UNIVERITY BOCCONI MILAN Online Working Papers
http://portale.unibocconi.it/wps/wcm/connect/Centro_CERTET/Ho me/Working+Papers/
Lino Rizzi1 [email protected]
WHO DRAFTS HUMAN RIGHTS CONVENTIONS? NON GOVERNMENTAL PARTNERSHIPS IN HUMAN RIGHTS LAW MAKING
1 The author would like to express his gratitude to the Faculty of Law at the University of Oxford whose hospitality made this research possible. He would also like to acknowledge the financial support that he received from the Centre for Regional Economics at the Bocconi University Milan, and from the Cariplo Foundation Milan. 1
Abstract
The participation of non-governmental organizations (NGOs) in International Community activities is constant and consistent. Although human rights’ NGOs do not have the legal capacity to conclude treaties, they have proved to be directly involved in the pre-normative drafting stage of the law-making process, and more indirectly in the final treaty making stage. They perform some major functions, which have not yet been defined precisely: 1) the capacity to turn legitimate claims into legal rights which is part of the traditional function of states, 2) the capacity to build general non-party consent about relevant human rights issues, and 3) the capacity to provide expertise in drafting the framework of the conventions at the same state law level; 4) the capability of defining problems (ICC), finding solutions, and identifying emerging new rights, as in the field of environmental and health care. In addition, as guardians of the implementation of human rights treaties, NGOs are essential investigation agents and sources of information for the treaty bodies in particular and for UN organs in general. As they monitor the whole cycle of legitimacy, NGOs are essential upholders of the international regime of human rights, which is founded on the principle of universal accountability.
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CONTENTS
Introduction
1. Legitimacy of Non-governmental Monitoring 1.1. Limits of the domestic control by sovereign states 1.2 NGOs fill institutional vacua
2. NGOs as International Agents of Justice 2.1 Mission and Character of Human Rights NGOs 2.2 Legal status and settled practices 2.3 New diplomacy: state security and human safety
3. Partnerships in Law Drafting 3.1 Capacity of negotiations: Ban on Landmines 3.2 Capacity in law making: International Criminal Court 3.3 Elements of recognition of the public role 3.4 Partnership in codification
4. Identification of Comprehensive Rights 4.1 Civil use of scientific evidence: Tobacco Control 4.2 Norm entrepreneurs in environmental law 4.3 Comprehensive Principles of Justice 4.4 The making of human right customary law
5. Guardians of implementation 5.1 Framework of Accountability 5.2 Reporting evidence to claim remedies 5.3 Legal effects of the disclosing mechanism 5.4 Performative effect of the public assessment 5.5 Moral consensus as a subjective right
6. Partnership in Global Governance 6.1 Legitimating UN governance 6.2 Autodetermination for under-represented groups 6.3 Compensative function and symbiotic capacity
Balancing Democratic Liberties 7.1 The changed hierarchy of political liberties 7.2 NGOs as international upholders of civil responsivity
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“It is surprising – if not astonishing – besides regrettable, to see that conception repeated mechanically and ad nauseam by a part of the doctrine, apparently trying to make believe that the intermediary of the state, between the individuals and the international legal order, would be something inevitable and permanent. Nothing could be more fallacious” Judge Cançado Trindade 2
The Universal Declaration of Human Rights (UDHR) is composed of different levels of obligations, most of which have become customary law. Despite the fact that only a few3 have ius cogens status, the member states of the International Community keep pledging to fulfil Human Rights (HRs). States are supposed to “respect” human rights pertaining to their own domestic jurisdiction and to cooperate in active peacekeeping at a global level. The obligation is in the legal sense not to violate the provisions of the UDHR, and in the practical sense to actively “protect” Human Rights, “secure” and “promote” a “common standard”4 for all peoples. The moral duty and the international obligation to achieve this task implies an adequate concept of statehood which only recently has been involved in this achievement5. According to this HRs doctrine, adopted by the United Nations, peoples are supposed to be entitled to Human Rights because they are individuals, “human beings” having “inherent dignity”6; conversely
2 Concurring Opinion of Judge Cançado Trindade, President of the Inter-American Court of Human Rights, Advisory Opinion on the Legal Status and Human Rights of the Child, International Human Rights Reports, 11 (2004) 510, §§ 26-27. 3 Are the three crimes, defined by the International Criminal Court, as “genocide”, “ crimes against humanity”, “war crimes”,...... “ethnic cleasing”? 4 The UDHR Preamble states that Human Rights are “a common standard of achievement for all peoples and all nations…to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member states themselves and among the peoples of territories under their jurisdiction”. The Charter of the United Nations 1945 asserted “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples.” Preamble. See also Convention on Civil and Political Rights, (CCPR) 1966, Art 2, 1. In the current UN peacekeeping policies the two principles of promoting and protecting are becoming more and more two basic requirements of global “good governance”, cf. General Assembly (GA) Res. 2003/65, 59th session. 5 UN GS Banki Mon “ Shared sovereignity” 6 UDHR Preamble states, “… recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”, and Article I , “All human beings are born free and equal in dignity and rights….”. The term “Dignity” occurs 5 times in UDHR, and 10 in the Vienna Declaration and Programme of Action, Adopted by the World 4 governors are supposed to share, with the governed, the same values to assess public action. The limit to the political proliferation of laws is clearly established: human beings have more and superior rights than whatever any individual legislator might provide. The commitment of individual states to respect HRs implies the political duty to behave consistently with the common standards adopted by the international community. This reciprocal and universal obligation among the UN parties has been long time sleeping, and the evolution let to the discretion of the individual states, because the non-interference principle of the UN in the domestic policies appeared to be an unbearable condition for the existence of equal independent states. Only, after the terrifying experience of contemporary genocides7, the obligation of the individual state to respect HRs has assumed the international relevance of a moral and political duty of the International Community to make rights respected. The fundamental duty of keeping peace and of using the force for this common task implies a constitutional pact among the states parties (pactun inter pares). As members aequo jure each state parties is the beneficiary of the protection of the international community from any aggression of other states, but the beneficiary of the UN mission to protect Human Rights are Individuals. The UN obligation to protect the victims of states that violate HRs shall prevail over whatever interest of sovereign states, however mighty they might be8. States are active parties of the UNO inasmuch as they respect common rules of conduct and obligations of result. The legitimacy preoccupation of the International Community shifts gradually from the declaratorish level of the principles to the code of conduct which requires the members of being virtuous, willing and capable of “sharing responsibility”9 in curry on the UN protection mission. Each state party shall be reliable in keeping the national interest consistent and compatible with the existence of a international community of individual rights holders. The relation of power to rights is insidious because tends to be instrumental – and particularly in the case of international Human Rights, where the audience is wide, the adoption may be plied by autocratic regimes to esthetic goals instead of establishing an ethic code. The practical question concerns the agencies, attitudes,
Conference on Human Rights in Vienna on 25 June 1993. The predicative “Human” occurs 10 times in the UN Charter, respectively as substantial predicate of “rights”, “person”; and appears 14 times in UDHR, as predicative of “rights”, “beings”, “dignity”. The term “entitled” referred to individuals, which does not appears in the UN Charter where entitled of international law are states, occurs, instead, 9 times in the UDHR “Everyone is entitled to all the rights and freedoms… “, UDHR Article 2. Cf. Christopher Mc Crudden, “Human Dignity and Judicial Interpretation of Human Rights”, The European Journal of International Law, xx no. xx (2008) 1–70; John Gardner, “’Simply in Virtue of Being Human’: The Whos and Whys of Human Rights”, Journal of Ethics and Social Sciences, 2, No. 2 (February 2008). 7 2005 Wold Summit Outcome Document, 2005 8 Security Council refused to intervene in Kosovo 9 Responsibility to protect. 5 capabilities that concur to achieve this project. For instance, to what extent the different conceptions of political authority are compatible and consistent with the conditional obligations that underlies this “normative” theory of Human Rights. The UN theory of human right implies accountability, development, personal capacities, to what extent a state member is accountable to the governed, open to development, and its leading class changeable? The legal and institutional progress in building the international protection system is evident. After the UDHR nine international treaties10 ensuring specific human rights have been adopted, nine UN treaty bodies and a Universal Periodic Review11 have been set up to monitor the implementation of individual states. Despite the fact that international treaties can be made only by states, it has been widely proved that the progress in branches of HRs based international law - humanitarian law, human rights law, and environmental law - has often result not from the undertaking of states themselves. Great powers, in particular, have seemed reluctant to increase HR obligations at the international level12. These three branches of Human Rights based law have suffered of the fact that states, collectively and individually, did often not covered the duty to protect rights of individuals what they are charged with. UN authorities – as Security Council – were not always committed to protect life of non belligerent people in war time, the life and dignity of citizens attacked by their own government, or guarantee a safe and healthy environment13. Paradoxically, it has been often precisely non-state actors who were capable of developing the common interests of the international community into powerful bonds and Human Rights NGOs, instead of public powers, who had standing to act creatively on the international field. The international law-making process concerning the HRs conventions witness this tendency and trend: Human Rights NGOs campaign and draft treaties, States (General Assembly) adopted and convert in treaties. All major shifts in the HRs law making have been fabricated by coalitions of NGOs, inside and outside the UNO, often in cooperation with likeminded states, but even lobbying states coalitions.
10 Nine? 11 UPR 12 Paradigmatic is the making process of the Treaty of Rome, in 1998, that established the International Criminal Court, see further. 13 Looking at the behaviour of states after the Chernobyl catastrophe Sands posed the question in these terms: “The traditional model poses two fundamental problems. First, states have generally proved unwilling to exercise their right of "guardian ship" over the global environment. Second, the notion of sovereignty which underlies the current regime poses insurmountable obstacles when the problems to be addressed are transnational in scope. The accident at the Chernobyl nuclear power plant in 1986 highlighted the inadequacies of the applicable treaty rules and the inability of international law to provide a method for identifying rules in the absence of an applicable treaty. The episode also served to illustrate the unwillingness of states to use the law to bring legal claims against an offending state even where a rule could be identified.” Philippe J. Sands, “Environment, Community and International Law”, Harvard International Law Journal (1989) 393. 6
The primacy of human dignity and of individuals as final destination and first care of the UN Declaration took the place of the primacy of states in the Charte, thanks to the coalition led by Rosalyn Roosevelt, the proponent and first President of the UN Commission on Human Rights; the elaboration of the theory of “sustainable development”, and the adaptation of the convention of Rio was promoted by NGOs…; the creation of the “International criminal Court”, the end of the international impunity for state heads. The “responsibility to protect” theory that overcame the dogma of non-intervention and established the primacy that international order first task is the safety of individuals which cannot be undermined by the collective security of state. From the making processes of HRs instruments arises an issue of inadequacy of the policies to the tasks both in the standard setting and implementation of HRs. An adequate exercise of the power should uphold the principle whereby the protection of collectivity must not be pursued at the expense of the protection of individuals. In some respects Humanitarian, Environmental and Human Rights NGOs have earned legitimacy from the failing legitimacy of the individual states and of the international state system. A ‘public’ body – national state or UN body - can be considered as a model of legitimate power as long as is able to act in the common interest. Denied interventions and late responses to the needs of treated categories of people have shown deficits in global governance. A comprehensive principle of governance that combines capability of effectiveness and duty of accountability has not yet been firmly established at the international level. International authorities who have legal capacity and political responsibility are not legitimate to act against the expectancy of HRs recipients that need legal or political protection. In many respects, such Human Rights NGOs have come to be the primary source of expression of the international will to protect common rights, and number among its most effective guardians. NGOs have played an essential role in highlighting issues such as social and environmental degradation, and the failure of states to implement their treaty obligations. The unwillingness or lateness in intervening in “ongoing genocide”14, humanitarian catastrophes and environmental threats have entailed that individual states have often lost the trust of their own citizens. Conversely, transnational Human Rights NGOs vis à vis the affected populations, have seemed to be more trustworthy than governments, and in some respects they have earned legitimacy from their proximity to HR holders and to victims in particular.
This research deals with the capacities and roles of the non- governmental organisations (NGOs) in relation to Human Rights law- making processes. In particular concerns the activities of those NGOs
14 Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, The International Criminal Court ten years on: An appraisal, London School of Economics, lecture held the 7 of October 2008, http://www.lse.ac.uk/collections/humanRights/events/Default.htm 7 that are committed to the acquisition of Human Rights standards and to monitor the implementation of HRs treaties. There is concern about the use of legal analogies in reference to non-public agents with new kinds of obligations. An adequate comprehension of the mediatory role of these international agents seems to suffer from three doctrinal restrictions: 1) the realistic understand which, focusing on the capacity for formal decisions, minimizes the importance of undertaking in international law-making processes concerning HRs; 2) the making of international law cannot be qualified as a legislative process based on political deliberation, as long as it created by treaty and by juridical categories of international courts; as a consequence 3) some epistemic concepts whereby the law-making of IL is traditionally explained are inappropriate to explain the making of International Human Rights Law (IHRL). For example, an analogical extension is evident in defining HRs conventions “treaties” because these do not set up “contractual” obligations between states as ordinary international agreements do, but they establish universal, constitutional “pledges”15 (pacta). Also the notion of “codification” explains, by analogy with historical processes, the atypical and unprecedented process in the law-making of HRs instruments. Moreover, the traditional triad “customary law”, “state practice”, and “opinio iuris”, are supposed to explain the international law making through the practice of the precedent: new law is supposed to reflect a rule already existing in the usual state practice. This approach is not able to explain the identification of new rights or the emerging of new laws (as environmental norms) in branches where the practice of a state has no precedent at all. The International Human Rights Law (IHRL) is a creative, global, unique historical phenomenon that deserves an autonomous consideration; as a process of partial de-statalisation of law, IHRL does not appear comparable with other branches of the public IL. Some of the most important HRs treaties could not have been achieved without the determinant undertaking of the NGOs. Therefore, one paradox that needs to be explained is to what extent the actual practices of the NGOs
15 The normative difference is apparent in the use of the terminology in the UN Charter and the UDHR. The typical international law terms “treaty” and “agreement” – which were massively present in the UN Charter - in the UDHR disappeared, but the term “pledge” - which in the Charter occurred only at Article 56 – occurs at the top, in the Preamble: “Whereas Member States have pledged themselves to achieve, in co- operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge”. The Charter, as the first 1945 multilateral treaty, denotes the International system as a “trusteeship system”, occurring 11 times, and the word “agreement” 35 times, of which 11 as “trusteeship agreement”; the expression “treaty or international agreement” occurs 3 times, while the term “pledge” occurs only ones and only at Article 56 (“All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55”). 8 can be consistent with the “consultant status” and “subsidiary” function that the UN law recognises16. Scholars have, in fact, identified significant tensions between the legitimacy claims of Human Rights NGOs as international public actors and the realities of their working practice.17 The stereotype of an apolitical NGO that temporarily intervenes in a crisis situation does not do justice to the permanent engagement of NGOs in international issues. The expansion of their activities has been characterized by a move beyond traditional humanitarian and advocacy roles towards participation in standard setting, in intergovernmental institutions, policy implementation and service provision. In particular, Human Rights NGOs advocating rights for persons and groups, campaigning for public consent in sensitive issues, drafting HRs conventions, perform a policy of HRs that rises from subjects able of being autonomous and sovereign. This politically committed new agents, the geography where the grow and act, proves that the paradigm of a civil society does not stand for non-governmental, non-public, but his interface is the rule of law. Others than humanitarian NGOs that, because of their apolitical mission, can operate in diverse political regimes, Human Rights NGOs are compatible only with regimes that allow the growth of civil liberties and let civil agencies to be sovereign. The legitimacy of NGOs should not be explained as an intrusion of subordinate actors in the domain that the classical international law reserved to the sovereign states. The main activities of non-governmental actors are to frame in the paradigm of a polycentric international society in which the relation between States, NGOs and UNO is build on coordination, without presuming the presence of rigid hierarchy18. NGOs as actors of the civil society exert the two liberties of free speech and association that build their real capabilities on communication and control, instead of the classical notion of command and execution19. I will try to explain how Human Rights NGOs carry out the role of norm entrepreneurs in the making of international conventions, and how they act as guardians of the implementations of the signed HR conventions. I intend to show that the undertakings of Human Rights NGOs usually take place in situations where international governance is
16 Menno T. Kamminga, “The Evolving Status of NGOs under International Law: A Threat to the Inter-state System?”, P. Alston (ed.), Non-state-state Actors (Oxford University Press 2005) 93-112; Nicolas Hachez, “The Relations Between the United Nations and Civil Society: Past, Present, and Future”, International Organizations Law Review 5 (2008) 49–84. 17 V. Collingwood and L. Logister, “State of the Art: Addressing the INGO ‘Legitimacy Deficit’’’, Political Studies Review (2005) 175–92. 18 James N. Rosenau, “Governance in the Twenty-first Century”, Global Governance 1 (1995) 14. Rosenau and Ernst-Otto Czempiel, eds., Governance Without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992). 19 Steven A. Rosell et al., Governing in an Information Society (Montreal: Institute for Research on Public Policy, 1992), 21. 9 needed and which sovereign states do not deal with – typical examples are the delay in developments of environmental law as a human right or in setting up the International Criminal Court. My approach is comprehensive, not normative, my aim is not to analyse the norms but the activities in order to understand, the activities, the function these figures carry out, the tendency they perform and the trend which emerging in the international regime of Human Rights.
1. Legitimacy of Non-governmental Monitoring. The present legacy of the modern Human Rights is forged, to a great extent, by different conceptions of statehood that coexist in the formally universal function of the international “Rule of Law”. On the one hand, the national protection of rights is a “regalienne” prerogative of the sovereign state; to ensure justice and to punish crimes is the specific duty of the domestic judicial power. On the other hand, the protection of HRs from the abuses of domestic power is de jure under the responsibility of the International Community, but de facto the UN monitoring system does not dispose of any general judiciary power to redress wrong, only of courts with specific and limited jurisdictions: International Criminal Court which is competent to judge crimes, but has no own police force, needs the cooperation of the domestic power. Regional courts for Human Rights have been established by UE, America and Africa (not in Asia), but their sentences have without real sanctions. The UN Council20 on Human Rights is not a court, his assessments are not legally binding, but hold the only force of the “recommendations”. Brief, The Nation Organization (UNO) is not a state, has neither power to promulgate positive laws nor to enforce them. As a result two different regimes of Rule of Law coexist in the world order, one perfect inside and one imperfect outside the individual state: the first is a law-based Rule of Law under domestic jurisdiction, in which the political authority holds the sovereign power of law- making; the second is a human rights-based Rule of Law, which is independent of the individual states, under the protection of the UN non-binding organs. The control of state-action is also performed in two different ways: the domestic control is founded on the division of powers (legislative from executive) and their subordination, so that the public action is under procedural control at all levels; by contrast,
20 The Council, which replaces the former Commission, was established by the Resolution on Human Rights Council, which adopted by the General Assembly 3 April 2006, G.A. Res. 60/251. Hilpold, Peter, “The Duty to Protect and the Reform of the United Nations - A New Step in the Development of International Law?”, Max Planck Yearbook of United Nations Law, Germany, 10, (2006).
The UN Charter Art 68 explicitly required that ‘the Economic and Social Council shall set up commissions in economic and social fields and for “the promotion of human rights”, and such other commissions as may be required for the performance of its functions’.” Cf. Eibe Riedel, ‘Article 68’ in Bruno Simma et al (eds.), The Charter of the United Nations: A Commentary (2nd ed., 2002) 1011, 1027. 10 international control over the state implementation of HRs provisions is based on the obligation of the individual state to report to the UN Treaty Bodies on the status of the implementation, and the UN Council conclude the review with a general assessment with specific recommendations. Reluctant states cannot be prosecuted, but asked to report – that is to account in a fixed time - on the implementing status of the recommended measures. Despite the lack of prosecution powers does not provide the UN monitoring system of an extraterritorial jurisdiction, the reasons by which it has been established are apparent in the high number of individual and collective complaints21 addressed to the UN Treaty Bodies.
1.1 Limits of the domestic control by sovereign states. The UN organs assessing states is a highly innovative22 element of the international law because it establishes a system of non-domestic accountability. Non-domestic accountability appears all the more necessary in the development of the international HRs regime that governments exhibit the tendency to keep under their influence even the systems of domestic control. In the public roles the responsibility that has to guarantee the outcome is functional, a relation, that is internal to the hierarchical scale. An authority based public institution, where strong responsibility from inferior to superior joint with a high level of professional competences, is suppose to guarantee the best result to the recipients, does not need to be endowed of accountability measures. The question is that an authority based institution implies more than efficacy, and especially the danger of becoming self-referent. In fact, when an institution performs the efficiency needed to comply with the rights of the recipients? Should the most be satisfied with the minimum or with the best possible outcome? In an autocratic regime is the authority that decides, but in a country based on the rule of law the institutional performance shall comply with the legitimate expectation of the recipients. It is with a realistic look at the gap between juridical definition of responsibility and the final performance, and the correlated lack of civil accountability particularly in the non-elected public bodies, in the democratic states, that the Principles of Paris - relating to the Status of National Institutions23. The set up an international obligation for states
21 See Treaties endowed by a petition right. 22 Philip Alston & James Crawford (eds), The Future of Human Rights Monitoring (Oxford University Press 2000) 1. 23 Principles relating to the Status of National Institutions (The Paris Principles) Adopted by General Assembly resolution 48/134 of 20 December 1993. The Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights held in Paris on 7-9 October 1991. They were adopted by the United Nations Human Rights Commission by Resolution 1992/54 of 1992, and by the UN General Assembly in its Resolution 48/134 of 1993. UN OHCHR National Human Rights Institutions: History, Principles, Roles and Responsibilities Professional Training Series 4;Anna-Elina Pohjolainen, (2010); The 11 that “ A national institution shall be vested with competence to promote and protect human rights”24. The criteria are that shall be “independent from government”25, with the ombudsman mandate of monitoring the respect and implementation of HRs by governmental institutions. The problem is how to combine the two criteria of being “national”, “non- governmental” and representative of members of the “civil society” in regimes that The modern continental constitutionalism can be considered an epic essay to depersonalize power and to reduce the responsibility in terms of legal obligations. The state theory says that sovereignty lays in the people, that expresses its will trough the governmental organs: the power is transferred by delegation to the national assembly that holds the law making power; the executive powers (Public Administration and Judiciary) shall implement the laws which have been promulgated. The institutional process should guarantee to the recipient the fundamental rights that the constitutional chart incorporates. Despite the governmental bodies are under the formal control of the constitutional court, the outcome is not automatically ensured. This descendent and unilateral performance of the political will, which critic scholars qualify as “mosaic”26, is supposed to guarantee the individual rights through the procedural control of the public acts. Public administration – as a set of non elective bodies – is legally responsible but not to the ordinary tribunal. Reasons of functionality prevails at that point the Public Administration holds its own tribunal in order to ensure that the efficacy of the public action be not hampered by the action of the magistrates. As a result a citizen cannot sue a clerk to the ordinary court for violation or non-compliance in matter of Human Rights.
The same question of unilateral responsibility arises with regard to the international obligations to fullfil human rights. To what extent this domestic settlement of the state functions fulfils an effective implementation of the HRs conventions? The governmental input that
Evolution of National Human Rights Institution Danish Institute for Human Rights. International Council on Human Rights Policy(2006); Assessing the Effectiveness of National Human Rights Institutions International Council on (2005) Human Rights Policy/Office of the United Nations High Commissioner for Human Rights; Birgit Lindsnaes, Lone Lindholt, Kristine Yigen (eds.). National Human Rights Institutions, Articles and working papers, Input to the discussions of the establishment and development of the functions of national human rights institutions Danish Institute for Human Rights (2001). 24 Paris Principles, article 1. 25A NHRI shall guarantee “independence and pluralism” through “representatives of: a) Non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, associations of lawyers, doctors, journalists and eminent scientists; ( b ) Trends in philosophical or religious thought; ( c ) Universities and qualified experts; ( d ) Parliament; ( e ) Government departments (if these are included, their representatives should participate in the deliberations only in an advisory capacity). 26 Juridification of politics. 12 satisfied all procedural control of the acts may not be enough to ensure a rule of law level that complies with the international HRs standards 27. The control of legitimacy cycle involves not the unilateral action as the division of power, but a bilateral relation between the institutional responsible and the recipient of HRs. Civil accountability requires the recipients know to what extend the governmental class pursues the general service, and if, when, who let prevail the logic of the class interest. A government is accountable with respect to its governed when some individual, body or institution, can require him to inform, explain or justify its conduct with respect to a determinate issue28. Necessary conditions are: a) that the account giving agent is under obligation to account; b) the public knowledge of the responsibilities or domain of actions that are the subject matter of the account; c) the capacity of the requiring agent to require A to give an account. Where compacted elites control the domestic knowledge, they produce the knowledge that the exercise of their functions needs, there is not enough evidence available to assesses their effective performance, and consequently to found an exact requirement of accountability. Not accountable domestic elites can continue to be masters of the timing of execution; judges are not especially committed to use their autonomy to administrate the justice in a more effective and fair way. The statistic data29 published by the European Court of Human Rights proves that this domestic gap is apparent in the application of the human right to a fair hearing within a reasonable time. In order to avoid this self-reference, the European Convention of Human Rights put a legal limit to the duration of trial, a “hearing within a reasonable time”30 is, for the European Court, a binding human right.
27 The European Convention on Human Rights, at Article 6 (see also UDHR at article 10) states : 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 28 “ For example, the UK Civil Service Commission holds both civil servants and special advisers to account, and does so in the interests of the public and to protect the impartiality of the civil service and to resist its politicisation in situations in which civil servants and advisers are also accountable to ministers, and where those ministers are accountable for their conduct to parliament. Identifying the principal- agent relationship in this case looks far from simple!”, MARK PHILP, “Delimiting Democratic Accountability”, Political Studies 2009, 57(1), p. 32. 29 The statistic data of the European Court of Human Rights witness that the majority of HRs violations by the national judiciaries concerns the "reasonable time" requirement, in civil and criminal proceedings before national courts. From 1 November 1998 to 31 December 2008, the five countries with the highest rate of violations have been: Italy 999, Poland 308, Greece 272, France 252, Slovenia 205. Council of Europe, European Court of Human Rights, Annual Report 2008 (Provisional edition, January 2009) 136-137, http://www.echr.coe.int/NR/rdonlyres/B680E717-1A81-4408-BFBC- 4F480BDD0628/0/Annual_Report_2008_Provisional_Edition.pdf.
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Therefore, the independence of the internal tribunals performs a superiority of the administrative power that is not to justify, on the other hand, the procedural control of the institutional acts alone masques a regalienne privilege and the political will to escape from the legitimacy by output. It is only by verifying empirically the final outcome of the institutional mechanism that one can grasp the true character of the public action and, at the end of the day, whether the domestic statehood is consistent with Human Rights provisions. In order to ensure the implementation of rights, more advanced democracies have set up a public accountability system which is based on the review of the institutional output31. Conversely, those democratic states that still only have formal control of the administrative acts, do not provide enough data witnessing how the non-elective powers execute the provisions that the elected legislature promulgates. Consequently, a political democracy de jure, can cover and coexist with an administrative autocracy de facto. Public responsibility, in this case, is supposed to be based on the underlying ethics of the roles that make any obligation of the corps towards the governed invalid. The internal conception of authority underlies a self-certifying attitude of the public bodies, whereby the authorities themselves report about their performance. There is no independent knowledge of the social conduct that depersonalizes the public performance through the external control of independent agencies.
x The UN monitoring system has an advantage over the domestic ones as it sets up a real separation of powers, because its organs are independent of the domestic power of each individual state. The review of the state performance is actually carried out by independent authorities that do not belong to the power system of any individual states. Moreover, monitoring is not based on the legality principle that formally rules the input legitimacy, but on the performed action as a practice of output-legitimacy. Finally, as far as international HR treaties are concerned, the UN monitoring of state implementation is based on the principle of accountability inter pares: the Universal Periodic Review of the state reports is led by the state members of the Council of Human Rights.
xxx Principles of International Law…responsibility versus accountability, rules of behavior and result. The UN regime of accountability inter pares is not under the rule of concessions between the most mighty states, but is a pact between the “most civilized nations”. What kind paradigm is implied in this accountability inter pares?
31 Jorgen Wettestad, “Monitoring and Verification”, in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds.), Oxford Handbook of International Environmental Law (Oxford University Press 2007) 974-994. 14
Not the horizontal relation that the international negotiations suppose. From a strictly utilistaristic point of view32, which sees state behaviour as being largely motivated by the assessment of costs and benefits, a HR treaty membership cannot be explained. Hence, from the rationalist perspective, the use of torture by the government of Chile against its own citizens does not affect the national interests of England.
Not the presupposition of the positivist theory that laws are political commands. The legality principle based on the law-making power of government. Laws are general instruments needed to protect HRs, but laws are made, changed, and applied by state bodies, and the political production of laws may infringe the primary duty of respecting rights. Every state produces laws but not every state law actualizes the rule of law. The international obligation concerning HRs arose from the common source of HRs through the legal devise of the international treaty, but the constitutional nature of HR pledges and the HR ius cogens limit in fact the consensual basis of international human rights law and its dependence on the national will of states.
Not norms, but rules of conduct and of result. The dependence of a domestic law system on the state monopoly of law making has led to the paradox of international anarchy of the national states, and finally to the deny of real legal responsibility. The possibility of the legislative power of defining “crime” indicates how much the legal border-line depends upon the discretion of the states and the fluctuation between the acts allowed, tolerated, and prohibited by the political authorities. In fact, according to the legality principle nullum crimen sine lege33, positivist lawyers assert that in international law human rights can only be protected by effective and existing laws. Although the positivist axiom “no rights without positive norms” sets the limits of judicial action, it does not set any equivalent limits on the law-makers. Formally, it establishes the relative independence of judges against political power, and consequently the protection of citizens through the non-retroactivity principle; but, politically, it affirms that the judiciary
32 Oona A. Hathaway, “The Cost of Commitment”, Stanford Law review (may 2003) 1823. 33 International Law Commission, in a text afterwards adopted by the General Assembly, states: “Principle I Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. Principle II The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.” Text published in the Report of the International Law Commission Covering its Second Session, 5 June-29 Duly 1950, Document A/1316, 11-14, and eventually approved by GA Res. 177 (II), §§ (a). These Principles of International Law, recognized in the Charter of the Nuremberg Tribunal (1946) and in the Judgment of the Tribunal, were afterwards adopted by the International Law Commission of the United Nations, 1950, Text published in the Report of the International Law Commission Covering its Second Session, 5 June-29 Duly 1950, Document A/1316, 11-14, and eventually approved by GA Res. 177 (II), §§ (a). 15 power is the executive organ and the legislative power is the sovereign body. In fact, judicial power acts inside the legal framework and by virtue of the legal instruments that the legislator promulgates and changes. Political positivism fuses state and law in the following circular devise: law is an actionable norm; non-actionable norms are not law. Autonomy and self-regulation theorists disagree: It is not because a rule is not an actionable norm that it cesses to be a rule of conduct.
The theory of Human Rights assumes that the matter of justice does not have the issue of politics, power or state as its source. It asserts a universal principle of the rule of law. Its basic premise is that no person, no matter what their office, stands above international law. A violation of HRs occurs by virtue of the fact that human dignity has been hurt; the legal instrument only frames this harm with norms34. This act claims human responsibility to the victims. People have more rights than states could ever establish. A principle of universal accountability is assumed. A comprehensive concept of rule of law includes the moral obligation of the political authorities to do everything possible to protect HRs, and hence implies the international obligation of states to make the necessary laws to provide protection. The question arises whether states are willing to cope with the political function that they claim to incorporate. When do states make or apply a law – when even justice is needed, or only when politics require it? In this sphere of political solicitude, in response to the expectation of the affected parties, an empty space results which NGOs try to fill. Here is the doctrinal struggle about the ambivalent notion of “law”: a) law as a set of objective norms, entirely promulgated by a legislator, and b) law as the rights of individuals that include legal rights (statutory law) and subjective moral claims. It is apparent that human rights, in virtue of their dynamic nature, qualify human situations, hence they cannot be statically understood as a set of given norms. Rights as civil liberties are ontologically in progress and intrinsically not reducible to the only logic of positive norms; rights are not only inviolable, but are required and opposable35. Reasons of justice, liberty or equality do not lose their strength if they are not legally actionable by existent instruments. They are conditions of the rule of law and of the democratic order, but they are not exhausted by its organs.
1.2 NGOs fill institutional vacua. In the protection of life, dignity, and the environment, the growth in legitimacy of the NGOs and the weakening of trust in states are two sides of the same coin. The “promotion” of HRs is embedded in the process of active peacekeeping
34 See note 35 Paul Boucher, La misère hors la loi , Paris 2005. 16 and friendly relations between states. The HRs rule is supposed to be “a common standard of achievement for all peoples”36, where peoples are meant as actors of a dynamic society, not only passive members in a fixed legal order of an individual state. In a civil society, the number of legitimate claims that ask to enter the sphere of legal rights reflects the emergence of new needs and the changes in opinions about moral values. The promotion of rights implies the obligation of the political authority to respond to the new claims of the right-holders. A political authority is qualified as responsible and responsive inasmuch as its intervention is prompt. The magistrate must intervene as soon as he knows that a crime has been committed, promptness of the judicial power is also determined causally by illicit events and led legally by norms. In the production of laws, instead, and in particular of IHRL instruments, there is not such a stringent implication to intervene. The timing of the intervention is primarily determined by the political will of the governors, most of them are democratically elected. However, in democracies the capacity of citizens and undertaking of groups to ask for an intervention plays an important role. Civil and political liberties of the two major Conventions37 after the UDHR emphasize that actors are committed to acquiring the rights status as a civil achievement. The electoral process delegates the power to govern but democracy is not to identify with the electoral moment nor with an elections based regime. Citizens do not alien their right to manifest their opinions trough free speech and associations, and say: “we have to live like this” or “we do not want to be discriminated against”. Virtuous representative governments which guarantee respect of HRs to its governed are willing and capable to extent the benefit of the rule of law to the whole community of rights holders. However, the gap between the law orders of the individual states and the vast community of HRs holders to whom rights are denied, justifies largely the emergence of complementary agencies.
