pre-war inter­representative. Austria then introduced a national silence on Iraqi abuses and theresolution to prolong the mandate. As pardons of the generals in Argentina); (b)voting on the competing resolutions was the legal and administrative barriers toabout to begin, negotiations resumed, and the next day a compromise text was in­ by a vote (of 21 for; 16 against; and 5 troduced extending the mandate for an­ abstentions) the Commission decided to other year and stating that, “the Commis­consider the situation in that country un­ sion will consider the report with a viewder the agenda item on “advisory servic­ to its discontinuing the mandate if there es" rather than that on “violations.” Fol­ is further progress achieved regardinglowing its the return to democracy in Haiti, recommendations....” 1 The resolution onits status was downgraded by consensus Myanmar (Burma) followed the visit by from the agenda item on "violations” to rapporteur Mrs Sadako Ogata (Japan),that on “advisory services,” despite mis­ (who has since become UN High Com­ givings by NGOs who would rather, in missioner for Refugees), during which shesuch fragile situations, have a high level was unable to travel freely, visit places ofof scrutiny rest in place during transition­ detention or meet with opponents of the al periods. Equatorial Guinea, which for military government. As a result, lastso long has ignored the recommendations year’s resolution was strengthened to callof the Commission and its expert ap­ on the government of Myanmar (Burma) pointed under the advisory services pro­ to grant such access to the expert and togramme, was taken to task for its record, allow prison visits by the ICRC. Thewhile remaining under the programme. Commission also called on the government The Commission also kept the situa­ to accelerate the transition to democracy.tions in Chad, Somalia and the Sudan The South Africa resolution was, for the“pending" under review in the “1503” first time, adopted by consensus, reflect­procedure. The action on the Sudan - quite ing the encouraging developments taking mild for a country considered by many to place there. have one of the worst human rights The Secretary-General will appoint a records in the world - was nevertheless representative to pursue questions leftreportedly taken in the face of opposition open from the Commission’s 1988 visitof to China, Ghana, Indonesia, Iraq, Mauri­ Cuba and to report back to the Commis­ tania and Somalia, while Bangladesh, sion under its agenda item on human Cuba, Madagascar, Morocco, Pakistan and rights violations. The narrow vote (21 for;Senegal abstained. Finally, the Commis­ 18 against; and 4 abstentions) approvingsion expressed concern regarding the sit­ this US proposal was achieved only afteruation in Albania, the Israeli-Occupied an eleventh-hour telephone call from Territories, Lebanon and the Baltic Re­ President Bush to President Menem andpublics. The carefully negotiated text on resulted in the recall of the Argentinethe Baltic Republics, presented in the form Ambassador who had co-sponsored of a a statement by the Chairman, marked competing Latin American group resolu­the first time the Commission had spoken tion. Argentina reversed its position, theabout abuses in one of the five perma­ United States withdrew from negotiations nent Member States of the Security on a compromise text and several coun­Council. It “expressed grave concern over tries switched votes at the last minute.the recent tragic acts of violence involving Latin American governments prevailedviolations of human rights including the when it came to Guatemala, however, and right to life, to freedom of information and

1. C.H.R. Res. 1991/82, U.N. Doc. E/CN.4/1991/L.ll/Add.6, at 3 (1991). to take part in the conduct of public af­ challenged this time for continuing abus­ fairs." es in both Tibet and China proper. Nor The resolution on Iraq constituted awas powerful, oil-rich and Muslim Indo­ bittersweet victory for human rightsnesia, whose brutal occupation of East groups, including Amnesty InternationalTimor strikingly parallels Iraq’s rape of and the International Commission of Ju­ Kuwait - except for the world's inatten­ rists, which had prioritized the abuses tion.in The situations in Colombia, Ethiopia, Iraq since the government’s 1988 gassingPeru, Sri Lanka and Zaire were raised by of Kurdish villages. It was obviously Iraq'shuman rights groups but ignored by gov­ invasion of Kuwait - and not its systemat­ernments. ic torture of political prisoners, mass kill­Perhaps the most insightful report on ings, nerve gas attacks and forced reloca­a country situation came, not from a tion of up to 500,000 Kurds - which alteredcountry rapporteur, but from the Working the political balance and finally, after three Group on Disappearances following its years, made a condemnation possible. visit to the Philippines. The Group re­ In 1989, for instance, at the first meet­counted a familiar pattern: ing of the Commission following heavy “A much-observed sequence of devel­ Iraqi use of chemical weapons, 15 Westernopments leads up to the occurrence of countries, at the urging of human rightsdisappearances, starting with poverty and groups, introduced a resolution to con­social injustice. The persistence of those demn this and other violations. The Com­ conditions sooner or later induces struc­ mission's Asian and Muslim states, how­tured opposition. Sustained inequality ever, joined with most of those buying oil breeds insurgence, just as subversion or selling weapons to Iraq to block theleads to militarization and repression. action. The low priority accorded to IraqiCounterinsurgency, as a rule, is conducive abuses by some Western countries con­to human rights violations, provoking even tributed to this failure. The United States, more terror from armed opponents. Soon, busy twisting arms in a single-minded at­an entire country is swept into a spiral of tempt to condemn Cuba and France, violence, from which escape is invariably which was arming Saddam, refused evendifficult. The Philippines is no exception.” to co-sponsor the resolution. Efforts in After an analysis of Philippine legisla­ 1990 to call attention to the continuingtion and a thorough evaluation of the root atrocities in Iraq were no more success­causes of the problem, the Group’s con­ ful. clusions were stinging: Human rights groups suggested to the “The question arises of why disap­ Commission at its 1991 session thatpearances its continue to occur... at least failure to react to Iraq’s flagrant abusesthree contributing, and mutually reinforc­ helped persuade Saddam Hussein that heing, factors may be identified. First, pow­ could get away with other violations of ers of arrest have been widened: the international law, including the invasion armed forces, the national police, the civil of Kuwait. defence forces (CAFGUs) as well as civil Despite the Commission’s new-foundvolunteers can all apprehend a suspect. courage on Iraq, other violations were stillSecondly, arrests in general have been too politically hot to handle. China, which facilitated by recent Supreme Court rul­ in 1990 narrowly escaped condemnationings that, understandably, have provoked for the Tiananmen crackdown, was neverthe ire of many human rights observers within and outside the Philippines. The many of the recommendations suggested Court has in effect stated that rebellion,in both reports, and never “cast any doubt subversion and related offences are so-on the sincerity and genuine commitment” called ‘continuing crimes' - meaning that of the government to protect human their perpetrators are constantlyin fla­ rights. grante delicto - and that no judicial war­ Under the item on self-determination, rant is needed for arresting persons thesus­ Commission again adopted resolutions pected of them, mere suspicion being on the situations in Afghanistan, Cambo­ enough. Thirdly, the circle of potential dia, Palestine and the Western Sahara. victims of arrest has widened through a practice favoured in military circles and popularly known as ‘red-labelling’: listsWorking Group on circulated describing non-governmentalArbitrary Detention organizations of different orientation - in­ cluding trade unions - as ‘front organiza­ Human rights advocates have long tions’ for the outlawed Communist Partymaintained that after the country-specific of the Philippines. In addition, the same rapporteurs, the Commission's “thematic” suspicion is raised against anybody criti­mechanisms - particularly the Working cal towards government policy, or, moreGroup on Enforced or Involuntary Disap­ to the point, towards the armed forces". pearances, and the special rapporteurs on The Group also criticized “the almosttorture and on summary or arbitrary exe­ autonomous power of the military," the cutions - are its most important tools in “impunity" enjoyed by those responsiblehuman rights protection. These mecha­ for human rights abuses, and the ineffec­nisms allow the Commission to receive tiveness ofhabeas corpus. information and report on, and to “respond The Philippine representative lashedeffectively” to these phenomena on a out at the Group in his response. The re­world-wide and non-political basis. NGOs port, he said, “turns the truth on its head”have suggested for several years that a by blaming the government, when it is thematic mechanism on the wrongful the opposition whose recourse to violencedeprivation of liberty could complement has "transformed this social conflict intothe present mechanisms by covering the an armed one.” Similarly, the report alleg­most widespread violation of individual edly failed to examine the effects of the civil rights. In the past, however, creation insurgents’ violence. The delegate com­ of such a mechanism has never seemed pared the Group’s report with that issuedpolitically possible. by the special rapporteur on torture fol­ The issue was once again on the Com­ lowing his almost simultaneous visit andmission’s agenda because its Sub-Com­ which issued similar conclusions and rec­mission had forwarded to it the suggestion ommendations but which was said to of Louis Joinet (France), Sub-Commission “reveal a better understanding of therapporteur on administrative detention, complexities" of the Philippine situation. that the Commission set up a body to look In particular, the special rapporteur onat different aspects of detention. Joinet torture was said to give greater credit proposedto four different options: (a) the the government’s attempts to redress theappointment of a special rapporteur with situation, including its two invitations as a mandate covering administrative de­ well as its previous efforts to implementtention alone; (b) the appointment of a special rapporteur with a mandate cover­States was putting forward a proposal to ing detention both by an administrative create a special rapporteur on “political authority and by a judicial authority; (c) imprisonment and arbitrary arrest, deten­ the appointment of a special rapporteurtion, and exile." A similar effort by the with a specific mandate for situations ofUnited Kingdom in 1989 had been blocked arbitrary or unauthorized detention of anyby developing countries^, and it was kind; or (d) a five-member working group feared that the US proposal would not only with the same mandate as in option (c), meet a similar fate but jeopardize the and with the possibility that each mem­ French proposal. Additionally, N GOs ber would specialize in one aspect of de­ pointed out that the term “arbitrary” al­ tention (judicial, administrative, juveniles, ready included the concept of unjustified asylum-seekers, other categories). political detention. Eventually, the US During the Commission, the Frenchdelegation was persuaded to give its delegation incorporated this suggestionbacking to the French proposal. Like the into a draft resolution calling for a three-NGOs, however, the United States sug­ year mandate for a rapporteur or workinggested that the mandate be interpreted group with the task of “investigating sit­to include all those wrongfully deprived uations of arbitrary or wrongful detentionof their liberty, and not just pre-trial de­ in all their forms, including administrativetainees. detention.” The prospects for the adoption France introduced the proposal within of the resolution seemed slim. the Western group, while Peru did the Before the text was even circulated, same in the Latin American group, both however, it received a major boost whenof which gave their approval in principle. Commission Chairman Enrique BernalesSoundings were also made in the other Ballesteros of Peru indicated to the ICJgroups. French co-ordinator Stephane not only that he would support the idea Gompertz then convened the first of two but that, if general consensus weremeetings with key representatives from reached, he would take on the project as each regional group, Amnesty Interna­ his own and present it as a “Chairman'stional and the ICJ, to discuss the mecha­ draft," to be adopted without a vote. This nism and its mandate. As the discussion ensured that the proposal would not beunfolded, it became clear that no one in seen as a purely “Western" idea - some­the meeting questioned the essence of thing which would have harmed the initi­ the idea - probably because the proposal ative. Because of the popularity of the had the strong backing of the Chairman. Chairman, his backing also gave the During the two meetings, and then in a French important leverage as they tookseries of informal discussions involving the proposal to other delegations. principally France, China, Cuba, India, At the same time, however, the United Peru, the United States and the ICJ, the

2. In 1988, on the initiative of the United Kingdom, the Commission for the first time adopted a resolu­ tion calling for the release of “political prisoners. ” Commission on Hum an Bights Resolution (hereinafter “CHR Res.") 1988/39, U N Doc. E/CN.4/1988/88 at 98-99. In 1989, the UK went further and proposed the appointment of a special rapporteur to examine the question. China, India, Rw anda and the Ukrainian SSR tabled amendments to the draft, deferring consideration of appointing a rapporteur and introducing restrictive language. The United Kingdom thereupon withdrew its resolution and submit­ ted one virtually identical to the previous year's.( C H R Res. 1989/56, U N Doc. E/CN.4/1989/86, at 136 and 220-221). exact terms of reference were worked out.disagreement on whether these should A first question was whether to includeinclude treaties only, or General Assem­ within the mandate all persons wrongful­bly declarations and General Assembly- ly deprived of their liberty or only thoseapproved standards as well. China, Cuba held without a trial. The NGOs, Czecho­ and India, in particular, insisted that any slovakia, Senegal, the United States and extension from "arbitrary" be limited to some other Western countries arguedbinding instruments. After lengthy nego­ strongly against excluding those sen­tiations, the precise terms of reference of tenced after unfair trials or under laws thein group were set as “investigating cas­ violation of international norms. Others,es of detention which are imposed arbi­ however, principally from developing trarily or otherwise inconsistently with the countries but also including the Nether­international standards set forth in the lands, objected to a UN body questioning Universal Declaration of Human Rights or the fairness of their judicial procedures,in the relevant international legal instru­ and worried about the number of prisonersments accepted by the States concerned.” who would seek to seize the UN com­ (The word “imposed" was included to plaining that their trials had been unfair.make clear that the mandate was con­ No consensus was thus possible and thecerned with the fact of detention, not its ambiguous word “detention" was re­conditions - the latter falling within the tained. It was agreed, however, that the province of the special rapporteur on tor­ mechanism would not be limited to ad­ ture.) ministrative detention only, as some had Agreement was also only reached at suggested, but would include all forms ofthe last minute on who could petition the detention, including judicially ordered group. The original formulation mandated detention. the group to receive information from A second question, and one which governments, intergovernmental institu­ would not be resolved until minutes beforetions, non-governmental organizations, the deadline for the resolution's submis­“and other reliable sources." Objections sion, concerned the substantive legal cri­by Cuba that this phrase could include teria for cases to be considered. Theremedia reports led to the final formula "the was little objection to the term “arbitrary,"individuals concerned, their families or found in both the Universal Declaration their representatives." and the International Covenant on Civil Finally, at the request of the develop­ and Political Rights (ICCPR). Several del­ ing countries, who maintained that the egations, however, believed the term mechanism should reflect regional bal­ “wrongful" to be imprecise-^. Most agreedance, it was agreed that the task be en­ that some reference should be made totrusted to a working group rather than a international standards, though there wassingle rapporteur4 . Western countries and

3. The original French text reads"detentions arbitrages ou abusives “ 4. In the 1990 debate over the "enhancement" of the Commission's procedures, the Group of Non- Aligned States suggested that: "The practice in respect of the appointment of Special Rapporteurs on thematic issues should be re-examined. O n thematic issues of global interest, Working Groups of five persons from different regions should be formed. These Working Groups could also include members from various Permanent Missions in Geneva, which would result in reduction of expenditure. Such working groups would provide additional advantages of transparency, credibility and democracy." U N Doc. E /C N .4/1990/W G .3/W P .6. N G O s had sought the latter on the the right of everyone to be free from arbi­ grounds of flexibility and cost. As a work­trary arrest, detention and exile. After ex­ ing group, however, the mechanism may amining the travaux preparatories on ar­ enjoy a broader political base than a singleticle 9 of the Universal Declaration, as well rapporteur would have. as article 9 of the, then, draft ICCPR, the Presented by Chairman Bernales, theCommittee concluded in its revised 1964 proposal was adopted without a vote. In study that: his closing speech, Bernales hailed the “‘Arbitrary’ is not synonymous with creation of the working group (hereinaf­‘illegal’ and that the former signifies more ter the “Group”) as one of the session’sthan the latter. It seems clear that, while major achievements. US Ambassadoran illegal arrest .or detention is almost al­ Morris Abram did likewise. Once approvedways arbitrary, an arrest or detention by the Economic and Social Council, the which is in accordance with law may Chairman will appoint one expert from nevertheless be arbitrary. The Committee, each region to serve on the Group. therefore... has adopted the following Creation of the Group represents definition: a an arrest or detention is arbi­ great leap forward in the Commission'strary if it is (a) on grounds or in accordance protection work. Its mandate to “investi­with procedures other than those estab­ gate” gives it an unprecedented means lished by law, or (b) under the provisions of action while the expansive term “arbi­ of a law the purpose of which is incom­ trary" ensures that it will have a heavypatible with respect for the right to liber­ case load. At the outset, the Group will ty and security of persons ”5. have to decide how to fulfil this daunting The UN Human Rights Committee has mandate. thus included within the prohibition against arbitrary deprivation of liberty: ‘Arbitrary' detention without judicial warrant; ® the kidnapping of nationals resident abroad The term ‘arbitrary,’ found in both the and their forced return to national territo­ Universal Declaration of Human Rightsry; ^ the arrest and detention of a person and the ICCPR, has consistently been never charged with a crime but from given a broad definition. The most au­ whom information was sought; 8 and the thoritative definition of the term was pro­prolongation of detention after completion vided by the Committee appointed by the of sentence,^ or after a judicially-ordered UN Commission on Human Rights to studyrelease, 10 or after an amnesty1 Most

5. Study of the right of everyone to be free from arbitrary arrest, detention and exile, U N Doc. E/CN .4/826/ Rev.l, para. 27. 6. Conteris v Uruguay, Communication 139/1983, Selected Decisions of the H um an Rights Committee under the Optional Protocol - Volume 2, U N Doc. C CPR /C/OP/2 Selected Decisions at 168. 7. Celiberti v Uruguay, Communication 56/1979, H um an Rights Committee - Selected Decisions under the Optional Protocol, U N Doc. CCPR/C/OP/1 (“Selected Decisions 1"), at Lopez92; v Uruguay, Com ­ munication 52/1979, Selected Decisions 1, at 88. 8. Monguya Mbenge v Zaire, Communication 16/1977, Selected Decisions 2, at 76. 9. Lanza v Uruguay, Communication 8/1977, Selected Decisions 1, atAmendola 45; v Uruguay, Com m u­ nication 25/1978, Selected Decisions 1, at 136. 10.Torres Ramirez v Uruguay, Communication 4/1977, Selected Decisions 1, atAmendola 49; v Uruguay, Communication 25/1978, Selected Decisions 1, atBuffo 136; CarbaEal v Uruguay 33/1978, Selected Decisions 1, at 63;Soriano de Bouton v Uruguay, Communication 37/1978, Selected Decisions 1, at 72. 11.Nagaluia Mpandanjila v Zaire, Communication 138/1983, Selected Decisions 2, at 164. importantly, it has specifically held that mation received1 Modifications to their ICCPR article 9(1) is violated when a per­mandates introduced or ratified the "ur­ son is detained on account of his political gent action” procedure and the practice opinions1^. The Committee, too, has not­ of taking up invitations to visit countries. ed that the term ‘arbitrary’ "is not to beIn terms of actual cases submitted, how­ equated with 'against the law’, but must ever, these mechanisms (as important as be interpreted more broadly to include el­they are for recording and thus publicizing ements of inappropriateness, injustice andabuses) do little more than receive infor­ lack of predictability. ’’13 mation from complainants, transmit the Given the range of situations coveredinformation to governments and report on by the term ‘arbitrary,’ it is impossible theto complaint and the reply. Indeed, with predict at the present time how many the exception of the Working Group on cases will be submitted to the Group. EvenEnforced or Involuntary Disappearances, if the figure was limited to those detained the current thematic mechanisms do not for their opinions, the number could welleven transmit government responses to be in the hundreds, if not thousands14. complainants for their rebuttal - a proce­ dure which NGOs have long requested “Investigate" and which would permit the mechanisms to transcend a government’s flawed re­ The Group was charged with the “tasksponse. of investigating cases" of arbitrary deten­ “Investigation,” however, at least im­ tion. This request, which representsplies a reaching some form of conclusion. major innovation in thematic mandates, Whether or not the Group will reach a should open the way for a more activistformal decision on each case submitted approach than that used by the other to it, it should, in its yearly report, be able mechanisms. The Working Group on En­to present more analysis of the cases than forced or Involuntary Disappearances, andis the current practice of the other theme the special rapporteurs on torture and mechanisms.on While the Group will cer­ summary or arbitrary executions weretainly all not have the resources to conduct initially asked only “to examine questions genuine fact-finding for each of the thou­ relevant to” the phenomenon under scru­sands of cases with which it will be pre­ tiny and to “respond effectively" to infor­ sented, other formulae could be envis-

12. See, e.g., Communication 132/1982Jaona v Madagascar, Selected Decisions 2, at 161 (Committee finds violation of ICCPR 9(1) “because Monja Jaona w as arrested...and detained...on account of his politi­ cal opinions"); MartinezPortorreal v Dominican Republic, Communication 188/1984, Selected Deci­ sions 2, at 214 (Committee finds violation of ICCPR 9(1) where the victim w as allegedly arrested “because of his activities as a leader of a human rights association"). 13. van Alpen v the Netherlands, Communication 305/1988, U N Doc. CCPR/C/39/D/305/1988. 14. In 1989, Amnesty International took up 3,376 cases of possible “prisoners of conscience” - persons detained for their beliefs, race or religion who have not used or advocated violence. Amnesty International, 1990 Report, p. 298. 15. C H R Res. 20 (XXXVI), U N Doc. E/CN.4/1408, at 180 (1980) (disappearances); C H R Res. 1982/29, U N Doc. E/CN.4/1982/30, at 147 (summary or arbitrary executions); C H R Res. 1985/33, U N Doc. E/CN .4/ 1985/66, at 71 (torture). Only the rapporteur on summary or arbitrary executions w as not initially mandated to “respond effectively” to information received. This w a s rectified in C H R Res. 1984/50, UN Doc. E/CN.4/1984/77, atSee, 86. Weissbrodt, supra note 2. In the case of the n e w Group, it was assumed that the mandate to “investigate" subsumed the mandate to “respond effectively," obviat­ ing the need to specify the latter. aged. Other Developments Using the two-pronged definition of “arbitrary" suggested in the 1964 UNThe Commission considered theDraft study, the Group might adopt one ap­ Declaration on Disappearances adopted by proach where the detention was alleged­ the Sub-Commission last year. The Latin ly carried out by means “other than thoseAmerican group voted to approve the text established by law" and a different ap­ and send it forward to ECOSOC. Several proach where the detention was said tocountries, however, particularly within the be ordered “under the provisions of a lawWestern group, believed that it was not the purpose of which is incompatible with appropriate for the Commission simply to respect for the right to liberty and securi­pass along a Sub-Commission text without ty of person.” In the former approachstudying it. Others, particularly the Unit­ (which would essentially pose factual and ed States, were known to have problems individual questions), the Group could with specific articles of the draft. At the draw on the procedures employed by thesame time, all delegations who took the Human Rights Committee in individual floor agreed that it was a priority to move cases submitted under the First Optionalthe declaration forward as quickly as pos­ Protocol to the ICCPR. Given the number sible. The Commission therefore decided of cases which will come before it, how­ to create an open-ended working group ever, a strict quasi-judicial investigationwhich would meet for two weeks before of each case would be impracticable, and the next session to finalize consideration a more flexible formula should be devised. of the draft and transmit it to the Com­ In the latter approach (which would mission for adoption at its next session. largely pose legal questions affecting en­ The Commission also: tire classes of persons), the Group could go further and give an opinion on the - decided by a vote of 23 for; 4 against; compatibility of the law with respect for and 5 abstentions to propose to the right to liberty and security of person. ECOSOC an amendment of the Sub- The Group was purposely not charged, Commission’s procedures permitting as the other mechanisms had been, with the use of a secret ballot whenever a studying the phenomenon of arbitrary de­ majority so decides; and tention. Rather, it was intended to be an - postponed consideration of a draft op- action-oriented mechanism. While the tional protocol to the Convention Group will no doubt have occasion to look Against Torture, which would create a at the theoretical aspects of the question, sub-committee to carry out preventive it should be sure not to duplicate the work visits to places of detention along the of the UN Committee on Crime Prevention lines of the European Convention and Control, which was asked by the against Torture, to allow states time Eighth UN Congress on the Prevention of to study the proposal. Crime and the Treatment of Offenders “to examine the question of pre-trial deten­ In 1990, the General Assembly decid­ tion,” nor the study now being undertak­ ed to convene a World Conference on Hu­ en by two experts of the Sub-Commissionm an Rights in 1993. A Preparatory Com­ on the right to freedom of opinion and mittee will meet in Geneva in September expression, and the permissible limitations1991. NGOs are hoping that the Confer­ on that right. ence will be more than window-dressing for the UN and the host countries. fore imperative that the UN budget - to Over several objections, and afterbe decided at the 5th Committee of the several amendments, the United States General Assembly - provides increased won approval for a resolution calling forfunding for the Centre. Alternatively, such an expert to prepare a study on the rightan initiative could come from the 1993 of everyone to own property, alone as wellConference. as in association with others. Chairman Bernales won praise from all sides for his handling of numerous sensi­ tive issues. His commitment led directly Conclusions to the creation of the new working group on arbitrary detention. In addition, short­ The general satisfaction with the re­ly after the session, he issued a public sults of the session should not hide somestatement calling on the Iraqi government longer-term problems within the Com­to halt the post-war abuses against its mission, which remains an intensely po­own population. This statement, made af­ litical body. ter consultations with the Commission’s The turn-around on Iraq was a mani­Bureau, is believed to mark the first time festly political decision, but so too wasthat the Commission Chairman has taken the compromise on Iran, whose geopoliti­on such an inter-sessional role and is a cal standing has improved more than itshopeful precedent. human rights performance. Similarly, For his work in guiding the resolution placing Cuba but not Guatemala under on the new working group to a successful the item on “violations” reflects more onconclusion France’s Stephane Gompertz their relative positions in the “new worldreceived the N G O “Ruth Pearce Award” order" than on the dignity afforded theiras the diplomat who had done the most citizens. African countries (other thanto advance the cause of human rights at South Africa), once again were exempt that session of the Commission. Named from public criticism, with the minor ex­after an Australian diplomat, the award ception of Equatorial Guinea. For the firsthas previously gone to: Ana Martins time, three European countries were sub­Gomes (Portugal) in 1989 and Mikael Dahl ject to comment: Albania, Romania and (Sweden) in 1990. the Baltic Republics. Next year, a new era begins as mem­ With the creation of a major new bership of the Commission will be ex­ working group, new rapporteur-ships panded on from 43 to 53 in order to partially Iraq and Kuwait, inter-sessional workingremedy the under-representation of de­ groups drafting declarations on minorities,veloping countries. It is hoped that this human rights defenders and disappear­will lead the Commission to take greater ances, and an expert on private property,account of the preoccupations of develop­ the already insufficient resources of theing countries, particularly concerning the UN Human Rights Centre secretariat willrealization of economic rights and the right be strained to breaking point. It is there­to development. ARTICLES