The question is how - by which legal instruments and practices - protection and performance of individual and collective “we the people” are brought into light at the international level; to what extent those international agents that advocate HRs for persons and non- represented groups are complementary and subversive to the state competences; and no less important is through which practices they
36 The Preamble of the UDHR pointed out the dynamic element: “The General Assembly, Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.” 37 17 concur through their complementary function to make states accountable to the UN bodies. According to the doctrine of modern International Law, the legal capacity is reserved to the sovereign states, and this implies that states hold the “inevitable and permanent” status of “intermediary”38 between the individual HRs holders and the International Community. If the advocating “subject” of the IHRL depends exclusively on the domestic jurisdiction, states, which violate HRs, fall under the conflict of competences, as they are at the same time remedy makers, judges and parties in their own crimes. The same conflict of competences emerges with the diplomatic representatives that are in charge to protect HRs, and to advocate for the violations in their own countries, and at the same time are diplomats which receive instruction from the national governments. The emergence, as a third non-governmental party, of recognized agents committed to specific HRs, is the civil resource that NGOs, for consistency, bring into the International Community. KOFI cit The geography of the NGOs advocating HRs indicates that this kind of associations are concentrated in the Western countries. That is they have an universal mission but are compatible not with whatever society, only with civil societies. Human Rights NGOs can have recognized a legitimate function only in an evolutionary institutional system that accepts three major conditions of good governance: 1) the governmental authority is expected to provide the best performance, therefore exposed to open competition for the best proposals; 2) the only reasonable form of obligation has a civil origin based on the coordination of the best resources of autonomous agencies; 3) governors which loose authority in problem solving can/must be replaced. Given that the international society is without ordinary legislature, it should be “inevitable”39 that, from time to time, groups of non-governmental (and likeminded states) with recognized expertise undertake the leadership as norm entrepreneurs in particular issues. In a well administrated state, organized power is only one of the tools to which rulers need resort, the other is authority. The right to rule – all the more in democratic regimes - does not rest as much on the capability to solve problems as on the capacity to identify problems to solve40. Justice is neither a quality of the organs of states nor inherent to
38 Advisory Opinion on the Legal Status and Human Rights of the Child (2004) 11, International Human Rights Reports 510, Concurring Opinion of Judge Cançado Trindade, cit. paras 26-27. See Mc Corquodale, R., “International community and state sovereignty: an uneasy symbiotic relationship”, in C. Warbrick, S. Tierney, eds. Towards an 'international legal community' ?: the sovereignty of states and the sovereignty of international law (British Institute of International and Comparative Law, 2006) 241-265, 256. 39 A.D. Mc Nair, “Treaties Producing effects Erga Omnes”, 2 Scritti di Diritto Internazionale in Onore di Tomaso Perassi, (Publisher: Milano, Giuffrè, 1957) 21, 23 40Leslie Green, “The Duty to Govern”, Legal Theory 13 (2007), 177; Id., 'Positivism and the Inseparability of Law and Morals' New York University Law Review 83 (2008), 1035-1058. 18 professional tools, but a quality of performed actions recognized by recipients. In a state that violates HRs an organ of justice ceases to be recognized as an agent of justice. What makes authority is the adequate response to actual situations of injustice, “not the formal status of a participant…but its actual or preferable exercise of functions”41. Instead, the formal status reserved for NGOs implies a fixed subsidiary role under permanent and irreversible subordination to sovereign states however they might behave: law capacity and command capacity coincide in the international law but not in the practices of IHRL Human Rights NGOs have assumed principal roles, as we are dealing soon. States have to face civil global governance issues that outline shared forms of political responsibility42. In the international system, the making of HR instruments has resulted to be a somewhat different practice from the negotiation of treaties among states. One of the most important features of an effective legal system is its capacity to reflect the changing needs, sensibilities, and claims of the ruled society. In view of this basic requirement, a viable legal system presupposes continuous law-making activity. Continuous law-making becomes an ordinary virtuous political response to the claims of public regulation in new areas or upgrading and refinement of already existing laws. As a set of binding principles, and norms governing relations of the members of the international community, UN international laws should also reflect the changing conditions within the world society. The question is how and by whom can this challenge be faced if the UN system does not have an ordinary legal capacity. In fact, a continuous activity of law-making assumes a continuous political authority with the capacity of governance at the global level. Instead, the activity of governance which the UN organs perform has been, in more than a few cases, extremely discontinuous. States which hold the legal power to make the laws, often exert it selectively, opportunistically, and unwillingly; additionally, they often fail to ratify treaties that have already been signed, or they ratify treaties but do not incorporate them in the domestic law, or incorporate but do not apply the laws. In the UN activity of standard setting, instead of acting with solicitude as the quality of rights requires, states adopt the practice of procrastination or even obstruction43. The enormous delay in adopting some major conventions proves that the enterprise of law-making, at the international level, suffers from an asymmetry in the balance of powers and commitments. It is in filling this gap, in which states carry out their public function that NGOs legitimize themselves as norm entrepreneurs
41 C. Schreuer, “The Waning of the Sovereign state: Toward a New Paradigm for International Law” (1993) 4 European Journal of International Law, 447, 453. 42 J. Crawford and S. Olleson, “The Nature and Forms of International Responsibility”, M. Evans, International Law, (Oxford: Oxford University Press, 2003) 445-472. 43 Makau Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, Human Rights Quarter, 29, No 3 (2007) 573 ff. 19 and, exceptionally, in some cases have become primary actors in the public sphere. As qualified entrepreneurs of standards setting, NGOs carry on a somewhat “subversive” emancipation from the subsidiary status of “consultant” to the role of “partner” in treaty making. Although “non-governmental” actors and, therefore, without the legal capacity to conclude treaties, NGOs have proved to be directly committed to the pre-normative stage of the law-making process, and indirectly to the final treaty making. The ordinary activities, instead, that are qualified as “subsidiary”, especially in assistance to the UN protection bodies, are constant and consistent. Human Rights NGOs perform some major informal functions, namely, they provide: 1) the political capability of building consent about relevant HRs issues; 2) the capacity to succeed in the traditional function of states to turn legitimate claims into legal rights; 3) expertise in drafting the framework of the conventions with the same level of state expertise. The difficulty of NGOs in having their role adequately recognized is that states are not used to thinking of international society as a field of civil governance. However, diplomatic delegations of individual states are not political “organs”44 that act on behalf of the International Community. As bodies of foreign policy represent states not individuals, diplomatic delegations are not involved and do not express, at the international level, the open process of decision making that a civil society expects from a democratic authority: international civil society has no political representation. These reasons legitimize the emergence of Non Governmental Organizations as movements of opinions that campaign for specific Human Rights issues and goals. As long as NGOs exercise the civil liberties of expression and association at international level, and participate in the creation of international law, they recognize that states hold the power to make international treaties, but they prove that important HR achievements are really the result of civic and civil autonomies. It is apparent here that NGOs do not only act to advocate existing HR provisions, but they demand a functional Statehood that does not coincide with the holistic representativeness of the national state through diplomatic delegations. In fact, HR issues require an appropriate kind of expertise, and HRs standard setting has become a highly specialized branch of the IL that goes beyond the knowledge of the state representatives, and at the end of the day they hold representative status, but in this matter, not often leading authority. The drafting processes of some highly innovative conventions, for instance that on “Sustainable Development” of Rio, have proved that a new expertise in IHRL, constituted by groups of independent experts, has established a non-state practice of making IHRL. Finally, the fundamental work that NGOs achieve in the UN
44 Terry Nardin, Law and Morality, and the Relations of states (Princeton University Press, Princeton, 1983) 150. 20 organs, including Intergovernmental Organizations, is evident and “recognized” by the States themselves. In conclusion, there is a set of activities whereby the pre- normative process of standard-setting reveals the reality and the growing emergence of a new figure of civil actors: a set of needs, requests for justice, subjects and relations that individual states are not responsive, or representative of, or fit to deal with. Very often states do not really act as legislators, but they react politically to relevant claims when the normative framework has already been drawn up and has started to be accepted. As “agents of justice”, NGOs express these capacities in the process of drafting important conventions, especially in the creation of the ICC, but above all they rank human rights at a higher level than the diplomatic agenda of the states.
2. NGOs as International Agents of Justice.
The gap between the legal status of Non-governmental45 Organizations, as recognized by the UDHR46, and their effective participation in the public activities of the UN bodies (ECOSOC) is an old and still open question47. The Article 71 of the Declaration grants to “specialized agencies” the possibility of “arrangements for consultations” with intergovernmental organizations and "of participating" in their activities48. Although Non-state actors are de jure without international personality49, nevertheless, in the 1990s, in many
45 On the negative definition, “non-governmental”, cf. the critical remark of Alston, “The 'Not-a-cat' Syndrome: Can the International Human Rights Regime Accommodate Non-state Actors?”, P. Alston (ed), Non-state-state Actors (Oxford University Press 2005) 1-36. 46 UDHR Art. 71 and GA Res. 61/1996. 47Andrew Clapham, Human Rights Obligations of Non-state Actors (OUP, Oxford, 2006). A V Lowe, 'Corporations as International Actors and International Law Makers', The Italian Yearbook of International Law (2004) XIV, 23-38. M.T., Kamminga, “What Makes an NGO ‘Legitimate’ in the Eyes of states?”, A. Vedder (Ed.), NGO Involvement in International Governance and Policy : Sources of Legitimacy, 2007, 175-195. Leiden/Boston: Martinus Nijhoff Publishers. Kerstin Martens, “Mission Impossible? Defining Nongovernmental Organizations”, Voluntas: International Journal of Voluntary and Nonprofit Organizations, 13, No. 3 (September 2002) 271-285. Id., “NGOs in the United Nations system: evaluating theoretical approaches”, Journal of International Development, 2006. 48 Article 70 "specialized agencies, established by intergovernmental agreement" could "participate without a vote in its deliberations". 49 Legal personality is a key factor in determining the rights and immunities of an NGO and its standing before courts. In general, an NGO may enjoy legal personality in municipal law, not in international law. Yet because NGOs so often operate in more than one country, they face potential problems of being subject to conflicting laws and of the inability to carry their legal status from one country to another. Cf. Steve Charnovitz, “Nongovernmental Organizations and International Law”, American Journal of International Law 100, No. 2 (Apr., 2006) 355-356; Kerstin Martens, “Examining the (Non-) Status of NGOs in International Law”, Indiana Journal of Global Legal Studies 10, 2 (Summer 2003) at 1; Karsten Nowrot, “Legal 21
UN documents50 referring to NGOs, these organizations appear to be de facto in "social partnership" with governments51. Elements of recognition of the public functions of NGOs are in more than a few UN documents52, but only in non-binding instruments, such as the final documents of global conferences53.
Consequences of Globalization: The Status of Non-governmental Organizations Under International Law”, 6 Ind. J. Global Legal Studies, 579 (1999). Emanuele Rebasti, “A Legal Status for NGOs in Contemporary International Law?”, European University Institute. Workshop Report, Nov. 2002, at
The partners are legally equal in the sense that each has the right to cooperate in the Economic and Social Council (ECOSOC) organs, but not in the sense that they have the same rights and obligations: they do not have the right to vote in the Council54. The term “consultative” was deliberately chosen to indicate the secondary or subsidiary role of Non- state actors in opposite to the principal or sovereign role of the UN member States. NGOs are considered as being available to give advice, but not to be part of the decision-making process. When non-member states take part in the work of a UN organ, they are referred to as “observers”55; However, in spite of the limit of their observer status and the lack of the right to vote56, today NGOs enjoy greater access to intergovernmental negotiations. Such a right is by no means uniformly distributed nor universally guaranteed. The Holy See, for example, enjoys a “permanent observer” status, among others additional privileges57. The Red Cross and Red Crescent Societies do not include themselves in the same category of observers as NGOs58 - like the Holy
E) Landmines Convention provides that NGOs may be invited to attend meetings of the states Parties and Reviews Conferences Art 11.4 and 12.3. F) 1992 United Nations Framework Convention on Climate Change, Art 7, 6. The United Nations, its specialized agencies and the International Atomic Energy Agency, as well as any state member thereof or observers thereto not Party to the Convention, may be represented at sessions of the Conference of the Parties as observers. Any body or agency, whether national or international, governmental or non-governmental, which is qualified in matters covered by the Convention, and which has informed the secretariat of its wish to be represented at a session of the Conference of the Parties as an observer, may be so admitted unless at least one third of the Parties present object. The admission and participation of observers shall be subject to the rules of procedure adopted by the Conference of the Parties. 53 World Conference on Human Rights, Vienna declaration and Programme of Action, 25 June, 1993, UN Doc. A/CONF. l 57/23; International Conference on Population and development, Cairo, UN Doc. A/CONF. l 71/13, 18 October 1994, chapter 15. 54 GA Res. 1996/31 para.18. “A clear distinction is drawn in the Charter of the United Nations between participation without vote in the deliberations of the Council and the arrangements for consultation. Under Articles 69 and 70, participation is provided for only in the case of states not members of the Council, and of specialized agencies. Article 71, applying to non-governmental organizations, provides for suitable arrangements for consultation. This distinction, deliberately made in the Charter, is fundamental and the arrangements for consultation should not be such as to accord to non-governmental organizations the same rights of participation as are accorded to states not members of the Council and to the specialized agencies brought into relationship with the United Nations.” Willetts (2000) 191 55 GA/Res. 1996/31 para. 35. “Organizations in general consultative status and special consultative status may designate authorized representatives to sit as observers at public meetings of the commissions and other subsidiary organs of the Council. “ 56 A.K. Lindblom , Non Governmental Organisations in International Law (2005) 479-486. 57 GA Res. 58/314, 1 July 2004. 58 See the World Disaster Report 2007 at 108, “agencies involved in disaster preparedness and response, including UN agencies, NGOs, and the International Federation of Red Cross and red crescent Society”. 23
See and the Sovereign Military Order of Malta, the Red Cross is a rare example of a non-governmental sovereign entity59. The “observer” status at the United Nations is by no means to qualifies as a non-member, it holds the democratic role of non- governmental people watching the governors. It is correlative to the public character of the proceedings, and implies a civil and substantive sense of “public” control over goods that are of general interest. As this control is supposed to be exercised on behalf of the civil society, and it is a civic role and not a state function, it is finally a subsidiary one either. Given the deep distrust of secret diplomacy, from the outset in 1945, delegates at the UN Conference on International Organization in San Francisco deliberated, in largely open chambers, under close observation by an unprecedented corps of journalists and observers from NGOs60. This requirement for “openness”, whereby decisions must take place in public spaces, and transparency which was applied throughout the UN system, makes the role of “observer” a substantive function of control of the proceedings under deliberation. Before I deal with the legal status and the settled practice of these NGOs at the UN, let me broadly introduce the general characteristics of Human Rights NGOs according to their statutes, and describe the activities and goals particular to some of them.
2.1 Mission and Character of Human Rights NGOs. In 1946, only 41 NGOs held consultative status with the Economic and Social Council (ECOSOC); currently “there are 3051 NGOs”61 which cooperate with the UN system for the protection and promotion of human rights. “Consultative status” is granted to NGOs by “acknowledging the breadth of non-governmental organizations' expertise and the capacity of non-governmental organizations to support the work of the United Nations”62. There are three NGO categories with consultative status: 1) “General status” is granted to large, international NGOs that work on almost all the issues relevant to ECOSOC, such are humanitarian NGOs; 2) “Special Consultative Status” is instead granted to organisations because of their special competence in dealing with specific ECOSOC topics 63, such is the case of all Human Rights
59 The International Confederation of Red Cross is the only institution explicitly named under International Humanitarian Law (IHL) as a controlling authority. The legal mandate of the ICRC stems from the four Geneva Conventions of 1949, as well as its own Statutes. 60 Leon Gordenker and Christer Jonsson, “Evolution in Knowledge”, TG Weiss and S Daws The Oxford Handbook on the United Nations (OUP 2007) 82-83. 61 UN http://www.un.org/esa/coordination/ngo/faq.htm, retrieved 12/10/2010. A complete list of NGOs with consultative status can be downloaded at http://www.un.org/esa/coordination/ngo. 62 The criteria for NGO accreditation to Consultative Status have been revised several times, most recently in 1996 in ECOSOC Resolution 1996/31. http://www.wordiq.com/definition/Consultative_Status. 63 Ibid. 24
NGOs; 3) finally, “roster status” is granted to NGOs which ECOSOC considers occasionally useful to its work.64 Human Rights NGOs are international associations which pursue the common mission of defending and promoting human rights, each according to its own statute and particular character. All Human Rights NGOs hold “Special Consultative Status” because of their special competence in advocating HRs. In fact, despite their common function of being each subsidiary to the UN bodies, NGOs develop quite different attitudes and approaches in defending rights and framing human dignity. Human Rights NGOs are in mission and approach different from Humanitarian NGOs because they are morally, legally and politically committed to make HRs respected, HRs conventions implemented, and to strengthen the UN protection system trough new legal and institutional instruments. Briefly, to limit the reserved domain of the domestic jurisdiction. Service and Advocacy are, in fact, the two main functions that NGOs, with respect to the first and the second category of consultants, provide to ECOSOC. Service providing NGOs (eg. Red Cross/Caritas/Care/Oxfam) are focused on delivering support to people in need, and usually cooperate with governmental institutions because states, whatever their political regime, may need their support, share their goals, or simply consider them politically innocuous. Advocacy NGOs (eg. Amnesty International/Human Rights Watch/Green Peace) instead try to forward their concerns about the respect of specific rights which governments do not usually address. As Human Rights NGOs can be very critical of state policies, governments may thus hamper them in the pursuit of their aims, for instance to campaign, or visiting prisons. Advocacy NGOs are supported, in the public action, by their own professionals and experts in technical issues, but they also seek by political means, to capture international attention on issues of specific HRs. Human rights NGOs can undertake to promote public debate, to organize conventions, and to campaign for favourable public opinion concerning major issues as torture, death penalty, discrimination, environment etc. Advocacy consists in defending victims of abuse, in fighting against impunity, improving the legal expedients, and it also plays a public role in activities of peacekeeping, peacebuilding, cooperation and global governance. The normative approach and “civil” commitment make up the “public” character of these actors, committed both to claiming respect for human values and to expanding the rule of law in the international community. Finally, Human Rights NGOs are committed to promote the international rule of law both as guardians for the implementation of already existing HRs provisions, but also as norm entrepreneurs in drafting new or better legal instruments. In matters concerning the identification of new or special rights and the creation of new
64 Ibid. 25 international rights holders (minorities, aboriginal peoples), Human Rights NGOs embody the principle of civil autonomy inside the international state-system, so that often play, through their legislative undertakings, a role of a principal body. The law-making of HRs instruments, advocating the respect of Human Rights and promoting the implementation of conventions are all activities that contribute to global governance, in which the Human Rights Organisations play a major political role. This normative approach also makes the mission and character of Human Rights NGOs notably different from Humanitarian NGOs, whose traditional goal is to provide assistance to people in need. Nevertheless, this difference has become narrow because new UN tasks of global governance involve both kind of NGOs in common activities of peace-building. According to the UDHR, the interdiction of waging war and the duty of pursuing peace are legal obligations of states, so that HR associations publicly appear committed to the common UN project of providing justice, prevention, institutions, and governance at the transnational level. Even humanitarian organisations are now committed to the policy of prevention, which expands their traditional mission, as the UN tasks of post-war rebuilding, facing humanitarian emergencies (Millenium Programme).The Red Cross statute, for instance, says the movement was "born from a desire to bring assistance, without discrimination, to the wounded on the battlefield"65. However, the classic motto “Charitas inter arma”, which should keep the organization out of the issue of war and peace, has become too narrow. In fact, in recent years, the Red Cross has begun to devote more attention to disaster preparedness activities that deal with peace-keeping and peace-building, but also the visiting of non-war prisoners. Despite the very mission of humanitarian organisations being traditionally apolitical, in the last twenty years these NGOs too have continually been involved in tasks of global governance. This evolution in the UN policy does not cancel the diversity of Humanitarian ONGs and Human Rights ONGs in their approach to rights, but the common involving in tasks of global governance legitimate even more the moral, legal, and political commitment of Human Rights NGOs. Among these NGOs, some have risen to prominence and have played a leading role in investigating HRs violations or in identifying situations which require new legal instruments, and eventually in undertaking the law-making processes. Amnesty International (AI), the International Commission of Jurists (ICJ the World Federalists Movement (WFM) ),and the International Federation of Human Rights (IFHR), are among the most distinguished representatives of this category. Besides their many undertakings, these associations were all leading forces in the most important UN achievement, the creation of the International Criminal Court. These NGOs are all the more politically influential in the international
65Red Cross, Statute, Website 26 community as they are themselves networks of associations that are able to federate hundreds of other associations, and finally are capable of lobbying states for common goals. Let me broadly present the characteristics of these four Human Rights NOGs, according to their own statutes, their activities and main achievements. a) Amnesty International (AI) is recognized as having the highest reputation as a defender of civil rights, and as a consultant of the UN Commission (since 2006, Council) on human rights. AI is a worldwide voluntary movement66 that works to prevent some of the gravest violations of people's human rights, especially of civil rights. AI forms a global community of human rights defenders based on the principles of international solidarity and effective action in favour of individual victims. AI’s approach to HRs issues is based on two principal elements: a) the use of international legal instruments to make governments respect the conventions that they themselves have already signed; 2) appeal to the compassion of public opinion to earn political support. Amnesty’s founders focused on “prisoners of conscience”, on those “imprisoned, tortured or executed because of their opinions”67. They remarked that these violations of human rights occurred, at a global scale, in the context of restrictions on civil liberties, of freedom of press, of political opposition, timely public trial before impartial courts, and asylum. The launching of the "Appeal for Amnesty, 1961" was aimed at mobilizing public opinion in favour of these victims. To each person at risk of harm, Amnesty members say: "We are with you, we are telling the world about your situation, we are demanding on your behalf, the justice and dignity that is your right and everyone's right."68 The candle69, AI’s symbol, means the light of public attention that Amnesty’s members shine on hidden abuses (the barbed wire) of human rights violators. “The main focus of AI’ campaigning is: “Free all prisoners of conscience - those imprisoned solely for their beliefs, colour, sex, ethnic origin, language or religion, who have not used or advocated violence. Ensure fair and prompt trials
66 AI is a global movement of 2.8 million supporters, members and activists in more than 150 countries and territories. AI is an organization based on voluntary membership and it consists of national branches (sections and structures), international networks, affiliated groups and international members. See Statute of Amnesty International, as emended by the 23rd International Council, Capetown, South Africa, 12-19 December 1997, Article 3. 67 AI was founded in London in July 1961. In May 1961, Benenson published the article "The Forgotten Prisoners" that brought the reader’s attention to those "imprisoned, tortured or executed because his opinions or religion are unacceptable to his government" or, put another way, to violations, by governments, of articles 18 and 19 of the Universal Declaration of Human Rights(UDHR). 68http://www.amnesty.ca/about/history/history_of_amnesty_international/meaning_of _the_Amnesty_candle.php 69 The candle in the barbed wire is the symbol of AI’ s credo. Amnesty’s candle has become a unique symbol of people speaking out effectively for human justice and dignity in our times, exposing the truth, generating change, offering hope. 27 for all political prisoners”70. Specific aims are to: abolish the death penalty, end extra judicial executions and "disappearances," ensure prison conditions, ensure prompt and fair trial for all political prisoners, decriminalise abortion, fight impunity from systems of justice, end the recruitment and use of child soldiers, ensure free education to all children worldwide, promote cultural rights for marginalized communities, protect human rights defenders, promote religious tolerance, protect LGBT rights, stop torture and ill-treatment, stop unlawful killings in armed conflict, uphold the rights of refugees, migrants, and asylum seekers. Founded on the scrupulous respect of international human rights law, Amnesty’s vision is of a world in which “every person enjoys all of the human rights enshrined in the UDHR and other international human rights instruments.”71 In pursuit of these goals, Amnesty’s mission “is to undertake research and action focused on preventing and ending grave abuses of these rights”72. Rights “to physical and mental integrity, freedom of conscience and expression, and freedom from discrimination, within the context of its work to promote all human rights.”73 Amnesty took seriously the obligation of member states to implement HRs conventions they have signed, according to the international treaty law. In the ‘70s, ‘80s, and ‘90s, AI inundated the UN Commission with a huge number of dossiers concerning violations of human rights inscribed in the UDHR. A staff of more than 400 professionals works at its headquarters in London, a higher number than the whole body concerned with human rights at the UNO (300 peoples) in Geneva. It systematically and impartially researches the facts pertaining to individual cases and patterns of specific abuses of human rights. These findings are publicized, and then members, supporters and staff mobilize public pressure on governments, intergovernmental organizations, companies and other non-state actors in order to stop the abuses. Amnesty agents seek to expose human rights abuses accurately, quickly and persistently. The reports on violations of single states which AI provides the Commission/Council on Human Rights and each Treaty Body with, have been/are influential in their assessment of the states conducts and in the concluding recommendations. AI led the coalition of NGOs that advocated the interdiction of torture, and campaigned for over forty years for the abolition of the death penalty. At the intergovernmental level, Amnesty played a leading role in creating the United Nations High Commissioner for Human Rights, which was established in 1993; and the International Criminal Court, which was established in 2002.
70 Statute of Amnesty International, 27th International Council meeting, 2005. 71 Ibid. 72 http://www.amnesty.org/en/who-we-are/accountability/statute. Retrieved 2 October 2010. 73 Ibid. 28
Furthermore, AI carries out a wide range campaigns and educational activities promoting human rights, and was proactive in pushing for the recognition of the universality of human rights. The campaign ‘Get Up, Sign Up’ marked 50 years of the UDHR. AI urges all governments to observe the rule of law, and to ratify conventions and implement HRS standards. Besides, it encourages intergovernmental non-governmental organizations, individuals, and all organs of society to support and respect human rights. Finally, AI knows how important competence and accuracy are in its work, therefore the Board tries to pursue and balance both values of democracy and professionalism. The AI Council, although it is widely founded on the democratic election, does not practice a strict principle of regional representation because it might occur at the expense of more effective and professionalized sections in Western countries, and as a last resort would not be to the benefit of the addressees74. AI is financially self-sufficient, thanks to the generous support of donations provided by individual members and supporters”, it does not accept public money.
b) International Commission of Jurists (ICJ). The ICJ is, instead, a small Geneva-based international NGO that consists of sixty senior judges and lawyers drawn from a wide range of jurisdictions and legal traditions. In addition, the ICJ has national sections and affiliates in over 70 countries. The Secretariat and the Commission undertake advocacy and policy work aimed at strengthening the role of lawyers and judges in protecting and promoting human rights and the rule of law. 75 Given the legal focus of the ICJ's work, membership of these sections is predominantly drawn from the legal profession: lawyers, judges, legal academics and law students. This organization can very effectively employ an “elitist strategy” at the state representatives’ level76. The ICJ “helped to elaborate the rule of law for the modern world”77. What distinguishes the ICJ is its impartial, objective and authoritative legal approach to protect and promote human rights and international law.78 The ICJ provides legal expertise to ensure that
74 Peter R. Baehr, Human Rights: Changing the Culture, (Oxford: Blackwell 1999) 121 75 The ICJ’s Statute stresses that “the Rule of Law is indispensable to safeguard and advance all human rights, and…that an independent judiciary and legal profession, maintaining the highest ethical standards, assume a primary role in achieving these goals“. Statute, Preamble, ICJ’s Web site, http://www.icj.org/default.asp?langage=1&nodeID=392. 76 The adoption , in 1981, of the African Charter on Human and Peoples’ Rights can be attributed to the ICJ, Benno Kamminga, “The Evolving Status of NGOs under International Law: A Threat to the Inter-state System?”, (in P. Alston 2005) 101-102. 77 Annual report and audi statement 2007. 78 According to the ICJ’ Statute: “The Commission carries out activities at the global, regional, national and local level and in particular takes effective steps to: 1. Support and advance the Rule of Law and human rights on the basis of the principles set out in 29 developments in international law adhere to human rights principles and that international standards are implemented at the national level. The ICJ is active whether at the international level (e.g. the UN), regionally (e.g. the EU and Council of Europe), or domestically through the activities of its national sections (e.g. Justice in the UK). It currently operates programmes on the independence of judges and lawyers, the human rights impact of counter-terrorism legislation, the role of human rights in international corporate responsibility, and economic social and cultural rights. The ICJ’ motto is “The rule of Law for Human Rights”. Since the founding of the International Congress of Jurists in West Berlin in 1952, the ICJ has, through the numerous subsequent conferences, made important contributions to the elaboration of principles of international human rights law, especially with respect to the administration of justice. In its 2004 Berlin Declaration on fighting terrorism79, ICJ reaffirmed the principle of the rule of law in combating terrorism at the international level, and declared illegal all derogations of “non- derogable rights”, and the suspension of peremptory norms protecting fundamental liberties80. In 1986, the ICJ gathered a group of distinguished experts in international law to consider the nature and scope of the obligations of States parties to the International Covenant on Economics, Social and Cultural Rights. In the 1990’s, a number of important international developments took place as a result of initiatives by the ICJ. These included the UN Declaration on the Protection of all Persons from Enforced Disappearance, and the African Declaration of Human Rights.
the preamble; 2. Advance the independence of the judiciary and the legal profession and the administration of justice in full compliance with standards of international law; 3. Promote the global adoption and implementation of international human rights standards and other legal rules and principles that advance human rights and the Rule of Law; 4. Promote the establishment and enforcement of a legal system which protects individuals and groups against violations of their human rights; 5. Promote understanding of and compliance with the Rule of Law and human rights and provide assistance to those to whom the Rule of Law and human rights are denied; and 6. Promote the abolition of the death penalty and support efforts to achieve this goal”. 79 The ICJ Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, adopted 28 August 2004. 80 4. Derogations: States must not suspend rights which are non-derogable under treaty or customary law. States must ensure that any derogation from a right subject to derogation during an emergency is temporary, strictly necessary and proportionate to meet a specific threat and does not discriminate on the grounds of race, colour, gender, sexual orientation, religion, language, political or other opinion, national, social or ethnic origin, property, birth or other status. 5. Peremptory norms: States must observe at all times and in all circumstances the prohibition against torture and cruel, inhuman or degrading treatment or punishment. Acts in contravention of this and other peremptory norms of international human rights law, including extrajudicial execution and enforced disappearance, can never be justified. Whenever such acts occur, they must be effectively investigated without delay, and those responsible for their commission must be brought promptly to justice. Ibid. 30
In 1992, the ICJ organized, under the auspices of the United Nations, an international conference on impunity, which adopted an appeal asking the Vienna conference to "set up an international penal tribunal…in order to finally break the cycle of impunity"81. This became the recommendation that was included in the Programme of Action of the World Conference on Human Rights in Vienna to work on the setting up of an International Criminal Court. The ICJ also initiated the drafting of the set of “Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity” and the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law”, both of which were and are under examination at the UN Commission/Council on Human Rights 82.
c) World Federalist Movement (WFM). “We are convinced that mankind cannot survive another world conflict.”83 This statement was the starting point for a WFM political programme that can be sustained only by commitment to promot a genuine transnational community of peace. Founded in 1947 in Montreux, Switzerland, WFM is a movement of citizens with associate and autonomous organizations around the world, which have the common goal of establishing a world federation. WFM’s ultimate mission84 is therefore, is to bring the world’s peoples and governments together in achieving a new level of global cooperation. The development of democratic international institutions and the global application of international law shall aim to transnational justice, peace and sustainable prosperity85. The ground idea is that peace is the result of a process by which the international institutions should be build and founded on civic
81 History of the International Commission of Jurists, http://www.icj.org/default.asp?langage=1&nodeID=340. 82 Ibid. 83 Montreux declaration, 23 August, 1947. See official site WFM Institut for Global Policy, http://www.wfm-igp.org/site/igp/programs/international-democratic- governance. 84 Statute, article 6. “In our work for a world federation, we are dedicated especially to work for: understanding and amity among the world's cultures and political ideologies; an end to the arms race, and the elimination of all weapons of mass destruction; an end to the use and threat of use of military force; respect for universal human rights and freedoms, including the right of all to the requirements of a dignified life, and the freedom of all to responsibly express their beliefs; equitable participation of all in the global economy and in global decisions which affect their lives; equitable distribution of world resources between rich and poor countries, in order to eradicate poverty, disease and illiteracy; the protection of our common environment and the preservation of the ecosystem for succeeding generations; and the emergence of a global ethos and a consciousness of humanity as one community and of every person as a citizen of one world. Statutes of the World Federalist Movement, by Council of the WFM, http://www.wfm-igp.org/site/files/12-WFM%20STATUTES%20(post%202007).pdf, retrieved: 4 December 2010. 85 Official website, http://www.wfm-igp.org/site/. 31 basis. To achieve this goals, WFM works with and helps to develop international civil society networks, and enter into partnership with like- minded governments and international organizations. A committed network of 28 member organizations and individual members in more than 80 countries is coordinated by WFM’s International Secretariat. Located in The Hague and in New York, near the United Nations headquarters, WFM often serves as a hub of information and collective action on UN-related issues. WFM considers the federalist form of organisation the only one suitable for a global society, and a responsible world governance the only way to avoid war and to build an order of peace. WFM was first founded shortly after the creation of the League of Nations as an international peace movement, and was then recreated in 1947 by those concerns that the structure of the new United Nations was too similar to the League of Nations, which had failed to prevent World War II. Both organizations were supposed to be loosely structured as associations of sovereign nation-states, with little autonomous power. Hence, the primary focus is on strengthening the structures and capacities of international organizations to work effectively in these areas, while promoting the development of norms, policies and practices that allow meaningful global action on specific issues. The World Federalist Movement takes a pragmatic approach to strengthening and democratizing global governance86. Lloyd Axworthy, former Canadian Foreign Minister and father of the Band on Landmines, pioneer and promotor of the UN theory “responsibility to protect”, was elected International President of the World Federalist Movement – Institute for Global Policy (WFM). Altiero Spinelli was a pioneer in federating the European States and building the European
86 Recent Activities 1997 Earth Summit II. WFM Co-sponsors an NGO/parliamentary plenary held panel to the Summit plenary at the UN. 1999 The Hague Appeal for Peace conference. WFM helps organize the global citizens peace conference which will be the first of a series of intergovernmental, General Assembly, and Red Cross conferences which together comprise the Third Hague Peace Conference. 2001 The Organization of African Unity changes its name to the African Union 53 African states are members of the new intergovernmental organization. The International Commission on Intervention and State Sovereignty (ICISS) releases a report that first introduces the concept of the "responsibility to protect." 2002 The Rome Statute on the International Criminal court enters into force with 60 signatory countries ratifying the treaty 2003 WFM launches its Responsibility to Protect – Engaging Civil Society (R2PCS) project primarily to raise awareness of the ICISS report, "developing greater NGO (non-governmental organization) cooperation and better coordination to implement the Responsibility to Protect principles." 2005 The Millenium +5 Review Summit held at the UN headquarters in New York. The reform agenda proposed in the Secretary General's report In Larger Freedom is the largest in UN history, and includes a call for a new peacebuilding architecture at the UN. World leaders agree that they have a responsibility to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and to act on this responsibility. 32
Institutions. The movement is the Convenor for the broad-based coalition of citizen’s group advocating the creation of a permanent International Criminal Court. In 1995, WFM Executive Director William R. Pace served as Convenor of the first meeting of the Coalition for the International Criminal Court. WFM believes that federalism applied at an international level, inspired by the experience of the federal political systems which represent 40% of the world’s citizens, is the best way to accomplish a global republic. Their vision is of a world where people have a sense of citizenship that goes beyond national borders, to include their region and the global community. World federalism is based on the principle of subsidiarity, which confers power to the most appropriate and local levels of government possible. This allows the preservation of national and local identities as well as legitimate sovereign rights, while promoting collective action on regional or global issues, such as the prevention of war, the eradication of poverty and the preservation of the environment. WFM’s vision of federalism also includes a vibrant civil society, active throughout all layers of government. World federalism calls for the division of international authority through the separation of powers among judicial, executive and parliamentary bodies. The United Nations and the European Union represent institutional responses to the problems of international anarchy and war. States rely on these international organizations to regulate their disagreements and deal with their common problems; however, advancement is still needed. World federalism now faces the challenge of showing that it is capable of taking the lead in the transition towards world government.
d) International Federation for Human Rights (FIDH)87. The FIDH is a non-governmental federation for human rights which originated from the French Ligue des droits de l'homme (LDH). It is the oldest worldwide human rights organisation; today it brings together 164 member organisations in over 100 countries88. The LDH was created in 1898 in Paris to defend Captain Dreyfus, an innocent person charged with treason, a victim of both anti-Semitism and of « raison d’État ». From its very beginnings, the LDH declared its intention to defend all citizens that were victims of injustice or violations of Human Rights. The LDH very quickly developed into an international organisation of the single national LDH the International Federation for Human Rights (FIDH), founded in 1922. FIDH has consultative status before the United Nations, UNESCO and the Council of Europe, and observer status before the African Commission on Human and Peoples' Rights.
87 The name of this association is Fédération Internationale des Ligues des Droits de l’Homme (International Federation for Human Rights) and its acronym is FIDH. Its registration conforms with the French law of 1 July 1901, Art. 2. 88 Official Site web, http://www.ldh-france.org/-Une-breve-histoire-de-la-LDH- 33
FIDH's motto is : “Human Rights for All!". Its mandate is to contribute to the respect of all the rights defined in the Universal Declaration of Human Rights.89 It aims to make “effective improvements in the protection of victims, the prevention of Human Rights violations and the sanction of their perpetrators.” 90 The Federation is committed to every issue concerning rights, and works towards the universal implementation of all international and regional instruments concerning civil, political, and is especially focused on social rights economic, social and cultural rights.91. The Federation “insists that men and women should enjoy equal access to rights which are fundamental and inseparable from the human condition: all men and all women are entitled to have those rights respected and to be able to exercise them effectively within a framework of equal representation and participation in a democratic society” 92. FIDH seeks to ensure the primacy of human rights over trade law and the participation of civil society in international economic organizations. FIDH aims to strengthen the social responsibilities of corporations through dialogue with transnational corporations. In 2005, FIDH obtained public commitments from Carrefour to comply with and promote international human rights law. FIDH provides support and assistance to victims throughout the search for universal justice actions. These activities, including fact- finding and trial observation missions, research, advocacy and litigation, are implemented by independent human rights experts from all regions. FIDH participates in standard-setting processes and promotes the establishment of HRs legal instruments. Fighting impunity, FIDH made a significant contribution to the establishment of the International Criminal Court (ICC), and in 2004 opened a permanent office at the ICC in The Hague.93 Furthermore, since 2002, FIDH has initiated and supported key proceedings before domestic courts, regional and international mechanisms, in cases concerning arbitrary measures and practices in the ‘fight against terrorism’. In the Observatory for the Protection of Human Rights Defenders, FIDH advocates the establishment of new
89 “This Federation of associations is hereby created for the purpose of defending and implementing the principles stated in the 1948 Universal Declaration of Human Rights.”, Statutes, Art. 1, http://www.fidh.org/-FIDH-s-Statutes-. 90 FIDH. http://www.fidh.org. Retrieved 1 September 2010. 91 Ibid. 92 Ibid. 93 The FIDH has a consultative status with the United Nations, UNESCO and the Council of Europe, and the status of observer with the African Commission on Human and Peoples' Rights. FIDH also has “regular contact” with the European Union, Organization for Security and Cooperation in Europe, Organization of American States, United Nations Development Programme, World Trade Organization, International Monetary Fund, World Bank, and Organisation for Economic Co-operation and Development. Website: http://www.fidh.org/. 34 mechanisms for the protection of HRs defenders, for example, within the Council of Europe and the OSCE; it supports the mandates of the UN Special Rapporteur on Human Rights Defenders and the Special Rapporteur of the African Commission.