The Draft Declaration of the United Nations on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities

Bokatola Isse Om anga*

Public opinion today has been stirred, What is the United Nations to do about and rightly so, by the plight of the Kurdsthis problem? For quite a long period (at in Iraq. Yet, this situation is certainly notleast 20 years) following the end of the the only conflict or inter-ethnic strife inSecond World War, the issue of interna­ the world. There are many other instances,tional protection for minorities was including the Corsicans in France, the Irisheclipsed from the public eye. With the Catholics in Ulster, the French Canadiansfailure of the League of Nations to protect in Quebec, the Albanians in Kosovo, Yu­ minorities still very much in mind, the goslavia, the Tamils in Sri Lanka, the Is­United Nations Organisation skirtedthe lamic separatists in the Philippines, andissue for many years. The very first texts the Animist and Christian minorities inof the new international body proclaimed southern Sudan. The issue of minoritiesand guaranteed respect for the basic has exploded onto the world scene. The rights of all men without any distinction problems of discrimination and minoritywhatsoever. Therefore, it was believed protection are clearly no longer confinedthat there was no need for special protec­ to the traditional multi-national hot spots tion of minority rights since elimination of Central and Eastern Europe. Nowadays,of oppression of the individual was nations with ethnic, racial and linguistic thought adequate to bring a halt to op­ diversity are the rule rather than the ex­pression as a whole. ception. Nearly all the nations of the world This assumption proved to be quite harbor certain minorities even though themistaken. In the last few years, the United exact problem of these minorities may notNations has recognised that its protection always and everywhere be identical. It isof human rights falls short in the area of true that the legal, political, social, cultural the protection of minorities. Although it and even economic factors which come is a thorny and complex issue, which is at into play may vary with the time and times plagued by opposition from some place. Member States, the United Nations has

* Doctor of Law, Former Assistant, L a w Faculty, University of Geneva set up standards (which, however, are not27 of the International Covenant on Civil always effective) to protect minorities. and Political Rights. The purpose of this This does not mean that the United Na­ study was to analyse the notion of minor­ tions has reverted to the conventional no­ity, taking into account ethnic, religious tion of minority protection. One idea has and linguistic factors in multi-national so­ not displaced another; rather, there hascieties”1. This task was entrusted in 1971 been a harnessing of two notions: one, to Professor Francesco Capotorti, who was on human rights and non-discrimination; appointed Special Rapporteur for the and the other on the specific protection of “Study of the Rights of Persons Belong­ minorities. ing to Ethnic, Religious and Linguistic The efforts of various UN bodies andMinorities.” In the conclusions of his final those made by certain countries includingreport, published in 1977, Professor Ca­ Denmark, the Soviet Union and Yugosla­ potorti recommended the preparation of via, resulted in the insertion of Article 27a draft Declaration on the Rights of Mem ­ into the International Covenant on Civil bers of Minority Groups in accordance and Political Rights (1966), which with the principles articulated in Article states:"In those States in which ethnic, 27 of the Covenant^. To perform this task, religious or linguistic minorities exist,the Human Rights Commission created a persons belonging to such minorities shallWorking Group in 1978, which was unre­ not be denied the right, in community with stricted in its make-up, whose task since the other members of their group, to enjoythat date has been to prepare a “Declara­ their own culture, to profess and practisetion on the Rights of Persons Belonging their own religion, or to use their ownto National, Ethnic, Religious and Lin­ language”. guistic Minorities”, on the basis of a draft Article 27 of the International Cove­submitted by Yugoslavia. nant on Civil and Political Rights is be­ The object of this article is to analyse lieved to constitute, at the least, a foun­ the text of the proposed Declaration as dation. It needs to be supplemented by a adopted at its first reading in 1990 by the clearer statement on minority rights andWorking Group of the Human Rights the corresponding State duties. Therefore,Commission^. the Sub-Committee on the Fight against The draft Declaration of 1990 does not Discrimination and Minority Protectiondefine the term “minority”. It has always decided in 1967 "to include in its pro­been maintained that the Declaration gramme and future tasks to undertake acould very well fulfil its role even if it did study as soon as possible on the applica­not contain an exact definition of the term tion of the principles set forth in Articlesince the conventional meaning of the ex-

1. United Nations, Doc.E/CN.4/Sub.2/384/Eev.l. Appendix 1, p.lll. 2. Ibid. p. 109 3. See United Nations, Doc.E/CN.4/1990/41, pp. 12-16. The draft Declaration has been designated here simply as “draft Declaration of 1990". The Working Group started its second reading of the text of the Draft Declaration in 1991. Only the preamble and Articles 1 and 2 have been adopted. W e will not review these articles because, owing to a lack of consensus and of time, the Working Group decided to leave several questions pending and to examine them at a later session. See United Nations, Doc. £/CW. 4/1991/53,_pp• 4 and onwards. pression clearly indicates the groups con­and use their own language freely and cerned in practical circumstances.4 without any interference or discrimination In addition to the obstacle of defining whatsoever." the persons referred to in the Declaration, The draft Declaration of 1990 also pro­ which has been a long-standing problem, posed three new collective rights for mi­ there are associated complications suchnorities. as determining both the substance and The first of these is the right to the means of implementation for the protec­ respect and development of their ethnic, tion of minorities. cultural, linguistic and religious identity without any discrimination (Article 1, paragraph 1). This right is fundamental. A. The substance of measures It establishes the minority group in its for the protection of minoritiescollective identity, based on its specific characteristics. It is the group as such The Working Group has striven to spellwhich holds rights and no longer only the out clearly the recognised rights of minor­individuals who make it up. This right ities. It also has set their limits. means that the minority group should be able to preserve itself regardless of the 1. Recognised rights political shifts in the government. It also means that the minority should be able to Minorities are recognised as holdingprocure the means it needs to develop in rights divided into two main types: firstly,and adapt to an everchanging world. collective rights ; and secondly, individu­ The second new right is the right to al rights. protection from all actions, including propaganda, which can threaten the ex­ a) Collective lights istence or the identity of the minority and hinder the development of its own special The draft Declaration of 1990 reaffirmscharacteristics (Article 2, paragraph 1). the three categories of rights set out byThis collective right of minorities resem­ Article 27 of the Covenant. Article 3, par­bles similar rights which have already agraph 1 of the draft Declaration stipu­been granted to them, in their definition lates: “Persons belonging to minoritiesas groups, by the Convention for Preven­ have the right, individually or in commu­ tion and Repression of the Crime of Gen- nity with the other members of theirocide^, the International Convention on group, to enjoy their ow n culture, the Elimination of All Forms of Racial Dis­ to profess and practise their own religioncrimination® and the Declaration on the

4. The Working Group decided that throughout the draft Declaration, the term “minorities" would be followed by the adjectives "national, ethnic, religious and linguistic”. Wording that includes all these aspects w as adopted in order to avoid confusion between different national jurisdictions. Not wanting the hardships involved in defining the term “minority" to delay their work, the Working Group preferred to postpone this issue and to go forward with their task, keeping in mind the need to draft a flexible text that would be applicable in practice. O n all these matters, see United Nations, Doc.E /C N .4 / 1 9 9 1 /5 pp. 3 , 3-6, in addition to Doc.E/CN.4/1987/WG.5/WP.1 entitled “Recapitulation of the proposals concerning the definition of the term minority” . 5. Articles 2 and 3 of the Convention. 6. Article 4 of the Convention. Elimination of AH Forms of Intolerance and cording to which persons belonging to Discrimination Based on Religion orminorities are entitled to life, liberty and Faith7. This right is perfectly justifiedpersonal safety in addition to all the other since minorities need to be protected nothuman rights and freedoms without dis­ only against their physical destruction, butcrimination. This article emphasises that also against their cultural and ethnicdiscrimination is forbidden, which is a eradication. Thus, the draft Declarationprinciple widely-acknowledged by the finally makes provisions to fill in the gapsUnited Nations, and calls for no special of the 1948 Convention for the Preventionremarks. It might be mentioned that in and the Repression of the Crime of Geno­the general discussion on this article, it cide, which prohibits “physical and bio­ was agreed that a distinction should be logical" genocide but overlooks “cultural made between citizens and non-citizens or ethnic” genocide. because in most countries certain rights The third new collective right is the are not extended to non-citizens, such as right of minorities to participate truly inthe right to participate in the government government affairs and in the decisionsor to hold real estate. affecting the areas where they live (by Article 3 paragraph 2 recognises the means of national and, where possible, ofright of persons belonging to a minority regional bodies) (Article 7, paragraph 1).to participate equitably in the cultural, It is unfortunate that the ideas of specifi­religious, social, economic and political life cally minority bodies was abandoned be­ of the country they live in. This is an indi­ cause the right of minorities to have theirvidual right granted to those belonging to own representative bodies is an importantminorities to enable them to take part in one, especially as far as recognising mi­public life equally with the other nationals norities' legal existence is concerned.of the country. Nevertheless, Article 7, paragraph 2Article 3 paragraph 3 grants members maintains the provision which states thatof minorities the right to maintain contacts all political and national programmes, in with other members of their group (and addition to programmes of internationalwith other minorities) without discrimi­ cooperation and assistance (meaning innation, by setting out their rights to asso­ the economic and financial spheres) ciation, to freedom of movement and res­ should be designed and implemented after idence within the territory of each State taking into proper account the legitimate and also the right to leave any country, interests of the minorities in the areasincluding their own, and to return to their concerned. own country. This article seeks to fulfil the need for contact between those be­ b) Individual lights longing to minorities (and between mi­ norities as groups) within their countries Three articles in the draft Declarationand beyond national boundaries. When of 1990 deal with the individual rights thisof article was examined, however, ob­ minorities. jections were raised as to the wisdom of Article 1, paragraph 2 states the gen­such a clause. This illustrates the on-going eral principle of non-discrimination, ac­resistance to recognising the rights of mi-

7. Article 4 of the Declaration. norities and explains the restrictions at­ Thus, the act of reaffirming the States’ tached to these rights. sovereignty demonstrates that despite progress in the domain of “general inter­ 2. The limits of recognised rights national law for minorities", the funda­ mental rights of the States still take pre­ The States' jurisdiction limits the rightscedence over the rights of minorities. recognised for minorities. However, inter­ national law limits the notion of this "very b) "Exclusive jurisdiction " and exclusive jurisdiction" itself. international law a) The problem of "exclusive jurisdiction " Another article of the draft Declaration of 1990 aims to provide a solution to the The progress so far achieved in win­problem ofthe States’ exclusive jurisdic­ ning recognition of minorities' rights hastion. Article 5 paragraph 1 declares been hampered by the restrictions tied to“Nothing in the present Declaration will these rights. Note that Article 5, paragraphimpede the performance of the States' in­ 3 of the draft Declaration of 1990 statesternational obligation towards minorities. that “none of the provisions of this Decla­In particular, States must in good faith ration will be interpreted as authorisingcarry out the obligations and commitments any action which is contrary to the pur­that they have assumed by means of poses and principles of the United Nations,treaties or international agreements that in particular regarding the sovereignty,they are party to." territorial integrity and political inde­ The purpose of this provision is to un­ pendence of the States. derline that respect for the principles of This clause signifies that the protec­sovereignty and others must not prevent tion and development of minority rights the States from honouring their interna­ may be severely curtailed in the name of tional obligations to minorities. It can be the sovereignty, territorial integrity andreasoned then that should a State fail to political independence of the State in perform its international obligations to which a minority group lives. Shielded by minorities in good faith, it forfeits its the grand principles of the United Nations, “higher" powers, and the minorities’ this provision reintroduces concretely therights are no longer restricted by respect State’s right to use at will diverse meansfor the aforementioned principles. to limit the scope of minorities’ rights. It The requirement to perform in good is certainly natural for States to want tofaith the obligations assumed through in­ prevent minority rights from being usedternational instruments seems to be an to foment revolutionary struggles or toinadequate answer to the dilemma of spark ethnic and other hostilities. How­“exclusive jurisdiction”. Another, less ever, the modern-day State is master ofambiguous formula, would have been its own sovereignty; it alone can judge preferable, such as altering Article 5 par­ what constitutes a threat to its sovereigntyagraph 1 to read:" None of the provisions or territorial integrity. This is the dilemmaof the present Declaration will be inter­ posed by the concept of “exclusive juris­preted as authorising any action contrary diction" and of State freedom to deter­ to the purposes and principles of the mine the questions that are within itsUnited Nations, in particular as regards competence. to sovereignty, territorial integrity and political independence of the States, pro­ B. Machinery to implement vided that the latter are conducted in the protection of minorities keeping with all the principles and rights set forth in the present Declaration." Implementing the protection of minor­ This negative turn of phrase cannot beities raises two major questions. The first misunderstood : sovereignty, territorialhas to do with the type of obligations im­ integrity and political independence can posed on the States, i.e. how the provi­ only be respected if the State in turn re­sions of the instrument operate to compel spects the rights of minorities; if suchthe States. The second deals with the were not the case, the threat contained in means that will ensure the actual respect our proposed draft of Article 5, paragraphof the principles set forth. 1 would be carried out. The State would be outlawed by the international commu­ nity and sanctioned by the minorities' non­ 1. The Types of Obligations respect for the aforementioned principles. of the States The advantage of this version would be to align our Article 5, paragraph 1 with The draft Declaration of 1990 attempts provisions in other international instru­to define the types of obligations placed ments. By presenting this balanced solu­on the States. tion between the aforementioned princi­ ples and minority rights, this provisiona) Details of the draft Declaration of 1990 would resemble paragraph 7, which sets out the principle of self-determination, in Article 2 paragraph 2 specifies that all the “Declaration Relative to the Principles States undertake to adopt the legislative of International Law Concerning Amicable or other means necessary to prevent and Relations and Co-operation Between the combat actions, including that of propa­ States in Keeping With the United Nations ganda, which threaten the existence or Charter ”.2 identity of minorities and hinder the de­ Finally, it must be admitted that the velopment of their own characteristics. mere existence of provisions on “exclusiveArticle 3, paragraph 2 uses a similar jurisdiction" cannot alone invalidate an phrasing, stipulating that all the States international instrument. In other words,must strive to ensure that minorities are enumerating and extending the rights free to express their own specificity and protected in the draft Declaration do not to participate equitably in the life of the alone lend validity to this instrument; its nation. A similar expression appears in validity depends also on the set of meas­Article 6, which states that the States will ures devised to ensure its application.endeavour, according to their specific sit­ Hence, the importance of the means en­ uation, to foster conditions that are con­ visaged to enforce the proposed Declara­ducive to the protection and promotion of tion. minority rights.

8. This declaration 2625 (XXV), adopted unanimously by the General Assembly on 24 October 1970, is considered the most recent, most important and most precise phase in the gradual development by the United Nations of the principles of international law in keeping with the Charter. All these formulas refer only to the ob­the actual enjoyment of minority rights ligatory means under the States’ respon­should include those necessary to guar­ sibility: their sole duty is to do everythingantee the preservation, development and in their power to protect and develop mi­ defence of minorities’ ethnic, cultural, lin­ nority rights, butthey are not forced to guistic and religious identity, The States succeed in this endeavour, nor are thewill enable minorities to create, as needed, exact steps to be taken specified. So, af­ thanks to government subsidies, their own ter having arrived at a narrow definitioneducational and cultural institutions, such of minority rights, the States also allowas libraries, schools, museums, etc."9 themselves free rein in choosing which This proposal would thereby place means to use, which goals to pursue andupon the States the obligation to achieve which results to achieve. This negativeresults in addition to handing down in­ presentation of minority rights, as re­structions on the choice of means. These vealed in the draft Declaration of 1990, specifications,is entailing such obligations, to be regretted. would make it possible to verify if a State In the end, the draft Declaration of 1990is applying faithfully the provisions of the contains only general principles which, toagreement. be operational, will need to be rounded out with methods of implementation 2. Means of verification which the States are required to adopt. Until such measures are forthcoming, the The effectiveness of any plan of pro­ Declaration will lack the power to yield tection depends greatly on the means of any results for minorities or their mem­verification that it puts into place. The bers, and it can not be invoked in the principle of the need for these means of national courts. From the standpoint ofverification has won acceptance in the minority protection, which should be the realm of human rights even if, in practice, sole priority in this Declaration, the Docu­difficulties still persist. In its present form, ment falls short of expectations as it nowthe draft Declaration of 1990 provides for stands. only scant measures of international veri­ fication. b) The need for greater detail a) Recourse in the domestic sphere To prevent the draft Declaration of 1990 from remaining a hollow shell, an addi­ The draft Declaration of 1990 would tional article should be proposed, whichneed to include means of domestic verifi­ would spell out practical measures thatcation for the implementation of its provi­ the States should adopt to ensure thatsions. States could undertake to ensure minorities will reap the full benefit of theirthat minorities and members of these recognised rights. This proposal could begroups are granted protection and a true worded as follows: “The measures thatpath of recourse in the national courts the States will adopt in order to ensureand before other competent State bodies

9. See also the Soviet proposal submitted in 1952 at the time of the drafting of Article 27 of the Convention. United Nations Doc.A /2 9 2 9p. , 197,E/CN.4/SR.368. p. 4. against all acts which violate their recog­ports from the States parties, inter-State nised collective and individual rights.10communications and individual commu­ The rights of fair and adequate redressnications^, would be put to use to enable and reparation for any damage sufferedverification of the Convention by the by the victims of rights violations, stem­United Nations. These means of control ming from any such acts, could also becould prove to be very effective if, among included. ^ Moreover, legal provisionsother things, the action of the bodies cre­ should be supplemented by administrativeated for this purpose attracted wide pub­ and political measures. Taking into con­ lic attention and if many States became sideration the traditions of each country,parties to the Convention. Publicity and it should be asked if the draft Declarationuniversality can thus make an important could allow for the creation of a body such contribution to attracting an audience and, as a “Parliamentary Commission" or anthus, to the action of international bodies “Ombudsman”, in charge of finding solu­ or control. tions for reconciliation before resorting to legal proceedings; and, if these avenues of persuasion prove inadequate, to take Conclusion the case before the Parliament or even to make use of the law. A solemn Declaration by the United Nations on the rights of minorities will b) The proposed international means ofhave a significant political and moral im­ verification pact and contribute to the creation of customary law based on its provisions. It In order to ensure that the Declarationwill, in addition, provide legitimacy to is applied as effectively as possible with­persons belonging to minorities and mi­ in the institutions of the United Nations nority communities who will invoke it. It and in the bodies dealing with human can be extended by a Convention on the rights, the Working Group adopted Articlerights of minorities which would exert 8, which is worded as follows:"The bodiesbinding force on the State Parties. How­ and specialised institutions of the Unitedever, such a development mustnot be Nations System will contribute to the full achieved at the cost of enshrining a neg­ achievement of the rights and principles ative concept of minority rights. In its set forth in the present Declaration withinpresent form, the draft “Declaration on their respective spheres of competence."the rights of persons belonging to nation­ Furthermore, it can be supposed thatal, ethnic, religious and linguistic minori­ in the second stage of the establishmentties" is not very satisfactory in its recog­ of regulations in favour of minorities - thatnising of rights. of setting up a Convention - other inter­ To avoid dashing the hopes of minori­ national methods, such as, periodic re­ties, any text for their benefit should rec­

10. See Article 7 of the United Nations Declaration and Article 6 of the International Convention on the Elimination of All forms of Hacial Discrimination. 11. Ibid. 12. These are the three methods used which are intended to enable the bodies created by international instruments on hum an rights to verify application of the agreement by the States Parties to these Conventions. ognise, inter alia, their existence as a For more than 40 years now, the Unit­ community and affirm their rights ased Nations Organization has been trying community entities. Measures for theirto draft an instruinent for the global pro­ protection should comprise effectivetection of minorities. The first decision means of verifying and applying the rec­ was taken in 194813; then followed a 30- ognised rights in addition to flexible pro­year wait for the naming of a Working cedures enabling minorities as individualsGroup and another 12 years for completion or groups to demand redress for the vio­of the first reading of the draft Declaration. lation of their rights. It is time for the discussion to bear fruit.

13. Resolution 217 c (HI) of the General Assembly of 10 December 1948, entitled “The Fate of Minori­ ties". See United Nations, Doc.A /7 8 4 . Towards a New System of Supervision for the European Social Charter*

In eke Boerefijn, Aalt-Wfflem Heiinga, Jeioen G.C. Schokkenbroek**

I. Introduction take the necessary measures for a detailed study of the role, the content and the op­ It is a well-known fact that the Euro­ eration of the ESC. The conclusions further pean Social Charter (ESC) of the Council require that this study be carried out of Europe1 has not been as successful“resolutely a and diligently” so that it may human rights instrument as has its coun­be completed in October 1991 on the oc­ terpart dealing with civil and political casion of the 30th anniversary of the rights, the European Convention on Hu­ signing of the Charter. man Rights. This holds true in particular The ICJ welcomes the present consid­ for the effectiveness of the system of su­eration of possible improvements to the pervision. ESC and stresses the urgent need for For many years the Charter’s supervi­concrete step towards an effective Euro­ sory machinery has been criticized by bothpean system for the protection of social academics and the Parliamentary Assem­and economic rights, worthy of being the bly of the Council of Europe. So far, how­ counterpart of the European Convention ever, these criticisms appear to have pro­on Human Rights. duced few results. It is, therefore, most The ICJ considers that, at this stage, welcome that the conclusions of the attention should be focussed on the rein­ Chairman of the Ministerial Conferenceforcement of the supervisory system rather on Human Rights (Rome, November 1990)than on amendments to the substantive acknowledge that a fresh impetus to the rights. Although attempts to rephrase the ESC is needed and invite the Committee rights of the Charter so as to make them of Ministers of the Council of Europe tomore precise or more justiciable may be