Is the expansion of the NGOs’ traditionally subsidiary function legitimate? Far from being simple secondary actors that support UN bodies, these NGOs deal autonomously with constitutional, legislative and jurisdictional issues, and act as norm entrepreneurs. The expansion of their activities involves participation in standard setting, in intergovernmental institutions, policy implementation and service provision. It is because of the increasing importance of the international public role that their legitimacy to act in the public interest has been questioned94. NGOs can be questioned from two fronts: a) how are they ruled; b) to whom are they accountable. In fact, organizations, which require from government to be legitimate, accountable, democratic, how could they be credible if themselves do not practice the same values? International NGOs are not ruled by democratically elected representatives who respond to the electors in their countries, but it does not mean that they lack of democratic practices. The question of accountability has been faced by some NGOs by publishing individual codes of conduct, and adopting collective code95. However, it is a fact that NGOs are asked to face transnational problems that states do not care about or cope with. This is the case when the need for a global environmental regulation, for instance the covenant concerning “Sustainable Development,” is undertaken by NGOs. In other cases, states do not want to deal with these issues because of a conflict between state interest and human rights, as in the Ban on the anti-man mines, the establishment of an International Criminal Court, the minorities rights, or the further reduction of emissions. In a few of these issues public power are responsible is not towards the electors, but towards the present victims and the future generations. The criterion to assess their behaviour is if their ends were worth and their means fear, and judges are all peoples involve96. NGOs cannot
94 V. Collingwood and L. Logister, ‘State of the Art: Addressing the INGO ‘‘Legitimacy Deficit’’’, Political Studies Review (2005), pp. 175–92. 95 International Non Governmental Organisations Accountability Charter, December 20, 2005, http://www.i,goaccountabilitycharter.org/wpcms/wp- content/uploads/INGO-Accountability-Charter_logo1.pdf 96 The Preamble of the Accountability Charter states: “Our legitimacy is also derived from the quality of our work, and the recognition and support of the people with and for whom we work and our members, our donors, the wider public, and governmental and other organisations around the world. We seek to uphold our legitimacy by responding to inter-generational considerations, public and scientific concerns, and through accountability for our work and achievements.”,
35 be blamed for achievements that even states today recognized as being worth, nor looking retrospectively to the former role of states, their legitimacy should be build on the model of an international community whose authorities deal with actors that arise from the civil society. There is a gulf between the reality they faced and the image broadcasted in the public opinion. The image of NGOs should be up-to-date as a set of new actors has emerged in the international community. The stereotypical picture of an apolitical NGO temporarily intervening in a crisis situation does not do justice to the complex reality of the NGOs’ permanent engagement in international issues. NGOs have traditionally represented the ‘good’ face of international society, espousing benevolent, caring, and cosmopolitan values, and supposedly driven by humanitarian motivations rather than by the desire for justice, and even for power or profit. As soon as they enter in competition of legitimacy with states in dealing with specific issue, peoples, rights they have to prove that can do better. Their strength is they are not directly dependent on any national political system, and free from the logic of mediation. It is a fact that a transnational civil society exists, that is composed of free associations of individuals with common issues that do not enter into the policies of states. NGOs frequently claim to be the spokespeople of global civil society, they act as representatives of not- represented groups, such as the poor, the oppressed, the discriminated and the ethnic groups. NGOs serve as “nascent forms of transnational governance” 97, they do not usurp any of the roles of states; they face real gaps in the international state-system that is not yet able to deal with. Some fundamental achievements show that NGOs are principal agents that lobby states in the law-making process. More participation in global governance could be granted to NGOs in return for transparency and accountability, and integrity monitored by self- established codes98. In conclusion, an objective understanding of the actual role of the NGOs is, ones more, hampered by an obsolete paradigm. The new global society should no longer be explained analogically by some dicothomies (public/private of national/international) of the national state. In the international community, “governance” has become a general notion that is independent of the state and non-state competences. Often the practices and institutions of governance can and do evolve in such a way as to be minimally dependent on hierarchy- based arrangements. Governance in a national state denotes “the command mechanism of a social system and its actions that endeavor to provide security, prosperity, coherence, order and continuity to the
97 N. Rosenau, “Governance in the Twenty-first Century”, 1 Global Governance (1995) 23. 98 Michael Edwards and David Hume, Beyond the Magic Bullet: NGO Performance and Accountability in the Post-Cold War (West Hartford, Conn.: Kumarian Press, 1996). 36 system”99. But in a more horizontal society, that is, the global society, the functions are undertaken by all subjects that have an external relationship, and control is a function inside a process made of self- regulating actors. The notions of command and hierarchy that were so essential to the sovereignty of national state, in the international community are, instead, minimized by the processes by which a society steers itself 100, and the dynamics of communication and control are central to that process."'101
2.2 Legal status and settled practice. The public role of NGOs, which is performed through an open activity of cooperation, does not appear in the formal description of the competences that define the legal status, but emerge clearly from the actual practice. NGOs have the right to participate in the conferences of most intergovernmental policymaking organs in the UN system, except the General Assembly. NGOs have been accredited for conferences, summits or other event organized by the United Nations. The Secretariat preparing the event entitles NGOs to participate in the preparation process and in the event itself, thus contributing to its outcome.102 This right of NOGs has become established by customary law, NGO participation does not depend on state decision. The state may remain the primary target of regulatory activity, but it is displaced by international institutions as the key decision making organ. Now, the question arises as to what extent the legal status does not correspond to the significant functions of NGOs. From the very beginning of their cooperation with UN bodies NGOs have obtained some participation rights that go beyond the narrow role of consultation. Nevertheless, the Council (ECOSOC), in the redefinition of the status (1996), has pointed out that "a clear distinction is drawn in the charter of the United Nations between participation without vote in the deliberations of the council and the arrangements for consultation."103 The formal distinction between being a “participant” in a conference and being a “member” underlines the political distinction between those who are entitled to the right to vote
99 Alexander King and Bertrand Schneider, The First Global Revolution: A Report of the Council of Rome (New York, Pantheon Books, 1991) 181-182 100 James N. Rosenau, “Governance in the Twenty-first Century”, Global Governance 1 (1995) 14. Rosenau and Ernst-Otto Czempiel, eds., Governance Without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992). 101 Steven A. Rosell et al., Governing in an Information Society (Montreal: Institute for Research on Public Policy, 1992) 21. 102 For NGO accreditation and participation in UN Conferences and Summits from 1990 – 2001, see UN - NGO Relations, http://www.un-ngls.org/orf/ngorelations.htm 103 ECOSOC first consolidated the consultative arrangements for NGOs in the Res. 288B (X) (27 February 1950). The text was subsequently readopted in the Res. 1296 (XLIV), 23 May 1968, and then again as Res. 1996/31, 25 July 1996. The quoted text is identical in all three versions: Res. 288B, para. 12; Res. 1296, para. 12; and Res. 1996/31, para. 18. 37 and those who are not. A permanent participation right to sit in the Assembly as “observers” would have increased the political prestige of NGOs, but the demand for such a status has not been accepted104. Another more subtle distinction is gradually being formulated in the limitation of the interventions: “organizations have the right to speak”105, but they do not have the “right to negotiate”106. When NGOs speak they can comment on UN programmes, propose new policy objectives, and respond to the general debate, but they should not go beyond the limit of “suggestion”. They are not supposed to exercise direct influence on the precise texts that have to be included in a resolution, declaration, or convention that states are going to adopt. In contrast, NGOs have in practice been drafting texts, winning support for them, and having them adopted for many decades, but until the 1990s there would have been very little sign of this in the formal proceedings. The method was to persuade an individual delegate, or a “friendly state”, to sponsor the text on behalf of the NGO. The practice107 that the NGO agencies have established in and with the UN organs, especially with the Human Rights Commission and since the 2006 Council, gradually ceased to correspond to the limited legal status, but this has not inhibited them from playing a political role, for example by establishing informal contacts with diplomatic representatives108. Beyond these formal limitations, since the 1970s
104A special observer status was granted to the ICRC in 1990 GA Resol. 45/6 ; and in 1994 to the International Federation of the Red Cross Society GA Res 45/2 (1994) but in this self section the GA decided that “the granting of the observer status in the General Assembly should in the future be confined to states and intergovernamental organisations” GA Res. 49/426 (1994). 105 “The organization shall have authority to speak for its members through its authorized representatives. Evidence of this authority shall be presented, if requested.”, Res. 1996/31, para. 11. 106 Cf. Decision 1/1 of the Preparatory Committee of the UN Conference on Environment and Development, 14 August 1990, given in Un Doc. A/45/46, 25 (January 1991) p. 22 107 “The changes in UN resolutions and UN practice, particularly those occurring in the 1990s, are so extensive that the international NGOs recognized by ECOSOC may be considered to have acquired a legal personality. The proposition cannot be rejected simply on the basis that NGOs are not states. The only accurate way to describe what has happened is to recognize that NGOs have become a third category of subjects in international law, alongside states and intergovernmental organizations.” Peter Willets, “From "Consultative Arrangements" to "Partnership": The Changing Status of NGOs in Diplomacy at the UN” Global Governance, 6 ( Apr-Jun 2000), 206 108“There are – according to Peter Willet - three aspects of the formal arrangements which have a most important and direct effect on an NGO’s political behaviour. First, NGOs have access to all UN documents, once these have been officially circulated. There may occasionally be a few documents classified as ‘Restricted’, which they are not supposed to receive, but in practice they may be able to obtain copies of these. … [T]his means that the NGOs can gain high levels of information about the political process. … Secondly, NGOs have security passes giving them access to all the buildings, including the lounges, bars and restaurants used by the diplomats. They therefore have access to the delegates. ..Thirdly, being awarded consultative status gives the NGO a legitimate place within the political system. This means that the NGO activist is seen as having a right to be involved in the process. As a result, in the 38
NGOs have been operating as “agents of justice”109 on many fronts, but they have been most prolific when new rights were identified or new treaties were drafted110. NGOs advanced language on human rights for the UN Charter and then aided the diplomats in drafting the Universal Declaration of Human Rights111. In some cases, they have entered the process of creating international law in an unmediated fashion112; in others, they have set up the factual work of law-drafting and the states only accomplish the formal act of law-making by adoption. The role of Human Rights NGOs has been growing more and more with the growing tasks of global governance, especially since the UN has turned from the policy of peacekeeping to active peacebuilding.113 The creation of a large number of international and regional HRs instruments has developed new specialized of HR bodies. The United Nations Global governance is multi-faceted, and consists notably of a norm-setting dimension and of an operational, norm- implementation dimension. NGOs are active in both114. As a result, human rights NGOs115 themselves have grown in numbers, multiplied
informal contacts with delegates, it is possible to express views about the issues on the agenda and to lobby for particular decisions to be taken. … [T]his compares very favorably to what pressure groups may expect in domestic legislatures” Peter Willetts, “Consultative Status for NGOs at the United Nations”, Peter Willetts (ed.), The conscience of the World: The Influence of Non-Governmental Organizations in the UN System (Washington DC: Brookings Institution, 1996) 39 and 43; Nicolas Hachez, “The Relations Between the United Nations and Civil Society: Past, Present, and Future”, International Organizations Law Review 5 (2008) 49–84, 69. Volker Heins, Non-governmental Organizations In International Society. Struggles over Recognition, Palgrave Macmillan, New York, 2008. 109 Onora O’Neill, “Agents of Justice”, in Andrew Kuper, Global Responsabilities, Routledge, London, 2005, 47-49 110 Steve Charnovitz, “Nongovernmental Organizations and International Law”, The American Journal of International Law, 100, No. 2 (Apr., 2006), 348-372, 352 ss. 111 Antonio Cassese, Human Rights in a Changing World (OUP Oxford 1990) 173. 112 For NGO involvement in all processes of ten crucial activities cf. Eibe Riedel, “The Development of International Law: Alternatives to Treaty-Making? International Organizations and Non-state Actors”, in Rudiger Wolfrum & Volker Roben (eds.), Developments of International Law in Treaty Making Series: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, 177 (2005) 301, 317; Peter Willetts (ed.), The conscience of the World, cit. 113 The shift was gradual, it started with the convention on Friendly Relations, but the discussion about the intervention in Kosovo (1998) was the turning point which culminated in the seminal theory Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, 2001 UN. The 2005 World Summit of States included the doctrine in the Outcome Document, eventually the General Assembly converted it into law in 24 October 2005 by the A/RES/60/1. 114 Paul Wapner, “Civil Society”, in The Oxford Handbook on the United Nations (Thomas G. Weiss and Sam Daws eds., 2007) 257. 115 Cf. the centennial essay by Steve Charnovitz, “Non- governmental Organizations and International Law”, 100 American Journal of International Law, 348 (2006) 104. For an overview of the diverse activities that human rights NGOs perform, see Claude Welch (ed), NGOS and Human Rights: Promise and Performance (2000). William Pace & Mark Thieroff, “Participation of Non-governmental Organizations”, in S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute-issues, Negotiations, Results, (The Hague: Kluwer, 1999) 391. Schulze, Peter M., NGOs - 39 their activities, and refined their specializations116. There is no shortage of examples where NGOs have become the leading force behind standard-setting in human rights. Whether it is in regard to torture, the campaign to ban landmines, labour rights, the rights of indigenous peoples, women’s, children’s, workers’, disabled persons’, disappeared persons’ rights, environmental rights, or development rights, NGOs have become the animators of the international standard-setting organs within the United Nations. These organizations perform a variety of functions, from the advocacy of specific rights to norm enterprise. NGOs represent petitioners before international judicial and quasi- judicial human rights institutions; they lobby national and international political bodies on human rights issues; and they publicize human rights violations in their own countries or abroad. They frequently submit these reports of non- compliance with HR treaties to UN human rights reporters and to members in order to advocate ratification. Some NGOs become policy- makers, and they have driven the majority of campaigns117 for specific rights. Moreover, NGOs contribute to the development, interpretation, judicial application, and enforcement of international law. Their legitimacy is not based on their number - many are composed of small specialized groups - nor on their economic power, they depend on donors; nor do they gain legitimacy from states, they have no military power. However, HR matter, and they are symbiotic to people’s need for justice. The proximity and responsivity of NGOs to victims is the primary reason for the consent and confidence of the people, and of their credibility in the HRs treaties that they support. Their common strength is to work at the national level without being dependent on the local government.
2.3 New diplomacy, state security and human safety. The making of an HR treaty is a political process that implies different levels of participation at different stages of achievement. Inquiry about international human rights law (IHRL) requires the examination of its practical components: the deliberative and normative elements. Both elements are necessary for the comprehension of the fabric of this kind of international treaty. The law-making process is made up of levels of consensus, organized powers, formal and informal normativity, expectation of authority, and communication of intentions to sustain
Non-Governmental Organizations, in Volger, Helmut (ed.), Concise Encyclopaedia of the United Nations, The Hague: Kluwer, (2002), 378-387. 116 Some of them were created to advance the protection of human rights in general or in various organizations, such as the United Nations; others concern themselves only with the regional human rights bodies or institutions, for example, the Organization for Security and Co-operation in Europe. 117 A historical overview of NGO campaigns and the ensuing analysis of how NGOs have transformed international law can be found in William Korey, NOGs and the Universal declaration of Human Rights A curious Grapevine (St. Martin’s Press, New York, 1998). 40 certain policies of rights118. Moreover, the capability of standard setting at the international level suggests expertise and negotiation to target the goal. NGOs have shown to possess all these capabilities, but because they do not have the legal capacity to conclude treaties, their political achievement depends on the will of states. Way beyond the modest status of “observers”, NGOs hold the necessary legal expertise to participate authoritatively in the draft-making119 process. They exercise juridical capacity on specific topics together with the political ability of unifying associations around a common goal. Eventually the HRs’ work calls into play competing interests of states, the asymmetry of power, the ability not only to join “friendly” states, but also to build coalitions and even lobby states. In a complex situation between competing players, the process becomes as essential as the product itself. Control over the process makes the final outcome predictable and the strategy open to confrontation. As international actors, NGOs pursue their goals in two ways: vertically, by intervening directly on the political elites, or horizontally, by building wider and wider target coalitions which include like-minded states120. It is here we need to ask to what extent do NGOs legitimize their political activity as actors of the international civil society and as UN operators as well121.The capacity and influence that NGOs wield in law making actualize a new network of “soft”122 relationship at the intergovernmental level. The expression “new diplomacy”123 was recently used to qualify a new trend in international relations in which –
118Rudiger Wolfrum & Volker Roben (eds.), Developments of International Law in Treaty Making Series: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht , 177 (2005) 16 119Kamminga, “The Evolving Status of NGOs under International Law: A Threat to the Inter-state System?”, in P. Alston (ed.), Non-state-state Actors, cit., 102 ff. 120 Kamminga 101-105 121Kamminga, M.T. “What Makes and NGO "Legitimate" in the Eyes of states?”, In A. Vedder (Ed.), NGO Involvement in International Governance and Policy : Sources of Legitimacy, 2007 175-195. Leiden/Boston: Martinus Nijhoff Publishers. Id. Human Rights Treaties and state Succession. In The Status of International Treaties on Human Rights (Venice Commission, Collection Science and Technique of Democracy, 42 (2006) 31-41). Strasbourg: Council of Europe Publishing. Id., The Relationship between General International Law and International Human Rights Law, Interim report by the Committee of International Human Rights Law and Practice. In Report of the 72nd Conference of the International Law Association, (2006) 457-462, London: International Law Association. Id. The Evolving Status of NGOs under International Law: A Threat to the Inter-state System? In G.P.H. Kreijen (ed.), State, Sovereignty and International Governance (- books.google.com 2002) 387-406. 122 Peter Willetts, “Consultative Status for NGOs at the United Nations”, in The Conscience of the World 39 (Peter Willetts ed., 1996) 43. 123 The term is credited to the Canadian Foreign Minister Lloyd Axworthy who used it in a Statement in support of the ICC in April 1998 during a conference at Harvard University, see Shense, “The Path to Rom and Beyond. The Role of the ONGs”, in A. Cassese, Galta, Jones, The Statute of the ICC, vol I, p. 107 note 4. 41 conforming to the spirit of the 1993 Vienna Declaration124 - civil interest-based issues prevail over military-based issues. Eventually, the more the society of states develops “friendly relations”, and particularly among democratic states, the more a “public diplomacy” should decide according to “public reasons” and expose them preventively to the open debate and criticism of the “civil society” actors125. This civil approach involving NGOs substrates the HRs issues to the strategic relations between states, and claims a new, triangular coordination between governments, actors of the civil society (NGOs), and internationals organisations.
A ground-breaking step was undertaken by the Canadian representatives and justified as the “need of new partnership”, and “new synergies” in order “to address global problems”126, especially concerning human safety. Norman Lloyd Axworthy, the Canadian Foreign Minister (1996-2000), apart from traditional preoccupations about instruments of state power and territorial security, campaigned for human safety which included and mobilized actors of national and international civil society.127 He stressed the potentiality of a new, non- strategic, cooperative and multipolar perspective: “Governments working together with global civil society can achieve diplomatic results far beyond what might have been possible in the Cold War era….and holds the promise of making existing international institutions more democratic, transforming them through innovation and experimentation, and anchoring them in world opinion”.128 In fact, the great powers were used to setting up the UN agenda according to the states interests in their own security. The ordinary practice in the negotiations of the international treaties shows that measures facing the violations of HRs did not enter into the agenda of international diplomacy as long as, and to the extent, they met the interest of the states. Despite the brutality of torture, racial cleansing, and humanitarian catastrophes, all these have often not been sufficient reasons to make states search for a remedy. This rule of dependence of
124 Vienna Declaration and Programme of Action. Adopted by the World Conference on Human Rights in Vienna on 25 June 1993, and Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, GA Res 2625 (XXV), 24 October 1970.
125 Camerum, “Democratisation of Foreign Policy: The Ottawa Process as a Model”, in Maxwell A. Cameron, Robert J. Lawson and Brian W. Tomlin (eds.) To Walk Without Fear: The Global Movement to Ban Landmines. Ontario: Oxford University Press, 1998, 441-43. Joseph S. Nye, Jr, “Public Diplomacy and Soft Power”, The ANNALS of the American Academy of Political and Social Science, Vol. 616, No. 1, 94-109 (2008). 126 Canadian Foreign Minister Lloyd Axworthy, ”Toward a New Multilateralism”, in To Walk Without Fear, 452-453. 127 See Axworthy, Norman Lloyd, The Canadian Encyclopaedia, www.thecanadianencyclopedia.com/index 128 Ibid. 42
Human Rights on state interests is confirmed by delays, which made several humanitarian measures and human right conventions languish. Since the second part of the ‘90s, a new trend in diplomacy has entered into HR law-making, due to the changed attitude of a number of states towards sensitive issues of evident human harm. In the Oslo Conference on an International Total Ban on Anti- Personnel Landmines, in September 1997, Lloyd Axworthy emphasized129 the fault axiom stirring the traditional security policy: more security for national states does not entail more safety for individuals. Lloyd Axworthy approached the safety issue from the point of view of civil victims of the armed conflicts - a category of persons whose rights have been always underrepresented within the Security Council. His concept of human security was based on freedom from fear and the protection of people from violence. The changing nature of violent conflict created, at the global level, the paradoxical situation in which security for the majority of states has increased, while safety for many of the world’s people has declined. Security between states remains a necessary condition for the collective safety of people, but the final beneficiary should be the individual persons themselves, rather than a territory or state. Security was intended as the safety the civil victims of war conflicts wished for. The victims of the anti-personnel landmines appeared to be an inhuman consequence of the security policy of states whose weapons kept killing innocent people after the armed conflict was over130. With its greater sensitivity to human rights issues, Canadian diplomacy provided a driving force in the so called “Ottawa process”, which culminated in the adoption, in December 1997, of the Convention banning the production, use, stockpiling and transfer of anti-personnel landmines, and, in 1998, in the Treaty of Rome establishing the International Criminal Court. The success of the new theory of human safety brought to light a new political strength, because the coalitions of NGOs supporting the Ban on Antipersonnel Landmines dealt – as we are going to see in details - with the issue of security, and, as a last resort, with issues of peace and war, which are traditionally the prerogatives of states. The leading role of the coalition of NGOs was due to the political maturation of these international but civil agents of justice, especially to its capacity to federate both associations and states. This partnership of public and civil actors has been most successful where the NGOs formed one united front and campaigned as a unique actor with shared proposals and common targets.
129 See Lloyd Axworthy, Diplomatic Conference on an International Total Ban on Anti-Personnel Land Mines, Oslo, 1-18 September 1997, and Id. Human Security: Safety for People in a Changing World, Ottawa, Canadian Department of Foreign Affairs and International Trade, April 1999. 130 See The Annual Reports (1999-2008) in Landmine Monitor (Editorial Board: Mines Action Canada, Handicap International, Human Rights Watch, Landmine Action, Norwegian People's Aid). 43
Another example of coalition between NGOs, a treaty body and government representatives, was the campaign for a complaint mechanism in the form of an Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, on 18 December 1979131. Then, in 1983, the lobby model that was created by NGOs started to draft the standards of the Convention on the Rights of the Child132 (CRC). In the environmental field, a large coalition of NGOs133, in symbiosis with states, played a crucial role in the preparation of the plenary conference of Rio de Janeiro, which culminated in the adoption of the Framework Convention on Climate Change in 1992134. Nevertheless, it was in drafting of the Treaty of Rome that the NGOs’ achievement in international standard-setting reached its highest point. During the early negotiation stage of the Convention, a group of NGOs formed a committee which presented its ideas to government delegates, and maintained a strong presence throughout the entire negotiation process135. It is to notice that the World Federalist
131 The proposal was followed up by the women in Law Project of the International Human Rights Law Group which with members of CEDAW and HR specialists produced the draft text. The initiative was supported in the Beijing Platform of Action of the Fourth World Conference on Women, September 15th 1995. After four years discussion in a CSW working group, an Optional Protocol was finally adopted in 1999 by the (GA Res 54/4). Cf. Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law. A Femminist Analysis (Manchester, 2000) 212-216 and 244-246. These authors have argued that jus cogens has a male gender and is discriminatory of women in its human rights dimensions, at 231 ff.; see also Charlesworth & Chinkin, “The Gender of Jus Cogens”, 15 Human Rights Quarterly. 63 (1993) 132 The cooperation between NGOs and UNICEF in standard setting was innovative and critical for the success of the CRC. In 1987, the United Nations Children’s Fund (UNICEF) joined the campaign for the CRC by funding NGO meetings to come up with common approaches and strategies. Makau Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, Human Rights Quarterly, 29, No 3 (2007) 600. See Interview with David Johnson, Secretary of the Committee on the Rights of the Child, Human Rights Officer, UN Office of the High Commissioner for Human Rights, Geneva, Switzerland (4 Dec. 2002). Nigel Cantwell, “The Origins, Development and Significance of the United Nations Convention on the Rights of the Child”, in Sharon Detrick (ed.), The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Preparatoires” (1992) 24-25. 133 The most influential were the World Wildlife Fund (WWF), Climate Action Network (CAN), Environmental Defense Fund (EDF), Greenpeace, Ozone Action World watch Institute (WWI), Sierra Club. Cf. Chiara Giorgetti, “The Role of Nongovernmental Organizations in the Climate Change Negotiations", 9 COLO. J. INT’L ENVTL. L. & POL’Y 115 (1998) 126-127. 134 NGOs have been particularly active at other major conferences organized by the United Nations: the International Conference on Population and Development (Cairo, 1994), the World Summit for Social Development (Copenhagen, 1995), the Fourth World Conference on Women (Beijing, 1995), the United Nations Conference on Human Settlements (Istanbul, 1996) and the World Food Summit (Rome, 1996). 135 NGOs were intent on presenting a united front before states to which they would sell common proposals. states then took over most of these proposals and presented them as their own. These coalitions of NGOs and states were so active and powerful that even those states that had been reluctant originally came on board. The broad 44
Movement, which acted as the International Secretariat for the Coalition of the International Criminal Court, elected Lloyd Axworthy as President of the World Federalist Movement – Institute for Global Policy (WFM). Ultimately, the capacity to build a coalition resulted in a political force which led diplomatic negotiations with non-friendly states possible. NGOs first had to forge unity among themselves before confronting or reaching out to states or IGOs136. NGOs have realized that when they pursue unity in open deliberative situations and in the broadest possible networks, they grow in civic representation, earn public credibility with regard to legitimate expectations, and finally they habilitate themselves as norm entrepreneurs.
3. Partnerships with States in law-drafting. We now proceed to show, in more details, how Human Right NGOs, in the drafting of several important conventions, have been competent part of the law-making process, and have enlightened the way in which the negotiations have been led137. As policy makers, NGOs frequently use a divide-and-conquer approach towards states, in that they use friendly states to gauge the intentions of opposing, reluctant, or opaque states. This partnership approach was employed by NGOs in their long campaign for the adoption of the Convention Against Torture138, adopted in 1984, and of the Optional Protocol to the
inclusion of various actors allowed many groups to claim ownership. This is what has led to the spectacular success of the CRC. Makau Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, 600. Price Cohn, “The role of ONGs in drafting the Convention on the Rights of the Child”, 12 HRQ (1990). 136 Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/57/199, adopted on 18 December 2003. In their support of the Draft Protocol to the Torture Convention, some states were also instrumental –most notably, Mexico, Costa Rica, Switzerland, and Denmark; certain states, such as the United states, India, China, and others, wanted to stall the Draft Protocol. It was the NGOs who pushed to overcome the resistance and inertia of the IGO, in this case the Commission on Human Rights. Critical to this breakthrough was the partnership between a number of governments and NGOs. See Mutua, “Standard Setting in Human Rights: Critique and Prognosis” 596 ff. On the origins see Malcolm D Evans* and Claudine Haenni-Dale, “Preventing Torture? The Development of the Optional Protocol to the Convention Against Torture”, Human Rights Law Review – Vol. 4, No I (2004), 20. 137 “One can no longer relegate NGOs to simple advisory or advocacy roles in this process. They are now part of the way decisions have be made. They have been the voice saying that government belongs to the people, and must respond to the people’ hopes, demands and ideals”, Axworthy, “Notes for an Address by the Honourable Lloyd Axworthy, Minister of Foreign Affairs, to the Oslo NGO Forum on Banning Anti-Personnel Landmines”, DFAIT (Canada) Statement, Oslo, 10 September 1997. 138 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), General Assembly Resolution A/RES/39/46, adopted 10 December 1984. On the governmental side, Netherlands and Sweden contributed substantially. On the NGO side, credit should go to Amnesty International and the International Commission of Jurists for their lobbying and skilful drafting work, with the constant aim of enhancing the level of protection. NGO efforts were entirely responsible for the 1982 Principles of Medical Ethics, which subsequently received 45
Convention against Torture, 139 adopted in 2003. However, the creation of the Convention of the Ban on Anti-personnel Landmines140 and the Statute of the International Criminal Court represents the landmarks of effective partnership and cooperation between intergovernmental, governmental and non-governmental representatives. Because they are highly sensitive issues, are all the more important for the legitimacy of NGOs. An illustrative analysis of the policy process could help promote a better understanding of the new capacities and capabilities developed by these international actors.
3.1 Capacity of negotiation: the Ban on Landmines. In December 1997, in Ottawa, the Convention on the Prohibition of the Use of Anti- Personnel Mines141 was signed by 122 countries. The Ottawa Process was a major achievement that reacted to a failure of the former review conferences of the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons. 142 In its general obligations, the Ottawa Convention prohibits categorically (“never under any circumstances”) a State Party: “a) To use anti-personnel mines; b) To develop, produce, otherwise acquire, stockpile…anti-personnel mines; c) To assist, encourage or induce anyone to engage in any activity prohibited to a state Party under this Convention”, and ultimately, “each State Party shall undertake to destroy or ensure the destruction of all anti-personnel mines” 143. The official text, adopted by the General Assembly, reproduces not only the draft of the supporting Coalition of NGOs144, but adopted also the categorical terminology and the irreversible character of the obligation which is typical of constitutional pledges. The making process and the travaux preparatoirs of the Ban on Landmines highlight a few elements
formal endorsement from the UN General Assembly. Theo van Boven, The Role of Non-Governmental Organizations in International Human Rights Standard-Setting: A Prerequisite of Democracy, 20 Cal. Western Int’l L.J, 207 (1989), 214-15. 139 Mutua, “Standard Setting in Human Rights: Critique and Prognosis” 570 ff. 140 See the Ottawa Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of the Anti-Personnel Landmines and on their Destruction, UN documents 141 The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction, 8, 2056 U.N.T.S. 211 (18 Sept. 1997), adopted at these 67th meeting, in General and complete disarmament: resolutions / adopted by the General Assembly, A/RES/52/38 ( 8 Jan. 1998) p. [1]-2. See also UN Secretary-General on the 10th anniversary of the Mine-Ban Convention: message, commemoration in Ottawa marking the tenth anniversary of the opening for signature of the Convention, 4 December 2007. 142 Nicola Short, “The Role of NGOs in the Ottawa Process to Ban Landmines”, International Negotiation 4 (1999) 481–500, 482. 143 Article 1 of the Ottawa Convention. 144 “States parties to this Convention undertake never, under any circumstances, to produce, stockpile, transfer, or use antipersonnel landmines, and further undertake within a five year period upon ratification of the Convention, to destroy all existing stockpiles of antipersonnel landmines”, by Anderson. M. R. “Human Rights Approaches to Environmental Protection: An Overview”, cit. See Human Rights Watch/Physicians for Human Rights, Landmines: A Deadly Legacy (1993) cit. 46 characteristic of the negotiation that led this matter from the Humanitarian measures out to a Human Rights treaty. The failure of the Humanitarian essay. The campaign for disarmament has mobilized numerous NGOs that supported also the Ban on the landmines145. The initial step to legally ban these weapons began in 1992 with an undertaking by the International Committee of the Red Cross (ICRC). Its staff of surgeons, particularly alarmed by the sharp increase in the number of limb amputations of landmine victims during the 1980s, persuaded the Committee to raise the issue through diplomatic, legal and public awareness efforts146. A restriction on the use of these weapons was first proposed to the former review conferences147. The prohibition of unnecessary suffering and of indiscriminate war are fundamental principles of the humanitarian law. Although the concern about landmines was highly humanitarian in nature, it was not a sufficient reason to make the Red Cross succeed with the Commission on arms control and disarmament. As a result States did not provide the appropriate legal instruments under humanitarian law. The Red Cross had to step back and hand the issue over to Human Rights NGOs whose actions were not limited by the humanitarian mandate, as the Red Cross actions were, and, as at last resort, they were able to exercise pressure on the states by political means. Amnesty International did not participate, for the opposite reason, because the victims were not intentionally killed by political powers. Anyway, the problem was to create a new legal instrument, different from Humanitarian law, which was binding beyond the frame of the state of war: protection should become a human right for everybody under whatever situations. The International Campaign to Ban Landmines (ICBL), is a global coalition of civil society associations, co-chaired by Human Rights Watch, that successfully lobbied to introduce the Ottawa Treaty. The ICBL, created in 1992 by a coalition of six NGOs148, grew over the next few years to more than 1200 NGOs, expanded in some 60 countries, and was eventually changed into the Ottawa Convention in
145 Among them, Greenpeace; International Physicians for the Prevention of Nuclear War which won the Nobel Peace Prize in 1985; the Pugwash Conferences which won the Nobel Peace Prize in 1995. These NGOs were influential in the application to the International Court of Justice for an advisory opinion on the legality of the threat or use of nuclear weapons. 146 See ICRC, Landmines Ban Brochure (1992) 147 The Convention on Conventional Weapons (CCW) also dealt with blinding lasers, for example. However, only mines were already in widespread use when the CCW attempted to regulate them. See Pieter Van Rossem, “Pax Cristi Netherlands”, personal communication, 27 November 1997, Nicola Short, “The Role of NGOs in the Ottawa Process to Ban Landmines”, cit. 482. 148 The coalition was formed in 1992 when six groups, including Handicap International, Human Rights Watch, Medico International, Mines Advisory Group, Physicians for Human Rights, and the Vietnam Veterans of America Foundation, decided to cooperate on this common goal, see J. Williams and S. Goose, “The International Campaign to Ban Landmines”, in Camerum at al., To Walk Without Fear, 22. 47
December 1997149. The campaign succeeded in mobilizing the public opinion and, in the end, made states negotiate the draft. At the member states level, France took the initiative, in February 1993, of asking the Secretary-General of the United Nations to convene a conference of the state parties to review the current limitation in the use of certain conventional weapons (the CCW)150. The Convention succeeded in obtaining not only a limitation but a total ban on the use, stockpiling, production and transfer of anti-personal mines, was finally adopted in 1997, and entered into force in 1999. For the ICBL, the capital legal question was to substrate the human right to be protected from the only form of protection that the ius in bello might concede to people: the formal limitation of the use151 of conventional weapons. An issue of protection of persons from the indiscriminate use of war weapons was in fact supposed to be a matter of humanitarian concern - as Humanitarian Law not a Human Rights issue. Although both bodies of law are concerned with the protection of individuals, Humanitarian Law applies to armed conflict situations, while Human Right Law concerns people and safety of individuals on every occasion. The right to be protect is not really based on the different circumstances of war and peace, nor on the fact that anti- personnel landmines also hurt people in post-war periods, but on the fact that the legal claim is no longer a concession of the military authorities, the right to be protected was finally intended as a prerogative of human beings. Humanitarian law has the aim of limiting suffering by regulating the way weapons are used, but the coalition categorically rejected any negotiation in this matter and peremptorily claimed to unconditioned ban of the anti-personnel landmines. Governments sitting in the Commission did not consider banning mines completely, even though they were not actively hostile to the idea of limiting their use even more. The only real possibility they felt was to strengthen the already existing Landmine Protocol152. On the non- governmental side, a rule governing the “proper” use of landmines was
149Although the ICRC, because of its mandate, did not formally join the ICBL coalition, it and the federation of the Red Cross and Red Crescent societies supported the process. See Maslen, “The Role of the International Committee of the Red Cross”, To Walk Without Fear, 80. 150 In particular, Protocol II thereto governing the use of .mines, booby-traps and other devices, see Maurice Bleicher, “The Ottawa Process: Nine-Day Wonder or a New Model for Disarmament Negotiations?”, 2 Open Forum ( October 2000) 69. Maurice Bleicher was a mission officer, in the Strategic Affairs Unit, in the French Ministry of Defense. The author took part in the negotiations that led to the adoption of the Ottawa Convention. 151 It concerned the review of the Protocol II, "Annex B: Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and other devices as amended on 3 May 1996.” 152 The so-called Protocol II to the Convention on Conventional Weapons, Protocol on Prohibitions or Restrictions on the Use of Mines, Boody Traps and other Devices, UN GA Doc/A/Conf. 95/15 and Corr. 1-5; 19 I.L.M. 1534 (1980). 48 considered useless153. The weight of the big powers within the Commission was not favourable to make concessions in the protection policy. The usual practice of Inter-governmental Organisations (IGOs) in international standard-setting is that the final decisions are formally based on the consensus of the participants, but de facto member states are differently influential. Despite the formal equality of the right to vote, the right to make propositions – and a fortiori in such a sensitive issue, such as arms control and disarmament - was under the influence of the permanent members of the Security Council, that is, de facto under the strong influence of the great powers. It is evident that those members of the Commission who decided on the admissibility of the propositions held more power than the member states that held the simple right to vote a final resolution. In disarmament negotiations, the great powers were used to keeping the initiative in the agenda setting and to selecting the propositions. The beginning of the so-called Ottawa Process was actually a response to the failure of the former review conferences. In 1996, the Canadian government took the lead in adopting a new approach that involved a group of so-called “like minded states”. It simply decided to work together with the NGOs on the draft154. The increased power of the new coalition wielded by a wide range of state and non-state actors - involved in the Landmine campaign - brought together a mixed group of players and experts without precedent. The cooperation process arose from two meetings between states and NGOs, held in January 1995 and April 1996. In the first meeting the NGO representatives decided to gather the "good" countries for a discussion on how the issue could be moved forward independently (i.e. outside the CCW). A non compromised-based practice in Human Rights law making was inaugurated. The negotiation process represented a new approach to international law-making, largely in response to international NGO pressure. The attitude of the participants was open to expanding the partnership of states by refining the text, but they were not ready to compromise on the basic principles. Once a group of influential governments had endorsed the ban treaty, the negotiating was not conducted on the method of arms control treaty made up of bilateral concessions. Negotiations were not conducted with the aim of obtaining consensus on each point at the expense of the leading principles, no matter how long it took155.