* This article is an abbreviated and adapted version of a paper which w as submitted to the ad hoc Committee for the European Social Charter by the International Commission of Jurists in M ay 1991. To the original text, which has n o w been adopted officially by the Council of Europe (Doc. C H A R T E / REL (91) 14), w as added a list of proposed amendments to the Charter. ** Boerefijn is researcher at the Netherlands Institute of Hum an Rights (SIM) of Utrecht University and presently Chairman of the N JC M , the Dutch section of the ICJ; Heringa is senior lecturer in constitu­ tional law at Leiden University of Maastricht; and Schokkenbroek is lecturer in constitutional law at Leiden University, co-ordinator of its F.M. van Asbeck Centre for H um an Rights Studies and repre­ sentative of the ICJ with the Council of Europe. The last two authors are also co-editors of the Netherlands Journal of H um an Rights (N JC M Bulletin). 1. See, for instance, David Harris, The system of supervision of the European Social Charter - problems and options for the future in; Lam m y Betten, David Harris, Teun Jaspers (eds.). The future of the European Social Policy, views and comments expressed at the conferenceon the future of European social policy (Utrecht, 25 and 26 April 1989). See also, among other statements by the Parliamentary Assembly, Recommendation 649 (1977). desirable, it would appear, however, thatsion. The Contracting States report at two- the restructuring of the supervisory sys­year intervals on the application of such tem may be less difficult to achieve. More provisions of Part n of the Charter as they importantly, as will be shown below, the have accepted (Article 21 ESC). These re­ major flaws in the ESC lie in the latter ports are examined by a Committee of and not so much in its substantive provi­Experts (Article 25). The reports of the sions. The ICJ therefore contends thatContracting Parties and the conclusions priority should be given to reshaping theof this Committee of Experts are submit­ supervisory machinery. The followingted for examination to a Sub-committee of paragraphs will deal with this aspect only.the Governmental Social Committee of the The ICJ has not endeavored to present Council of Europe (Article 27). The Parlia­ an exhaustive study of all possible short­mentary Assembly communicates its comings of the present system and allviews on the Conclusions of the Commit­ conceivable remedies. It simply aims attee of Experts to the Committee of Minis­ offering some ideas and proposals on se­ters (Article 28). Finally, by a majority of lected issues it believes to lie at the hearttwo-thirds of the members entitled to sit of the matter. on the Committee, the Committee of Min­ The paper has two parts. In the firstisters may, on the basis of the report of (chapter n), proposals are made to modifythe Sub-Committee, and after consulta­ the position of the Committee of Inde­ tion with the Parliamentary Assembly, pendent Experts, to introduce an applica­ make any necessary recommendation to tion procedure for NGOs, and to improvethe relevant Contracting Party (Article 29). the N G O input in the system of supervi­ This process of supervision is compli­ sion. The institutional measures proposedcated and generally does not lead to clear there all require amendments of theresults. The major flaws in the functioning Charter. The second part (chapter HI) fo­and organization of the supervisory ma­ cuses on concrete and practical measureschinery are: designed to improve the reporting system under the ESC. They could be implement­ (a) despite the fact that failure to comply ed without restructuring the present sys­with the Charter has frequently been tem. They are not, however, to be regard­ noted, in particular by the Committee ed as substitutes for the necessary fun­ of Experts, the Committee of Ministers damental changes proposed in chapter n, has never ventured to make a recom­ but as improvements which could also mendation to any of the Contracting play a part in a revised system. Parties concerned: (b) the relationship between the four or­ gans of the supervisory machinery is II. Reshaping the system not very clear; the Conclusions of the of supervision Committee of Experts certainly are authoritative, but they can be disput­ General ed, set aside or even ignored by the Sub-Committee or by the Committee Effective implementation of the obli­ of Ministers. There is no body compe­ gations incorporated in the European So­ tent to give a final ruling on the cial Charter is influenced by the structure meaning of any provision of the Char­ and functioning of the organs of supervi­ ter. The two major organs in the sys­ tem of supervision (the Committee of gard to the interpretation and develop­ Experts and the Sub-Committee) dis­ ment of the ESC. N ew proposals should agree on the interpretation of many be linked to this state of affairs and aim Articles; at strengthening this “legal" function of (c) the contribution from trade unions orthe Committee of Experts. organizations of employers has been The authority of the Charter as an in­ scarce. In the ESC machinery, the in­ strument for the protection of human stitutional framework for input fromrights will certainly be enhanced by em­ these and other NGOs has not beenphasizing the legal focus of the work of such as to stimulate contributions fromthe Committee of Experts. It should be these sectors (in contrast to, for in­the competence of this Committee to es­ stance, the tripartite ILO structure); tablish the exact standards and obliga­ (d) the reporting procedure is extremelytions contained in the Charter and to time-consuming, to the extent even clarify in what and to what extent the that the Contracting Parties have to Charter leaves a discretionary margin to send in their new two-yearly reportthe Contracting Parties. The strengthen­ before the previous cycle has beening of the position of the Committee of completed. Experts should concern both its composi­ tion and its powers. In this chapter some proposals will be At present, the Committee consists of made to remedy the aforementioned seven members (Article 25, section 1, shortcomings of the Charter. ESC). In view of its work-loaci and of the desirability of expanding its duties under 1. Committee of Experts the Charter, the Committee is rather small. A possibility might be to link the compo­ The desirability of an objective and sition of the Committee to the number of authoritative interpretation of theESC is States having ratified the Charter.^ uncontested. The Committee of Experts Clearly, the Parliamentary Assembly consists of independent experts and, asshould be involved in the election of the David Harris has remarked, “the Commit­members of the Committee. The Parlia­ tee of Experts is, as it claims, the bestmentary Assembly actually played a very qualified body to make the sort of objec­ stimulating role in the development of the tive, juridical judgement that is re­ Charter, and undertook many efforts to quired ".2 Although the ESC deals partlyenlarge its impact. The election procedure with political desiderata, it is important also serves to underline the independence to note that the Conclusions of the Com­ of the members of the Committee; it is mittee of Experts show that a legal inter­therefore proposed that the Assembly be pretation of the ESC standards in whatgiven the power to elect the members of may be called a refining case-law is verythe Committee of Experts from a list of well possible. The Committee of Experts persons nominated by the Contracting already plays an important role with re­Parties.4

2. David Harris, The European Social Charter, 1984, p. 231. 3. Cf. Article 20 E C H R with regard to the composition of the European Commission of Hu m an Rights. 4. Cf. Article 39 E C H R on the election procedure with regard to the members of the European Court of H um an Rights. As has been argued before, it is alsocharacter” (e.g. Article 1 section 1, Article necessary to enlarge the powers of the2 section 2, Article 12 section 3 and Article Committee of Experts. A n efficient re­ 18 section 2.) In these cases the Commit­ structuring of the supervisory mechanismtee does not prescribe precise criteria but requires the strengthening of one organrequests the Contracting States to indicate (i.e. the Committee of Experts) vis-a-viswhether “progress” has been made. It the other organs of the Charter, and fur­appears therefore to be possible and ther requires shortening and simplifyingworkable to leave to the Committee of the procedure. The present procedure, in­Experts the quasi-legal function of inter­ volving the Committee of Experts, the preting the Charter (including the identi­ Subcommittee, the Parliamentary Assem­fication of the “hard” rules and minimum bly and the Committee of Ministers, is obligations on the one hand, and the pro­ long and unnecessarily complicated and grammatic provisions on the other) and gives raise to conflicts and disagreementsto the other organs the task of urging the between the organs. The procedure itselfprogressive implementation of the Char­ is not clear, and even worse, its outcometer. frequently is hazy because of contradictory The ESC organs, other than the Com­ opinions of the various organs. These or­mittee of Experts, will have to take as a gans differ on the interpretation of the starting point for their deliberations not Charter and on the questions of observ­only the text of the Charter but also the ance of the Charter. Conclusions of the Committee of Experts, It is submitted that the Committee of which, as is suggested, will be binding Experts should be entrusted with the soleinsofar as they constitute an interpretation power to interpret and explain the provi­of the Charter and/or an expression of sions of the ESC, and to construe thewhether its provisions have been complied Charter’s rules into sub-rules and con­with. The Charter should provide for these cepts. This legal function should be dis­Conclusions to be binding within its su­ tinguished from the more political role ofpervisory mechanism. stimulating the Contracting Parties pro­ gressively to implement the ESC. In this respect the States enjoy a margin of dis­2. Introduction of an cretion in choosing means and selecting application system short-term goals. To deal with this politi­ cal, programmatic function of the Charter The proposals m ade above to falls within the competence of the (the strengthen the Charter and its system of Sub-Committee)5 the Committee of Min­ supervision will probably not be sufficient isters and the Parliamentary Assembly.to revive the Charter and the implemen­ Indeed, the Conclusions of the Commit­ tation of its social rights. It is therefore tee of Experts already show a more re­proposed that the parallel with the ECHR strained approach with regard to thesebe taken one step further and a complaints programmatic articles with a "dynamicmechanism be introduced. The idea of a

5. In view of the proposal to abolish the Sub-Committee in order to streamline the supervision system (option three, Chapter II, paragraph 3 in fine), its name has been put between brackets throughout this text mechanism to deal with individual com­ facts disclose a breach by the State con­ plaints is in itself not new. It was alreadycerned of its obligations under the ESC. proposed in 1978 by the ParliamentaryThe views of the Committee of Experts Assembly, 6 but has never come even closeon the facts and on the (non)compliance to introduction. with the Charter are not explicitly bind­ One of the possible reasons for theing upon the two Parties involved (i.e. the disregard of this Recommendation mayN G O and the State concerned), nor upon have been the idea that the Charter's the (other) Contracting Parties. But it may provisions are not well-suited for individ­be expected that the views of the Com­ ual complaints and legal proceedings. mittee of Experts will be considered as They are often supposed to lack legal en­ an authoritative interpretation of the forceability. Many articles in the CharterCharter, and will therefore have a legal do indeed seem less adapted for individualimpact. In accordance with the proposed complaints, albeit because they frequent­ binding character of the Conclusions of ly deal with general circumstances andthe Committee of Experts (see chapter H, “rights" of groups. On the other hand it1) it must be stipulated in the Charter must be recognized that a complaints that the views of the Committee bind the mechanism could give an enormous im­ other organs of the ESC. petus to the protection offered by the The tasks of (the Sub-Committee) the Charter and to its authority. Our proposalParliamentary Assembly and the Commit­ intends to reconcile the advantages of a tee of Ministers will be limited to urging complaints procedure with the specialthe Contracting Parties to strive towards character of the ESC guarantees. a progressive implementation of the ESC. W e propose that non-governmental Further, the Committee of Ministers will organizations (NGOs) be given the possi­promote the effective observance of the bility of communicating complaints on the views given by the Committee of Experts ground that the Contracting Party againstwith regard to NG O complaints. which the communication is brought sys­ This procedure would give NGOs, in tematically violates a provision of the particular trade unions and organizations Charter. The right to submit communica­of employers, an explicit role in the su­ tions should be limited to NGOs which pervisory mechanism. It may also stimu­ are particularly qualified in a matter reg­late their interest in and their contribution ulated in the Charter. The Committee will to an effective implementation of the be exclusively competent to rule on the Charter. admissibility (is the complainant a NGO? is this N G O particularly qualified? is it qualified with regard to the ESC Article 3. Role of NGOs in which it claims is violated? is the re­ the reporting system; spondent state a contracting party which three options for improvement has also ratified the particular Article in­ voked by the NGO?), to establish the facts Another major flaw in the ESC super­ and to give an opinion as to whether the vision procedure is insufficient N G O in-