153 Human Rights Watch/Physicians for Human Rights: A Deadly Legacy (1993) 261- 306. 154 K. Anderson, „The Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organisations and the Idea of International Civil Society“, 11 European Journal of International Law (2000) 107. 155 “This can be contrasted with the usual approach of disarmament treaties such as the Chemical Weapons Convention or the Biological Weapons Convention, each of which was many years in negotiations and discussion”, K. Anderson, „The Ottawa Convention Banning Landmines, the Role of International Non-Governmental 49
Instead, again on account of NGO pressure, a group of “like- minded” states that adhered to the principle and supported the project, undertook the negotiations among themselves. They separately undertook the process of consensus building independently of the unsympathetic opinion of the powerful states sitting in the Security Council. These governments accepted the comprehensiveness of the international NGOs’ position and refused to compromise on the essential features of the landmine ban. The wager of negotiating a treaty among the like-minded alone (the group grew to include the majority of states) was that the treaty would eventually gain adherence, even from those who were not “like-minded” at the beginning. In the Landmine Convention, NGOs performed not only the political capability of involving and even lobbying states156, but also manifested the legal capacity of leading the drafting process in all its stages. For the ICBL the ban campaign had a simple goal: to provide the text for a model landmine ban treaty. The message was easy - a complete and comprehensive ban - fit to become an advertisement for public awareness. The text does not really have the obligation form of a usual international treaty which results from the reciprocal concessions between two or many parties. This is apparent in the enunciation of the general obligations of the Articles 1: “Each State Party undertakes never under any circumstances... to produce...stockpile... transfer... or 157 use antipersonnel landmines...” .Each member states is called to sign an obligation that should be binding forever, without any limit of time, while the characteristic form of the international treaty was binding under the reservation-clause rebus sic stantibus. HRs treaty shows the characteristic of a solemn pledge, in the real form of a constitutional pactum, and it appears irreversible both because it is a major institutional achievement of the International Community and the most advanced stage among the civilised countries. The achievement of the Ottawa Convention was a turning point since NGOs, vested only with the legal status of “observers”, became important protagonists in the process of HR law-making. It is in the making of the Ottawa Convention that one key element of the process, the alliance between States and NGOs, was expected to play and actually played its greatest part. This major role was especially played in promoting a new policy of the UN protection system.
3.2 Capacity in law undetaking: the International Criminal Court (ICC). Various international instruments designed to improve respect of HRs have been promoted by NGOs: as stakeholders, through
Organisations and the Idea of International Civil Society“, 11 European Journal of International Law (2000) 114. 156 Hobe 324, Anderson, Rutherford, Kenneth R., ‘The Evolving Arms Control Agenda: Implications of the Role of NGOs in Banning Antipersonnel Landmines’, World Politics 53 (2000) 74–114. Short, Nicola ‘The Role of NGOs in the Ottawa Process to Ban Landmines’, 4 International Negotiation (1999) 481–500. 157 Article 1 is cited at the top of this paragraph. 50 campaigns for specific rights or as brokers of partnerships, through indirect but active participation in treaty conferences and negotiations. The fact that NGOs have gained an important role in the building- process of HRs instruments has become even more apparent in conducting the complex negotiations for the creation of the International Criminal Court158. In the 1990s, following the Rwanda genocide and the horrendous crimes that were then being committed in the Balkan conflict, the international community finally realized that the existing mechanisms of HRs protection was not effective enough to prevent the worst crimes against humanity. The creation of international tribunals with jurisdiction to try the individuals responsible for those crimes could no longer be put off. Under the pressure of NGOs, notably of Amnesty International, the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia in 1993159 and the International Criminal Tribunal for Rwanda in 1994160. The urgent need to establish these tribunals, and the fact that they were set up on an ad hoc basis, revived long-dormant efforts to finally create a permanent international criminal court. This bore the fruit of the establishment of the Statute of the ICC. The travaux preparatoirs of the ICC Statute were achieved at the plenary UN conference in Rome in 1998. The statute was adopted 17 July 1998, and it entered into force on 1 July 2002. As of June 2011, 116 states have ratified the Rome Statute161. The relevant aspect of this historical event is that a coalition of NGOs, endowed with diplomatic and leading capabilities, entered international law-making, and participated in the informal negotiations as a third party, cast somewhere between national governments and UN international organisations. The juridical capability to draft the treaty has proved to be at a high level on four fronts: 1) a policy of building coalitions with states inside the UN Sixth (legal) Committee; 2) legal expertise that showed they knew the legal problems of specific HRs and how to face them according to international law; 3) a new diplomacy outside the IGOs, building a high-level consensus through direct ”non- state diplomatic” relations with governments; 4) an information campaign involving the general public that claimed attention in finding the opinio juris. The coalition of NGOs gathered together the legal and intellectual resources of civil society, creating a corps of expertise
158 R. Wedgwood, “Legal Personality and the Role of Non-Governmental Organisations and Non-state Political Entities in the United Nations System, in R. Hofmann”, Non-state Actors as New Subjects of IL (2000) 25. 159 S.C Res. 827 (May 25, 1993). The proposition was originally advanced by the German Foreign Minister Klaus Kinkel. 160 S.C Res. 955, 8 November 1994. 161 Rome Statute of the International Criminal Court, United Nations Treaty Collection.2011-03-10. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII- 10&chapter=18&lang=en. Retrieved 2011-06-25. 51 which knew HRs issues in detail. On this occasion, the diplomatic delegations let it be known that they had to face a new specialized branch of the IHRL, and to deal with a kind of international relations that state personnel were not used to. In fact, never before in the international process of law-making, had representatives of HRs associations demonstrated a higher command of the complex matter at all levels than state representatives, “because diplomats are not trained in Human Rights”162. The very first political and legal step at the United Nations was made by the Prime Minister of Trinidad and Tobago, A.N.R. Robinson, who led seventeen Caribbean and Latin American states, in calling for an international court to prosecute major drug traffickers163. The coalition sponsored a resolution164 through the Sixth (legal) Committee of the General Assembly that mandated the International Law Commission (ILC) to draft a statute for an ICC. In July 1994 the ILC submitted the requested draft for a statute of ICC to the Sixth Committee and recommended that the GA convene a diplomatic conference in order to adopt the statute. Given the opposition of three permanent members of the Security Council (France, Great Britain, and the USA), the supporting states, as a last resort, looked for a compromise. They called for an ad hoc Committee - on the establishment of an ICC at the UN - to study legal issues in detail. In the end - after a last minute effort by the Chairman of the Committee to prevent a compromise by stepping down - the General Assembly adopted proposition165. The undertaking was supported on two fronts: a) the coalition of NGOs; b) the coalition of Like Minded States (LMS).
a) The Coalition among NGOs. The NGO observers following the work of the Sixth Committee feared166 that this unique opportunity had been lost because of a lack of coordination in advocating the ILC’
162 Margo Picken, former Amnesty International UN liaison, observed that, “because they are not trained in human rights, diplomats are usually less and less competent as the details of human rights norms become more complex” (cit in Ann Marie Clark, Diplomacy of Conscience Amnesty International and Changing Human Rights Norms (Princeton 2001) 35, note 47). 163 Cf. Shense, “The Role of the NGOs” in A Cassese, P Gaeta, JRWD Jones, A Eser, The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press 2002), Vol. 1, 109. 164 GA Res. 44/39 of the 4 December 1989 requested the ILC to draft a statute to establish an international criminal court in order to address a range of crimes. After this, many essays failed, incused the proposition of Mikhail Gorbachev at the UN in 1987, and those following the explosion of the Pan Am flight 103 over Lockerbie in 1988. 165 GA Res. 49/53, 9 December 1994. 166 A number of international NGOs and independent experts supported, by publications, the deliberation of the Sixth Committee; in addition, NGOs that actively supported the establishment of the ad hoc International Criminal Tribunal for the former Yugoslavia in 1993 (ICTY), and for Rwanda in 1994 found a natural extension of their work in the Draft Statute for the ICC. Only after the formation of the ICTY, did the GA feel a renewed impetus to call for a completed draft statute. 52 draft. A coalition of NGOs for the establishment of an ICC167 was formed at the meeting on 25 February, right before the start of the ad hoc Committee’s work. The Coalition was made up of a group of about 30 NGOs that were planning to follow the work. This group included the highest legal expertise in human rights, international law, penal law, constitutional law issues: Amnesty International, Human Right Watch, the International Commission of Jurists, the Layers Committee of Human Rights, the Fèdèration International des Ligues des Droits de l’Homme, No Peace Without Justice, Parliamentarians for Global Action, and World Federation Movement. From 30 organisations at its first meeting in 1995, the NGOs Coalition increased to 800 by the time the conference of Rome was held. Among them, 236 NGOs were accredited to participate in the plenary conference168. Three reasons led the NGOs to the conviction that the success of the undertaking depended on better coordination of their capacities169: 1) the establishment of the ICC might not happen if the NGOs did not pool their political strength and legal expertise and speak with a united voice. 2) the effort would quickly grow technical in nature and would expand to touch upon many areas of relevant IL, so that an effective contribution required a division of the work among thematic groups. 3) these NGOs recognized that many states would have to be involved and would have to consistently support the effort. b) The Coalition among LMG states. The small number (six) of states that supported the creation of the ad hoc Committee170, and which had acted together in the Sixth Committee, grew to include close to twenty171 “like-minded groups of states” (LMG) by the end of 1995, and grew to sixty at the time of the Rome conference; eventually the number of states involved in the Preparatory Committee jumped to 120. The LMG of states built a coalition, coordinated by Canada, around two main goals: 1) to make the negotiations advance in the face of the Permanent members of the Security Council; 2) to obtain approval from the ad hoc Committee so that the GA could create the preparatory committee for the diplomatic conference.
167 Cf. Shense, “The Role of the NGOs” in The Rome Statute of the International Criminal Court: a commentary, A Cassese, P Gaeta, J.R.W.D. Jones, Oxford University Press, Oxford, New York, 2002, 110. 168 W.R. Pace and M. Thieroff, “Participation of Non-Governmental Organisations”, in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, cit., 391-392. 169 Pace and Thieroff 111. 170 The ad hoc Committee that led to the Preparatory Committee for the Rome Conference of Plenipotentiaries provided a forum of discussion in which many government delegations could become familiar with the issues related to the ICC. Many became aware of the historic opportunity and were not frightened – what the opposing members of the Security Council states believed in - by the sense of loss of national sovereignty. Bassiouni, 112. 171 Argentina, Australia, Austria, Canada, Denmark, Egypt, Finland, Germany, Greece, Italy, Lesotho, The Netherlands, New Zealand, Norway, Portugal, Samoa, Singapore, South Africa, Sweden, Switzerland, and Trinidad and Tobago. 53
The NGOs themselves were aware that would not have any political impact without having gained the consent of the political authorities, therefore they needed to establish direct relations with governments. The NGOs were able not only to build an ad hoc coalition with state representatives inside the Intergovernmental Organisations (IGOs), but they also showed the diplomatic ability to provide good relations with the countries outside the UN organs. In fact, during the negotiations in the Committee, the NGOs undertook to enter in diplomatic partnership with countries so that their representatives could visit governments in their respective countries in order to make them aware of their views172. No less important was their role in advising. During the negotiations, representatives of the NGOs coalition provided states173 with legal expertise on proposing and drafting the individual articles of the Statute174. The whole discussion about the Draft Statute was based on five guiding principles that the official negotiation of plenipotentiaries kept unchanged175.: 1) to ensure the independence of the Prosecutor; 2) to ensure the independence of the Court from the Security Council; 3) to extend the inherent jurisdiction of the Court to cover all core crimes; 4) to guarantee the full cooperation of the states with the Court; 5) to give the Court the final decision about the ability of the national judicial system to proceed with potential cases. The Statute which was finally adopted incorporated all the fundamental principles that have been conceived and declared essential by the NGOs and LMG coalition during the drafting process before the conference of Rome. The independence of the court whose “ jurisdiction and functioning of the Court shall be governed by the provisions of this Statute”176; Prosecutor may initiate investigations proprio motu”177. These two competences actualize the division and
172 Peter R. Baehr, Human Rights: Changing the Culture, (Oxford: Blackwell 1999) 117. 173 Hobe, “The Role of Non-state actors”, in Rudiger Wolfrum & Volker Roben (eds.), Developments of International Law in Treaty Making. Series (2005) 323. 174 W.R. Pace and J. Schense, “The Role of Non-Governmental Organisations”, in A. Cassese, P. Gaeta and J. Jones, The Rome Statute of the International Court of Justice, cit., Vol. I, 105 ff. W.R. Pace and M. Thieroff, “Participation of Non-Governmental Organisations”, in R.S. Lee (ed.), The International Criminal Court (The Hague et sl. 1999) 391 ff. 175 Pace and Theiroff, 395. 176 Article 1, The Court: An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. 177 Article 15, Prosecutor: 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from states, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he 54 independence of the judicial power vis-à-vis the executive (Security Council). Moreover, Prosecutor “may seek additional information from states, organs of the United Nations, intergovernmental or non- governmental organizations”178. That is, the HRs protection organs and the NOGs can be consulted for information. At this very moment an epochal innovation was introduced in the doctrine of International Law that changed the system of international relations: the individual responsibility of public actors. The Statute for ICC established that IHRL should not be the result of the concessions that states make each other on the basis of a reciprocity principle, and of which members states were accountable only to each other. IHRL was intended as a set of obligations which are inherent to individuals, whether acting on behalf of a state or as non-state actors. The legal responsibility of the actors should be seen as independent of the public personality of the state, and, in the end, from the logic of dominant power in inter-states treaties. The penal responsibility for crimes against humanity concern individuals, through direct obligation under IHRL, whatever role they play. This principle of universal justice diminishes the protection provided by diplomatic or presidential immunities179. Moreover, it made it clear that crimes against humanity can be committed not only by state actors, but also by any armed group or individual non-state actor180. The Rome Statute was successfully achieved to thanks the legal capacity and political control of all the stages of the law-making process. NGOs were finally recognized181 to have played more than a complementary role in improving the UN protection machinery which progresses from the early normative stage of the HR treaties to the present endowment with specific HR institutions. After the creation of the High Commissioner for Human Rights (HCHR) that was set up in 1993182 and firmly wanted by Amnesty International, the establishment
or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 178 Article 15.2 179 As a rule, the governments that were held liable for the violations had come to power when the culpable regimes were no longer in charge. Moreover, the former leaders who had oppressed the people were often living in opulent retirement. The conclusion was that the traditional remedy needed to be reinforced with international judicial mechanisms allowing the criminal prosecution of the individuals responsible for serious human rights violations that amounted to offenses under international criminal law. See William Pace & Mark Thieroff, Participation of Non-governmental Organizations, cit., 391 (Roy S. Lee ed., 1999). 180 Article 8.2. 181 SG Kofi Annan Report of the SG submitted pursuant to Commission Res. 1998/29, 18 December 1998, UN Doc. E/CN.4/1999/92, at para.12. 182 The Office of the United Nations High Commissioner for Human Rights (OHCHR) works to promote and protect the human rights that are guaranteed in the Universal Declaration of Human Rights of 1948. The office was established by the UN General Assembly resolution 48/141 of 20 December 1993 in the wake of the 1993 World Conference on Human Rights. The mandate derives from Articles 1, 13 and 55 of the Charter of the United Nations, the Vienna Declaration and Programme of Action. The 55 of the ICC constitutes a further important step in the long struggle for a HRs protection system. It is more and more apparent that the idea of universal justice requires a proper law-making process and an effective judicial system which should go hand in hand with a realistic law enforcement. Ultimately, what needs to be stressed here is that these multifaceted capacities and capabilities that NGOs have performed, at the highest level, in making the two Conventions, are not limited to these two single achievements. The Ottawa Convention and the Rome Treaty represent further stages of a growing participation of new agencies to tasks of global governance. Beyond the different evaluations of the process, it is undeniable that an active international “civil society”183 has emerged which is constituted by different international actors whose human rights agenda does not coincide with the agenda of the states’ interest inside the UN bodies. The regular production of legal instruments that global governance requires needs a representative system which does not coincide with the sum of the foreign representatives of the national states.
3.3 Elements of recognition of the public role. The text of the conventions in which NGOs have participated does not reveal any apparent resentment on the part of states towards the unconventional role played by NGOs in the UN adoption of these legal instruments. On the contrary, in an apparent acknowledgement of the importance of the NGO input, the conventions often provide NGOs with a formal role even though only in the implementation and follow-up184of HR treaties. Elements of recognition of the public functions of NGOs are in more than a few UN documents185, but only in non-binding instruments, such
High Commissioner co-ordinates human rights activities throughout the UN System and supervises the Human Rights Council. UN http://www.unhchr.ch/html/menu5/wchr.htm. 183 The new kind of close cooperation that has emerged between states and NGOs from the Ottawa and Roma Process is controversial. Professor Bronislaw Geremek, the Polish Minister for Foreign Affairs, has pointed out: “hence-forth international security will be built more and more around the concept of international civil society in which, along with governments, international organizations, economic and financial institutions, an ever more prominent role will be played by citizens and their spokesmen - the non-governmental organizations”, Speech to the Conference on Disarmament, Geneva, 23 March 1999. On the other hand, Serge Sur has decried the “excessive prominence” of NGOs, which are “developing a parallel diplomacy without any democratic foundation that interferes with relations among states”. Serge Sur, “Vers une Cour pénale internationale: la Convention de Rome entre les ONG et le Conseil de Sécurité”, 1 Revue Générale de Droit International public, 103 (1999) note 21. 184 Cf. The World Charter for Nature, GA Res. 37/7 (28 October 1983) Section III, entitled “Implementation”, Paras 23-24. 185 A) GA/Res/60/251 3 April 2006, Sixtieth session , Creation of HR Council “Acknowledging that non-governmental organizations play an important role at national, regional and international levels, in the promotion and protection of human rights, 11. Decides that the Council shall apply the rules of procedure established for committees of the General Assembly, as applicable, unless subsequently otherwise 56 as the final documents of global conferences186. However, in spite of their limited status of observer and the lack of the right to vote187, NGOs enjoy greater access to intergovernmental negotiations. As NGOs do not participate in the conclusion of treaties, they cannot be regarded as treaty-makers in a strict sense, nor can they play a principal role in the conclusion. Nevertheless, their influence can be strong in the process of cognitive identification of specific rights, that is, in the pre-normative stage of law-making188.
decided by the Assembly or the Council, and also decides that the participation of and consultation with observers, including states that are not members of the Council, the specialized agencies, other intergovernmental organizations and national human rights institutions, as well as non-governmental organizations, shall be based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996 and practices observed by the Commission on Human Rights, while ensuring the most effective contribution of these entities. B) CRC, Article 45 In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention: a) The specialized agencies, the United Nations Children's Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children's Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities; C) Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, ad Adopted by General Assembly resolution 53/144 of 9 December 1998 Article 7 Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance. D) Rome Statute ICC Art 15 (2) provides that the prosecutor may seek additional information, inter alia from NGOs E) Landmines Convention provides that NGOs may be invited to attend meetings of the states Parties and Reviews Conferences Art 11.4 and 12.3. F) 1992 United Nations Framework Convention on Climate Change, Art 7, 6. The United Nations, its specialized agencies and the International Atomic Energy Agency, as well as any state member thereof or observers thereto not Party to the Convention, may be represented at sessions of the Conference of the Parties as observers. Any body or agency, whether national or international, governmental or non-governmental, which is qualified in matters covered by the Convention, and which has informed the secretariat of its wish to be represented at a session of the Conference of the Parties as an observer, may be so admitted unless at least one third of the Parties present object. The admission and participation of observers shall be subject to the rules of procedure adopted by the Conference of the Parties. 186 World Conference on Human Rights, Vienna declaration and Programme of Action, 25 June, 1993, UN Doc. A/CONF. l 57/23; International Conference on Population and development, Cairo, UN Doc. A/CONF. l 71/13, 18 October 1994, chapter 15. 187 A.K. Lindblom , Non Governmental Organisations in International Law (2005) 479-486. 188 Hobe,“The Role of Non-state Actors“ in Rudiger Wolfrum & Volker Roben (eds.), Developments of International Law in Treaty Making (2005) 324. 57
The step from pre-normative stage to the promulgation of the final text implies the replacement of NGOs actors, as they do not have legal personality, by sovereign states, but not of the text itself. In fact, the tendency in the law-making process of the HRs treaties is that member states adopt texts, drafted by non-state actors, and finally covert them into legally binding international agreements. The most common context in which formal consent is relaxed is that the General Assembly adopts declarations or amendment of annexes to a framework agreement or protocol. The Conference of parties facilitates the elaboration of relevant texts, and although it is usually the conference of parties that adopts the new treaty terms, the subsequent formal consent of states is required to give them legal force189. In the practice of adopting the draft drawn up by the NGOs, states recognize de facto the right to propose it as a right acquired by customary law190. On the other hand, the fact that the legal capacity is a decisive requirement to make declarations legally binding, should not take away from the fact that the undertakings of the NG Agents were dominant. The majority of the seminal conventions could never have been achieved without the contribution and the determination of the NGOs. In many cases, the NGOs provide the factual process of law-drafting and the states then carry out the formal act of law-making. Their power lies in the fact that they are not state actors, in the sense that are universal actors that are not bound by the complex policy of a national community. They are specialized in one specific goal and they can provide the best knowledge of the topic of a specific human right. In fact, even large states at the UN may be much less equipped to face specific rights than NGOs; this is all the more true for a delegation of a small country which has to deal with a vast array of issues, has little time for any individual topic as well as limited expertise191. In the end, the drafting initiative succeeded because of the high- level approaches of qualified expertise192 that does not stop to wait for formal acts, but proceeds constructively and democratically by progressive drafting. The power of NGOs is based on the capacities of free association and the ability to combine resources of the civil society composed of elites in competition, not of closed corporations. The specialisation of IHRL law, that is until now unknown, follows the trend of the growing specialization of IL towards a common law of the international community.
189 Brunée, ”Reweaving the Fabric of International Law?”, in Rudiger Wolfrum & Volker Roben (2005) 108, 107. 190 Tasos Kalandrakis, “Proposal Rights and Political Power”, American Journal of Political Science, 50, No. 2, (Apr., 2006) 441-448 191 Tomuschat, Human Rights (Oxford University Press 2003).237 192 Margo Picken, Amnesty International former UN liaison, observed that, because thy are not trained in HR, “diplomats are usually less and less competent” as the details of HR norms become more complex. Quoted in Clark, Diplomacy of Conscience, 35 note 47. Axworthy, “Towards a New Multilateralism”, in To Walk Without Fear, 452-453. 58
3.4 Partnership in Codification. The partnership of NGOs with States raises the question of their institutional settlement in the International Community: is the role that NGOs play in the law-making process the particular contribution of occasional partners, or do they embody an ad hoc actor or a permanent institutional role in international relations? If these agents are bound to the unrepeatable historical production of exceptional legislative texts, once the task has been achieved, should their function as a law entrepreneur expire? These questions are raised here in order to highlight the institutional theories underlying some juridical understandings of the historical process. Current theories explain the process of HR law making as a phenomenon of “codification”193. According to some scholars, “codification” is the ordinary activity of a competent body, therefore, in the ordinary work of the UN Commission for International Law, “this aspect of activity of the NGOs tends to recede into the background” 194. Therefore, HRs law-making should finally be understood in the sense by which the UN Commission for International Law understands its own work: to reach “precise formulation and systematization”195 of rules already existent in the practice of states and in the doctrine. This understanding is a legal and a comprehensive one; it does not recognize the composite nature of the law-makers or the importance of the role of civil norm entrepreneurs. The kind of power that is presumed as being at work in this “codification” process should be made explicit. The codification process presumes that treaties reflect on pre-existent rules, but what these pre-existent rules are can only be explained by researching into the elements of the process. Moreover, codifications have been made in other periods of history, but never concerning HRL, and never at a global level196. The danger of this qualification lies in the analogy197 with a state-legislator which
193 The International Law Commission was established in 1947 with the objective of promoting “the progressive development of international law and its codification.” Statute of the International Law Commission, Article 1. 194“Now that the codification work is nearly completed, this aspect of activity of the NGOs tends to recede into the background”, Tomuschat, Human Rights (Oxford University Press 2003) 237. 195 Statute, Article 15. 196 A. Cassese, International Law (OUP, Oxford 2004) 350. 197 This constitutionalist explanation of the international process could be argued in this way: the legislator (General Assembly) has created the legal instruments, the Law Commission has arranged the legal materials, and the process of codification is achieved. From now on human rights are only a matter of applying existent provisions; this task is carried out by the competent organs of the individual states. All subjective rights are cleared by positive norms and implemented by the state organs as domestic organized sovereignty. The scheme is based on the analogy with the pouvoir constituent of people (Nation) that creates the constitution of the state: after having created the constitution, this ad hoc agent disappears, and the rights holders are under the protection of the powers that be. The organic analogy prevails here too: the creation of norms is the most important achievement, and the implementation is a secondary function, because 59 supposes the existence of a legislator as a monolithic and autocratic sovereign body of the process. This theory would cancel the very partnership set up in the newly established practice that the agents of justice have embodied. A second explanation assumes that the central concept is here not the “organ” of making law, but the notion of “customary law” that is no longer understand as the doctrine of precedent, but of both precedent and result, that is, as an element of the generative cycle of the norms: “the process of formation of customary law and that of its consolidation as a rule of positive international law are two sides of the same coin, the concept of custom refers to both the law-making process and to the end result of the process itself”198. In the circular implication between custom and treaty law, NGOs occupy the role of permanent partners with states: “NGOs, as part of the International Community, contribute to shape opinio iuris together with states”199.
Before we proceed to deal with the NGO activities that build informed consensus on HRs issues and make a civil control on the state policy possible, an explanation concerning the sovereign exercise of a fundamental freedom is needed. In the system of international organisations there are more independent legislatures (General Assembly, Security Council, International Court of Justice) that should be coordinated. Codified law is the outcome of principal actors of the International Community that is imbedded in a self-regulating civil society of which states are party both as sovereigns and partners. The final goal of this process is not to create the legal instrument for the state executive organs – there is not a judicial power such as general courts in the UN body system. The reporting system and the periodical universal review of states reports have been established in order to carry out a system of accountability that is complementary to domestic implementation. The fact that HR treaties are legislative acts that, lack of an ad hoc court which sanctions the reluctant states, are left without immanent “legislative effect”200, and the fact that individual states are the only powers able to implement them, contradict the special status of human rights that should limit and subdue states under the regime of international accountability. This asymmetry of powers opens the real
it is supposed to be an automatism of the division of functions. Actually, the non- state agent that participates in making conventions is neither a pouvoir constituent, nor a legislator who, after having made the law, steps down in favour of the permanent corps of the state. 198 Pierre-Marie Dupuy, « Formation of Customary International Law and General Principles », in J. Brunnée and D. Bodansky, E. Hey, The Oxford Handbook of International Environmental Law (OUP 2007) 451. 199 Pierre-Marie Dupuy 465. 200 Georges Abi-Saab, Cours General du Droit International Public (Recueil des Cours de l’Académie de Droit International 1987) 179. 60 field where NGOs fulfil the function of guardians of HRs201, at central and peripheral level. After having achieved the legislative work at the UN level, Human Rights NGOs – as grassroot NGOs - are committed to monitoring the compliance of the provisions by states. NGOs exercise the control of the transition from the declaratory regime of HRs up to the regime of actual implementation. And conversely, from the observation, on the field, of the effects of some provisions, they may propose, at the legislative level, further legal complements to the conventions. This is the very origin of most of the protocols.
NGOs perform the role of a non-state and non-national agent that exerts autonomy (sui juris) in searching for common law. The accountability mechanism can only be established on the basis of a sovereign exercise of the right to know. The liberty of information requires, above all, the right to inquire into the process of implementing HRs. In order to make states accountable, the whole cycle of legitimacy has to be monitored: from the legislative achievements (input) to the implementation of the provisions (output). The transnational monitoring of the exercise of national power is the very innovation of the UN system that NGOs foster and uphold in their international practice. In order to achieve the function of agents of justice, NGOs act as agents of information of the UN organs. NGOs are “shapers of policies” of HRs and an “indispensable bridge between the general public and the intergovernmental process”202. In a normative sense, some of them203 are actual warders of international legitimacy. Therefore, HRs treaties exert some specific functions in the International Community; they provide: 1) standards for domestic law- making; 2) juridical sources for international courts and national constitutional courts; 3) universal transnational criteria to monitor and assess the HRs policy of the member states. Here, I will deal only with the last point: to assess the state policy of HRs as a constitutive element in the search of International Human Rights Law (IHRL).
201 The recent reaction of the President of Sudan is paradigmatic of this role: “Khartoum ordered ten [actually thirteen] leading aid agencies to leave the country today in retaliation for the International Criminal Court’s decision to issue an arrest warrant for Bashir, accusing them of passing information to the court.” Catherine Philip, Diplomatic Correspondent, Dance of defiance: Sudan's leader greets crowds and orders raids of aid agencies, From Times Online March 5, 2009. 202 Cf. Report of the Secretary-General, Arrangements and practices for the interaction of non-governmental organisations in all activities of the United Nations System, UN Doc.. A/33/170 of July 1998, at para 15t seq. The way changes in the international system “produced recognizable changes in NGO sectors’ methods, missions, and strategies.” Cf. Paul J. Nelson & Ellen Dorsey, New Rights Advocacy: Changing Strategies of Development and Human Rights NGOs (Georgetown University Press 2008) 23. 203 This depends on the relation with the governments; NGOs whose principle is based on the charity do not exert this critical function. 61
4. Identification of Comprehensive Rights.
“The Earth is one but the world is not”204. With this sharp contraposition, the 1987 Brundtland report of the World Commission on Environment and Development205 alerted the world about the progressive degradation of the biosphere common to all humans with irreversible consequences on the present and future generations. The report pointed out the lack of responsibility of the developed countries in the disproportionate consume of natural resources and of lack of solidarity with the non-developed countries of the southern part of the planet. A new dimension of individual and collective human rights was identified; all human beings are partners entitled aequo jure to a “sustainable development”. This expression, forged by the Commission and used here for the first time, makes it clear that “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”206 On the 20th anniversary of the first Conference on the Human Environment of Stockholm, the UN organized the "Earth Summit" that took place in Rio de Janeiro, in 1992. The Covenant was the culmination of two and one half years of world-wide consultation that demonstrates the best intentions of human beings to live responsibly. Representatives from 178 countries - and non-governmental agencies - met under the United Nations Framework Convention on Climate Change (UNFCCC). The global responsibility and the duty of states to cooperate207 was proclaimed, treaties and non-binding agreements were
204 “1. The Earth is one but the world is not. We all depend on one biosphere for sustaining our lives. Yet each community, each country, strives for survival and prosperity with little regard for its impact on others. Some consume the Earth's resources at a rate that would leave little for future generations. Others, many more in number, consume far too little and live with the prospect of hunger, squalor, disease, and early death.” Gro Harlem Brundtland, Our Common World, Oslo, 20 March 1987, chapter 2, para 1.
205 In 1983, the UN General Assembly set up the World Commission on Environment and Development, known as the Brundtland Commission after its chairperson, Norwegian Prime Minister Gro Harlem Brundtland. Its aim was to link environmental issues to the findings of the 1980 Brundtland report on North-South relations. The Swedish Prime Minister Olaf Palme (with the participation of Indira Gandhi) had already promoted and hosted, in 1972, in Stockholm, the first UN Conference on the Human Environment. 206 Brundland, Our Common World , chapter I, para 1 207 Principle 7, States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their 62 signed, and a schedule for the implementation was finally set into agenda.208 After Rio, the commitment of the participants has not been uniform and the cooperation of states has been weak. The 16 following conferences of the Parties (COP)209, up to the last of Cancun in 2011, have made apparent a harsh asymmetry: on the one hand, states have been late in stipulating agreements to reduce greenhouse emissions, on the other hand, UN inter-governmental organizations and non- governmental participants have remarkably increased the scientific findings concerning the state of the planet. The scientific evidence concerning the effects of climate change and the causes of global warming, has reached a high level of consent. For these achievements the Intergovernmental Panel on Climate Change (IPCC) and its President and participant, Albert Gore were both award with the 2007 Nobel Peace Prize210. This asymmetry in action taking has been significantly embodied in the last ten years by the discontinuous policies of the US governments regarding the Kyoto Protocol (KP): the presidency of Bill Clinton signed the KP in 1997, but at the very begin of its mandate President George W Bush withdrew the US support211. The fact that the claim to environmental protection has to be considered a Human Rights issue highlights the legitimizing role that the HRs doctrine assumes in all UN major undertakings of global policy. Human Rights indicate here the common good of the actors involved and the general interest that a global governance has to pursue. The big shift is that Human Rights have a new holder, human rights are embedded in the environment, and the attitude people display in managing the development is an essential part of it. This issue can be
societies place on the global environment and of the technologies and financial resources they command. 208 More than 130 states signed a Convention on Climate Change and a Convention on Biodiversity; an agreement on Agenda 21 , an action plan for developing the planet sustainably, and on a broad statement of principles for protecting forests. 209 The COP is the highest body of the UNFCCC and comprises environment ministers from 193 countries who have met once a year since the 1992 Earth summit in Rio de Janeiro. 210 The Nobel Peace Prize 2007 was awarded jointly to Intergovernmental Panel on Climate Change (IPCC) and Albert Arnold (Al) Gore Jr. "for their efforts to build up and disseminate greater knowledge about man-made climate change, and to lay the foundations for the measures that are needed to counteract such change" http://nobelprize.org/nobel_prizes/peace/laureates/2007/ 211 United states has opposed major multilateral treaties on nuclear testing, land-mines, climate change, biological diversity, law on the sea and the International Criminal Court, all of which are signed by most other states, cf. Shirley V. Scott, The International Law in World Politics,(Lynne Rienner Publishers, Colorado, USA 2004) 281. Concerning the KP, Bill Clinton signed the agreement in 1997, but the US Senate refused to ratify it, citing potential damage to the US economy required by compliance, because it excluded certain developing countries, including India and China, from having to comply with new emissions standards. At the beginning of his Presidency, Bush dismissed Kyoto Protocol as too costly, describing it as "an unrealistic and ever-tightening straitjacket." 63 faced only prospectively through the capacity of building the future stages of the development. Only recently governments have become aware that the way to consume the resources of the planet can put their possible future at stake. Governments did not took measures to reforest because it was generally believed that nature is ruled by an inexhaustible cycle of self-regeneration. In the Rio “Earth Summit” the request to take “environmental measures” invokes a comprehensive approach that involves the “responsibility” of governmental organs in the way of decision making212.
As human beings have the right to life and to health, everyone – individual or ethnic group - is entitled to a right to save and proper environment, whatever its position in the domestic society or in the world society might be. This supreme instance requires that public authorities assume the responsibility to protect these basic rights, according to the available scientific evidence and the principle of prudence. An adequate protection policy adopt a “precautionary approach” 213 to prevent predictable or plausible harms214. Whenever a risk occur that might harmed human integrity, a social duty arises to caution in advance the risk: public and private decision-makers are under the obligation to anticipate harm before it occurs.
It is to emphasize the fact that the principle “first no harm” reverses the burden of the prove215. In conditions of uncertainty, when scientific investigation has found a threshold of plausible risk, prudence in decisions must have the primacy. That is, it is not because scientific evidence is insufficient to prove a harmful effect that potential adverse
212 Principle 2, States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
213 The principle 15 of the Rio Declaration at the "Earth Summit" in 1992 states: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=78&ArticleI D=1163. 214 The precautionary principle is in some ways an expansion to the environment of the English common law concept of ‘duty of care’ that originated in the decisions of the judge Lord Esher in the late 1800s:: “Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think, would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger or injury to the person, or property of the other, a duty arises to use ordinary care and skill to avoid such danger”. 215 64 consequences must not be taken in account216. Anyway, although this principle operates in the context of scientific uncertainty, it is supposed to be applicable only when, on the basis of the best scientific advice available, there is good reason to believe that harmful effects might occur. Social responsibility and predicting capability set up a new civil role for scientific agencies in legal, moral and political decisions. The civil and public actors that concur to advancement scientific are directly involved in the progress of public institutions. The question rises to what extent scientific operators are free members of scientific independent communities at the domestic and non-domestic level. The indicated asymmetry allow us to ask to what extent scientific operators may be agent of effective progress at the civil and political level.
The question is how governments are symbiotic in identifying common needs and responding to the expectation of new rights at the international community level. After environmental disasters, such as Chernobyl, states have generally proved “unwilling”217 to comply with their duty to protect the environment. They failed to fulfil their obligation to protect, by collective actions, the common rights of present and future generations. Paradoxically, it is the non-state actors whose common interests are capable of developing into such powerful bonds, such as people, corporations and NGOs, who gain standing to act at an international level218. NGOs, such as World Wide Fund for Nature (WWF), the World Conservation Union, Greenpeace International, and Friends of the Earth have been active for many years in identifying threats to the environment, in attempting to force
216 The 1998 Wingspread Statement on the Precautionary Principle summarizes the principle this way: "When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically." On the Wingspread conference see, Science and Environmental Health Network. The Precautionary Principle: A Common Sense Way to Protect Public Health and the Environment. January 2000. The February 2, 2000 European Commission Communication on the Precautionary Principle notes: "The precautionary principle applies where scientific evidence is insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen by the EU". Science and Environmental Health Network. “The Precautionary Principle: A Common Sense Way to Protect Public Health and the Environment”, January 2000. The January 29, 2000 Cartagena Protocol on Biosafety says: "Lack of scientific certainty due to insufficient relevant scientific information . . . shall not prevent the Party of import, in order to avoid or minimize such potential adverse effects, from taking a decision, as appropriate, with regard to the import of the living modified organism in question." 217 “The problem of transboundary pollution demonstrates how states have failed to take effective international enforcement measures to protect the environment from degradation. In attempting to fill this void, NGOs have become the environment's moral, if not legal, guardians.” Sand 412. 218Sand Philippe, “Environment, community and International Law”, Harvard International Law Journal 30 (1989) 393–420, 399. 65 governments to take measures to protect the environment, and in signaling breaches of existing international environmental regulations. In many respects, such NGOs have come to be the primary sources of expression of the worldwide expectation to protect the environment, the major political players in environmental law-making, and the most effective guardians of implementation of the existing provisions. The progress in HR law making is apparent, the question is to what extent the identification process of specific human rights becomes a vehicle of civil advancement. The way of acquiring evidence in human right law, and particularly in a very new branch as environmental law, appears very far from the two traditional ways of international law which oppose treaty based law to custom based law. An environmental right can only very poorly be based on an historical sedimentation of rules nor on a judicial precedent, new rights have their sources in the international deliberation process, in particular depends on the capability of its agents.
Although the process of law making is extensively made up of political decisions, non-legal expertise also plays a very important role in bringing evidence into important HR issues. The gap with the tradition based customary law appears particularly evident in conventions related to two typical public protection duties : health law and environmental law. In these cases HR theories grow through a comprehensive approach219 that unites and combines different competences. After the Tobacco Convention was promulgated the interdiction to smoke in public places has become international customary law for member-states. Due to the acceleration of international relations, the speed by which new customary law is being created by Intergovernmental Organisations is increasing and is losing its traditional distance from contractual law. New rights are acquired in two closely interwoven ways: through a global governance perspective and a civil use of scientific evidence. The Working groups inside of the UN organizations involve a close cooperation between Intergovernamental Organisations (IGO) and Non- governamental Organisations. Even though IGOs experts are nominated by states as governmental representatives, they marked an important step on the law-making of important instruments that grasped the spread consensus of civil and humanitarian committed agencies. In matter of civil concern as the tobacco control, they show to be able of combining the scientific and civil resources in favor of civil and humanitarian goals, and finally of acting autonomously from, and with distance to the state system logic. The making of the two Convention - Tobacco
219 Jutta Brunnée and Daniel Bodansky Ellen Hey (eds), Oxford Handbook of International Environmental Law (OUP, Oxford 2007). Merrills, J. G, “Environmental Protection and Human Rights: Conceptual Aspects”, Anderson, M. R. “Human Rights Approaches to Environmental Protection: An Overview”, both in A. E. Boyle and M. R. Anderson (eds.), Human Rights Approaches to Environmental Protection (OUP, Oxford 1996). 66
Control, and Rio Convention - we are going to introduce are paradigmatic achievements of a civil use of available intellectual and human resources.
4.1 Civil use of scientific evidence: Tobacco Control. Intergovernmental Organisations are the very fabric of complex UN conventions. The law-making process is largely the result of negotiations and certain norm-making issues require high technical knowledge. The IGO’s executive head chooses a single consultant, or establishes a committee or another organ made up entirely of experts. For instance, the International Panel for Climate Change (IPCC) is made up of states, and each member-state appoints an expert220. Nevertheless, the acts of experts, because of their nominal independence, are not considered acts of single governments. The setting up of the Framework Convention on Tobacco Control (FCTC) is in this respect emblematic. It was the first international treaty made entirely and promulgated by an IGO, the World Health Organization (WHO). It is a good example of how different agencies, cooperating in matters of general concern, are able to do what single actors have failed to do for over half a century. A short description could be useful to point out the new actors and the dynamics of this convention, which has had an effect on changing habits throughout the world. According to the WHO, nearly 5 million people die every year from tobacco-related illnesses. Diseases like cancer, and cardiovascular and lung disorders are directly attributable to tobacco consumption. The consumption of cigarettes and other tobacco products and exposure to tobacco smoke are the world's leading preventable cause of death. Of the almost 5 million deaths a year, most of these are in poor countries 221 and poor populations.
220 The IPCC is made up of a panel of states and each one appoints experts, but they act independently. A multilevel cooperation between the IGOs and NGOs is active in the United Nations Environment Programme, which involve several specialised UN Organs. The Intergovernmental Panel on Climate Change IPCC is the scientific intergovernmental body established 1988 which provides the decision-makers and others interested in climate change with an objective source of information about climate change. The IPCC does not conduct research; its main activity is publishing special reports on topics relevant to the implementation of the United Nations Framework Convention on Climate Change (UNFCCC). As a recognized authority, IPCC is effective not only in providing scientific information about damaging human activities on climate change, but also in building public expectation about adequate state policies. 221 WHO, The World Health Report 2003: Shaping the Future 91 (2003), citing Ezzati M. Lopez, “Estimates of Global Mortality Attributable to Smoking in 2000”, 362 Lancet 847 (2003). Cf. Richard Doll et al., Mortality in Relation to Smoking: 50 Years' Observations on Male British Doctors, 328 British Medical Journal (June 2004) 1519; see also 92 American Journal of Public Health (June 2002), devoted to tobacco epidemic and efforts to control it. Melissa E. Crow, “Smokescreens and state 67
Awareness was largely spread and the necessity of finding a legal remedy was widely shared, but the idea that a convention could be politically feasible arose from the scientific meeting of medical scholars222 who were concerned with the tobacco issue. The motivation was strictly humanitarian in nature: the duty to care and the determination to find means to stop this plague. The FCTC’s idea had a major impact on the NGOs that immediately embraced the cause. Prior to 1993, there were only a handful of international and regional NGOs devoted solely to tobacco issues and most of them acted independently from one another223. The FCTC gave birth to coalitions, and attended all the Working Group meetings and Intergovernmental negotiations throughout the NGO community224. Some NGO representatives were also members of government delegations. They lobbied in a highly creative way, supported or criticized governments; published comments on the Chair's text were used extensively by delegates, and they ran an effective media campaign. Among those NGOs that were especially concerned with Children, Women, and Developing Countries, a human rights alert arose concerning rights that were usually of public health concern and not exactly an HR issue. In many other areas (as in AIDS), human rights and public health have been linked because of their synergic ability to draw attention to the causality and possible resolution methods 225. The effect of the HR approach226 to tobacco control
Responsibility: Using the Human Rights Strategies to Promote Global Tobacco Control”, 29 YALE Journal of International Law (2004) 209-249. 222 Judith Mackay, Senior Policy Adviser, TFI, World Health Organization, Director, Asian Consultancy on Tobacco Control, reminds the origin of the ICTC: “The idea for a Framework Convention was seeded far from Geneva, in an academic paper. In 1993, Allyn Taylor, in the American Journal of Law and Medicine, called upon WHO to use legal mechanisms to attain its goal of “Health for All by the Year 2000”. Ruth Roemer, the redoubtable Adjunct Professor of Health Law at the UCLA School of Public Health and author of Legislative action to combat the world tobacco epidemic (WHO: Geneva; 1982 and 1993) saw the article, met with Allyn Taylor, and suggested she applied her ideas to tobacco control. The NGOs immediately embraced the idea. In October 1994, the 9th World Conference on Tobacco or Health in Paris passed a resolution which Ruth Roemer ad drafted and asked me to introduce.”.Judith Mackay, “The making of a convention on tobacco control”, Bulletin of the World Health Organization 81 (8) (2003) 251. 223 See Judith Mackay, “The making of a convention on tobacco control” 251. A highly effective coalition of NGOs, called the Framework Convention Alliance (FCA http://www.fctc.org/) contributed to the evolution and eventual adoption of the treaty. FCA was founded in 1999 and is now made up of more than 350 organizations from more than 100 countries working on the development, ratification, and implementation of the international treaty. Kenneth E Warner, “The Framework Convention on Tobacco Control: opportunities and issues”, Salud pública México vol. 50, suppl. 3 (2008) 287. 224 NGO participation in the negotiations has increased from 82 registered NGOs during the first round of negotiation in October 2000, to 141 during the fifth round of negotiations in October 2002. 225 The linkage between human rights and public health has gained acceptance as the world struggles with the AIDS crisis. The health of the individual and of the 68 increased the "power" of some key principles of public health. Public health methods focus on the health needs of the community, and they should be assessed on the basis of evidence, but without discrimination227. The undertaking succeed. On 21 May 2003 the 192 Member States of the 56th World Health Assembly unanimously adopted the Framework Convention on Tobacco Control228; a groundbreaking treaty which had the aim of curbing tobacco use at the global level. On 3 February 2009 the FCTC was ratified by 163 countries. The FCTC has the potential of helping reverse the global tobacco epidemic, particularly in low income countries. The convention provides229 protection from exposure to passive smoking (art 8), prohibits sales to and by minors (art 16), and prohibits all advertising, promotion and sponsorship of tobacco products (art. 13). The Convention was the first global health treaty, and it resulted from the contribution of many parties: WHO, other UN agencies, member states230, NGOs , academia, the media, and even the tobacco industry. The FCTC is also the first treaty to be negotiated under the auspices of WHO. Intergovernmental Organisations do not have any law-making powers, but can make binding decisions in non-legal forms: recommendations, declarations, determinations231. Instead, under Article 22 of the WHO constitution, regulations adopted by the World Health Assembly are binding, unless a member state opts out of the regulation ab initio. This is how the FCTC becomes a binding document.
The fact that there is a causal relation between smoking and lung cancer has been known since 1950. Why was the legal protection
community is significantly affected by the extent to which the rights and dignity of the individual are respected. 226 In its 2004 report, WHO discussed "the power of a human rights approach", WHO, The World Health Report 2004: Changing History (2004) 47–49. 227 Carolyn Dresler and Stephen Marks, “Human Rights in Tobacco Control”, 28 Human Rights Quarterly (2006) 644-646. 228 Framework Convention on Tobacco Control Geneva (21 May 2003) World Health Assembly Resolution 56.1, http://www.who.int/to World Health Assembly Resolution 56.1 229 The FCTC deals with a wide range of issues related to tobacco and smoking, such as tax and non-price-related measures to reduce tobacco demand (Articles 6 & 7), protections of non smokers from exposure to smoke ("passive smoking") (Article 8), regulation of tobacco contents and packaging (Articles 9 & 11), public awareness of the consequences of smoking (Article 12), restrictions on tobacco advertising and sponsorship (Article 13), addiction and cessation programmes (Article 14), illicit trade in tobacco products (Article 15), sales to minors (Article 16), and tobacco-related research and information among parties (Articles 20, 21, & 22). Structurally, the FCTC draft establishes a conference of parties (Article 23), appoints the WHO as the secretariat (Article 24), and calls for financial assistance for developing country parties and parties with transitional economies (Article 26). 230 The Chinese government was especially committed, cf. Mackay 231 Dapo Akande, “International Organizations”, in M. Evans, International Law, (OUP, Oxford, 2003) 283-284. 69 instrument made only half a century later? The answer is that because of its high controversial matter, state representatives did not think that an agreement would ever be possible. To reduce the weight of the political element, the role played by experts was crucial. They presented scientific evidence, thereby extending the basis of consent. NGO contribution cannot be explained in terms of governance; insofar as NGOs members do not purport to serve as political agents, they are described as ‘expert’, ‘advisory’, or ‘scientific’. However, the activities of identification of a HR relevant situation display a policy of using intellectual resources without any aggressive implication. The hardest task was to find evidence that tobacco is a passively toxic substance232. It was well known that smoking caused lung cancer in active smokers was known, but there was no juridical basis for legal restrictions on personal consumption; as long as only the smoker was affected, it was his choice to take up the risk. Once experts succeeded in proving that smoking was also the cause of cancer in passive smokers: a legal basis to protect the physical integrity of non- smokers was found. The experts took on a very significant role in the consensus- building process. Bringing scientific evidence into the policy of specific rights, they provided the decisive argument for legal provisions. The scientific consensus became a de facto argument which eventually convinced the reluctant states that an international legal instrument was necessary to protect the right to health. Moreover, the civil use of scientific evidence continues233 to play a crucial role in raising public awareness on the significant issues of monitoring and implementing agreed provisions. Therefore, a direct correlation could be postulated between the degree of scientific certainty about a specific issue and the effectiveness of the international regime of HRs relating to that issue. Humanitarian and human rights NGOs were both crucial in reporting on this scourge and creating the awareness of intervening after in the implementation stage. According to the principle of accountability, the application of the Convention can be verified from the output of the governmental action. The FCTC had broadened the perspective of tobacco to an issue that requires ongoing commitment from all governmental departments, not just ministries of health234. As
232 « La fumée passive n’est pas dangereuse », stated the scientific representative of the Société Philip Morris Ragnar Rylander, cf. the film, Tabac, la conspiration, Realisateur Nadia Collot Canada, 2005. 233 The Lancet Oncology, Vol. 9, Number 7, (July 2008) a Special Report: Policy, John Pierce and Maria Leon report on an upcoming IARC handbook that evaluates the implementation of smoke-free policies. The Third Session of the Conference of the Parties (COP3) in the Framework Convention on Tobacco Control (WHO FCTC) drew to a successful close in Durban on Saturday 22 November 2008. More than 600 delegates from 130 Parties in the Convention attended this milestone event for the implementation of a Convention. 234 “This was evident even in the negotiating process: China's team, for example, included members from a wide range of government departments. Similarly, the 70 part of its NGO capacity to build initiatives, the WHO is now working with the UN Foundation on a global project entitled "Challenging the Outrage"235. This project has the aim of building the NGO’s capacity in tobacco control, particularly in developing countries. The six WHO Regional Offices invited NGOs to submit proposals for the development of policies to curb the tobacco epidemic, and finally support the development of the Framework Convention on Tobacco Control.
4.2 Norme entrepreneurs : the Convention on soutenable développent. Along with HR international law, NGOs stand at the forefront of environmental law-making at the international level. A relatively new area of intensive international regulation, of which the institutional features are only now being mapped out, can reflect the evolving role of the NGOs by a way that more entrenched regimes cannot236. NGOs have played a pivotal role in defining environmental issues, such as global warming, have highlighted the extent of the loss of biodiversity, and pointed out the failure of states worldwide to address them, and to implement their related treaty obligations. Associations such as Greenpeace, Friends of the Earth and WWF have helped to force environmental issues onto governments agendas. The principal organ for the creation of International Environmental Law (IEL) is the UN General Assembly, but conventions have to undertaken and drafted. The milestone237 of IEL was set in the UN Conference on the Human Environment in Stockholm in 1972, which was proposed by the Swedish government in 1968. The conference was not given the task of proclaiming human rights explicit to the environment. More pragmatically, it set the agenda and framework for future discussions and initiatives. The
Convention expanded responsibility for tobacco issues from WHO to other UN agencies, some of which had hitherto been minimally involved with tobacco.”Judith Mackay, “The making of a convention on tobacco control”, Bulletin of the World Health Organization Bull World Health, 81 No. 8 Geneva (2003). 235Channeling the Outrage NGOs are watchdogs for transparent participation in the Framework Convention on Tobacco Control (FCTC) and are central to national efforts regarding its ratification and implementation. Since 1977, Infact has been exposing life-threatening abuses of transnational corporations and organizing successful grassroot campaigns to hold corporations accountable to consumers and society at large. INFACT is an NGO coalition in the Official Relations with the World Health Organization (WHO). The Network for Accountability of Tobacco Transnational (NATT) includes 75 NGOs from more than 50 countries that work for a strong, enforceable Framework Convention on Tobacco Control. 236 Peter J. Spiro, “Non-Governmental Organizations and Civil Society”, in Brunnée, Bodansky, Oxford Handbook, cit. 771. 237 Maurice Strong, the Secretary General of both the Stockholm and Rio Conferences, said in 1999,‘‘I regard the ‘Founex Report on Environment and Development’ as a seminal milestone in the history of the environmental movement.’’ The Hunger Project Millennium Lecture Hunger, Poverty, Population and Environment by Maurice Strong, April 1999. Available at hhttp://www.thp.org/reports/strong499.htmi. 71
Stockholm Declaration238 was unanimously adopted; it expressed the concern of the international community regarding the impact of environmental matters on the future of the planet and world-society. The Stockholm conference secured a permanent place for the environment on the world's agenda and led to the establishment of the United Nations Environment Program (UNEP). The adopted expression “Human Environment” indicates that “human” is used as predicative of a subject which is formally entitled to rights but it is to define. This witnesses that the Human Rights approach, as it is meant in the UN doctrine, can be inclusive of every concern susceptible to universal consensus, each relevant issue enters the normative239 fabric of HRs sooner or later.
The UN Conference on Environment and Development took place in Rio de Janeiro from 3 to 14 June, 1992. The Conference produced a set of important documents: 1) The Declaration of the Conference on Environment and Development, UNICED, its 27 principles include the international commitments of both industrialized and developing countries; 2) The United Nations Framework Convention on Climate Change (UNFCCC) is the main international environmental treaty; 3) The Convention on Biological Diversity (CBD), its goal is the conservation of biodiversity, is an international legally binding treaty; 4) Statement of principles for the Sustainable Management of Forests240; 5) Agenda 21, it is not a legally binding document but a "work plan”, an action plan for developing the planet sustainably through the twenty-first century.
The main achievement was the treaty on Climate Change (FCCC), was aimed at stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. This treaty, which is anyway important for the future development of environmental law, did not include any mandatory provisions, was the result of a compromise declaration. Instead, the treaty provides for updates (called "protocols") that would set mandatory limits to greenhouse emission. The principal update is the Kyoto Protocol, which has become much better known than the FCCC itself.
The Rio Conference was the culmination of two years of
238 Stockholm Declaration on the Human Environment (16 June 1972), UN Doc. A/Conf.48/14/Rev.1 (UN Pub.73.II.A.14.) (1973). 239 Boyle, A. E., “The Role of International Human Rights Law in the Protection of the Environment”, in A. E. Boyle and M. R. Anderson (eds.), Human Rights Approaches to Environmental Protection (Oxford University Press, Oxford 1996). 240 Forest Principles, UN doc. A/CONF.151/6/Rev. l , "Forest Principles," 13 June 1992. 72 negotiations by the UN Preparatory Committees241. 172 States participated in the elaboration of the UNICED, 108 members as heads of states or Governments. NGOs set up a parallel meeting to the diplomatic conference of states, a "Global Forum", which coincided with major intergovernmental issue summits.242 Some 2400 representatives of NGOs with consultative status supported the social claim to sustainable development with the evidence of relevant experts. The practice of the parallel “forum” first appeared at the Stockholm conference, but it was at the Rio Conference that the phenomenon of shadow gatherings flourished with 22.000 NGO representatives. Moreover, NGOs facilitated the effectiveness of international environmental institutions by serving in various roles, in place of the states. Given that NGOs sometimes possess better information, states are incentivated to integrate them in international decisions making structures243.
The Conference highlighted a move from the ground-up in the identification of the of the framework of new rules . In setting the plain of implementation for the following 20 years, with Agenda 21, NGOs appear to be “partners in sustainable development”244 in the preparation of the treaty that would be signed in Rio. International associations245 as World Wildlife Fund (WWF), Climate Action Network (CAN), Environmental Defense Fund (EDF), Greenpeace, Ozone Action World watch Institute (WWI), Sierra Club played a crucial role in the adoption of the Framework Convention on Climate Change (FCCC), it was adopted in New York on 9 May 1992. The FCCC was the first step taken by the international community to address the issue of global climate changes246. After the FCCC was first set up, negotiations among the Parties continued during the following XVI Conventions, and the Kyoto Protocol247 stated that “‘Convention’ means the United
241 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Vol. I, Resolutions Adopted by the Conference, United Nations. New York, 1993. 242 Peter J. Spiro, “Non-Governmental Organizations and Civil Society”, in J. Brunnée, D. Bodansky, Oxford Handbook, 781 243 K Raustiala “States, NGOs, and international environment institutions” 41 International Studies Quarterly (1997), 719-740, 736. 244 Spiro 781 245 See note above. 246 The objective of the FCCC is to stabilize “greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” FCCC art. 2, 31 I.L.M. at 854. As a minimum, the FCCC set up that all countries draw up and report a national inventory of “anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal protocol.” Id. art. 4.1(a), 31 I.L.M. 855. 247 The Kyoto Protocol to the United Nations Framework Convention on Climate Change, was adopted on 11 December 1997, and entered into force on February 2005. The detailed rules for the implementation of the Protocol were adopted at COP 7 in Marrakesh in 2001, and are called the “Marrakesh Accords.” 73
Nations Framework Convention on Climate Change, adopted in New York on 9 May 1992.”248 Representatives from 153 countries signed the climate convention in Rio, though only 50 ratifications were needed.
The Preparation of the FCCC was the outcome of animated discussions. The UN Intergovernmental Panel on Climate Change (IPCC) 249, an advisory body of scientist and official, served first also as a forum for "prenegotiation”. In its first report, published August 1990, the Panel predicts that, if present emission trends for greenhouse gases continue, the average global temperature will increase by 1.5-4.5o C by the middle of next century. However, an ad hoc Intergovernmental Negotiating Committee (INC) was established by the UN General Assembly in December 1990250. Discussions between the United States and other industrialized countries, notably those of the European Community, did not come to an agreement. The opponents to the US claimed that the convention should contain specific commitments to limit emissions of carbon dioxide to 1990 levels by 2000. The US representatives argued that such limits were premature because it lacked sufficient scientific evidence that carbon dioxide had such a impact on climate change. INC chairman, Jean Ripert, drafted last May a compromise document that requires industrialized countries to develop national emission limits and emission inventories and to report periodically on their progress, without binding date251. Although the treaty lacks specific emission targets, it contains a very strong objective: "stabilization of greenhouse-gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system . . . within a time frame sufficient to allow ecosystems to adapt naturally." 252 The broad target was to return the greenhouse-gas emissions to "earlier levels" by the turn of the century. All the major participants accepted the convention, which was finalized on 9 May 1992, so that there would be a treaty to sign in Rio. The UN Commission on Sustainable Development (CSD) was created in December 1992253 to monitor and report on implementation of the agreements at the local, national, regional and international levels. The 1997 Kyoto Protocol (KP) was not only an extension of the Rio Convention, it inaugurated the stage for the regulation of greenhouse emissions. The major distinction is that while the Convention encouraged developed countries to stabilize greenhouse gas emissions, the Protocol commits them to reduce. The Kyoto Protocol
248 Article 1. 1. 249 Formal international discussion of a convention on climate change began in 1988 with the establishment of the Intergovernmental Panel on Climate Change (IPCC), a body that assessed comprehensively climate science, impacts, and response strategies. 250 GA Res. 251 Parson, E. A., P. M. Haas, and M. A. Levy. 1992. A summary of major documents signed at the earth summit and the global forum. Environment 34 (4): 12-15, 34-36. 252 UN Framework Convention on Climate Change, 9 May 1992, article 2. 253 The Commission on Sustainable Development (CSD) was established by the General Assembly resolution 47/191 of 22 December 1992. 74 fixes the first commitment period (2008-2012) for 37 industrialized countries and the European community (but not USA) and sets binding targets for reducing greenhouse gas emissions to an average of five per cent over the five-year period 2008-2012. Currently, 193 Parties254 have signed (and ratified?) the Kyoto Protocol the UNFCCC. As the KP expires in 2012, a cap and trade system was worked out for the 2009 meeting: the administration would sell credits for a fixed unity of emission to companies: the principle was the more the emissions, the higher more costs. But the Conference of the Parties (COP)255 in Copenhagen in May 2009 was a fiasco; the 16th Conference of Cancun in December 2010 decided that the Kyoto commitment to reduce the greenhouse gas emissions should be extended beyond 2012. In the Kyoto Protocol developed countries recognize that are principally responsible for the current high levels of greenhouse gas emissions that is a result of more than a century and half of industrial activity. The KP places a heavier burden on developed nations as “common but differentiated responsibilities.”256Anyway, the term “responsibility” and the expression “common responsibility” build the international frame in which Human Rights are now embedded.
The doctrine of “responsibility” in preventing harms to humanity has become a general theory in the UN policy that rejected in many point the attitude of non intervention in economy. The need of a soustenible development257 expands the human right field far beyond
254 192 States and 1 regional economic integration organization. See UN Human Rights Treaty Bodies, Status of ratification http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php 255 The COP is the highest body of the UNFCCC and comprises environment ministers from 193 countries who have met once a year since the 1992 Earth summit in Rio de Janeiro. 256 KP, Article 10 257 PK article 10, All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities….and continuing to advance the implementation of these commitments in order to achieve sustainable development…. shall: (e) Cooperate in and promote at the international level, and, where appropriate, using existing bodies, the development and implementation of education and training programmes, including the strengthening of national capacity building, in particular human and institutional capacities and the exchange or secondment of personnel to train experts in this field, in particular for developing countries, and facilitate at the national level public awareness of, and public access to information on, climate change. Suitable modalities should be developed to implement these activities through the relevant bodies of the Convention, taking into account Article 6 of the Convention; (d) Cooperate in scientific and technical research and promote the maintenance and the development of systematic observation systems and development of data archives to reduce uncertainties related to the climate system, the adverse impacts of climate change and the economic and social consequences of various response strategies, and promote the development and strengthening of endogenous capacities and capabilities to participate in international and intergovernmental efforts, programmes and 75 the classical sphere of protecting negative liberties of individuals or positive liberties of citizens, both of which concern the actions that constitutional governments are allowed to do and involved their political capacities. An enjoyed right results from a developed capability of responsible action, and involves free and creative capacities. The right to life, to and healthy environment are natural entitlements for every human being, but protection, progress, competition for the best outcome are products of man-made institutions. Protecting one’s rights, in a formal sense, is a function of the legal and political system of an individual states, but a high level of universal protection depends on the stirring of economic and intellectual resources. In this case the concept of right involves a different level of capacities and actors than those contemplated in the traditional theory of justice. Capabilities to make progress, remove injustices, capacities for creating institutions, are not expressed in the social contract but they are embedded in a network of social attitudes. Progress and participation to the civil society demand impartiality and inclusion of the bottom. A better institutional output, concerning substantial rights, results from the quality of the agencies that promote the legally protected goods. In a highly dynamic civil society, rights are both legal capacities and capabilities that grow up in a shared stage of civility. The right to physical integrity, the right to health, the right to a save environment, and the right to free expression are acquired liberties that only a progressive society can develop and maintain. The drawing up of some conventions would never have been possible if intellectual resources had not been available, and competences had not been targeted to complex goals or developed in flexible institutions. Although the availability of specific excellencies is a necessary condition to enjoy universal rights, it not sufficient to ensure universal enjoyment. Resources must be in some way oriented towards civil usefulness258. The good employment of resources is not a practice of which governments or civil societies can claim a monopoly. The
networks on research and systematic observation, taking into account Article 5 of the Convention;
On 2 February 2000, the European Commission issued a Communication from the Commission on the precautionary principle, COM(2000) 1. Paragraph 2 of article 191 of the Lisbon Treaty states that "Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay." Fisher, Elizabeth, Judith Jones & Rene von Schomberg (eds). Implementing the Precautionary Principle: Perspectives and Prospects, Cheltenham, UK and Northampton, MA, US: Edward Elgar (2006). 258 At the end of the ‘70s France (and Russia) already had the scientific knowledge to develop informatics and the internet, but they considered as strategic the development of the energy sector. 76 question is how the actors involved are symbiotic with the values of a civil society.
4.3 Comprehensive Principles of Justice. The presence of exerts in composite international agencies as the IPCC, which are nominate by states but independent of the governments, has modified the way treaties are made. According to state practice, by which the process of law-making in IL is explained, it does not seem to be appropriate that non-state agents undertake, and sometimes seem even dictated states which laws are to adopt. The danger is to explain the issues that UN organisations have to face trough doctrines drawn for the international state system. In the practice of HR treaty-making, negotiation among states are based of reciprocal concessions, the mediation of independent experts was not absent; in environmental issues, instead, new actors are involved, and the political consensus can extended by new scientific evidence.
The use of scientific evidence in service of human dignity, whose holders are embedded and entitled to their environment, let discover new rights upholders that up to now were excluded from the rule of law: rights of indigenous peoples, for instance. The understanding of situated HRs issues has extended the moral attitude to react to situations of evident injustice because inconsistent with a comprehensive idea of dignity. This feeling appeals to shared principles, and aims to produce provisions concerning the values that need legal and moral protection. Three elements are basic to this achievement: a) the fabric and the fabricants of legal instruments, b) the stages of the progress, c) the leading principles. a) The practical building of a normative fact, all the more in matter of environmental law cannot be explained by the international doctrine of the precedent in the state practice (opinio juris)259 which international lawyers are used to employ. It would be a fictitious to suppose that because state practice has been the only way of making
259 The usual catalogue of the formal sources of international law, set out in Article 38(1) of the Statute of International Court of Justice - treaties, custom, general principles of law, and (as subsidiary means for determining the law) judicial decisions and the writings of learned authors. “That catalogue has stood unchanged since the beginnings of the International Court in 1919. After 85 years, it is standing the test of time pretty well, although it is beginning to show some signs of age - for example, in not taking full account of the contribution of international organizations in their own right: instead they tend to be given only a secondary role, being treated as either giving rise to specific decisions which by virtue of some treaty have binding force, or as a forum in which the practice of states is made manifest so as to create customary law. Everything is still seen through the prism of state activity. Consider also customary international law. Determining “a general practice accepted as law” is a different proposition when nearly 200 states are in the frame, than when only 50 are. The same is true of “general principles of law accepted by civilized nations”. Sir Arthur Watts, “International Law for the Twenty First Century”, (QC, 2004 Alec Roche Lecture, 15 November 2004). Site of International Public Law, Faculty of law at the University of Oxford, http://denning.law.ox.ac.uk/pil/site_map.php. 77 agreements legally binding, state practice is the only substantial source of regulatory law. Rules pertaining to fishery260 arise from the experience of actors who dealt with the matter which needed to be regulated. The Parties to the UN Conventions (FCCC) are member states, but the Panel is the treaty body that possesses the scientific knowledge and the knowledge concerning the status of the environment, and this very fabric of the possible measures is composed of different agents (IGO and NGO representatives in the UN subsidiary bodies nominated by states) with different competences. b) The making process of IHRL and IEL follows the same scheme: the representative organ responsible for a particular legislature (Framework) may first issue a solemn declaration, often at the very beginning of the process, to serve as a guideline for further stages. This has the effect of making the International Community aware that the declared new rules of conduct have, at least in principle, already attained a high degree of acceptance. Even though the legal force of such a declaration may be minimal, its effect is often that state conduct starts to conform to the public proclamation. To the extent that the actions of states reflect the conformity to the declared principle, and by reason of that declaration, they already obtain a degree of legal recognition, “this may constitute the necessary opinio juris required for the creation of new customary law”261. c) The guiding principle of the Conference of Rio was the complex concept of “sustainable development”. This substantial and high innovative principle resulted from very different, but all correlated and legitimate, claims which this auspicious expression incorporates as common needs : 1) the needs of future generations; 2) the need for a sustainable use of natural resources; 3) the need for an equitable use of natural resources; 4) the integration of both natural environment and social development262. This linked implications appeared to lawyers contradictory and not consistent because it was not clear who was responsible and for what, but it was apparent that the convention had inaugurated a dimension of comprehensive justice on the basis that negative consequences of irresponsible actors exist. It shed light at issues as the state of the Earth, the sense of economic development, all questions that the strict normative and analytic reasoning of the legal authorities and economic expertise expulsed, and anyway they could not faced at the national level.
260 261 Paul Szasz, „General Law-Making Process“, in The United Nations and International Law, ed. by Christopher C. Joyner (1997) 28-63, 40. 262 Philippe Sands et al (eds.), Principles of International Environmental Law, vol. I: Frameworks, Standards and Implementation, (Manchester University Press 1994) 198- 208. Simon Marr, The precautionary principle in the law of the sea, Martinus Nijhof Publisher, (2003) 40. 78
The concept of “sustainable development” has become an “interstitial principle”263 as the ICJ took to be the legal principles of economic development and environment protection. The comprehensive idea of “sustainable development” becomes a normative principle in cases of conflict between fundamental rights, especially: a) the right to economic development; b) the right to a healthy environment.
How do HRs instruments become binding? A declaration of a UN Conference is not a treaty and does not have legal effects, but is authoritative, does have legitimacy effects: it legitimates non- governmental agencies towards governments to undertake policies that promotes the declared rights. Since the 1990s, the UN IGOs have been responsible for the creation of several “authoritative Statements of principles and global consensus” as the Rio Declaration witnesses264. The Conference on Environment and Development265 is a paradigmatic example of the two-fold progressive obligation of IHRL: 1) the multilateral treaty obligation open to further adhesions of member states; 2) the international obligation, which progresses from “soft” to “hard” law, shifts from the starting stage of the general declaration to the strong normativity of the coming treaties and protocols. Its justification is genetically and normatively not related to any previous state practice266coupled to opinio juris. International and national tribunals employ these “interstitial principles” not because they belong to the same category of legally binding norms, but because a law, as a set of norms, is not self-certificated. Substantial reasons are needed to make new norms, to change old norms, and to enable the existent norms to perform their role in an articulated and consistent legal order. The main changes in IHRL occur first in the communis opinio of the agent of justice, and then enter into the opinio juris of the courts.
263 “Principles of decisions are drawn from sources other than the primary rules themselves. The choice is made by the judge not on the basis of the primary norms (Kelsen), but on the basis of extraneous factors. Two are obvious: 1) the consistency of the preferred outcome with what is thought, on broad oral or political grounds, to be “desirable”; 2) the cohesion of the preferred outcome with the existing norms of the legal system, one of the desiderata of the judicial decision-making. Often these factors are made explicit by tribunals in the justification of decision.” Vaughan Lowe, “The Politics of Law-Making”, Michael Byers (ed.), The Role of Law in International Politics, (OUP, Oxford, 2000) 216 ff; cf. Id., “The Role of Equity in International Law”, 12 Australian Yearbook of International Law (1992) 54. 264 Nanda, “The Role of International Organizations in Non-Contractual Lawmaking”, in Rudiger Wolfrum & Volker Roben (eds.), Developments of International Law in Treaty Making Series: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht , 177 (2005) 162 265 The conference was convened by the GA Res. 44/228 (22 December 1989). 266 See description of the ICJ in the North Sea Continental Shelf and Nicaragua Cases (Lowe, Paper in Festschrift for Professor Patricia Birnie). 79
4.4 The making of global human rights customary law. The ban on war and the interdiction of the “breach of peace” never entered into international treaties before the Charter of the United Nations was signed 1945267. From this very date to now, the practice to settle disputes among states by peaceful means has become a rule of international customary law. Given the importance of this turn, the reference to “custom” seems to be ambiguous because the word in law stresses the existing element, not the way they are established. It has been used in the restricted sense as a state makes IL according to the followed practice; or, in a wider sense, of a judicial authority who makes decisions on the basis of already recognized rules. In both cases, reference to rules, that are given for “existing”, overlooks the fact that the one rule that becomes binding, is chosen from among others that have been considered less relevant: a legally binding custom results from the interpretation of normative and non-normative material, at the end of the day it is made binding law through selective decision268. For example, scholars characterize the duty to prevent transboundary pollution and the precautionary principle as customary law even if there very little support is to find in the actual behaviour of states. On the contrary, states do not regularly take action to limit the pollution that escapes their borders and they do not abstain from practice torture that is said to be prohibited by customary international law. The international expansion of democracy of the best political regime results from the evolution of international public opinion and customary law269. The notion of custom in IHRL is based on a rather different form of obligation which involves the reputation of states. Each treaty results from a creative process that involves autonomous agents. Nevertheless, it is a custom in the sense that, it does not result ex nihilo from a legislative act, it results from the evolution of common opinion
267 Article, 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. Even the UDHR. 268 The idea of a general state practice opposable to state as the opinio juris, “this argument is circular…in order to distinguish normative and non normative behaviuor… we need a theory” , M. Koskenniemi, “The Normative Force of Habit: International Custom and Social theory”, in Koskenniemi (ed.) International Law (1992) 213, 274; Ian D. Seiderman, Hierarchy in International Law: The Human Rights Dimension (Antwerpen: Intersentia, 2001). 269 The entitlement to democracy in international law has gone through both a normative and a customary evolution. It has evolved both as a system of rules and in the practice of states and organizations. This evolution has occurred in three phases. First came the normative entitlement to self-determination. Then came the normative entitlement to free expression as a human right. Now we see the emergence of a normative entitlement to a participatory electoral process. ”, Thomas Franck, “The emerging right to democratic governance”, American Journal of International Law, Vol. 86:46, 1992, 90. 80 among actors of the international community. This pre-normative law- making usually ends up into a public declaration and free commitments. In fact, since the UDHR has been adopted, the IHRL consist of a series of conventions, each made up of a succession of stages that extend the adhesions to the agreements. Increasing levels of normativity are acquired through negotiation, declaration, adoption, ratification, incorporation, implementation and monitoring f the implementation. The law-making process in IHRL is embedded in a two-fold relative normativity. From the first stage to the last the process performs “hardisation” of the law, and turns the general principles of the declarations into the positive norm of state270. How relative the normativity is, also depends on the number of states that sign and ratify the treaty, which remains open to further adhesions. Consensus may reach universal agreement and turn a few norms into jus cogens. The International Criminal Court has jurisdiction271 to prosecute individuals for three crimes: genocide, crimes against humanity, war crimes, and for the crime of aggression after 2017 272.