6. Recommendation 839, Texts Adopted, September 1978 volvement. Three options to remedy thisfor consulting international and national are proposed. NGOs which are particularly qualified in The first option consists of a restruc­a matter regulated in the Charter and turing of the Sub-Committee, which is at which have shown an interest in the ex­ present exclusively composed of govern­amination of the relevant national report ment representatives. In view of the tri­(e.g. by having submitted a commentary partite ILO structure which seems to beon the national report). In this respect, it functioning satisfactorily and of the fact is also desirable to enlarge the scope of that governments also have a seat in theArticle 23 ESC. Under this provision, na­ Committee of Ministers, it could well be tional organizations which are members argued that the Sub-Committee be trans­ of the international organizations of em­ formed into a tripartite organ (like the ILOployers or trade unions shall receive cop­ Conference Committee). Its composition ies of the national reports; their comments would then be, four members for eachshall be forwarded by the Contracting Contracting State, including two govern­ Party involved to the Secretary-General. ment representatives, one trade unionTo create a greater involvement with the representative, and one representative ofCharter on the national level, it seems the organizations of employers.7 Thisappropriate to give qualified national or­ composition provides ample guaranteesganizations the opportunity of being in­ for an effective contribution from the formed and of communicating comments. NGOs most interested in the Charter; However, it this would maintain the present enhances the impact and authority of the complicated structure of the supervisory ESC and it also facilitates fact-finding by system. the ESC organs and will therefore better The third, more far-reaching, but more ensure that the decisions of the supervi­attractive option would be to abolish the sory organs rest upon relevant and up-to-Sub-Committee and to create consultative date facts. status for NGOs with the Committee of The second option leaves the compo­ Experts along the lines set out above, un­ sition of the Sub-Committee intact (and der option two. This third option would therefore also the overlap between theavoid the present overlap of functions be­ Sub-Committee and the Committee of tween the Sub-Committee and the Com­ Ministers). The involvement of NGOs, andmittee of Ministers and thus streamline their important task in evaluating govern­the reporting procedure. It allows for an mental policies and in providing input of information by qualified NGOs at (contra)information, would then be se­ the first stage of the supervisory cycle. In cured by strengthening and widening the our view, this will not only be advanta­ consultative N G O status. At present thegeous for the NGOs themselves, but also possibilities for consulting NGOs are lim­for the supervision system as a whole, ited (see Article 27 paragraph 2 of thewhose “procedural economy” is best Charter). served by N G O input already at the first In this second option, the Sub-Com- stage. mittee would be given wider possibilities

7. In recommendation 839 the Parliamentary Assembly also proposed such a change in 1978

THE REVIEW -No. 4 6 / 1991 III. Improvements to place on how to overcome it.9 Although the reporting system: the problems encountered by the UN su­ changes of practice pervisory bodies are of somewhat different nature, it may be useful to keep the solu­ 1. General tions proposed there in mind when revis­ ing the ESC mechanism. As it stands, the supervisory system of the Charter is exclusively based on na­ tional reports submitted by the States2. Form and content of the reports Parties to the ESC.8 in the case of eco­ nomic and social rights, it is particularly (i) Guidelines for reporting important that the reporting procedure is strong and efficient. The major advantage Some reports, when submitted, do not of the reporting procedure is that thecontain information in respect of all rele­ periodicity of the systerp allows for a reg­vant provisions or responses to all re­ ular discussion of the implementation ofquests made by the experts in the previ­ the instrument. 1 ous cycle. Various improvements are sug­ However, it is inherent in this systemgested to remedy this. A preliminary basic that the reports submitted by govern­requirement which should be met is the ments, are not of a fully objective nature. strengthening of the Secretariat, in terms States Parties are, generally speaking, notof both its budget and its number of staff. naturally inclined to submit information It is obvious that the current situation does which would shed an unfavorable light not enable the Secretariat to carry out all on the state of their affairs. This situationof its present tasks. Assigning more tasks can only be improved if the supervisorywill be impossible if working conditions organs have the opportunity of receivingdo not improve. and taking into account information from Within the UN system, the supervisory other sources, such as non-governmentalbodies have established guidelines re­ organizations or experts, or results ofgarding in­ the form and content of reports quiries by (members of) the supervisorysubmitted by States Parties. This may organs. These possibilities should be in­seem only a formal matter, but such cluded in the ESC. The problem discussedguidelines are of great help both to the here is not specific to |;he ESC, but has States Parties drawing up reports and to arisen in other fora as well, particularlythe in supervisory bodies discussing them. the United Nations supervisory mecha­It is recommended that the Committee of nisms. Within the framework of the UNExperts review the existing guidelines and reporting system, discussions are takingadapt them to the changing needs and

8. Articles 21 and 22. 9. The meeting of chairpersons recommended that a study be carried out on the problems faced by the UN. The recommendation w as endorsed by the General Assembly (paragraph 15 (a) of resolution 43/ 115 and by the Commission on H um an Rights (paragraph 5 of resolution 1989/47). The study resulted in the report: Effective implementation of international instruments of human rights, including report­ ing obligations under international instruments of human rights. U N Doc. A/44/668, 8 November 1989. The study w as carried out tjy Philip Alston and currently discussions are taking place on h o w to implement the recommendations. circumstances, and make them as detailedinformation on economic, social and cul­ as possible. tural rights. Although such computeriza­ The guidelines should state explicitly tion calls for a considerable initial invest­ that states are not only to report on thement, we think that such a source of in­ positive results achieved in the period re­formation is indispensable for both the ported, but also on the difficulties en­ Secretariat and the experts. Since such a countered in complying with the ESC and documentation centre would be useful not on the measures the state is undertakingonly within the ESC framework but also to overcome them. In reviewing the to the Council of Europe and its Member guidelines, the Committee may seek States in general, it would seem appropri­ guidance from the revised guidelines re­ate to give it the status of a separate unit cently adopted by the UN Committee on within the Council of Europe’s Secretariat. Economic, Social and Cultural Rights. ^ The database should be established and It is important that governments' rep­kept up to date in co-operation with the resentatives are present during the dis­appropriate national institutions collect­ cussion of the reports, but obviously thising and storing social and economical will only be effective if the representatives data. An endeavour should be made to are well prepared in advance. create a common standard for these na­ A practice evolved in the Human Rights tional institutions for submitting informa­ Committee might also be used by the ex­ tion, in order to achieve compatibility and perts supervising the ESC. A Workingfacilitate comparisons between the re­ Group of the Committee prepares a list ofporting States. questions, which is sent to the govern­ ment concerned prior to the consideration3. Consideration of reports of its report. The effect of this procedure is that the government’s representatives Under the UN reporting system for the are well prepared during the discussions,Human Rights Committee, governments which enables a constructive dialogue to are represented before the supervisory be held. organs, so that members can ask ques­ tions and immediately receive an answer. (ii) Establishing a Centre for the The aim of the direct contact is to establish Documentation of Social a constructive dialogue between govern­ and Economic Data ment representatives and the Committee. In our opinion, this practice could also be In order to improve the level and the useful under the ESC. amount of information available to the The UN committees cannot make gen­ supervisory organs, we suggest that con­eral recommendations addressed to one sideration be given to the setting-up of a single State Party.11 The ESC system is, database containing up-to-date statistical in theory at least, stronger in this respect.

10. Implementation of the Covenant on Economic, Social and Cultural Rights, Revised Guidelines adopt­ ed by the Committee on Economic, Social and Cultural Rights at its fifth session (26 November - 14 December 1990) 11. Although most U N treaties provide for “general comments" this power of the committees is not interpreted in such a way. In most cases, they only give interpretations of the treaty provisions on the basis of all reports submitted. The possibility for the supervisory organthe recommendation closing the supervi­ to make recommendations to a specific sion cycle almost four years after the su­ State should therefore be maintained, but pervision period. W e do not, however, fa­ it is clear that the Committee of Ministersvour extending the reporting period to should give up its present reluctance tothree or four years. A two-year period take this avenue of action. Such recom­ must be maintained in view of the rapidly mendations do not necessarily amount toand often considerably changing situation censure, but are primarily a means of as­of social rights in the States Parties. sistance to the States Parties in that they help to clarify the obligations undertaken. A strengthening of this feature may beIV. Concluding remarks considered, by providing for a means of follow-up to the recommendations made. It will be clear that the functioning of Experts should have the opportunity ofthe Charter’s system of supervision leaves inquiring, in the period between the sub­ much to be desired and that substantial mission of reports, how the state con­changes are needed to increase its effec­ cerned is implementing the recommenda­ tiveness. tions made and, possibly, what difficul­ W e stress, however, that, for any clear ties it is encountering. This ongoing dia­improvement to be achieved, it is impera­ logue could be achieved by appointing a tive that the States Parties live up to the rapporteur who remains in contact withcommitment expressed during the Minis­ the State concerned.^ it is important that terial Conference in Rome. Anything short the experts draw up their recommenda­of a genuine and substantial improvement tions in such a way that it is clear whichto the Charter would amount to a serious measures the States Parties are to take,blow to the cause of the protection of so­ or which concrete results have to becial rights at the pan-European level. The achieved within a specified time. debate on the shortcomings of the present As to the periodicity of the reporting, system may not be new, the real opportu­ it is clear that the procedure should benity to remedy them is. W e hope that the speeded up. The present procedure resultsCharter's 30th anniversary in October 1991 in the Committee of Ministers addressingwill indeed be a cause for celebration.

12. Consideration may also be given to empowering the Committee of Experts to send a direct contact mission to a State Party (similar to the ILO missions). BASIC TEXT

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”*

Preamble

The States Parties to the American Convention on Human Rights “Pact of San Jose, Costa Rica”. Reaffirming their intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man; Recognizing that the essential rights of man are not derived from one’s being a national of a certain State, but are based upon attributes of the human person, for which reason they merit international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American States; Considering the close relationship that exists between economic, social and cultural rights, and civil and political rights, in that the different categories of rights constitute an indivisible whole based on the recognition of the dignity of the human person, for which reason both require permanent protection and promotion if they are to be fully realized, and the violation of some rights in favor of the realization of others can never be justified; Recognizing the benefits that stem from the promotion and development of cooperation among states and international relations; Recalling that, in accordance with the Universal Declaration of Human Rights and the American Convention on Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights as well as his civil and political rights; Bearing in mind that, although fundamental economic, social and cultural rights have been recognized in earlier international instruments of both world and regional scope, it is essential that those rights be reaffirmed, developed, perfected and protected in order to consolidate in America, on the basis of full respect for the rights of the individual, the democratic representative form of government as well as the right of its peoples to development, self-determination, and the free disposal of their wealth and natural resources, and Considering that the American Convention on Human rights provides that draft additional protocols to that Convention may be submitted for consideration to the States Parties, meeting together on the occasion of the General Assembly of the Organization of American States, for the purpose of gradually incorporating other rights and freedoms into the protective system thereof,

* Adopted on 17 November 1988 at San Salvador, Rep. of El Salvador,b y the General Assembly of the OAS. Have agreed upon the following Additional Protocol of the American Convention on Human Rights "Protocol of San Salvador”:

Article 1 Obligation to adopt measures

The States Parties to this Additional Protocol to the American Convention on Human Rights undertake to adopt the necessary measures, both domestically and through cooperation among the States, especially economic and technical, to the extent allowed by their available re­ sources, and taking into account their degree of development, for the purpose of achieving progressively and pursuant to their internal legislations, the full observance of the rights recognized in this Protocol.

Article 2 Obligation to enact domestic legislation

If the exercise of the rights set forth in this Protocol is not already guaranteed by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitu­ tional processes and the provisions of this Protocol, such legislative or other measures as may be necessary for making those rights a reality.

Article 3 Obligation of nondiscrimination

The States Parties to this Protocol undertake to guarantee the exercise of the rights set forth herein without discrimination of any kind for reasons related to race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.

Article 4 Inadmissibility of restrictions

A right which is recognized or in effect in a State by virtue of its internal legislation or international conventions may not be restricted or curtailed on the pretext that this Protocol does not recognize the right or recognizes it to a lesser degree,

Article 5 Scope of restrictions and limitations

The States Parties may establish restrictions and limitations on the enjoyment and exercise of the rights established herein by means of laws promulgated for the purpose of preserving the general welfare in a democratic society only to the extent that they are not incompatible with the purpose and reason underlying those lights.

Article 6 Right to work

1. Everyone has the right to work, which includes the opportunity to secure the means for living a dignified and decent existence by performing a freely elected or accepted lawful activity. 2. The States Parties undertake to adopt measures that will make the right to work fully effective, especially with regard to the achievement of full employment, vocational guidance, and the development of technical and vocational training projects, in particular those directed to the disabled. The States Parties also undertake to implement and strengthen programs that help to ensure suitable family care, so that women may enjoy a real opportunity to exercise the right to work.