There are a few landmark differences in the new customary law which makes fictitious any attempt to integrate it by analogy into previous conceptions273: 1) the author of the rule is known because the decision-making process is public and open to participation; 2) the author who promulgates the law is not necessarily the same as the one who conceived and drafted it; 3) the set of traditional rules is normatively perfectible; 4) the attitude of any involved actors is prospective, and responsible towards future consequences. HR practice as customary international law excludes rules without new consent: pre-existing rules, rules made by an unknown author, by virtue of traditional authority, or imposed by the command of state. Instead, since the UDHR274 was promulgated, customary IHRL consists of a law-making process that involves new ad hoc constituted actors, and starts from a first drafting stage, which is usually a declaration of principles, and goes on to adoption, and ratification of treaties by UN member states. It must be remarked that the dynamic element, which pushed state-parties to the international integration into a common set of HR rules, is represented by international civil agents that operated outside
270 Dinah Shelton, “Normative Hierarchy in International Law”, 2 American Journal of International Law, 100, (Apr., 2006) 291-323; A.E. Boyle, “Some Reflections on the Relationship of Treaties and Soft Law”, 4 International & Comparative Law Quarterly, 48 (October 1999) 901-913. 271 Article 5 of the Rome Statute grants the court jurisdiction over four groups of crimes. The statute defines each of these crimes except for aggression. 272 See Resolution RC/Res.6! Adopted at the 13th plenary meeting, on 11 June 2010, by consensus 273Edward Kennedy 274 Louis B. Sohn, “How American International Lawyers Prepared for the San Francisco Bill of Rights”, American Journal of International Law, 89, No. 3, (1995) 540-553. 81 of the traditional society of states and state representative bodies. After the WW2, in fact, the paradigm of the international society has progressively shifted from a society of individual states to an international community of member states. In the previous society of states, the IL was a way of regulating the foreign relations of the national state with others national states; in the existent one IL has become an instrument to regulate internal relations among states, of which each shares the common responsibility to keep peace. Before the development of UN treaties, IL was mostly based on the customary behaviour of individual states, motivated by the belief that such behaviour was required by law (opinio juris/sive necessitates). Aliens, diplomatic immunity, recognition, customs were the result of bilateral relations between sovereign states; provisions were concessions of states based on the principle of reciprocity, and the practice defined the Statehood. Unlike treaty-law, which is binding only for the state parties and only for a particular treaty, customary law is generally binding for all states. Customary Law continues to be a primary source of IL, but the structure and function are no longer the same as the classical IL. A comprehensive understanding needs a new epistemological attitude which looks at the trend not retrospectively but prospectively, and therefore can no longer delegate the assessment of the governmental choices to the historians. The setting up of multilateral treaties is the principal legislative activity of the International Community. The activity of IGOs can be divided into two kinds: codification – clarifying, collecting, and systematizing - of existing law (customary law); and progressive development (UN Charter art 13.1a), creating new standards through new treaties. These processes need an explanation of what really “treaty” means in the UN context. The concept of international “treaty” introduces the same ambiguity into HR conventions that the “contract” concept did in modern constitutional law. Both notions indicate only two elements of the classical international law: the adhesion by consent and the principle of par condition, but not the negotiation or recession. The International Community Law excludes that the basic principles between member states underlay the logic of reciprocal concessions, the interdiction of war as a means to settle conflicts is not negotiable; moreover, UN treaties exclude the right of recession, a similar claim of North Korea was rejected by the Commission275. HR treaties have therefore the juridical characters of a constitutional pactum. In 1945 only 51 states signed the Charter. The others 141 states that entered the UN afterwards simply adhered; they did not enter by negotiation, and only China posed the condition of incompatibility with the recognition of Taiwan as a sovereign state. All HR conventions are negotiated and signed by states, with or without reservations, but always before the adhesion. The constitutional principle in force – fundamental norm of the covenants – is that member states continue to
275 82 be willing members of the community of nations even though they may dissent in some matters. The consensus-based agreement is the device that binds states to rules to which they are willing to conform, even in instances such as HR treaties, where the contractual element of reciprocity is completely absent. UN legislation is constituted by a specific form of law: the multilateral treaty. Despite their contract form, the new law of nations (and its “hard” forms) are not contractual276. A normal settlement of boundaries is only a conventional arrangement between two states. UN Covenants instead are “law making” as a legislative organ is; they create forms of obligations that did not exist before. These are actually constitutional treaties277 (“social contract”), “pledges”278. This new level of international obligations should not be confused with the old legal instrument of international law: it is because the International Community cannot promulgate general rules that are binding for all member states that it has resorted to the multilateral contractual formula: UDHR is not a multilateral treaty, it is above all a set of universally shared principles and declared purposes. The Statute of ICJ and ICC set “the general principles of law recognised by civilized nations”279 at the third source of law. The principles that make apartheid and torture a crime have built a normative public space in which a state accused of racial discrimination or of torture cannot defend itself by asserting the right to torture in force of its sovereignty. Therefore, while it cannot be said that discrimination or torture violates customary law, it can be said that all legal systems now condemn discrimination and torture because they have become principles of IHRL. Ultimately, IHRL continues to be customary law but not longer as a domestic practice of individual states; the UN monitoring policy and NGOs vigilance requires transparency and accountability. Treaties are made by states, but they establish obligations towards the International Community that is founded on the respect the dignity of individuals as entitled to human rights. Some rules that reflect this strong conviction of the International Community have been made into laws, and no derogation from these custom law is allowed, by either the unilateral decision of a state to exempt itself, or by treaty between two or more states. The conviction that genocide, discrimination, torture, and slavery are against the rights of nations (jus gentium) are well established opinions among lawyers and civilized people, but only recently have these very discretional “customs” been recognized as
276 Paul Szasz, „General Law-Making Process“, in The United Nation and International Law, ed. by Christopher C. Joyner, 28-63, 30. 277 There were very few of these constitutional treaties, or law-making treaties, at the time of the League; in 1993there were about 1500 at a global and regional level, and its number is growing by several dozen per year. The real development took place with the establishment of the UN and its specialized agencies, IGOs. 278 Lowe, International Law (OUP, Oxford, 2007) 71. 279 See Statute of Rome. 83
peremptory norms (jus cogens) by treaty-law. It was necessary to construct a normative space of the international public sphere so that acts such as genocide, torture, and discrimination could no longer be committed, or tollerated for political reasons, as political law of state. The irruption of international civil actors – not the political element of domestic democracies - in the international society of states has de- statalizited international relations. The activities of NGOs have increasingly accelerated the process by which new customary law is made legally binding.
5. The Guardians of Implementation
The United Nations Organisation is the authority that promulgates280 international human right laws (IHRL); it has more legislatures, but does not have any executive power to enforce the signed treaties. States have no incentive to police the conduct of one another in HRs matter. Many of the classical international mechanisms of enforcement (treaty suspension and tit-for-tat countermeasures) are based on reciprocity among states. Human right laws, instead, are not founded on a reciprocal obligations, but on general obligations towards the International Community, erga omnes. The goal of convention-making bodies is neither to transfer sovereign power to UN organs nor to establish a court competent for implementation of HRs treaties, but to create a kind of obligations that is suitable for sovereign states. The UN protection system has developed a mechanisms of accountability, which is based on report- and-comment practice and related obligation to cooperate in good faith. A new practice, which includes the control of the domestic compliance with the HR treaties, has been drawn up. This obligation is formally as old as the UDHR itself, but has now become practically achievable because of the political willingness of states to cooperate. Conversely state members of the international community are interested not to be said they would be uncooperative. This interest is certainly an incentive for the implementation, but how to make accountable states that are uncooperative or even reluctant to comply with HRs conventions? States have an interest in “preserving and cultivating a good reputation so as to expand their opportunities to participate in other cooperative enterprises”281.
Principles as good faith are recognized as central in the IL but what its really means is disputable, and submitted to different interpretations.
280 Almost the same can be said for international environmental law, see section 4.2 of this article. 281 “A good reputation makes it easier for a government to enter into advantageous international agreements; tarnishing that reputation imposes costs by making agreements more difficult to reach”, Keohane, R. After Hegemony, Princeton NJ: Princeton University Press, , 1984, pp. 105–6. 84 code of conduct282 States can comply “for reasons of reputation”283
According to the standard argument, a major reason why states keep their commitments is because they fear that any evidence of unreliability will damage their current co-operative relationships and lead other states to reduce their willingness to enter into future agreements284. Reputation is crucial in supporting mutually beneficial cooperation among egoistic actors in an environment without a central enforcer, as the international community. The concept of reputation has had a vital and prominent role in explaining cooperation and conflict in economics and particularly international relations285. Isolated actors are pushed to keep commitments and avoid opportunistic defections in order to establish a reputation for reliability. Reputation is ‘the extent to which a state is considered to be an honorable member of the international community286’. Reputation is, essentially, a ‘social’ relation among actors in the public space, rather than a property of an individual actor 287. Reputation allows actors, whether states, firms or individuals, to predict288 future moves of other actors during strategic interaction.
282 In his March 2005 report, ‘In larger freedom: towards development, security and human rights for all’,1 the UN Secretary-General, Kofi Annan, set out his views on the need for a smaller, standing Human Rights Council (Council) to replace the existing Commission on Human Rights (Commission). In larger freedom: towards development, security and human rights for all, Report of the Secretary-General, 21 March 2005, A/59/2005. “The Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole”. Ibid. at para. 182. Kofi Annan continues arguing that the creation of a Human Rights Council would accord human rights “a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations”. 283 Keohane, After Hegemony, p. 108. 284 Downs,G. and Jones,M. (2002) ‘Reputation, Compliance and International Law’, Journal of Legal Studies, 31 (1), 95–114. 285 “A major reason why states keep their commitments ... is because they fear that any evidence of unreliability will damage their current co-operative relationships and lead other states to reduce their willingness to enter into future agreements (Downs and Jones, 2002, pp.95–6). J. C. Sharman, “Rationalist and Constructivist Perspectives on Reputation”, Political Studies, 2007, 55(1) p. 23 286 Downs and Jones, 2002, p. 96, fn. 2. 287Mercer, J. (1996) Reputation and International Politics. Ithaca NY: Cornell University Press, 1996, p. 27; Mercer, J. (2005) ‘Rationality and Psychology in International Politics’, International Organization, 59 (1), 75–106. 288 The “long arm of the future” provides an incentive to honour the loan agreement today so as to retain the opportunity for funds tomorrow’, North, D. and Weingast, B. (1996) ‘Constitutions and Commitment:The Evolution of Institutions Governing Public Choice in Seventeenth-century 85
Reputation is the degree to which an actor reliably upholds its commitments, based on a record of that actor’s past behaviour. By observing others’ behaviour in the past, one can fairly confidently predict their behaviour in the future without incurring further costs. Reputation works as follows: The trusted party will honour that trust because to abuse it would preclude or substantially limit opportunities to engage in future valuable transactions289.
To be accountable means to have to answer for implementation or not implementation of singular HRs provisions, and it depends on the answer, to be exposed to potential sanctions of making empty promises.290 In politics, ensuring accountability requires establishing institutions that provide information to those people trying to hold power-wielders accountable and that enable them to impose sanctions on the power-wielders291 They presuppose norms of legitimacy that establish, not only the standards by which their HRs policies can be judged, but also who is authorized to wield power and who is properly entitled to call the power-wielders to account. …. The power or right to make A give an account of, explain or justify his or her behaviour is related to the recognition that much accountability concerns imparting information, transparency, reporting and justification. The requirement of transparency serves transnational governance needs, indicating where other measures, such as traditional "command and control" regulation, quasi judicial form of accountability. The right of receive information does not implies that people need to know everything, but they do need to have enough information to keep politicians honest. In effect, to correct ‘errors’ in their policy behavior, that is, when their behaviour departs from what people want. Information is the basis to keep politicians the granted credit that they will be honest, and honesty of behaviour is credible.
Transparency mechanisms institutionalize public discourse and internalized norms to regulate global actors292. The actors relay to ‘third
England’, in L. Alston, T. Eggersson and D. North (eds), Empirical Studies in Institutional Change. Cambridge: Cambridge University Press, pp. 134–66, at 138. 289 Kreps, D., “Corporate Culture and Economy Theory”, in J. Alt and K. Shepsle (eds), Perspectives on Positive Political Economy. Cambridge: Cambridge University Press,1990, pp. 90–143, at 116. 290 Oakerson 1989, 114 291 Ruth W. Grant Duke University and Robert O. Keohane, Princeton University, “Accountability and Abuses of Power in World Politics”, American Political Science Review, Vol. 99, No. 1 February 2005, p. 29. 292 Citizens can begin a normative process by submitting a complaint : “The act of disclosure begins a dialogue between the discloser and interested parties. The procedure of dialogue is substantially more developed in both the CEC submission process and the World Bank Inspection Panel, reaching a quasi-judicial level of formality”, Thomas N. Hale, “Transparency, Accountability, and Global Governance”, Global Governance 14 (2008), 73-94, p. 75. 86 parties’ which shared beliefs and opinions. Public opinion can be seen as a normative forum in which the crystallization of opinion exerts influence on perceptions of social sanctions and on attitude change 293. Social norms are not thought of as only behavioral and need not be linked only to the legal order and predictability of behaviors294. Social norms can exist not only for behaviors but also for attitudes, opinions, and tendencies toward certain behaviors295. PO. connect normative power with the social costs ascribed to acts falling outside the accepted realm of behavior.
It is broadly assumed that the more information there is about HRs issues and the more clear the understanding of the issue is, the more effective implementation and compliance will be. That assumption impels much of the work of international organizations in searching information. We want to assess how the availability of information about and the extent of understanding of the environmental issues covered in the treaties affect national implementation and compliance with them296.
What role do local, national, and international nongovernmental organizations have in determining the compliance of states with international HRs treaties? NGOs are not a constitutional nor a treaty bodies. The NGOs do seem to have the power to hold individuals and organisations to account, even though in many cases there is no formal obligation to account for one’s actions to the media (and certainly not to any particular part of the media). Human Rights ONGs stand for people (victims) that do not have the capacity to require account from the states for the denied rights. NGOs are accreditated agencies of the UN protection system, and, despite their inadequate formal recognition, essential to the Treaty Bodies.Limited governments, like states members of the International Community are supposed to be, are subject to the international regime of human rights. Conversely, an individual state, whatever its political regime may be, should comply with the obligation it has towards the UN community. By what authority could a country, that has signed a treaty against torture, oppose AI or HRW its domestic right to torture? AI can therefore requires the implementation of HR law with the authority of customary law, which is founded on the principle that a signed “treaty must be respected”, pacta sunt servanda.
293 Carroll J. Glynn and Michael E. Huge, “Opinions as Norms Applying a Return Potential Model to the Study of Communication Behaviors”, Communication Research, Volume 3,4 Number 5, October 2007 548-568, 548 294 Huge Glynn, Opinion as Norms, p. 549 295 Ibid. 296 Harold K. Jacobson & Edith Brown Weiss, “Strengthening Compliance with International Environmental Accords: Preliminary Observations from a Collaborative Project”, Global Governance 1 (1995), 119-148, p. 126 87
To some extent NGOs play the role of guardians of implementation in IHRL. As agencies of civil societies, NGOs are committed to the actualisation of HRs at a local level and to legislative adaptation of the legal instruments at the UN central level. The principle whereby NGOs can require Member States to comply with the signed treaties is that they signed HRs treaties in good faith, and for their policies of HRs they are responsible towards the international community. States have become more cooperative also because the communication systems have become technologically independent of territorial borders and are any more controlled by governments. Civil societies, which until the eighties were enclaved by territorial states and other organisations, now, due to networks, have become autonomous agents, that are capable of undertaking transnational relations. Thanks to the internet, social agents can promote a new subjective universal right in the domestic sphere and also maintain their interdependence with a complex transnational society297. The monitoring mechanisms, which have been provided by the UN Commission, help to perpetuate the partnership between governments and NGOs at domestic level. Treaty Bodies and Council on Human Rights receive most of the information on state compliance from NGOs, and especially from the Amnesty International information system. The cooperation among individual States and International Organizations with NGOs is needed in order to build up national capabilities for expert surveillance298 on HRs implementation. When, for example, it was proposed299, at the Ottawa conference, to transpose this system to the verification of the Landmines Convention, the
297 “Interdependence among societies is not new. Transnational communication is produced horizontality in the civil society among NGOs”. “Now anyone with a computer can be a desktop publisher, and anyone with a modem can communicate with distant parts of the globe at a trivial cost. Earlier transnational flows were controlled by large bureaucracies like multinational corporations or the Catholic Church. Such organizations remain important, but the dramatic cheapening of information transmission has opened the field to loosely structured network organizations and even individuals. These NGOs and networks are particularly effective in penetrating states without regard to borders and using domestic constituencies to force political leaders to focus on their preferred agendas. The information revolution has vastly increased the number of channels of contact between societies, one of our three dimensions of complex interdependence.” Robert O. Keohane and Joseph S. Nye, Jr “Power and Interdependence in the Information Age”, Foreign Affairs, 77 No. 5 (September/October 1998) 83. 298 Ottawa Land Mine Ban Signing Conference and Mine Action Forum, Round Table 9, Cooperative Compliance: Building Capacities to Monitor the Ban Treaty, 3 September 1997. 299At the Ottawa Conference Bob Lawson of the Canadian Ministry of Foreign Affairs suggested borrowing from human-right procedures the ways of monitoring the implementation of the ban on anti-personnel landmines. Maurice Bleicher, “The Ottawa Process: Nine-Day Wonder or a New Model for Disarmament Negotiations?”, 2 Open Forum ( October 2000) 76. 88 proposal was enthusiastically taken up300 by the NGOs. The International Coalition Against Landmines then set up a combined verification and warning mechanism301, and this led to an annual report (in The Landmine Monitor) on the implementation of the Convention in all its aspects302. In the following sections NGO compliance oriented activities and their crucial role in building the normative context which make states politically, morally and, in some cases, legally accountable are going to be dealt with.
5.1. Framework of Accountability. The conventions often provide NGOs with a formal role in implementation and follow-up303. As part of the “legalistic" work of producing legal instruments, Amnesty International monitors the incorporation of HR standards into national legislation, jurisprudence and administration304. These instruments provide the organization with legal basis to exert the accountability claim at a national level, and to exploit the complaint mechanism. States themselves recognize the central role of NGOs in the implementation process, although they are not always cooperative in the non-governmental control of governmental action at the output level. In the Statute of Rome, the term “information” appears twice as often as the word “crime"305 in order to stress that a real obstacle to international justice is connected to the state secrets. It was believed that the difficulties of the International Criminal Court lie in the international cooperation of the states that are reluctant to disclose information about crimes of other states. The investigations led by the Sub-commission, as well as by the NGOs, became predictive experiments in this issue. In this sensitive work, the Statute of Rome recognizes NGOs as accredited agents of information. The prosecutor, in fact, “may seek additional information from states, organs of the
300 Philippe Chabasse, the joint director of Handicap International, says he hopes to create a “surveillance and pressure network, a sort of Amnesty International on mines”, cited in Maurice Bleicher, “The Ottawa Process” 76. 301 Since July 1998, several former sponsors of the Ottawa Process (such as Norway and Belgium) have sought to put the combat against the spread of small arms on the international agenda, organizing international meetings in conjunction with NGOs. The Oslo meeting on small arms, 13.14 July 1998; International Conference on Sustainable Disarmament for Sustainable Development, Brussels, 12.13 October 1998. Paralleling these initiatives, nearly 200 NGOs have formed an “electronic coalition” and launched an Internet-based information campaign on the subject, The International Action Network on Small Arms, www.iansa.org. 302 ICBL, Landmine Monitor Report 1999-2008: Toward a Mine-Free World. The first edition was released at the First Meeting of the states Parties at the Convention, Maputo, 3.7 May 1999. Landmine Monitor was created by the ICBL in Oslo, in June 1998. Its Core Group comprises Human Rights Watch, Handicap International, Kenya Coalition Against Landmines, Mines Action Canada and Norwegian People’s Aid. 303 Cf. GA Res. 1996/31 para 53, and supra note 83. 304 U.N. Doc. E/C.2/1982/2/Add.2 (1982) II; U.N. Doc. E/C.2/1987/2 (1986) 4; U.N. Doc. E/C.2/1991/2/Add.1 (1991) 2; U.N. Doc. E/C.2/1995/2 (1994),3. 305 The term information appears 62 times and “crime” 31. 89
United Nations, intergovernmental or non-governmental organizations”306. xxx An important effect of the NGOs as informers can be witnessed by the growth in number and importance of the monitoring bodies of the Commission/Council on Human Rights. Amnesty International played a leading role in creating the ICC, and, before, United Nations High Commissioner for Human Rights, established in 1993. The 2006 reform307 of the UN monitoring system has metamorphosed the Commission on Human Rights into the Council on Human Rights308. The new Council has to give meaning to the new practice of ‘Universal Periodic Review’ (UPR), which is required to “complement not duplicate”309 the work of treaty monitoring bodies. The UPR and the final assessment of the Council are based on three official reports, a) state report, b) UN report provided by OHCHR, and c) the shadow-report of NGOs310. A wide space is here open to the NGOs because the non legally binding nature of the assessment let the Council free to consult even documents that would not be formally admitted by a judicial authority. The subsidiary organs of the Commission have been – and the Council still is - dependent311 to a great extent on NGOs for information. NGO reports make up a huge part of the information system of the Council for Protection and Promotion of Human Rights312. They are primarily focused on "classic" human rights
306 Article 15 (2). 307 An inspired solution would be for the Council to serve a function similar to that of the Committee of Ministers of the Council of Europe. This is the political body that checks how Council of Europe member states have responded to adverse findings on compliance with human rights standards set out in Council human rights treaties by independent bodies such as the European Court of Human Rights, but does not make such findings itself. Unfortunately, this is a function that can be applied only to state parties which have signed the HRs treaties, not to all members of the UN. Any alternative conception of the Council's UPR role, involving the assessment by the Council of states’ human rights performance, is fraught with difficulties concerning the information to be used, the procedures to be followed and the objectivity of the results. Cf. the “Editorial” in The UN Human Rights Machinery Special Issue: Human Rights Law Review Vol. 7, 3-4, and Françoise J. Hampson, “An Overview of the Reform of the UN Human Rights Machinery” Ibid. 7-27. 308 By virtue of the Resolution A/RES/60/251, adopted by the General Assembly on 15 March 2006. 309 GA Resolution 60/251. 310 HRHCO, Guideline 311 ”NGOs are the main sources of information for thematic machinery” UN World Conference on Human Rights 1993, cit. in William Korey, NGOs and the Universal Declaration of Human Rights. A Curious Grapevine (Palgrave Macmillan New York 1998) 259. 312 Reporting of states is adressed to the Sub-Commission on the Promotion and Protection of HR, a body of 26 experts whose contribution consists of “fact-finding” through the field work of monitoring and investigation. The CHR acts with the following three instruments: firstly, the “confidential” Procedure under ECOSOC Resolution 1503 of 1970; secondly, the “public” Procedure under ECOSOC Resolution 1235 of 1967; and, thirdly, the use of one of the two mechanisms as a direct reaction to the prior findings of HR violations, namely the designation of 90 mechanisms which included the Commission and its Sub-Commission, the Third Committee of the General Assembly, and the Treaty Bodies, but also the Security Council313. NGO reports have been and still are essential sources for the work of Treaty Committees who assessed the state reports, to give recommendations and to public general comments concerning the conventions. Reports are not really made only to provide information, according to the international law reporting is a obligation for states that are party to the UN treaties. The final goal of the reporting system is to establish, by consent of the concerned state, a further stage in the obligation to implement HR provisions. Information about HRs violations in member states is the necessary condition for UN Commission to exert its institutional function of monitoring state practices and to provide its bodies with legal basis to claim reluctant states to comply with the treaties. When collecting information about other states, the UN protection organs cannot always count on the unconditioned cooperation of diplomatic representatives314, so that NGOs play not a really subsidiary role but a principal one in supporting the investigative work of the UN Sub-commission. Making violations of HRs known entails legal effects; information becomes the condition for any further investigations or intervention of the Commission. NGOs such as Amnesty International, Human Rights Watch and Médecins sans Frontières usually provide a voice for the victims of state oppression and market exploitation and publicly express their goals in a stated mission. In order to ensure that humans have the right to a safe environmental, Friends of the Earth and Greenpeace have fought to keep the public informed about pesticides and toxic pollution through direct action techniques.
working groups on certain specified topics or the appointments of Special Rapporteurs. See James Ron and, Howard Ramos, Kathleen Rodgers, “Transnational Information Politics: NGO Human Rights Reporting, 1986–2000”, 49 International Studies Quarterly (2005) 557–587. 313The Arria Formula, for example, is an informal arrangement that allows the Council the flexibility to be briefed on international peace and security issues by non council members, Martens, Kerstin, “Appraisal of Amnesty International's Work at the United Nations: Established Areas of Activities and Shifting Priorities Since the 1990s”, 4 Human Rights Quarterly (November 2004) Vol. 26, 1050-1070, note 40 314 “Some institutions may not only fail to supply the needed information about the way of its decision-making, they may deliberately cultivate the arcane, and make relevant information impossible. Different ways of obstruction: ex. costs, procrastination.” Buchanan and Keohane, “The Legitimacy of Global Governance Institutions”, in Wolfrum-Roeben, Legitimacy in International Law (Max Planck Institut fuer Auslandisches Oeffentliches Recht und Voelkerrecht, Springer, Heidelberg, 2008) 25. 91
5.2 Reporting evidence to claim remedies. Human Rights NGOs are crucial agents in achieving the conditions of “good governance”315 at a global level. The free exercise of the right to be informed and to raise questions is the ordinary practice to test the domestic legitimacy of political regimes and to build the international reputation of governments. Thanks to the civil use of freedom to broadcast and receive information316, NGOs contributed towards building the normative framework to promote HRs. Thanks to their extraterritoriality as international actors, NGOs exercise their active right to make citizens informed of issues in most domestic public spaces where the territorial control of the state prohibits, limits or adjusts sensitive information. NGOs, as human rights stakeholders, are civil committed to protect the interest of the individual and collective rights holders, and some findings concerning violations have a normative impact on public opinion. They perform the capacity of raising awareness on relevant HR issues and of gathering public support for legal actions. In this respect, the campaign that Amnesty International led against torture from 1972 to 1984 was emblematic317. It is ones more to be pointed out the normative approach of Human Rights NGOs in contrast to humanitarian commitment. It is not because NGOs are actor of the civil society, they have civil nature, and do not claim to be “governmental” that they do not pursue any political goal, as normative agents Human Rights NGOs do have specific but universal policies concerning specific human rights. The practice of denouncing318 violations of HRs exposes some NGOs to resolute engagement in the protection of victims from HRs violators. The comprehensive task of all specific policies is to establish a principle of universal accountability319 all governmental and non-governmental
315 On the role of good governance in the promotion of human rights see Resolution 2003/65, (59th session. See also Commission on Human Rights and General Assembly Resolutions relating to Democracy and Governance 1998 – 2003. 316 For international advocacy networks, the ‘ability to generate information quickly and accurately, and deploy it effectively, is their most valuable currency: it is also central to their identity’ Keck and Sikkink, Activists beyond Borders, (1998) 10. These scholars offer an influential and detailed analysis of NGO ‘‘information politics,’’ explaining that activists ‘‘seek out resources’’ and ‘‘conduct public relations’’ (6–7); ‘‘generate information quickly . . . [and] effectively’’ (10); deploy information in ‘‘innovative ways’’ within ‘‘hospitable venues’’ (17); and use ‘‘symbolic’’ and ‘‘leverage’’ politics. Kal Raustiala, ”The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law.”, Virginia Journal of International Law, 43 (2002). 317 Martens, Kerstin,”Appraisal of Amnesty International's Work at the United Nations: Established Areas of Activities and Shifting Priorities Since the 1990s”, 4 Human Rights Quarterly (November 2004) Vol. 26, 1050-1070. 318 Mac Dermot, “The Role of NGOs in the Promotion and Protection of Human Rights”, in Casterman and Others. 319 Christine Bell and Johanna Keenan, “Human Rights Nongovernmental Organizations and the Problems of Transition”, Human Rights Quarterly 26 (2004) 330–374. Lisa Jordan and Peter van Tuijl (eds), NGO accountability: politics, principles and innovations (London: Earthscan, 2006). Orakhelashvili, A, “The World 92
HRs perpetrators. Governments are considered to be not only responsible but accountable to citizens and UN bodies for upholding citizens’ rights, and NGOs, as grassroots organizations, have a particular role to play in ensuring that this accountability happens. Information is the primary resource for attributing responsibility as well as an important mean of exercising influence. Accuracy, independence and impartiality determine the authoritative acting of NGOs in international arenas. As states are the primary decision-makers in ruling international institutions, it is critical to know what they have to lose if noncompliance goes unnoticed. NGOs have to face the question concerning whether states have incentives to protect noncompliance governments (like Russia and China did regarding the case of Darfur in Sudan), or whether states are good agents of noncompliance victims The general attitude320 of diplomacy is to keep discretion in service for national state interest. Delegations of member states of the UN collect information, but not for public use; they do not release public information about other states without calculating the political return, but sometimes they cannot avoid releasing information. This is especially the case in the negotiations of HR treaties. When states explain why they cannot comply with some provisions and justify their reservations about specific articles of treaties, they provide information about the constraints imposed by their domestic and local policies321. Why would states divulge such information - which would risk portraying them as "bad" - about their domestic practices (ex. Shariah, death penalty, torture, racial, sexual, social discrimination) with which treaty arrangements are less profitable? The principal legal effect in refusing to sign an international obligation, and to claim reservations, is to immunize the states related conduct from complaints of breach. It is not because a state is a democracy that diplomatic delegations abandon the habit of diplomatic discretion, and even less so when the violations of HRs concern their own government or friendly states. The liability duty to the state practice, which is primary based on the state interest,
Bank Inspection Panel in Context: Institutional Aspect of the Accountability of International Organisations”, 2 International Organisation Review, (2005) 57. 320 In the exchange of recognition between sovereign states "a conspiracy of silence entered into by governments about the rights and duties of their respective citizens." Hedley Bull, the Anarchical Society (2d ed. 1995) 80. D. Lewis, and S. Madon, “Information systems and nongovernmental development organizations: advocacy, organizational learning, and accountability”, The Information Society, 20 (2004)117- 26. 321 For example, the United States Senate imposed 28 "conditions" on U.S. ratification of the Chemical Weapons Convention, including a provision barring the transfer abroad of any U.S. samples. Resolution of Ratification for the Chemical Weapons Convention, S. Res. 75, 105th Cong. (1997) (enacted). Australia's renunciation of federalism reservations (and federal-state clauses) highlighted domestic constitutional developments that clarified the extent of the national government's powers. 183 U.S. death penalty reservations and the Shariah reservations of Islamic states. Cf. Edward T. Swaine, “Rational Custom”, 52 Duke L.J. 559, 617-18 (2002) 333 ff. 93 makes these officials unable to cooperate and consistently support the non-governmental and civil practices in the emerging of IHRL, all the more so as HRs practice is committed to issues of universal corrective justice. The opposite of this unconditioned loyalty to the individual state is the trust relation of international NGOs with HR holders. As being trustworthy322 is ultimately based on their moral authority, their members are committed to acting consistently with their statute principles. There is no doubt that Amnesty International’s role in all this is substantial, and has given important contributions to the advancement of the international HR system323. Amnesty is considered by the UN as a reliable source of information, and its reports provide the raw material for many cross-national studies324. Public trust in Amnesty’s reputation is similarly high, with polls revealing that its ‘‘brand trust’’ tops that of other leading NGOs. All that NGOs can share with the general public they address, is their commitment to justice due to offended persons. Their refusal to compromise is a guarantee for the victims and is often a reason for conflict with the states who violate HRs325. Whether a Human Rights NGO acts through elites or through a vast popular membership, they have no other source of authority than their reputation. The reputation of NGOs is then their most sensitive point that states accused of violations might first try to attack. The influence that these international organisations can exercise on a government could be remarkable. Upholding shared claims, NGOs have the capacity to engender in domestic public opinion the expectation that a government should act for implementation.
322 Recent surveys demonstrate the strength of NGO reputations, revealing that Amnesty International, the World Wildlife Fund, Greenpeace, and Oxfam are highly trusted ‘‘independent sources of credible news’’ by elite American and Western European respondents. The latter are particularly enthusiastic, viewing NGOs as more trustworthy than private corporations”, Richard Edelman, Building Trust: A Special Report (2003) 557-58. Available at hhttp://www.edelman.com/people_and_perspectives/insights/Trust/EdelSurveyBroch_ FNL.pdfi 2004, July 16. 323 Clark 2001. 324 The group has the longest history and broadest name recognition in the field , and is believed by many to set standards for the movement as a whole. Amnesty won the Nobel Peace Prize in 1977. It was an early pioneer in international NGO advocacy efforts, and has made important contributions to the international normative system . Among academics, Amnesty is viewed as a reliable source of information, and its reports provide the raw material for many cross-national studies . Steven C. Poe, Sabine C. Carey, and Tanya C. Vazquez, “ How Are These Pictures Different? A Quantitative Comparison of the US state Department and Amnesty International Human Rights Reports, 1976–1995”. Human Rights Quarterly 23(3) (2001):650–677. For a history of Amnesty see Korey, 1998; Buchanan, “TOM The Truth Will Set You Free: The Making of Amnesty International”, Journal of Contemporary History 37, No 4 (2002) 575–597. Jonathan Power, Like Water on Stone: The Story of Amnesty International (New York: Penguin 2002). 325 “Some states still try to characterize their national or some international NGOs as subversive institutions”, S e i d l -Ho h e n v e l d e r n / L o i b l , Das Recht der Internationalen Organisationen, Köln 2000, 117. 94
Nevertheless, human right NGOs enter in a logic of completion with governments and act under the permanent risk of being attacked. When they take up a particular HR issue, they put their credibility at stake; the loss of reputation is usually a consequence of inaccuracy in building the information. If the information turns out to be false, the organization that called for responsive action will lose credibility and ultimately its future efforts will be rendered less effective. A pressure groups, therefore, cannot afford to make mistakes, because thereafter “their statements will not be given credibility so readily and references to their mistakes will continually be thrown back at them."326 To avoid making such mistakes, human rights NGOs often establish verification thresholds which they must reach before considering responsive action. Preserving this reputation is a top priority of Amnesty; the group’s 2004 strategic plan, for example, seeks to ‘‘instigate a brand management programme to protect and enhance the integrity of the Amnesty International’s name’’327. The practice of providing public information is finally, in various ways, a constitutive element of the normative framework in IHRL. In fact, new HR provisions enter international relations as long as they are mediated by the communication of relevant findings. On the other hand, when communicating events, NGOs have to be able to interpret, defend, and stress the normative relevance of specific facts. The groundwork in the building of normative facts328 concerning HRs is based on the following stages: 1) the discovery of facts; 2) publication and consensus building; 3) advocacy of new norms; 4) the application of existing or newly created norms. This are the ways through which NGOs report to UN monitoring system (Treaty Bodies, Council, High Commissioner) and also cycle whereby the UN reporting system builds HR obligation and claims international accountability.
5.3 Legal effects of a disclosing mechanism. Whenever Information about specific HR violations is revealed, the UN organs of protection intervene in different ways; the appropriate intervention depends on the quality of available information329. Reporting to Sub-
326 Peter Willets (ed.), Groups in the Global System, (1982)186-87. Similar ideas are expressed in Michael Edwards, “NGOs in the Age of Information”, 25 IDS Bulletin 117 (1994) 179, 186-87. 327Amnesty International, ‘‘Globalizing Justice! Amnesty International Integrated Strategic Plan 2004–2010 (2004) 16.’’ Toolkit 3. Available at hhttp://www.amnesty.org.nz/Publicdo.nsf/bf25ab0f47ba5dd785. 328 Clark, Diplomacy of conscience, 33 ff. 329 The human rights network has been strongest in regard to Latin America and to Eastern Europe and the former Yugoslavia. Because domestic human rights NGOs are a crucial link in the network, where these groups are absent, as in the case of Mexico initially, international human rights work is severely hampered. See Kathryn Sikkink, “Human Rights, Principled Issue-Networks, and Sovereignty in Latin America”, International Organization, 47, No. 3. (Summer, 1993), 411-44. In both Argentina and Mexico, nongovernmental actors initiated global concern about human rights violations and documented abuses. Later, when international and regional organizations produced reports, their efforts were aided by earlier reports formulated 95
Commission330 consists of fact-finding through monitoring and investigation fieldwork. The making public of inhuman situations concerning prisoners, victims of torture, racism or discrimination, and genocide practices has highlighted331 the gap between domestic treatment of citizens and international standards. The rights of victims depend ultimately on the legal effects that follow the disclosing of violations 332. Communication of findings is all the more effective that even autocratic states no longer have the domestic monopoly over international assessment of their own HR status. The simple preservation and publication of facts about HR abuses is a step towards the generation of new norms concerning human behaviour333. In order to preserve facts, witnesses are needed. Furthermore, searching for the facts of state repression undermines the efforts of states to keep abuses secret. Torture, disappearances, and extrajudicial executions are perpetrated in secret ways. State secrecy inhibits the documentation of patterns of HR abuses by which they can evade accountability for quashing political protest. Moreover, the free use of the right to know is now stand of promoting the building of new norms by civil ways at the international level. Publishing information can advertise the normative vacuum and need, and can also help to form an indirect request for ad hoc norms and specific remedies. The public use of evidence entails discussion and involves people in issues of right and wrong that must be worked out before formal legal norms can be constructed and ratified334. In these phases, norms emerge by questioning and interpreting facts with reference to the beliefs upon which norms are established. A consensus is then to built about the need for norms that will serve as more specific guides for behaviour.
by NGOs. NGOs also provided the information that served as the basis for governmental human rights policies. 330 See note 89 331 See Albie Sachs, South Africa's Truth and Reconciliation Commission, 34 CONN. L. REV. 1037 (2002); Davis, Justice across the borders, Cambridge UP, 2008; Alex Boraine, “The Truth and Reconciliation Commission in South Africa”, in Kamal Hossain et al. (eds.), Human Rights Commissions and Ombudsman Offices (Kluwer UK 2001) 89; Thomas Buergenthal, “Truth Commissions: Functions and Due Process”, in Pierre-Marie Dupuy et al. (eds), Voelkerrecht als Wertordnung. Common Values in International Law: Essays in Honour of Christian Tomuschat (2006) 103. 332 It is not from domestic sociologies that French citizens know that in French prisons the minimum space of living is not respected, or that provisions against racial discriminations are insufficiently implemented. It is not from domestic sociology of law that Italians knew to what extent the duration of processes violates the right of a fair trial; nothing is said about the level of corruption of which, Transparency International reports. It is not from the internal establishment that the women of the Muslim countries can expect a better status of their rights, or slavers in Sudan or Mauritania where slavery is still allowed, etc. the victims of humanitarian catastrophe of Burma, or the victims in Tibet. 333 Yasmin Naqvi, The right to the truth in international law: fact or fiction? International Review of the Red Cross (Switzerland), 88, No 862 (June 2006). 334 Cf. Ann Marie, Clark, Diplomacy of Conscience, Princeton University Press, 2001 96
Emblematic to this cause-effect relation was the publication of Amnesty report on “torture cases” in Chile in 1983335. The report had multiple effects. The first one consisted in making people aware that torture was a wide spread practice of states. At the same time, the campaign for the right to not be subjected to cruel treatment or punishment that most states have signed336, has spread the civil culture concerning this right as a civil. Before the seventies, because of the lack of real information, most people thought that torture was a matter of the past whereas during the cold war it increased. HR organisations have revealed the fact that torture belongs very much to this day and age. In the early 1980s, Amnesty International was part of the first group of human rights NGOs to deliver information to the Commission on human rights abuses. Amnesty International and the International League for Human Rights, began providing the Human Rights Committee337 with background information on individual countries “prior to or during the time their human rights reports came up for review."338 Two were the most important effects on the UN bodies that were engendered by the publication of Amnesty’s report. The impact on the General Assembly led in 1984to the adoption of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)339. The impact on the Commission on Human Rights led to the appointment of a UN Special Reporter concerning particularly sensitive issues. This first appointment established the practice of charging Special Rapporteurs with a wide series of heavy issues340 to reinforce the implementation machinery. The nominees to this UN duty show how the most valiant experts are often members of the NGOs, e.g. Theo van Boven, a member of the International
335 Chile: Evidence of torture: an Amnesty International report, London ( Amnesty International Publications 1983. 336 127 states voted for the adoption of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/57/199, adopted 18 December 2003. 337 Treaty body for International Covenant on Civil and Political Rights (ICCPR) 338 Korey, NGOs and the Universal Declaration of Human Rights, (1998), 268 339 The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted and opened for signature, ratification and accession by GA Res. 39/46 of 10 December 1984, entry into force 26 June 1987. The Convention requires (Article 2) 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 26 June is now recognized as the International Day in Support of Torture Victims, in honour of the Convention. As of September 2010, the Convention had 147 parties. 340 Special Rapporteur (SR) on Religious Intolerance (1986); SR on the Use of Mercenaries as a Means of Impeding the Exercise of the Right of People to Self Determination (1987); SR on the Sale of Children, Child Prostitution and Child Pornography (1990); SR On Freedom of Opinion and Expression (1993); SR on Racism, Racial Discrimination and Xenophobia (1993), and SR on Violence Against Women (1994). Cf. William Korey, NGOs and the Universal Declaration of Human Rights, cit 257-259. 97
Commission of Jurists, who has been appointed as Special Rapporteur on Torture from 1986 to 1991, and recently from 2001 to 2004341. In the nineties, the public opinion had to face “ethnic cleansing”, a phenomenon which nobody had heard of before. Reports from “grassroot” NGOs and UN Special Rapporteus about genocidal events that took place in Cambodia, Rwanda, The Congo, Burundi and Kosovo, and the hearings before the Yugoslavian Tribunal provided new material about crimes against humanity. These horrific crimes, perpetrated in the heart of Europe, brought to light two weaknesses of the human rights system: 1) the lack of enforcement in the UN protection system; 2) the lack of credibility of states in their effective commitment to ensure the right to life and to peace. The legal effects of the reports that generated universal consensus, further legitimized HR organisations to strengthen the UN protection machinery. As a result, the High Commissar for HRs was created in 1993 and the procedure for the creation of the ICC was initiated in 1994. It was in virtue of the general indignation against human rights violations and of the consequent negative publicity that governments have been forced to act consistently. This public use of information, which is committed to the international obligation to respect HRs, entailed an important innovative effect at an international level: to separate the penal responsibility of individuals from their governmental roles, that is of the personal responsibility of the state head from the legal personality of states. The responsibility of the perpetrators of the crimes no longer depends on belligerent states; this distinction establishes a fundamental new rule that did not exist previously in international law. Moreover, the complementary principle that is at the heart of the Statute of Rome has the function of galvanizing national justice systems to take on their responsibility to prosecute most crimes which could fall under the ICC’s jurisdiction. NGOs have no governmental power but they play an important role in international relations because negative publicity generates a normative force in virtue of its enormous impact on public opinion. In fact, despite NGOs criticise governments, their representatives are received in national capitals, and they are given the floor in international organisations meetings and international conferences. Their power consists of the “mobilisation of shame”342 at an
341 UN Doc. A/59/324, 1 September 2004; Report of the Special Rapporteur on torture and other cruel inhuman or degrading treatment and punishment: http://www.statewatch.org/news/2004/nov/un-torture-doc1.pdf 342 Peter R. Baehr, Human Rights: Changing the Culture, (Oxford: Blackwell 1999) 114. Robert F. Drinan, The Mobilization of Shame: A World View of Human Rights (Yale University Press 2002). NGOs have created a broad range of public awareness material to support the ban cause, from documentary films to postcards decorated by children in mine-affected communities addressed to President Clinton for members of the public to sign. Atwood suggests that "the creative use of photography and other media to produce strong imagery helped to keep the human face of this issue before governments and was instrumental in the mobilization of publics" (Atwood, (1998) 9, "Banning Landmines: Observations on the Role of Civil Society", Peace Politics of 98 international society level. States are interested in preserving their good reputations and it is on this moral credit that NGOs found their real power; this legitimates their authority on public opinion, and finally opens them the door to governments. As members of the international community, states like to be considered as civilized observers of the international HR standards that they themselves have helped to devise. No government will easily admit, in a global public arena, that it allows or perpetrates violations of those standards in its own domestic sphere. Yet barbaric dictators do not have the monopoly on these kinds of crimes, most governments in the world, at some time or other have violated human rights; for instance, very few governments respect the rights of prisoners in Europeans prisons. This spreads discrepancy between norm and practice and opens the space in which NGOs can operate343 and cooperate with the treaty bodies. The states that violate HRs are all members of the UN and they are formally under the international obligation to respect the UDHR. Starting from the point of agreement as to how governments ought to behave, Amnesty investigations draw attention to violations of specific standards. Basically, governments have two ways of reacting to such allegations: admittance or denial344. In view of their adherence to HR standards, admittance of violations of such standards logically means that legal and practical actions will follow. In such cases, it can be said that the NGO’s activities have been successful. If, as often happens, the government in question denies the allegation, the NGO’s reputation for reliability is at stake. In the absence of other elements of power, reliability is the only source of strength NGOs have at their disposal. The continuous truthful reporting to UN organs, is the way by which such an organisation builds up a reputation of reliability in the international community.
5.4 Normative effects of the UN public assessment. To whom NGOs address information and for what is it provided? The UN Treaty Bodies that are charged to monitor state reports are not jurisdictional organs; treaty body Committees as the Council are not courts judging states345, therefore they have no power of constraint over reluctant states. Their reviews do not end with binding judgement but with
Civil Society June. Photo exhibitions of mine survivors and mine- affected communities were held in a number of cities. The ICRC sponsored television adverts and organized two trips for Diana, Princess of Wales, to mine-affected communities. The Cooperative Bank estimated that the attention she brought to the issue amounted to the equivalent of a million US $2 public relations campaign, Thomas, Terry "Morality and Banking - the Cooperative Bank and Landmines", Presentation at the seminar, Responding to Landmines, London, 12 June (1997). R. Dworkin, ‘The right to ridicule’, The New York Review of Books, 53, 5 (2006). 343 Peter R. Baehr, Human Rights: Changing the Culture, (Oxford: Blackwell 1999) 127 344 Peter R. Baehr, ibid. 345 99 recommendations. This weakness of the UN protection system raised the question how to bridge the gap by using the UN legal means. The argument is found in the international customary law. It is not because HRs treaty bodies have no power to constraint that states are dispensed from honoring international treaties. In the international law states follow the practice that signed treaties should be honored, and HR conventions are based on the same customary law principle: pacta sunt servanda. The HR treaties formally requires that states protect individuals from acts which threaten their fundamental rights; when a state has failed to take preventive or punitive action with regard to these abuses, it can be found to be in violation of its international obligations. In the mid-1990s Amnesty International focused its reporting strategy on this obligation. Instead of reporting in order to develop new international standards, AI shifted its efforts toward monitoring the implementation of HRs conventions which state parties had already signed. Amnesty uses this legal practice of exercising pressure on the reputation of states with regard to the UN code of conduct that make member states to ratify treaties as well as to comply with the obligation of the international community. Using the UN proper procedures of monitoring, AI has subjected the acts of governments to the UN scrutiny of their fellow governments and their conduct to the worldwide public opinion. Those states that have not signed the Statute of the ICC are targeted in particular346. The difficulty was how to get information in a state society that is found on the state secrets. The “observer status”, granted to the NGOs, offered to the non-governmental members the opportunity of being members of the UN diplomatic delegations society. NGOs representatives are used to frequent restaurants, bars that diplomatic representatives also frequent, and hence to obtain information that could be useful to target specific issues. This informal way was useful in AI's efforts to create the International Criminal Court (ICC). AI began working diplomatically on the ICC in 1994 when the NGOs started publishing papers and documents advocating the establishment of an ICC. AI stopped making official statements before the Commission on Human Rights347, but continued to supply information to the treaty
346In this summary record, the secretary-general of Amnesty International, Pierre Sané, made clear that AI would campaign for a universal ratification of the Statute and seek to shame states that were considering opting out of the Court's competence over crimes that were committed by their nationals or on their territory. AI also criticized the fact that some countries did not sign the Statute. Rome Statute of the International Criminal Court, U.N. Doc. A/Conf.183/9 (1998) 118-19. See AI's web pages, available at web.amnesty.org/web/web.nsf/print pages/documents Martens, Kerstin. “Appraisal of Amnesty International's Work at the United Nations: Established Areas of Activities and Shifting Priorities Since the 1990s”, 4 Human Rights Quarterly (November 2004) 26, 1050-1070, note 64. 347 Instead, until the mid-1990s, the NGO prepared and delivered three to five single- authored Statements before the commission each year in which it addressed the countries chosen. Martens, Kerstin, “An Appraisal of Amnesty International's Work at 100 bodies because it considered they would be more effective at using this information. The UN treaty bodies are the main organs for the monitoring of human rights treaties, but they were becoming more and more peripheral to the UN system as they were not being provided with sufficient information.348 Since the 90s, however, these bodies, composed of independent experts, have become more severe in monitoring HR obligations, and have developed their own original, non-legally binding, but nevertheless authoritative, jurisprudence349. In a supporting role, AI supplies these bodies with its research and today it is cited in UN reports, and its “shadow reports” make authority among the member of the Universal Periodic Review (UPR) and are influent in the “recommendations” of the Council on Human Rights. The provision of information to Treaty Bodies is even more essential, due to the fact that the UPR of the state reports has no judicial nature, and has to be integrally based on evidence of facts and persuasive arguments. The aim of state report reviews is to build a scheme of accountability concerning the obligations that a state has signed but has not – or not yet – complied with the provisions. Much of the implementation depended on the methods and the ability of the treaty bodies (and generally of the Council organs) to carry out the review of state reports. Non implementation of an obligation generally takes three forms: 1) it is not incorporated into domestic law; 2) it is part of existing law but not implemented; 3) lack of information about state crimes. The judgements of the state reports and conduct have not legal effects because UN bodies are not a court, but it does not mean that the bodies’ recommendations have no effect at all. The assessments are made up of “recommendations”, each of which provides details about what the treaties require of state parties to fulfil their assumed obligations. Whilst recommendations have occasionally elicited protests from state parties, in most cases they have not. It has been argued that the responses of states to recommendations, including both positive references and silence as a form of acquiescence, can contribute to the formation of customary international law350. Despite the lack of a binding force, a public assessment concerning violations of HRs has
the United Nations: Established Areas of Activities and Shifting Priorities Since the 1990s”, 4 Human Rights Quarterly, Vol. 26, (November 2004) 1050-1070, 56. 348 Andrew Clapham, “UN Human Rights Reporting Procedures: An NGO Perspective”, in Philip Alston & James Crawford (eds.), The Future of Human Rights Monitoring (OUP 2000) 175. 349Cf. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, 8 May 2006, HRI/GEN/1/Rev.8 (‘Compilation of General Comments’). 350 International Law Association, Committee on International Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies, Berlin Conference, 2004 (‘ILA Berlin Report’) at para. 23, and 15–27 citing Tomuschat, Human Rights: Between Idealism and Realism (Oxford, Oxford University Press, 2003) at 812–3. 101 authority and exerts influence on the international codes of conduct. No responsible state wants to lose its reputation by creating the impression that it does not respect HRs. The fact that recognized UN authorities can express a public assessment of the HR policy of a sovereign state is a very relevant step towards a double system of legitimacy, where the UN organs exercise a role of international ombudsman concerning domestic policies. Of the present ten351 Treaty Bodies monitoring the state reports, the Committee Against Torture (CAT)352 has been the main addressee of AI information. A good example of cooperation with this treaty body is AI's investigation of Russia in 1996. Prior to CAT's examination of Russia, AI released reports on torture and the human rights situation in Russia353. In addition, the AI international secretariat wrote to Russian NGOs to supply AI with additional information to be forwarded to CAT. Four Russian NGOs reacted and submitted their own reports to CAT; one NGO even sent its own representative to a CAT hearing.354 Before the official meeting, AI's Russian researchers also met with the CAT rapporteurs on Russia as well as with other Committee members. When AI’s researchers, in response to the hearing session, met with members of the Russian delegation to discuss the NGO's concerns about the human rights situation in Russia, "it was apparent that [the Russian delegates] felt caught off-balance by the extensive use of the non-governmental material and there was some anger at the use of these reports."355 In their subsequent questioning of Russia, the UN experts referred directly to AI many times and based other inquiries on the report.356 The information provided by the Russian NGOs became recognized. Moreover, the CAT hearing was let transmitted, by a Russian radio station, directly to Russia and
351 Human Rights Committee (CCPR), Committee on Economic, Social and Cultural Rights (CESCR), Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination Against Women (CEDAW), Committee Against Torture (CAT) & Optional Protocol to the Convention against Torture (OPCAT) - Subcommittee on Prevention of Torture, Committee on the Rights of the Child (CRC), Committee on Migrant Workers (CMW), Committee on the Rights of Persons with Disabilities (CRPD), Committee on Enforced Disappearance (CED). See UN http://www.ohchr.org/en/hrbodies/Pages/HumanRightsBodies.aspx, withdrawn at 25 July 2011. 352 Only the Committee Against Torture has an inquiry procedure built into the treaty text CAT (Article 20).. The Optional Protocol to CAT will introduce a further body, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to undertake regular state visits to monitor places of detention. Cf. GA Res. 57/199, 18 December 2002, A/RES/57/199; 10 IHRR 595 (2003). 353 Marten p. 58-59 354 Clapham, “UN Human Rights Reporting Procedures: An NGO Perspective”, in Philip Alston & James Crawford (eds), The Future of Human Rights Monitoring, 181. 355 Clapham, 182 356 U.N. Doc. CAT/C/SR.264 (1996) 15, 33-34, 37, 41. 102 throughout its prison system.357AI also publicized the committee's conclusion and distributed it to the Russian NGOs. The findings concerning the practice of torture witness that there is no symmetry between democratic regime and the progressive respect of those human rights that the prohibition of torture protect. During his second mandate the UN Special Reporteur on the torture Theo von Boven submitted three reports to the Commission expressing particular concern about the violations of CAT in the name of the “war on terror”, and he sent 94 letters concerning allegations of torture to 42 Governments358. The reports pointed out that the practice of torture and maltreatment has increased even in countries with high level of rule of law. The Treaty Body expressed concern particularly about those countries that had signed the Convention, but had not yet incorporated it into their domestic legislation, and therefore the practices went on being unpunished. The recent review of the French report on the Convention against Torture (2008) concludes that the “Committee remains concerned that the French Criminal Code does not contain a definition of torture that is in conformity with article 1 of the Convention”359. As a result, the state statistic institute cannot provide the Committee any official data on the implementation of a nonexistent law. The omission of empirical data from the report does not allow the Committee to monitor the real status of this right. In the review of the report the Committee stated that rights concerning detention are disregarded, and noticed a lack of legal provisions against racial discrimination360. As far as the Italian report about the CAT is concerned, the Committee expressed the same kind of preoccupations. The Committee “reiterates its previous recommendation (A/54/44, para. 169(a)) that the state party should proceed to incorporate the crime of torture into domestic law and adopt a definition of torture that covers all the elements contained in article 1 of the Convention.” 361. The treaty body
357 Clapham, “UN Human Rights Reporting Procedure”, 182. 358 “Since the submission of the report to the Commission on Human Rights, during the period from 16 December 2003 to 31 July 2004, the Special Rapporteur sent 94 letters concerning allegations of torture to 42 Governments, as well as 237 urgent appeals to 58 Governments on behalf of persons who might be at risk of torture or other forms of ill-treatment.” Torture and other cruel, inhuman or degrading treatment or punishment, Note by the Secretary-General UN Doc. A/59/324, 1 September 2004, 3 359 UN Committee Against Torture, Ninety-third session, Geneva, 7-25 July 2008, Consideration of reports submitted by state parties under article 40 of the Covenant, and Recommendations of the Committee against Torture, FRANCE CCPR/C/FRA/CO/4 (31 July 2008) 16. 360 UN Committee Against Torture, Ninety-third session, Geneva, 7-25 July 2008, Consideration of reports submitted by states parties under article 40 of the Covenant, and Recommendations of the Committee against Torture, FRANCE CCPR/C/FRA/CO/4 (31 July 2008) 16. 361 “Notwithstanding the state party’s assertion that, under the Italian Criminal Code all acts that may be described as ‘torture’, within the meaning of article 1 of the Convention, are punishable and while the draft law (Senate Act No. 1216), which has 103 noted the same delay as the state party in incorporating the crime of torture, through an adequate definition in domestic law, in order to ensure punishment “by appropriate penalties which take into account their grave nature, as set out in article 4, § 2 of the Convention.”362. The UPR that took place on the 9 February 2010 reiterated the recommendation to ”Incorporate the crime of torture into domestic law.” 363 A further way by which states breach CAT obligations, and in which such violations go unpunished, is that they try to justify themselves saying that their state has already made laws, but the issue is that government does not guarantee the punishment of the crimes that have been committed. This legal argument – which claims to overlap the input legitimacy of the legal system with the output legitimacy of the political regime - shows how entrenched the old claim of no inspection into domestic issues still is: as the law is made, it is self- evident that the state also guarantees its implementation. A contrario arguments are not lacking, North Korea used to writ very positive, but very unrealistic, reports about the status of HRs in its country. When the Committees asked North Korea to give an account of some violations, the government claimed the right to withdraw from the UNO. Human rights Treaty Bodies by their very nature cannot claim to be “governing” but to be upholding a principle of international legitimacy. The process of accountability by reporting364 that the reform of these UN organs tries to better define is crucial to their work. Governments are accountable for upholding citizens’ rights, and human rights NGOs play a particular role in ensuring that this accountability is put into practice. This is a great innovation in the international state system and the result of the member states willingness to cooperate and keep the peace.
5.5 Moral consensus as a legitimate claim. One factor has greatly contributed to the growing impact of human rights on the behaviour of governments is the ever more pervasive conviction that human beings are entitled to the enjoyment of fundamental liberties,
been approved by the Chamber of Deputies, is currently awaiting consideration in the Senate”. UN Committee Against Torture, 38th session 30 April to 18 May 2007, Consideration on reports submitted by state parties under article 19 of the Covenant, and recommendations of the Committee against Torture, Conclusions and recommendations of the Committee against Torture, 5. 362 Ibid. 363 UN UPR Reccommendetion n. 6, http://www.ohchr.org/EN/HRBodies/UPR/Pages/Highlights9February2010am.aspx, 364 Christine Bell and Johanna Keenan, “Human Rights Nongovernmental Organizations and the Problems of Transition”, Human Rights Quarterly 26 (2004) 330–374. Lisa Jordan and Peter van Tuijl (eds), NGO accountability: politics, principles and innovations (London: Earthscan, 2006). Orakhelashvili, A, “The World Bank Inspection Panel in Context: Institutional Aspect of the Accountability of International Organisations”, 2 International Organisation Review, (2005), 57 104 and these are dependent of states but of Universal Human Rights. This general attitude is an important result of a spread civil culture that is based on two conditions: 1) a civil use of public space at the global level; 2) a legitimate claim (as a subjective right) to qualitative standards of governance. Most NGOs use the outer space to disclose information about the domestic status of each HR. Hence, they build up the public expectation that government and international institutions should be consistent after the information about violations becomes public. The campaigns for specific rights show to what extent NGOs are becoming the principal public agents in creating the civil culture in supporting of human rights. Amnesty International, for example, has always used public mobilization as a tool for putting pressure on governments. Legitimacy in governmental action is required by ‘giving voice’ to or empowering abused or marginalized groups, for instance, via mass letter-writing campaigns on behalf of prisoners of conscience. Moreover, a legal instrument to trigger the accountability mechanism is the UN petitions system that some365 HRs treaties provide. A petition concerning a violation is presented by individuals of a member state to the UN Council. Amnesty campaigns366 against the death penalty awoke the awareness that the death penalty violates the fundamental right to life to which every human being is entitled. The campaign to abolish the death penalty succeeded in the moratorium367 of executions adopted by the General Assembly in the end of 2007. When, in 1977, in the Declaration of Stockholm, Amnesty officially declared that capital punishment was a violation of the human right to live, its proposition for the abolition of the Death Penalty was supported by only 17 countries368. Thirty years later on 18 December 2007, the moratorium of the execution of those convicted of the death penalty was adopted by the General Assembly by a record vote of 104 in favour to 54 against, with 29 abstentions369. To date, 137 countries have abolished the death penalty in law or practice370. This result is a clear sign that the worldwide trend towards the abolition of the death penalty is now becoming a universal legal requirement. Why is it that,
365 366 Amnesty shares this effort with an umbrella organisation that has recently formed the World Coalition Against the Death Penalty; much earlier, in 1980, 42 International NGOs (including Amnesty), signed a Joint Statement to the 6th UN Congress on the Prevention of Crime and the Treatment of Offenders. It includes groups of Lawyers, Jurists, Human Rights Groups, Christian and Jewish Groups but also several Muslim groups. Most NGOs that fight against the death penalty are country-specific, in particular in the USA, and are both religious organisations and professional groups. Workshop Plan: Pro Patria Mori – A Workshop on the Death Penalty, Amnesty International Toronto Organisation Regional Conference 14 October 2006 367 UN GA Res 62/149 368 Hood, Roger, The Death Penalty: A Worldwide Perspective (3rd Edition, OUP, Oxford 2002) 9 369 UN GA Res 62/149. 370 105 in only a few decades so many states have changed their minds about a millenary practice? The answer is that neither international state practice which care of national interest, nor domestic representative government which care on the majority interest, but the civil practice of expressing by legitimate methods the best opinion of people about this important issue. NGOs have learned how to exert leverage on public opinion371 and to build the normative framework that makes governments react to legitimate claims. NGOs invited themselves to constitutive events, through petitioners, in the member states. The resolution became recognised thanks to the five million people who signed the ‘Moratorium 2000’ petition. The campaign was launched by Amnesty International and the Community of Sant’Egidio, and supported by a large coalition of NGOs. On 13 May 2002, in Rome, the vast movement set up officially the World Coalition Against the Death Penalty (WCADP). WCADP’s members are present throughout the territory of each single states, facilitates the constitution and development of national and regional coalitions against the death penalty. It leads lobbying actions on international organizations and states, and organizes symbolic events which have an international impact. In 2003, the Coalition established October 10th as the World Day Against the Death Penalty372. After succeeding in the moratorium of executions, the World Coalition is targeting the next step and the supreme result: the abolition of the death penalty consolidated by jus cogens measures. The legal instrument for the abolition has been already adopted by the General Assembly: the Second Optional Protocol to the International Covenant on Civil and Political Rights (1989)373. Article 1 requires states that have ratified it to renounce definitely the use of the death penalty: “No one within the jurisdiction of a state Party to the present Protocol shall be executed “. This Protocol is not only the sole universal treaty that bans executions of death convicted, but, what is even more important, is that it provides essential tools to ensure that the abolition of the death penalty endures. When a state ratifies the Protocol, the process must be irreversible374, irrespective of the governmental changes it brings to the
371 Charnovitz, citing the judge Rosalyn Higgins, argues for “reformation…to clear away errors, such as the excessive state-centricity of positivist orthodoxy”, op. cit. 560-61 372The first goal of the coalition, which was expressed in the Strasbourg Declaration on 22 June 2001, was to launch a world-wide day for the universal abolition of the death penalty. 373 This text, is annexed to the International Covenant on Civil and Political Rights (ICCPR). The Protocol was adopted by the Assembly General of the United Nations by Resolution 44/128 on 15 December 1989 and entered into force, on 11 July 1991, following its tenth ratification. As 2008/12/17, it had been ratified by 69 states and signed by 6 others. 374 As Denys Robiliard, lawyer and former president of the French section of Amnesty International explains, “We want to have the Protocol ratified because it is essential to have an international bolt on the door. It is very easy to re-establish the death penalty. What one law does, another can undo and we know that in a time of crisis the death penalty can be re-established. This is why we must convince parliamentarians in 106 country. In order to make the death penalty illegal under international law, the text375 binds signing member states to three peremptory obligations: 1) a ban on carrying out executions; 2) the removal of the death penalty from domestic criminal law, and 3) the impossibility of reintroducing capital punishment in the national legislation. Its ratification by a large number of states would therefore make executions illegal definitely, by specifically establishing the principle that the death penalty violates human rights, and in particular the right to life. When a state ratifies376 a treaty, it undertakes to respect the commitment that it has made before the entire international community. If a state fails to meets its obligations and goes against the provisions of the treaty, it can be held responsible at the international level and have to give account377 to the Treaty Body to this ICCPR Protocol. But this Human Rights Committee has the competence to receive communications even from “another state” that can report information about the violations378. In addition the Committee have the competence to receive petitions from individuals of states that have signed for the petitions procedure379.
abolitionist countries of the necessity of making international commitments in this regard. Even if abolition exists in national law, only international commitments are irreversible.”, http://www.worldcoalition.org/modules/news/article.php?storyid=96 (Posted by Pierre Désert on 2008/6/20). 375 Article 1.1. No one within the jurisdiction of a state Party to the present Protocol shall be executed. 1.2. Each state Party shall take all necessary measures to abolish the death penalty within its jurisdiction. Article 2, 1. No reservation is admissible to the present Protocol, except for a reservation made …in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. 376 Liévin N’gondji, President of the DRC Coalition Against the Death Penalty and a member of the WCADP. “With this resolution, we will be in a position to challenge our government and to request a further commitment towards the effective abolition of the death penalty” http://www.worldcoalition.org/modules/news/article.php?storyid=38. 377 Article 3, The States Parties to the present Protocol shall include in the reports they submit to the Human Rights Committee, in accordance with article 40 of the Covenant, information on the measures that they have adopted to give effect to the present Protocol. 378 Article 4, With respect to the States Parties to the Covenant that have made a declaration under article 41, the competence of the Human Rights Committee to receive and consider communications when a State Party claims that another State Party is not fulfilling its obligations shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession. 379 Article 5, With respect to the States Parties to the first Optional Protocol to the International Covenant on Civil and Political Rights adopted on 16 December 1966, the competence of the Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.
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In conclusion, as international Human Right Agents, NGOs actualize, at a global level, the right to free information and expression concerning the domestic status of specific HRs. They make known the behaviour of states concerning sensitive matters that domestic agencies rarely have the liberty of making them public. The active use of the freedom of information asserts a subjective right to civil autonomy; the very nature of the right to know the reasons of the political obligation implies its intrinsic opposability as a human right of individuals at the international community level. The right to enquire is the condition that provides informed consensus in the exercise of the political power, but the exercise of this liberty is also a condition that limits the political power and keeps governors under the rule of law. The opposite is a diffusion of what government and parties want people to know in order to exert a control over intentions. Agencies that monitor the implementation of HRs and express public assessment about the states’ policies set up an international practice of output legitimacy. At the end of the day, NGOs affirm the basic principles of autonomy: 1) political power is a leadership function, but does not held the monopoly of the knowledge concerning rights; 2) rights are capacities that through non- governmental agents can express authoritative opinions; 3) the best resources might build a civil society cannot be exhausted with the resources expressed by the government in charge.
The liberty of information is all the more important in the international community that the two other liberties, of civil association is limited and political representation does not exist. The process of legitimacy here results from an informal way of building consensus that is based to a great extent on democratic values, but not on a representative system. Moreover, even the legislative and judiciary bodies appear less authoritative because the consensus iuris that forms a new international custom is not supposed to reflect a pre-existing practice (usus). On the contrary, human right law is the creative result of a public policy; the advocacy of speaking about rights is open to any willing agent. Public consensus is built up in meetings by federations of associations, adhesions and negotiations on the basis of reciprocity between NGOs that cooperate towards a common goal. In more than a few cases, NGOs have created associative networks and deliberative situations that make international organisations able to replace less shared habits with more civilized customs. In this expanded involvement in policy issues, NGOs have evolved into highly sophisticated communication agencies, and have build global networks that are independent of the territorial states. The fact that people can be connected without belonging to territorial fixed associations allows an horizontal dimension to be established between autonomous actors that escapes from the vertical control of political parties and of public powers.
6. Partnership in Global Governance.
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The appreciation of Human Rights NGOs is differentiated as to their activities. In the final decade of the 20th century NGOs were generally considered as the core of active civil societies, in which they supported and delivered public services. As promoters of an ever- stronger wave of democratization, they appeared unanimously as shepherds of civil development380. However, after the Treaty of Rome, and since 2001, there has been an increasing attempt by states to consider NGOs as political associations that claim to act as international sovereign, therefore appeared to undermine the state order, and particularly to threat both the sovereign state and domestic democratic order381. The gap between their legal status and their actual role inside the UN is, in fact, becoming more and more critical. Opposite to this preoccupations, instead, is the unanimous appreciation for the activities by which NGOs support UN policies. The complex consultative role of NGOs implies, in fact, an increasing exchange of mutual services between UN organs and civil agencies. United Nations turn to civil society to receive expert advice and consultation; conversely new actors – non or under-represented by states – emerge and turn to the UN in order to receive from the international community the recognition that states whose they are full right citizens deny them. The relationship to UN is also both complementary as they provide services and mediated as they act as stakeholders of new HRs claimers. As long as NGOs provide services, they are recognised and praised by states themselves382, but as soon as they claim to monitor - and sometimes to dictate the norms - the behaviour of states, the question rises about the legitimacy of their claims383. NGOs claim democratically elected governments to be accountable, but to whom are these non-public organisations accountable384? The issue is not really that non-governmental associations are not accountable but the undeniably public role they play. At the end of the day, what the states really contest, is that NGOs, despite of their formal status, insist on intervening in global governance issues, and hence are supposed to usurp two prerogatives that are
380 381 Lisa Jordan and Peter van Tuijl, “Rights and Responsibilities in the Political Landscape of NGOs Accountability: Introduction and Overview”, in Lisa Jordan and Peter Van Tuijl, NGO Accountability. Politics, Principles and Innovations, Sterling, London (2006) 3. 382 383 Anne Peters, “ Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures”, vol. 19, 3 Leiden Journal of International Law (2006) 579-610. 384 “Although it may be grounded in legal obligations, accountability is a normative and socially constructed concept and it always requires interpretation of particular facts, circumstances, action or inaction. Much of the heat in debates on NGO accountability comes from those (states) who believe that they are more entitled than others to establish such interpretations.”, Lisa Jordan and Peter Van Tuijl, NGO Accountability. Politics, Principles and Innovations, (Sterling, London, 2006) 9. 109 traditionally reserved to the principal’s authority: 1) law making, and 2) law enforcing. The disagreement concerns the “subsidiary” that role Human Rights NGOs play in the international community. Are NGOs subordinated to the UN state powers or subsidiary to the achievement of the international rule of law?: NOGs with consultative status are subsidiary to the ECOSOC, and to the Council, therefore are subordinated to the dispositions that state parties to these bodies adopt. But UN bodies are subsidiary to individual states inasmuch as they share the common responsibility to uphold the international rule of law, when they cease states betray their function and their sovereignty rights pass to the UN bodies. In this context of shared responsibility for the respect of HRs, NGOs participate to the legitimacy of the UN Organisations, in two a) Towards reluctant states, which ceased to be a self-implementing authorities – given inexistent executive UN power - NGOs stand for citizens whose rights are denied. b) NGOs are associations of citizens, as actors of the civil society they can exercise the fundamental liberties, and participate to the law- making process. In a dynamic regime of HRs, authority and sovereignty are not properties of legal persons, based on formally fixed roles, individual and groups behind the roles can be removed; institutions are legitimate as long as they perform the capacities the rule of law require. From the point of view of the IHRL, NGOs can, therefore, easily reply that the international rule of law supposes, namely, 1) a governmental continuum in the exercise of the legislative and executive powers, that implies the creation and execution of the law in a reasonable time; 2) a perfect symmetry between rights and obligations implies a fundamental obligation to comply with governmental duties according to legitimate claims of governed. By drafting and monitoring activities NGOs do not really chose to stand for the legitimate power but to fill the inaction of the principal authority, and claim state to take action. The real problem Human Right NGOs have to face is that they do not operate in an actual global civil society. The international society does not show to be as uniform as theories of civil society – and the theory of human rights – suppose, it is full of cultural gaps to overcome. This requires a fine work of mediation that, for instance, the proceedings of some conventions, especially the CEDAW, witness not to be easy to cope. Such difficulties are apparent in the debates preceding the signature of the conventions. In the official motivations of reservations to treaties, states use cultural differences as national identities not to give up; that is, they are used as a pretext in order to represent monolithically the citizens “below” the domestic government whatever their real conditions may be. Human Rights NGOs uphold the universal validity of the signed treaties and require compliance from states because HR treaties are international obligations that governments must implement. Their advocacy claims that 1) the authority of Human Rights law is global 110 law “above” governments; 2) they themselves share the UN authority to speak for the rights of people “below” governments385. However, it is apparent that many international HR provisions only have become efficacious after the concerned treaties had been invoked by NGOs. Therefore, when NGOs ask to enforce HRs provisions, they play the role of “global analogs to domestic police, judges and administrators in a rule-of-law democracy”386.
The ‘standing for’ action in policies of “supplementary democracy”, enter into competition with the democratic representative state. Unlike governors of a democratic state, NGO leaders are neither representatives elected by voters of their countries, nor officials nominated by superior officials of public organisations. To whom ONGs should be accountable is certainly a debated question that can be – and not a few have - resolved by making public their codes of conduct. The need of more transparency, however quite legitimate, cannot be exploited to deny their essential function of being supplementary to governments in deficits of legitimacy. At this stage of the global governance, all demands for reform of the UN system are turned to guarantee more representation, participation, transparency and effectiveness. NGO undertaking compensate for the lack of UN defined organs and functions. Embedded in global civil society, NGOs serve as “nascent forms of transnational governance” 387. The international community is not a unique global state that has the capability of international leadership; global ‘governance’ is performed by a plurality of agents, with different practices, and diversified ways of participation. In the search for a better definition of their functions, the question of legitimacy requires an explanation at its present stage: to what extent are NGOs entitled to promote civil and political rights? And especially, how can the creation of new actors entitled of collective rights be understood as a form of “supplementary democracy” ?
6.1 Legitimating UN governance. While states deny an adequate legal recognition of the relevant role of NGOs, the United Nations has developed a theory of global governance that consider the participation of actors of the “civil society” indispensable. “Good governance – says former Secretary General Kofi Annan - comprises the rule of law, effective state institutions, transparency and accountability in the management of public affairs, respect for human rights, and the meaningful participation of all citizens in the political process of their countries and in decisions affecting their lives”388.
385William E. de Mars, NGOs and Transnational Networks, (2005) 18 386 De Mars, op. cit. 20. 387 N. Rosenau, “Governance in the Twenty-first Century”, Global Governance 1 (1995) 23 388 Report of the Secretary-general on the Work of the Organisation, GAOR, 5(2nd) Sess. Suppl. No. I (A/52/I, 1997) p. 5, para 22. The Role of Good Governance in the 111
The ‘good governance’ doctrine assumes that the United Nations Organization is constituted of sovereign states that are members aequo jure of a society of pari. The UNO is de jure constituted by sovereign states which share sovereignty to ensure peace, but de facto the ordinary governance practice includes different actors that all participate and behave as members of the International Community. The practice of “good governance” is intended to be based on democratic deliberation processes, it is supposed to be democratic, despite the lack of a universal representative system. The UNO has adopted democratic practices in the decision making processes because the bodies follow rules of conduct and rules of result, and the practice is founded transparency and accountability This “good governance” paradigm is supposed to be not only the interne practice of the UN institutions, but also the substantial and universal model that any state should practices. These are, anyway, the ground principles that UN bodies will follow in dealing with global policies and with individual states whatever their domestic regime may be. The good governance doctrine implies an international code of conduct for governments, a soft requirement of homogenization of practices in dealing with common issues that involve Civil and Political Human Rights (CCPR). The UN good governance theory legitimates the commitment of Human Rights NGOs to making civil and political rights respected, all the more that democracy is explicitly acknowledged by the UN doctrine as the only legitimate form of governance389, and the validation of
Promotion of Human Rights (GA Resolution 2002/76) and Strengthening of Popular Participation, Equity, Social Justice, and Non-discrimination as Essential Foundations of Democracy (Resolution 2001/36). Rudolf Dolzer, Good Governance: Neues transnationales Leitbild der Staatlichkeit?“, ZaöRV 64 (2004) 535-546. 389In his Report “Larger Freedom” in September 2005, Secretary-General Kofi Annan made it clear that the Democracy is the basis of the International Community: “[Section] C. Democracy 148. The Universal Declaration of Human Rights, adopted by the General Assembly in 1948, enunciated the essentials of democracy. Ever since its adoption, it has inspired constitution-making in every corner of the world, and it has contributed greatly to the eventual global acceptance of democracy as a universal value. The right to choose how they are ruled, and who rules them, must be the birthright of all people, and its universal achievement must be a central objective of an Organization devoted to the cause of larger freedom. 149. In the Millennium Declaration, every Member State pledged to strengthen its capacity to implement the principles and practices of democracy. That same year, the General Assembly adopted a resolution on promoting and consolidating democracy. More than 100 countries have now signed the Warsaw Declaration of the Community of Democracies (see A/55/328, annex I), and in 2002 that Community endorsed the Seoul Plan of Action (see A/57/618, annex I), which listed the essential elements of representative democracy and set forth a range of measures to promote it. Regional organizations in many parts of the world have made democracy promotion a core component of their work, and the emergence of a strong community of global and regional civil society organizations that promote democratic governance is also encouraging. All of which reinforces the principle that democracy does not belong to any country or region but is a universal right.” Secretary General, In Larger Freedom: 112 governance in a single state390 has become one of the most important functions of UN peacekeeping activities.