Article 7 Just, equitable and satisfactory conditions of work

The States Parties to this Protocol recognize that the right to work to which the foregoing article refers presupposes that everyone shall enjoy that right under just, equitable and satis­ factory conditions, which the States Parties undertake to guarantee in their internal legislation, particularly with respect to: a. Remuneration which guarantees, as a minimum, to all workers dignified and decent living conditions for them and their families and fair and equal wages for equal work, without distinction; b. The right of every worker to follow his vocation and to devote himself to the activity that best fulfills his expectations and to change employment in accordance with the pertinent national regulations; c. The right of every worker to promotion or upward mobility in his employment, for which purpose account shall be taken of his qualifications, competence, integrity and seniority; d. Stability of employment, subject to the nature of each industry and occupation and the causes for just separation. In cases of unjustified dismissal, the worker shall have the right to indemnity or to reinstatement on the job or any other benefits provided by domestic legislation; e. Safety and hygiene at work; f. The prohibition of night work or unhealthy or dangerous working conditions and, in general, of all work which jeopardizes health, safety or morals, for persons under 18 years of age. As regards minors under the age of 16, the work day shall be subordinated to the provisions regarding compulsory eduction and in no case shall work constitute an impediment to school attendance or a limitation on benefiting from education received; g. A reasonable limitation of working hours, both daily and weekly. The days shall be shorter in the case of dangerous or unhealthy work or of night work; h. Rest, leisure and paid vacations as well as remuneration for national holidays.

Article 8 Trade union rights

1. The States Parties shall ensure: a. The right of workers to organize trade unions and to join the union of their choice for the purpose of protecting and promoting their interests. As an extension of that right, the States Parties shall permit trade unions to establish national federations or confederations, or to affiliate with those that already exist, as well as to form inter­ national trade union organizations and to affiliate with that of their choice. The States Parties shall also permit trade union organizations and to affiliate with that of their choice. The States Parties shall also permit trade unions, federations and con­ federations to function freely; b. The right to strike. 2. The exercise of the rights set forth above may be subject only to restrictions established by law, provided that such restrictions are characteristic of a democratic society and necessary for safeguarding public order or for protecting public health or morals or the rights and freedoms of others. Members of the armed forces and the police and of other essential public services shall be subject to limitations and restrictions established by law. 3. No one may be compelled to belong to a trade union. Article 9 Right to social security

1. Everyone shall have the right to social security protecting him from the consequences of old age and of disability which prevents him, physically or mentally, from securing the means for a dignified and decent existence. In the event of the death of a beneficiary, social security benefits shall be applied to his dependents. 2. In the case of persons who are employed, the right to social security shall cover at least medical care and an allowance or retirement benefit in the case of work accidents or occupa­ tional disease and, in the case of women, paid maternity leave before and after childbirth.

Article 10 Right to health

1. Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being. 2. In order to ensure the exercise of the right to health, the States Parties agree to recognize health as a public good and, particularly, to adopt the following measures to ensure that right: a. Primary health care, that is, essential health care made available to all individuals and families in the community; b. Extension of the benefits of health services to all individuals subject to the State's jurisdiction; c. Universal immunization against the principal infectious diseases; d. Prevention and treatment of endemic, occupational and other diseases; e. Education of the population on the prevention and treatment of health problems, and f. Satisfaction of the health needs of the highest risk groups and of those whose poverty makes them the most vulnerable.

Article 11 Right to a healthy environment

1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. 2. The States Parties shall promote the protection, preservation and improvement of the environment.

Article 12 Right to food

1. Everyone has the right to adequate nutrition which guarantees the possibility of enjoying the highest level of physical, emotional and intellectual development. 2. In order to promote the exercise of this right and eradicate malnutrition, the States Parties undertake to improve methods of production, supply and distribution of food, and to this end, agree to promote greater international cooperation in support of the relevant national policies.

Article 13 Right to education

1. Everyone has the right to education. 2. The States Parties to this Protocol agree that education should be directed towards the full development of the human personality and human dignity and should strengthen respect for human rights, ideological pluralism, fundamental freedoms, justice and peace. They further agree that education ought to enable everyone to participate effectively in a democratic and pluralistic society and achieve a decent existence and should foster understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups and promote activi­ ties for the maintenance of peace. 3. The States Parties to this Protocol recognize that in order to achieve the full exercise of the right to education: a. Primary education should be compulsory and accessible to all without cost; b. Secondary education in its different forms, including technical and vocational sec­ ondary education, should be made generally available and accessible to all by every appropriate means, and in particular, by the progressive introduction of free education; c. Higher education should be made equally accessible to all on the basis of individual capacity, by every appropriate means, and in particular, by the progressive introduc­ tion of free education; d. Basic education should be encouraged or intensified as far as possible for those persons who have not received or completed the whole cycle of primary instruction; e. Programs of special education should be established for the handicapped, so as to provide special instruction and training to persons with physical disabilities or men­ tal deficiencies. 4. In conformity with the domestic legislation of the States Parties, parents should have the right to select the type of education to be given to their children, provided that it conforms to the principles set forth above. 5. Nothing in this Protocol shall be interpreted as a restriction of the freedom of individuals and entities to establish and direct educational institutions in accordance with the domestic legislation of the States Parties.

Article 14 Right to the benefit of culture

1. The States Parties to this Protocol recognize the right of everyone: a. To take part in the cultural and artistic life of the community; b. To enjoy the benefits of scientific and technological progress; c. To benefit from the protection of moral and material interests deriving from any scientific, literary or artistic production of which he is the author. 2. The steps to be taken by the States Parties to this Protocol to ensure the full exercise of this right shall include those necessary for the conservation, development and dissemination of science, culture and art. 3. The States Parties to this Protocol undertake to respect the freedom indispensable for scientific research and creative activity. 4. The States Parties to this Protocol recognize the benefits to be derived from the encour­ agement and development of international cooperation and relations in the fields of science, arts and culture, and accordingly agree to foster greater international cooperation in these fields.

Article 15 Right to the formation and the protection of families

1. The family is the natural and fundamental element of society and ought to be protected by the State, which should see to the improvement of its spiritual and material conditions. 2. Everyone has the right to form a family, which shall be exercised in accordance with the provisions of the pertinent domestic legislation. 3. The States Parties hereby undertake to accord adequate protection to the family unit and in particular: a. To provide special care and assistance to mothers during a reasonable period before and after childbirth; b. To guarantee adequate nutrition for children at the nursing stage and during school attendance years; c. To adopt special measures for the protection of adolescents in order to ensure the full development of their physical, intellectual and moral capacities; d. To undertake special programs of family training so as to help create a stable and positive environment in which children will receive and develop the values of under­ standing, solidarity, respect and responsibility.

Article 16 Rights of children

Every child, whatever his parentage, has the right to the protection that his status as a minor requires from his family, society and the State. Every child has the right to grow under the protection and responsibility of his parents; save in exceptional, judicially-recognized circumstances, a child of young age ought not to be separated from his mother. Every child has the right to free and compulsory education, at least in the elementary phase, and to continue his training at higher levels of the educational system.

Article 17 Protection of the elderly

Everyone has the right to special protection in old age. With this in view the States Parties agree to take progressively the necessary steps to make this right a reality and, particularly, to: a. Provide suitable facilities, as well as food and specialized medical care, for elderly individuals w ho lack them and are unable to provide them for themselves; b. Undertake work programs specifically designed to give the elderly the opportunity to engage in a productive activity suited to their abilities and consistent with their vocations or desires; c. Foster the establishment of social organizations aimed at improving the quality of life for the elderly.

Article 18 Protection of the handicapped

Everyone affected by a diminution of his physical or mental capacities is entitled to receive special attention designed to help him achieve the greatest possible development of his personality. The States Parties agree to adopt such measures as may be necessary for this purpose and, especially, to: a. Undertake programs specifically aimed at providing the handicapped with the resources and environment needed for attaining this goal, including work programs consistent with their possibilities and freely accepted by them or their legal representatives, as the case may be; b. Provide special training to the families of the handicapped in order to help them solve the problems of coexistence and convert them into active agents in the physical, mental and emotional development of the latter; c. Include the consideration of solutions to specific requirements arising from needs of this group as a priority component of their urban development plans; d. Encourage the establishment of social groups in which the handicapped can be helped to enjoy a fuller life.

Article 19 Means of protection

1. Pursuant to the provisions of this article and the corresponding rules to be formulated for this purpose by the General Assembly of the Organization of American States, the States Parties to this Protocol undertake to submit periodic reports on the progressive measures they have taken to ensure due respect for the rights set forth in this Protocol 2. All reports shall be submitted to the Secretary General of the OAS, who shall transmit them to the Inter-American Economic and Social Council and the Inter-American Council for Education, Science and Culture so that they may examine them in accordance with the provisions of this article. The Secretary General shall send a copy of such reports to the Inter-American Commission on Human Rights. 3. The Secretary General of the Organization of American States shall also transmit to the specialized organizations of the Inter-American system of which the States Parties to the present Protocol are members, copies or pertinent portions of the reports submitted, insofar as they relate to matters within the purview of those organizations, as established by their constituent instruments. 4. The specialized organizations of the Inter-American systen; may submit reports to the Inter-American Economic and Social Council and the Inter-American Council for Education, Science and Culture relative to compliance with the provisions of the present Protocol in their fields of activity. 5. The annual reports submitted to the General Assembly by the Inter-America Economic and Social Council and the Inter-American Council for Education, Science and Culture shall contain a summary of the information received from the States Parties to the present Protocol and the specialized organizations concerning the progressive measures adopted in order to ensure respect for the rights acknowledged in the Protocol itself and the general recommenda­ tions they consider to be appropriate in this respect. 6. Any instance in which the rights established in paragraph a) of Article 8 and in Article 13 are violated by action directly attributable to a State Party to this Protocol may give rise, through participation of the Inter-American Commission on Human Rights and, when applicable, of the Inter-American Court of Human Rights, to application of the system of individual petitions governed by Article 44 through 51 and 61 through 69 of the American Convention on Human Rights. 7. Without prejudice to the provisions of the preceding paragraph, the Inter-American Commission on Human Rights may formulate such observations and recommendations as it deems pertinent concerning the status of the economic, social and cultural rights established in the present Protocol in all or some of the States Parties, which it may include in its Annual Report to the General Assembly or in a special report, whichever it considers more appropriate. 8. The Councils and the Inter-American Commission on Human Rights, in discharging the functions conferred upon them in this article, shall take into account the progressive nature of the observance of the rights subject to protection by this Protocol.

Article 20 Reservations

The States Parties may, at the time of approval, signature, ratification or accession, make reservations to one or more specific provisions of this Protocol, provided that such reservations are not incompatible with the object and purpose of the Protocol.

Article 21 Signature, ratification or accession. Entry into effect

1. This Protocol shall remain open to signature and ratification or accession by any State Party to the American Convention on Human Rights. 2. Ratification of or accession to this Protocol shall be effected by depositing an instrument of ratification or accession with the General Secretariat of the Organization of American States. 3. The Protocol shall enter into effect when eleven States have deposited their respective instruments of ratification or accession. 4. The Secretary General shall notify all the member States of the Organization of Ameri­ can States of the entry of the Protocol into effect.

Article 22 Inclusion of other rights and expansion of those recognized

1. Any State Party and the Inter-American Commission on Human Rights may submit for the consideration of the States Parties meeting on the occasion of the General Assembly proposed amendments to include the recognition of other rights or freedoms or to extend or expand rights or freedoms recognized in this Protocol. 2. Such Amendments shall enter into effect for the States that ratify them on the date of deposit of the instrument of ratification corresponding to the number representing two thirds of the States Parties to this Protocol. For all other States Parties they shall enter into effect on the date on which they deposit their respective instrument of ratification. BOOK REVIEW

Behind the Disappearances: Argentina’s Dirty War Against Human Rights and the United Nations by lain Guest

Philadelphia: University of Pennsylvania Press 1990. Pp. xvi, 407. Appendixes. Index. Bibliography.

On 29 December 1990, the Presidentbrink of condemning Argentina for its of Argentina, Carlos Saul Menem, grantedviolations. He then shows us how a pardons to the generals who planned andshrewd Argentine ambassador and a supervised the “dirty war” in which atcomplicit Reagan administration turned least 8,960 persons “disappeared.”the Ar­ tide - engineering, for example, the gentina’s ambassador to the United Na­sacking of the activist Director of the UN tions Human Rights Commission in Gen­Division of Human Rights, Theo van Bov- eva, Julio Emilio Strassera, the prosecutoren, weakening the newborn UN working in the generals' trial, immediately resignedgroup on disappearances and preventing his post in protest. Six weeks later, at theany outright condemnation. It is the au­ annual session of the Commission, the ICJthor’s well-supported thesis that the and Nobel Peace Prize winner Adolfo Pe­ Commission’s human rights machinery rez Esquivel led human rights groups inwas forever damaged in the fray. taking the floor to condemn the pardons. The book covers 1976 to 1983, a period Iain Guest’s book, which reached Gen­ of renewed activity for the UN Human eva on the eve of the Commission ses­Rights Commission. The overthrow of the sion, could not have been more timely. Allende government in Chile and the bru­ Oscillating between the grimy torture cellstal repression that followed had broken of Buenos Aires and the antiseptic meet­the Soviet bloc’s resolve to prevent public ing rooms of the Palais des Nations, itdiscussion of violations occuring outside tells how Argentina's military governmentthe Israel/South Africa context. While the stymied the Commission from takingSoviet Union was hostile to Pinochet, action against its policy of disappearances.however, it was “cozy” with the Argen­ Guest, perhaps the most talented jour­tine generals, who also had the support nalist to cover the United Nations human of other Latin American dictators and rights scene, chronicles how relatives many of in the non-aligned bloc. The con­ some of the “disappeared" aided by in­ frontation came to a head in 1980, when ternational NGOs, a receptive Carter Ad­the European countries, which did not ministration and a sympathetic UN Secre­have the political strength to obtain a di­ tariat, brought the Commission to therect condemnation of Argentina, never­ theless forced the creation of a workingIn an observation as relevant today as group to examine the phenomenon of ever, the author notes that “ ‘keeping the disappearances on a world-wide scale.dialogue going’ became an end in itself The following year, however, the working and far more important than the actual group, and the UN machinery in general, violations.” Guest points to Working began to back off. Group Chairman Viscount Colville of Col- Within the larger story, the book tellsross, whose sympathy to the plight of a myriad of smaller ones. (Indeed, at timesgovernments ostensibly seeking to one feels that it is trying to tell too many emerge from dictatorships led Guatema­ stories at once; details of abuses in Ella’s Rios Montt to propose that Colville Salvador and Guatemala, and the UN re­ become special rapporteur on Guatemala. sponse thereto, drag the book out need­Colville “saw himself as a political media­ lessly). US foreign policy is under exami­tor instead of a human rights rapporteur. ” nation throughout. Under Carter, the ac­The Working Group’s surrender to Ar­ tivist, Patt Derian championed the cause gentina, writes Guest, “set a precedent of human rights in Argentina. Upon the that tainted the entire UN human rights election of Ronald Reagan, the Jeane fact-finding apparatus. Between 1983 and Kirkpatrick thesis of friendly authoritarian1986, rapporteurs investigated El Salvador, governments prevailed, however, and theSuriname, Guatemala, Equatorial Guinea, US did an abrupt volteface on Argentina. Haiti, Chile and Uruguay for the Human President-designate Roberto Viola re­Rights Commission. All these nations had ceived an early invitation to the White been labeled “gross violators" by the House and, as Secretary of State Alexan­Commission, yet almost without exception der Haig put it, “we told Argentina that it these rapporteurs saw their task as medi­ had heard its last public lecture from theation rather than criticism - as the re-es­ United States on human rights.” tablishment of democracy rather than Guest’s hero is Theo van Boven. Thesupport for embattled relatives and other book shows how, through his commitmentvictims." and identification with the victims, van In the same vein, the author illustrates Boven goaded the UN into action against how future UN Secretary-General Javier the Latin American dictatorships, only toPerez de Cuellar, assigned to prepare a expose himself to the plotting of Argentine confidential report on abuses under Uru­ Ambassador Gabriel Martinez. W henguay's military dictators, submitted a Jeane Kirkpatrick expressed her “dis­“majestically misleading” whitewash for pleasure" with van Boven to new Secre- the Commission (excerpted at length in taiy-General Perez de Cuellar, who was an appendix, side-by-side with a contem­ receiving the same message from numer­porary ICRC account). “No one is being ous Latin American military regimes, thedetained on account of his ideas,” report­ Dutchman’s fate was sealed. ed Perez de Cuellar, who also found pris­ Guest argues persuasively that “to beon conditions excellent. Only when the a successful human rights advocate, thereport was leaked could the recently-lib­ UN must confront governments." Yet heerated pianist Miguel Angel Estrella deny shows how time and again the UN aban­ that Perez de Cuellar met him in prison, doned its mandate to promote human as the latter claimed. rights standards and take the side of vic­ Guest picks apart the often Byzantine tims in favour of diplomacy and dialogue. UN processes, designed more to reassure states than to expose violations. One ofnice forgotten place with a sleepy press his targets is the confidential “1503” pro­corps and no spectator interest" (to quote cedure by which certain cases of violationsthe 1976 US Ambassador), the Commis­ are discussed in private session only. Bothsion now receives human rights activists governments and NGOs know, however,who come from around the world to state that the only credible international deter­ their case. Creation of the disappearances rent to human rights violations is the glaregroup opened the way to other thematic of publicity and denunciation. Guest il­ mechanisms, where individual violations lustrates how the Argentines even ma­could be recorded even where the perpe­ nipulated their own confidential censure trating governments were too politically by the Sub-Commission in an attempt to powerful to challenge directly. The Com­ avoid having their case discussed in pub­mission went on to create special rappor­ lic session. (Iraq would successfully useteurs on torture, summary or arbitrary ex­ the same tactic after its gassing of Kurdishecutions, religious intolerance and mer­ villages in 1988.) cenaries. In 1991, it set up a working In his frustration over the meagre re­group to “investigate cases of detention sults of the episode, Guest does not givewhich are imposed arbitrarily or otherwise it due credit for two sea changes in theinconsistently with...the Universal Decla­ Commission’s history - empowering NGOsration on Human Rights. ” This is no small to use the Commission for what it is worthachievement in an inter-governmental and creating the working group on disap­body where respect for national sover­ pearances. While once looked on as “a eignty remains paramount. MEMBERS OF THE INTERNATIONAL COMMISSION OF JURISTS

President ANDRES AGUILAR MAWDSLEY Judge, International Court of Justice; former Venezuelan Ambassador to UN (New York) Vice-Presidents Mrs TAI-YOUNG LEE Director, Korean Legal Aid Centre for Family Relations DON JOAQUIN RUIZ-GIMENEZ- Professor of Law, Madrid; former Ombudsman of Spain

Members of Executive Committee P.J.G. KAPTEYN (Chairman) Judge, European Court of Justice; former Councillor of State, Nether­ lands MICHAEL D. KIRBY Pres., NSW Court of Appeal, Australia FALI S. NARIMAN Advocate, former Solicitor-General of India CHRISTIAN TOMUSCHAT Professor of Int’l Law, University of Bonn AMOS WAKO Attorney General, Kenya

Commission Members BADRIA AL-AWADHI Associate Professor of International Law, Kuwait ANTONIO CASSESE Int'l Law Professor, European University Institute; President, European Committee for the Prevention of Torture, Italy PARAM CUMARASWAMY Advocate; former Chairman of the Standing Committee on Human Rights, Int'l Bar Association, Malaysia DALMO DE ABREU DALLARI Dean, Faculty of Law, University of Sao Paulo, Brazil ROBERT DOSSOU Practicing advocate; former President of the Benin Bar Association; Professor of Law and Dean of the Law Faculty, University of Benin ENOCH DUMBUTSHENA Former Chief Justice, Zimbabwe DESMOND FERNANDO President, Bar Association of Sri Lanka GUILLERMO FIGALLO Former Member of Supreme Court of Peru HENRY DE B. FORDE Member of Parliament and former Att.-Gen., Barbados P. TELFORD GEORGES Chief Justice, Supreme Court, The Bahamas LENNART GROLL Judge, Stockholm Court of Appeal, Sweden KOFI KUMADO Senior Lecturer in Law, University of Ghana RAJSOOMER LALLAH Supreme Court Judge, Mauritius; UN Human Rights Committee CLAIRE L'HEUREUX-DUBE Supreme Court Judge, Canada NIALL MACDERMOT, C.B.E., Q.C. Former Secretary-General, ICJ; former Minister of State for Planning and Land, UK RUDOLF MACHACEK Member of Constitutional Court, Austria J.R.W.S. MAWALLA Advocate of the High Court, Tanzania FRANQOIS-XAVIER MBOUYOM Director of Legislation, Ministry of Justice, Cameroon DORAB PATEL Former Supreme Court Judge, Pakistan NICOLE QUESTIAUX Member, Council of State of France; former Minister of State ADELA RETA SOSA DIAZ Pres., Criminal Law Institute; Minister, Uruguay Gov’t LORD SCARMAN Former Lord of Appeal and Chairman, Law Commission, UK YUICHITAKANO Professor of International Law, Tokyo, Japan CHITTITINGSABADH Privy Councillor; Professor of Law; former Thai Supreme Court Judge JOSE ZALAQUETT Advocate, Professor of Law, Chile

HONORARY MEMBERS Sir ADETOKUNBO A. ADEMOLA, Nigeria LOUIS JOXE, France ARTURO A. ALAFRIZ, Philippines JEAN FLAVIEN LALIVE, Switzerland DUDLEY B. BONSAL, United States NORMAN S. MARSH, United Kingdom WILLIAM J. BUTLER, USA KEBA MBAYE, Senegal HAIM H. COHN, Israel JOSE T. NABUCO, Brazil TASLIM OLAWALE ELIAS, Nigeria TORKEL OPSAHL, Norway ALFREDO ETCHEBERRY, Chile SIR GUY POWLES, New Zealand PER FEDERSPIEL, Denmark SHRIDATH S. RAMPHAL, Guyana T.S. FERNANDO, Sri Lanka Lord SHAWCROSS, United Kingdom W.J. GANSHOF VAN DER MEERSCH, Belgium EDWARD ST. JOHN, Australia HANS HEINRICH JESCHECK, Federal Republic of Germany TUN MOHAMED SUFFIAN, Malaysia JOHN P. HUMPHREY, Canada MICHAEL A. TRIANTAFYLLIDES, Cyprus SECRETARY-GENERAL ADAMA DIENG RECENT ICJ PUBLICATIONS

Paralegals in Rural Africa A report of ICJ Seminars in Banjul, the Gambia and Harare, Zimbabwe Published by the ICJ, Geneva 1991 Available in English. 112pp. Swiss Francs 15, plus postage. The Seminar papers reproduced in the report coverthe experiences of countries in West and Southern Africa regarding the issue of legal services in rural areas in the context of overall development. A chapter focusing on the Indian experience serves to highlight the universality of the problems involved in bringing about development of the rural poor. The creation of legal resources for the poor and the disadvantaged sections of society is an attempt to use law to redistribute power and change social structures designed to hinder the empowerment of the rural poor. The report also contains the conclusions and Recommendations of both Seminars as well as those of the Limuru Seminar organized in October 1984 by the ICJ.

★ ★ ★

Asian Seminar on Paralegal Trainers ICJ/Women's Communication and Information Center in Kalyanamitra (Indonesia) Published by the ICJ, Geneva, 1990 Available in English. 30 pp. Swiss Francs 12, plus postage. The report covers a variety of topics designed to provide useful skills to paralegals and those involved in their training ; examples include: the need for training and engaging paralegals, process of training the trainers, trainees, objectives, methods and assess­ ment of training programmes and recommendations.

★ ★ ★

The Independence of Judges and Lawyers in Pakistan A CIJL Seminar Published by the ICJ, Geneva, 1990 Available in English, 148 pp. Swiss Francs 15, plus postage. The report reproduces Seminar papers focusing on the problem of safeguarding the independence of lawyers and judges in Pakistan. Other papers deal with the Politics of the Judiciary in Sri Lanka, the role of the Bar in Malaysia andthe Judicial implementation of human rights norms. The report also contains the Seminar’s conclusions and Recommendations together with the United Nations Basic Principles on the Independ­ ence of the Judiciary and the Bangalore Principles on the Judicial incorporation of Human Rights Norms.

Publications available from: ICJ, P.O. Box 145, CH-1224 Geneva orfrom : AAICJ, 777 UN Plaza, New York, N.Y. 10017

Printed in Switzerland ISSN 0020-6393