NOGs recent undertaking is to recognize legal identity to peoples that are not represented in their our country. In a system ruled by civil and political liberties, at whatever level (local, regional, national, or global), members of representative government come from the civil society. Consequently, cooperation and competition between non-governmental associations and governmental members are legitimate practices, but require that liberties are exercised, expressed and, when necessary, even opposed to governments. The problem is that most states are not democratic regimes, and, conversely, regimes which are themselves based on electoral system are not democratic in their deliberation process. The groups holding power exclude a vast part of people, ethnic, religious minorities…which fundamental liberties are denied.
The Human Rights theory is complementary to the political regimes, in the senses that it shall be corrective of the deny of rights. Because of the very substance of human rights, government is based on the tenet that political power is a limited human capacity; individuals, not public authorities, are ultimately entitled to liberties. Democratic countries assume that public power is a common resource to the benefit of all, but International Community as such is committed to accounting to governed with paper rights for its policies of protection. In the circular relation between UN central bodies and individual States, NGOs appear to be the real execution agencies of the UN ad hoc policies. That is why GS Kofi Annan asked the General Assembly for “due consideration” of the “indispensable function of NGOs in the burden of global governance”391.
a) The International Community is committed in delivering services to face widespread needs. The huge gulf between the needs of people and the capabilities of international institutions to address these needs is the main reason why capabilities of the civil society should be involved. While looking at the common goal, Kofi Annan made no distinction of status among the partners; “In order to address the broad range of contemporary international problems, it is important to forge partnerships and alliances. Governments alone do not have the capacity to find solutions to these problems”392. In spite of this strong
Towards Development, Security and Human Rights For All. Report of the Secretary- General of the UN, September 2005. 390 See Thomas Franck, “The emerging right of democratic governance”, 86, Zeitschrift für ausländisches öffentliches Recht, (1992). 391 UN Report of the Secretary-General on the work of the Organization, 2003, A/58/1, para 9, Chapter VI is entirely consecrated to “Partnerships”. 392 UN Report of the Secretary-General, para 9. 113 arguments, the mandate to NGOs is late to be recognized because of some doctrinal arguments related to the monopoly of power.
c) There is in most states an asymmetry between concentration of political power and the real capabilities needed to resolve problems. The commitment of the international community to implementing human rights requires from the states parries the political will to share the common responsibility and to comply with the duty to progress. Consequently, member states cannot legitimately claim to monopolize power when they have not the real capabilities to cope with addressing the tasks. Practices and institutions of governance can, and do, evolve in such a way as to be minimally dependent on hierarchical, command- based arrangements. The international system of communication, for instance, has developed autonomously by adapting means to needs. Anyway, the UN doctrine of “global governance” does not imply a hierarchy of centralized powers, but is based on a functional coordination of different agencies. In a situation with many actors, coordination and result are not based on command, but consent and control393. In this contest, which provides an output legitimacy, the monitoring function of NGOs exert external control over domestic policy concerning human rights. By definition, NGOs remain non- governmental because they do not pursue a general policy, but a policy oriented towards specific rights. ‘Governance’, in the UN doctrine, do not denotes any rigid division between state and non-state competences. Governance denotes the public action that “provides security, prosperity, coherence, order and continuity to the system”394, where all subjects co-participate in governmental processes that are set up both by internal self-regulating actors and external controlling agents. Steering mechanisms are spurred into existence through the sponsorship of states, and the efforts of actors, other than states, at transnational or sub-national levels395.
b) A second argument against the involvement of NGOs in issues of global governance, has “organologic” nature and defends also the
393 “We shall replace the notion of command mechanisms with the concept of control or steering mechanisms, terms that highlight the purposeful nature of governance without presuming the presence of hierarchy, Governance is the process whereby an organization or society steers itself, and the dynamics of communication and control are central to that process."' James N. Rosenau, “Governance in the Twenty-first Century”, 1Global Governance (1995)14. Rosenau and Ernst-Otto Czempiel, eds., Governance Without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992. Steven A. Rosell et al., Governing in an Information Society (Montreal: Institute for Research on Public Policy, 1992) 21. 394 Alexander King and Bertrand Schneider, The First Global Revolution: A Report of the Council of Rome (New York, Pantheon Books, 1991) 181-182 395 James N. Rosenau, “Governance in the Twenty-first Century”, Global Governance 1 (1995) 14. 114 maintenance of the monopoly of public power. The underlying tenet is that only democratic governments are legitimate to represent people at the UN level. By what right do representatives of a national community claim to be entitled to represent holistically all sectors of the global civil society? It is objected that NGOs are not an organ democratically elected “in their own state” 396; they are often small elites that do not “represent” the opinion of any organized territorial community either. It may be retorted that a state administration consists also of non- eligible self-appointed powers: foreign officials of a democratic state are not elected either; with the exception of the minister, the foreign office is composed of state functionaries nominated by other functionaries. Further, the foreign office of a national state, democratic or not, maintains to be an organ of that individual state, and not an organ of the international community. It cannot be any analogical extension of the domestic representation of an individual state to the international community of individual rights holders. The sum of all delegations of the representative governments do not really exhaust the potentialities of the representative principle. Because of the selective criteria of governmental representation, many groups of persons are left without advocacy. Whoever would, for instance, represent people without state if not they stand for themselves? Consequently, states cannot vindicate the monopoly to deal ultimately with the interest of HRs holders397.
c) The most important argument in favour of the NOGs is that national policies show that governments themselves do not act “on behalf of” the international community, because not a few political choices are against the protection and promotion of HRs holders.
396 „Aber sie sind nicht demokratisch legitimiert, nicht gewählt und können auch nicht abgewählt werden. Sie haben nicht das Gesamtwohl der Bevölkerung ihrer Staaten im Auge, sondern bestenfalls das von Interessengruppen. Ihre Ideale oder auch Ideologien sind oft radikal. Und es stehen ihnen zumeist keine anderen, ebenfalls (p. 565) nicht-staatlichen Interessengruppen gegenüber, die für einen Ausgleich dieser Interessen sorgen könnten.“, Torsten Stein, „Demokratische Legitimierung auf supranationaler und internationaler Ebene“, Good Governance, 64, No 3 ,Zeitschrift für ausländisches öffentliches Recht (2004), 563-570. Wesentlich für die demokratische Legitimierung auf der internationalen Ebene –soweit sich Legitimität nicht bereits aus dem effektiven Umgang mit grenzüberschreitenden sozialen Problemen im weiteren Sinn ergibt (Frieden, Umwelt, Wohlstand), v o n B o g d a n d y , „Demokratie, Globalisierung, Zukunft des Völkerrechts - Eine Bestandsaufnahme“, 63 Zeitschrift für ausländisches öffentliches Recht (2003) 853 ff. 397 states are not representative organs of the international community, neither when they act in concerto, to make or to enforce rules. The term “organ” implies a body authorised to create and to apply rules for the whole community397. states don’t act in behalf of the international community, as the parliament is the representative organ of the domestic electors body. states are not democratic representatives – not political organs - of the IC, have not been empowered to represent the will and the opinion of the IC. IHRL is created by states trough the actions of the IGOs: these are made up of delegations of diplomatic personal. Nardin, Law and Morality, and the Relations of states (Princeton University Press, Princeton, 1983) 152. 115
It is well known that there is no symmetry between the democratic practice of a domestic government and its foreign practice. Democratic governments rely each other and with autocratic regimes as partners because national diplomacy pursues the national interest. When they deliberate, in Intergovernmental Organisations, diplomatic delegations receive instructions398 from the national government so that their acts such as making proposals or statements and casting votes are to certain extent acts of their individual governments. Complying with democratic practice inside a national community and pursuing the national interest in the international society, are both asymmetric and coexistent practices. The state pursues a general policy and defends a collective interest, it does not look after the needs of every person and groups: voters and nationals are of primary interests. The same logic of inclusion and exclusion leads states when they are dealing with human rights. At an international level, in fact, the policy of states concerning individual rights is ambivalent: human rights cannot become binding and effective without public power, but HRs enter into the agenda of states only as long as they coincide with the state interest. The Pinochet case399 is an emblematic example of the conflict of national interest and human rights law: the English government did not conceded the extradition of the General Pinochet to Spain in order to face the accusation for crimes against humanity. The national interest prevailed over the duty to comply with the prohibition of torture, a HR treaty that the UK had signed but the House of Lords ignored400. Even a
398 “Normally, these representatives of governments are middle-level bureaucrats, but even elected officials, embers of cabinets or private individuals, all must be properly accredited by their governments”, Paul C. Szasz, „General Law-Making Prozess“, in The United Nation and International Law, by Christopher C. Joyner (United Nations, 1997), 28-63, 40 399 Augusto Pinochet was arrested on 17 October 1998 in London under an international arrest warrant issued by judge Baltasar Garzón of Spain. The charges were of torture and assassination of Spanish citizens in Chile. In October 1998, the Lord Chief Justice, Lord Bingham, ruled that the general Pinochet was "entitled to immunity as a former sovereign from the criminal and civil process of the English courts''. According to the High Court, (House of Lords) "a former head of state is clearly entitled to immunity in relation to criminal acts performed in the course of exercising public functions". But the functions of a head of state didn't include crimes against humanity. A former head of state could not get away with committing an international crime. General Pinochet could, after all, be extradited to face trial in Spain on those charges. BBC News, Legal lessons of Pinochet case, BBC, 2 March, 2000, 09:53, http://news.bbc.co.uk/2/hi/uk_news/617425.stm. In April 1999, former UK Prime Minister Margaret Thatcher and former US President George H. W. Bush called upon the British government to release Pinochet. Thatcher pleads Pinochet's case, BBC, October 6, 1999; Former U.S. President Bush urges Pinochet release, CNN, April 12, 1999. They urged that Pinochet be allowed to return to his homeland rather than be forced to go to Spain. On the other hand, Amnesty International and the Medical Foundation for the Care of Victims of Torture demanded his extradition to Spain. Pinochet must go to Spain, says Amnesty, BBC, January 21, 1999. 400 Regarding the charge for torture, Lord Browne-Wilkinson, chairmen of the law Lords stated: “..in my view only a limited number of the charges relied upon to 116 democratic government with long liberal tradition may be consistent with the international respect for HRs as long as this respect does not involve high political costs. The fact that public powers exert inertia, and obstruction in the process of implementation of new legal rights, entails empty spaces of international legitimacy that need to be covered by other actors. The asymmetry in the two organs (domestic representation and diplomatic representation) makes apparent an asymmetry in the form of authority: the US government acts according to the domestic expectations of the electors inside the country, but in treaty-making with the international communities, it is very often uncooperative. Even though, the foreign policies of democracies, compared to autocratic regimes, present some friendly characteristics - for example, they are supposed to avoid waging war to resolve international conflicts - democratic governments also cannot escape from the interest-based nature of international relations. The two commitments with national community and political majority are the legitimacy strength of the state, but at the same time fix the limit of the national public action.
d) A further argument against the participation of NGOs is the subordination of the origin of the law to the political power. States, however democratic in the domestic sphere, maintain a monopoly over the law-making process at the international level. The states hold legal capacity and deal only with agents aequo jure: sovereign state does not recognize any civil agency at the international level. The most basic premise of the positivist theories of law is that domestic law is made by political institutions which represent the people. The underlying realistic philosophy assumes that also IHRL derives from the will of sovereign states. According to realist theories401 international society essentially consists of political relations
extradite Senator Pinochet constitute extradition crimes since most of the conduct relied upon occurred long before 1988”. "Torture outside the United Kingdom was not a crime under the law of the United Kingdom until the 1988 Criminal Justice Act, Section 134, came into force on 29 September 1988." HOUSE OF LORDS Session 1998-99, Publications on the Internet, Judgments , OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE, REGINA….on 24 March 1999, http://www.parliament.the-stationery- office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm
401 « Les ONG … qui aspirent à devenir des parties politiques internationaux sans légitimité » ont « largement tenu la plume dans la rédaction de nombreux exposés étatiques », and « développé une démocratie parallèle qui interfère avec le diplomaties étatiques, sans aucune base démocratique”, Sur, « La Convention de Rome entre les ONG et Conseil de Sécurité », RGDPI, 1999, p. 36. According to Sur the International Law-making of HR is an exclusive monopoly of the délégations diplomatique: « La Conférence de Rome à été marqué par l’influence de nombreuses ONG, qui on été des véritables partenaires de la négociation soit directement, soit indirectement en investissant certaines délégations, en définissant leur position et en leur fournissant les argumentations correspondantes et en s’exprimant en leur nom…on peut remarquer qu’il y a là une nouvelle dépossession des Etats, qui ne se 117 between state-powers. As a result they recognize NGOs only as “support” 402 for the work of the UN, but not the function of “advocating” rights. Human Rights of individuals should be advocated by state representatives (diplomats) as rights negotiated by individual states. Specific rights for particular groups are supposed to be incompatible with the general character of the law. The ambiguity rises from the two-fold meaning that the notion of “law” incorporates. The continental and positivistic theory have abolished the natural entitlement: only legally binding norms, promulgated by the competent organs, are really law. On the contrary, the tradition of common law continues to use two different terms for subjective claims and objective norms. Law exists as a subjective claim (right) before it becomes an existing binding norm (law) that is enforced by the legal authorities. But liberties of individuals and groups continue to be sources of moral claims even when the political authority does not transform them into laws. It is not because a provision is an act of the sovereign power - which bases the legal obligation on the duty of political obedience to the elected governors - that the content of the law loses its relative character, in fact it is the decision of a political majority. Statute law reflects the opinions, interests, and needs of the majority403 in power. Finally, the ambivalence of the positive notion of law consists in the fact that an act of the legislative power is actually a political act of the governmental authority. The question is what kind of authority is compatible with the Human Rights theory of the United Nations404. Autocratic attitudes towards Human Rights, that governments claim to define and enforce apodictically – as autocratic regimes are used to applying “natural law” – are not consistent with HRs because the underlying tenet of autonomy empowers individuals. Specific Rights conferred to groups with particular difficulties, as aboriginal peoples, are not supposed to be an incompatible derogation to the general character of the law. Modern
sont pas prêtés à cette attente à leur monopole de a conduite des négociations interétatiques – et la Convention de Rome est supposée être interétatique.». « Les ONG … qui aspirent à devenir des parties politiques internationaux sans légitimité » ont « largement tenu la plume dans la rédaction de nombreux exposés étatiques », and « développé une démocratie parallèle qui interfère avec les diplomaties étatiques, sans aucune base démocratique.” Ibid. 402 “Acknowledging the breadth of non-governmental organizations' expertise and the capacity of non-governmental organizations to support the work of the United Nations” A/Res. 1996/31, Preamble. 403 The constitutional control strengthen the formal control but it does not change the principle. 404 The idea of Human Rights is as much old as human values, and is present in different cultures, but the way to shift from the effectivity of a social code to the legal order is quite different. In Europe only after the WW2 Human Rights became the founding principle of a society of states that renounce to use the force as a mean of resolving international conflicts. The Human Rights doctrine of the UN emerged from the limitation of the absolute power, implies a concept of authority that is able to coexist with ideologically different actors and cooperate with autonomous agents.
118
HRs can become effective only in democratic order as are based on a set of civil liberties, they are not general principles of “natural law” that the authority knows and commands. HRs are the result of a process where sovereignty means nothing but a coordinated autonomy and “shared responsibility”405.
6.2 Advocating autodetermination for under-represented groups. The growth in trust and credibility of Non-Governmental Organisations is based on the fact that they act and behave differently from state organs. The extra power that makes NGOs effective at domestic level is that they act independently from the domestic system of power, and can find allies in likeminded agencies at a higher level rule of law. Their commitment to human rights can be direct because NGOs are neither subordinate to complex bureaucratic procedures nor limited by the interest of political parties. NGO mission is not to represent communities but advocate rights, whoever the entitled may be. Being committed to the right holders at the grassroot, and present in situations of evident deny of rights, this confers to their action authority non represented groups. NGOs as long as they are autonomous associations of people upholding common rights are the achievement of the democratic principle of autonomy outside – but not against - the domestic representative system. Self-determination of groups and categories can undertake action of positive justice in two forms: 1) providing legal protection of persons against discrimination; 2) making holder of collective rights recognized.
The UN practice of building Working Groups devoted to specific issues to autonomy. Non-governmental associations, accreditated by UN, has been essential to categories of discriminated people to obtain the international protection of their rights through the declaration and adoption of ad hoc conventions. HR standards specifically tailored to women, children, migrant workers, ethnic minorities, refugees, stateless people, and missing persons have been supported, advocated, and drafted by self-organised associations. Legal protection has been most notably provided through the UN Working Groups that made possible the adoption of covenants and protocols against racial discrimination (CERD), discrimination and violence against women (CEDAW), and migrant workers (CRMW). The Convention of disabled persons, even though not specifically in the same mold as CEDAW and CERD, has, as its core, concern about discrimination.406
405 406Convention on Human Rights of Persons with Disabilities, adopted on 13 Dec 2006. The Preamble mentions the "need for persons with disabilities to be guaranteed their full enjoyment without discrimination" and stresses that “discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person”. As the 2002 UN Report states: "the disability rights debate is not 119
In this sense, non-governmental organisations, as associations capable of autonomous undertaking, have been and can be complementary to governments particularly in correcting distortions and power blocks in the domestic representation system. The competition to the political parties, understand as organised powers, is here quite positive. The coexistence of the political parties with the governmental powers shows, in fact, the tendency to reduce the accountability space to the electoral moment, where, in not a few cases407, an easily made holistic representation reduces and hampers civil undertakings and finally end up to a self-referent representation of the powers that be. Promoting equal right to positive autonomy, non- governmental associations for specific rights increase individual freedoms through promoting social diversities and keeping social plurality. The question of self-organisation of collective rights at the trans-national level becomes critical when the issue of specific autonomy is turned into political self-determinations of ethnic and cultural homogeneous groups. To what extent are.... complementary or antagonist to the state order? Human Rights NGOs, as non-party and non-domestic organisations, NGOs act in a complementary manner to the political system, for instance, whenever categories of people, which feel to be non- represented or underrepresented, act advocating the direct, civil representation of their own rights, they act as stakeholders on the model of domestic class action. Self-determination of ethnic groups and minorities has set up self- representation for non or under-represented people. Minorities marginalized by strong majorities in democratic states, and ethnic minorities denied by holistic representation at the international level have won public identity. The conventions on the rights of ethnical and cultural minorities, for example, recognize the right to autonomy for groups that majority regimes prevent from attaining legal rights through domestic self-determination. Cultural, ethnical membership can be an inherent part of any individual, and it therefore must be protected by collective rights. The convention concerning Indigenous and Tribal Peoples in Independent Countries408, which confers legal protection and positive
so much about the enjoyment of specific rights as it is about ensuring the equal effective enjoyment of all human rights, without discrimination, by people with disabilities." 407 Italy, France, Turkey. 408 Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), adopted 27 June 1989, 1650 U.N.T.S. 383, (entered into force 5 Sept. 1991). Alexandra Xanthaki, Indigenous Rights d United Nations Standards. Self- Determination, Culture and Land (Cambridge University Press, 2007) 103 ff; Monika Ludescher, Menschenrechte und indigene Voelker, Peter Lang, Europaeisher Verlag Wissenschaften, Frankfurt am Main, 2004. 120 rights to the cultural identities of these peoples, would not have been possible without the efforts of more than 100 accredited NGOs that organize and represent indigenous peoples. This legal instrument has been promoted by a Working group of indigenous NGOs organised as IGOs. In 1982 the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities created a Working Group on Indigenous Populations409. A coalition of 135 NGOs, the majority of them indigenous peoples’ organizations, were represented in the Working Group that in 1994 produced the Draft Declaration on the Rights of Indigenous Peoples. The Sub-Commission then adopted the Declaration that in 29 June 2006 was finally adopted by the Human Rights Council.
This is one case where discriminated groups have developed, outside the respective states and independently from their authorities, the standards by which they want to be governed. Advocacy and representation here converge in a new kind of international class action by which UN organs create a new entity under the protection of international law. The result is that NGOs acting inside the UN organs promote a transnational form of “supplementary democracy”410 which redresses the weaknesses of the representative system at the national level. The autonomy rights of the new actors are established by IHRL, and the implementation by states falls under the control of the UN treaty bodies.
Are International NGOs legitimate to “represent”411 domestic groups? When these agencies represent rights of minorities or other groups that in the domestic sphere cannot speak for themselves, they are, of course, not under the obligation of a political mandate, NGOs act as voluntary upholder of recognised IHRL. One can discern representativeness gained by proximity to the addresses at the grassroot and close to other NGOs that do have extensive memberships412. NGOs
409 Report of Working Group on Indigenous Populations, U.N. ESCOR, Commission on Human Rights, 7th Sess., U.N. Doc. E/CN.4/Sub.2/1989/36 (1989). 410 Alison Van Rooy, The Global Legitimacy game: Civil Society, Globalisation and Protest (New York: Palgrave Macmillan, 2004) 137-140. James Crawford & Susan Marks, “The Global Democracy Deficit: An Essay in International Law and Its Limits”, in Daniele Archibugi, David Held, & Martin Kohler (eds), Re-i United Nation and International Law, ed. Christopher C. Joyner magining Political Community: Studies in Cosmopolitan Democracy, (1998) 72, 83. 411 Von Bernstorff: Menschenrechte und Betroffenenrepräsentation: Entstehung und Inhalt eines UN-Antidiskriminierungsübereinkommens über die Rechte von behinderten Menschen. Summary: Human Rights and Representation: Origin and Content of a UN Non-discrimination Convention on the Rights of Persons with Disabilities, Zeitschrift für ausländisches öffentliches Recht 2007, Vol. 67, No 4. 412 A. Hudock, NGOs and Civil Society: Democracy by Proxy? (Cambridge: Polity Press, 1999). M. Edwards, ‘Legitimacy and Values in NGOs and International Organizations: Some Skeptical Thoughts’, in D. Lewis (ed.), International Perspectives on Voluntary Action: Reshaping the Third Sector (London: Earthscan, 121 bring HR abuses to the attention of the world community and demand legal actions to stop abuses as well as inactivities.
Can an organ of the International Organizations be a “stakeholder” for a group of a member state? Is the UN legitimate to create, by a specific convention, a new international subject? The question concerning the “holder”, the nature and the extension of the right to self-determination is as controversial as every right of emancipation. It is a fact that many groups, which, although in their own countries are considered de jure citizens, the political system de facto neglects or discriminates them as if they were aliens. Promoters of HR conventions attempt to ensure a legal status for specific categories of people by recognizing the HRs of each individual (ad personam)413. Placing personal entitlements within the category of IHRL, international obligation protects them from the discriminative effects of imperfect domestic legal systems or political regimes. Internationally- recognized rights may thus significantly limit the political will of a dictatorial minority as much as that of a discriminatory democratic majority. A global governance practice cannot be a priori closed to new legitimate claims of self-determination, or complains “paper rights” and claims for real liberties cannot be masque as a threat to the sovereignty of state. Most of the elite in power maintain not to recognize evident discriminations because redressing would require them to give up privileges, or because recognizing evident injustice is supposed to offend the prestige of the responsible authority414.
A democratic state should accept the presence of non governmental authorities outside the state and should be recognized on the basis of its NGO representativeness415. States co-opt political actors that might otherwise oppose the government, and which represent unrepresented or underrepresented groups of citizens trough this international organization416.
1999), pp. 257–67. G. Monbiot, The Age of Consent (Flamingo, 2003); N. Hertz, The Silent Takeover: Global Capitalism and the Death of Democracy (London: Arrow Books, 2001). 413 H.J. Steiner and P. Alston (eds), International Human Rights in Context (3rd edition, Oxford: Clarendon Press, 2008) 938-983. 414 As the fact that Turkish government refuses to recognize the Armenian genocide, or the Catholic Church that hampered by all means the rights to justice of the victims of paedophile priests, Robertson, 415 Spiro 784 416 “A citizen who cares very deeply about ending whaling, for instance, almost certainly will find his or her views better represented in international for a by the World Wide Fund for Nature than by his or her government, which has many goals it must simultaneously pursue….The participation of NGOs in WTO debates also can help to compensate for deficient representativeness at the national level” Daniel C. Esty, “NGOs at the WTO: Cooperation, Competition, or Exclusion”, Journal of International Economic Law 1 (1998) 123-147, 131-132. 122
More participation in global governance could be granted to NGOs in return for transparency, accountability, and integrity monitored by self regulation417.
6.3 Compensative function and symbiotic capacity. A natural affinity exists between organizations such as Greenpeace, Amnesty International and Transparency International because all three are international actors that, each one in each specific field, converge in the same goal of improving the “reserved domain of domestic jurisdiction”418. As HR organizations, all have the aim of restraining the exercise of unaccountable power both by governments and private actors. Despite their links with local movements and issues, all three groups are international in scope and act from the outside into the domestic sphere of states. But, what is their role in an international community that is supposed to promote democratic values without having a global representative system? Defenders of the democratic states point out the paradox that organisations that do not seek to promote democracy are themselves more democratic. In the Western world, governments and their agencies are, at the end of the day, accountable to their voters. Who holds NGO activists accountable?’419 As the international society is not an organized political community, representation cannot be a global principle of accountability; representative agencies (states) are in fact only regional, and thereby no agency can claim to be a representative organ of any global entity.
For example, an NGO can act for the universal respect of HRs, and produce general results because of its loyalty to the adopted
417 Michael Edwards and David Hume, (eds), Non-Governmental Organisations – Performance and Accountability. Beyond the Magic Bullet, 1995 (3th 2002). 418 “protected under Article 2(7) of the UN Charter”, Michael R. Anderson, “Human Rights Approaches to Environmental Protection: An Overview”, in Alain Boyle and Michael Anderson (eds), Human Rights Approaches to Environmental Protection, (Clarendon Press, Oxford 1996) 2-3. 419 The consultative status is accorded to Organizations that “have a representative structure and possess appropriate mechanisms of accountability to its members, who shall exercise effective control over its policies and actions through the exercise of voting rights or other appropriate democratic and transparent decision-making processes.” GA/Res. 1996/31, para 12. Vivien Collingwood, “Non-governmental organizations, power and legitimacy in international society”, 32 Review of International Studies (2006) 439–454, 448. A. Vedder, ‘Non-state Actors’ Interference in the International Debate on Moral Issues – Legitimacy and Accountability’, in A. Vedder (ed.), The WTO and Concerns Regarding Animals and Nature (Nijmegen: Wolf Legal Publishers, 2003). J. Fox and D. Brown, The Struggle for Accountability: The World Bank, NGOs and Grassroots Movements (London: MIT Press, 1998). “Who Guards the Guardians”, The Economist, 20 September 2003. 123 principles. These agencies of civil societies do not speak on behalf of the people as national entity, the masse parties, or whatever general will. They are corrective of the political authority inasmuch as they can oppose the regional achievement of universal values and impose the primacy rule of the results. NGOs do not share a common vision of the common good, but their common goal is to reduce the lack of real rights as much as possible. What is significant about their activities is, in fact, the glaring failure of conventional politics to address these problems or ensure the implementation of agreed solutions. Transnational NGOs do in fact continue to draw legitimacy because some, at least, offer a critical perspective on non-fulfilments, negligence, and violations by governments. Most visible NGOs are based in industrialized countries who lobby for particular principles or issues, such as debt relief, environmental protection, and human rights, e.g. Oxfam, World Wildlife Fund, and Amnesty International. NGOs usually have their headquarters in democratic countries, and comply with the principles of these civil societies. Nevertheless, as they are transnational in nature and their field of action serves in non-democratic countries, they have to adopt consistent measures to achieve their mission in non-democratic regimes420. As a result, victims of HR violations are emancipated from illiberal governments. Thanks to their transnational statute, NGOs can escape the restrictions of domestic jurisdiction, and succed in doing what Aung San Suu Kyi so famously wrote, “Please use your liberty to promote ours”. The legitimacy of NGOs consists of their efficacy in achieving specific monitorable goals. Conversely, NGOs can lose legitimacy when significant gaps appear between their ideals and NGO activities, because the outcomes of their activities do not match their principles421. They can be questioned on grounds of ineffectiveness, or even incompetence, or inconsistency. Even though their moral justifications and practices may appear convincing, their role in world politics is delegitimized whenever their performances do not live up to the expectations. In conclusion, civil society organisations that are not themselves based on democratic representation can nevertheless be achievers of democratic values. As a result, they are part of the pressures brought to bear on the outcomes of democratic processes. These agents are not conceived to be substitutes of democratic
420Sometimes they have to operate with “hazardous partnership”, “If Human Rights Watch were consistently successful in exposing crucial sources of arms, the organization would face more consistent hostility among the governments it is trying to influence”, William E. de Mars, p. 205; see Interviews with staff and consultants of Human Rights Watch, Washington, DC, February 1999. 421 See Vivien Collingwood, “Non-governmental organizations, power and legitimacy in international society”, 32 Review of International Studies (2006) 450, and V. Collingwood and L. Logister, ‘state of the Art: Addressing the INGO ‘‘Legitimacy Deficit’’ ’, Political Studies Review (2005) 175–92, 180. 124 processes inside the individual states, but they succeed in the capacity of being attached to human rights as they actually are finally provided by state action. The output evaluation of the state policy might witness that, despite complying with legal procedures, the enjoyed rights appear poor. In this respect the information and the undertakens of agents such as Amnesty International, Transparency International, Human Right Watch, and Green Peace are indispensable to know whether and how political regimes are symbiotic or parasitic to the values of the international community.
7. Balancing Democratic Liberties.
The international regime of HRs is designed to protect the fundamental rights of virtually every child, woman, and man through law. The control over government which, in the national state theory, was reserved to the assessment of citizens, is no longer an exclusive domestic matter protected by the non-interference principle. The establishment of the monitoring system marked a fundamental shift in the form of international legal instruments. Since 1966, the Convention on Civil and Political Rights - and the subsequent eight treaties – have completed the UDHR with the obligation of states to report. The report duty characterize the structure of the HR obligations whereby member states are bound to account to Council about the status of implementation of each single signed HR convention and articles. According to the CCPR, civil and political liberties are under the protection of the International Community. The requirement to account is all the more greater if a country is member of a community of democratic countries, as in the European Union. Up to now, over three-quarters of the UN member states have become parties to this convention, but to what extent has the formal adhesion to the treaty really changed the consolidated practices of the domestic elites 422?
The supplementary functions of ONGs have been crucial in rebuilding civil society in newly established democratic regimes and in the post-war zones423. Democratic entitlement has attend through both the establishment of the rule of law, the practice of global and regional organizations, that has been “supplemented by that of a significant number of non- governmental organizations”424. The combined efforts
422 Linda Camp Keith, “The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behavior?”, 36, No. 1 Journal of Peace Research (1999) 95-118. 423 “Restructuring the media in the post-conflict societies: four perspectives the experience of intergovernamental and non-governmental organisations ». A Background Paper for the UNESCO World Press Day Conference in Geneva, May 2000, Edited by Monroe E. Price Co-director, Programme in Comparative Media Law & Policy Centre for Socio-Legal Studies, University of Oxford, Cardozo Online Journal of Conflict Resolution (2000) 1. 424 Thomas Franck, “The emerging right to democratic governance”, American Journal of International Law, Vol. 86:46 (1992) 90. 125 of both international governmental organisations ("IGOs") and non- governmental organisations ("NGOs") to intervene in order to mantain a more stable and peaceful world order either in anticipation risk of conflict, in dealing with situations of conflict, and in the ordeal following the conflict have been remarkable. The intense activitity of Amnesty International has shown how violations of civil liberties are present in different regimes. States, however civilized, always violate some human rights. This proves how important is the need for an extraterritorial guardian, independent of the political system that, can undertake the function of ombudsman on behalf of victims. (of public institutions)
Shift in the democratic systems. A non-governmental guardian for political and civil liberties is all the more necessary now because the use of democratic liberties underlies an epochal structural, and even anthropological change. On one hand, the integration of national societies in a global society, and on the other hand the integration of national states in the international community, has opened a new transnational space for democratic accountability. NGOs can take on the role of monitoring in the output of the legitimacy of powers that the domestic associations have partially lost because of the transformations of the political parties. Three trends have changed the traditional political obligation and accountability function between representatives and represented: 1) the drop in of affiliation to political parties, 2) the ersatz function of active media as public actors; and 3) the growth in horizontal relations in networks, and the massive growth in local-global NGOs.
7.1 The changed hierarchy of political liberties. The adoption of an electoral system is believed to promote civic participation and to control representatives by electors. However, in the last twenty-five years, political associations have dramatically lost members, whereas NGOs have increased remarkably in number, affiliation, and power. NGOs have quite different internal structures425, but all earn legitimacy in the field. Conversely, political parties, which are national organisations that conquer and exert political powers, have lost contact with the territory. After the decline of the mass party a new question about legitimacy has arisen inside of the representative system. Without territorial, stable, and civic affiliation how can political parties still be considered to comply with the civic request of accountability?
425 Reacting to the critics, some of them are reviewing their internal practices of accountability. For instance: Oxfam UK’s statement of legitimacy and accountability, available at http://www.oxfam.org.uk/about_us/legitimacy.htm; and NGO accountability projects at http://www.hapinternational.org; http://www.oneworldtrust.org; http://www.sphereproject.org. Many large INGOs submit their finances to external audit and give a detailed breakdown of expenditure – including the balance between administrative and program costs – in their annual reports. In this sense, INGOs can be more transparent than private sector corporations. 126
Political responsibility, as a democratic value, results from the constitutive process of representative power. Governments are ‘accountable’ if “citizens can discern representative from non- representative governments”, and finally can sanction them appropriately, retaining in office those incumbents who perform well and ousting from office those who do not426. The possibility of this assessment depends to a great extent on the civil culture, that is, on the quality of participation and also of the civic extension of the people involved. In a system founded on the counting of the expressed opinions, the number of participants is more important than the amount of the cast ballots. Because of the logic of participation, political obligation differs slightly from the logic of formal compliance of obligations: democratic accountability is build of both. Participation is a form of direct responsibility where responsivity is internalized in the process of cooperation. Compliance is a vertical relationship between citizens and state, and it can be formal through the electoral system, rather than informal through voluntary participation. Whether participants lack sufficient information or lose the essential quality of being deliberative, the representative process consequently loses the qualities of being transparent and effective, and the formal mechanisms of electoral accountability looses its function. The democratic cycle of political legitimacy is based on the choice of candidates, election and confirmation or destitution. The fact that an electoral regime works effectively, as a practice of accountability of the representatives to the electors, has become highly problematic because the selection process is less and less mediated by the associative basis. Since the advent of the active media, political associations in democratic states have ceased to be rooted to the territory, and therefore the ‘representatives’ have become more and more a virtual presence, thanks the virtual ubiquity that the media provide. Parties which no longer have mass roots have become electoral committees that use medias to produce consensus427 so that the political mandate (obligation ex ante) has become void of normative contents.
426 The editors of Democracy, Accountability, and Representation argue that: “An ‘accountability mechanism’ is thus a map from the outcomes of actions (including messages that explain those actions) of public officials to sanctions by citizens. Elections are a ‘contingent renewal’ accountability mechanism, where the sanctions are to extend or not to extend the government’s tenure (Adam Przeworski, Susan C. Stokes and Bernard Manin (Eds.), Democracy, Accountability, and Representation, 1999, p. 10). James Fearon defines accountability as a formal obligation: “We say that one person, A, is accountable to another, B, if two conditions are met. First, there is an understanding that A is obliged to act in some way on behalf of B. Second, B is empowered by some formal institutional or perhaps informal rules to sanction or reward A for her activities or performance in this capacity”, James Fearon, “Politicians Control and Electoral accountability”, in Przeworski et al Democracy, Accountability, and Representation, 1999, p. 55. See Mark Philp, “Delimiting Democratic Accountability”, Political Studies, 57 (2009) 29. 127
Moreover, the use of the media shapes public perception, creates, produces and promotes “public opinion”, which is directly and continuously transferred into the domestic sphere. To reach the electors, parties leaders no longer need political associations distributed across the territory. The political obligation ex ante, by candidacy and election inside a constituency, belongs to the past, with the mass party and civic commitment. For the present parties, civic association has become a local matter. How many people decide inside a party? How are the candidates really selected? How many local electors are involved in the local candidacy? How frequent is the rotation of the duties? All of these are elements that can be considered essential to express an informed consensus, and wise assessment of the qualities of the candidates and their political performances, which many of the voters may be unaware of. The possibility of sanctioning a representative through an evaluation of his performance (ex post), could become a reality only if the electors have the real right to present other candidates, that is, a real possibility of changing their representatives. The binary alternative of two mediocre parties or coalitions, without rotation of candidates is no longer an effective practice of internal or external accountability. In most democratic countries, sociology of political powers and information about social and political actors do not help in disclosing the public vices of the electoral regime, for instance the strange mechanism of elections without voters exert a real right to present and choose candidates. The impact of the new TV media on the representative system has been ambivalent and, in some respects, destructive of the associational basis of democratic representation428 because of the deterritorialisation of the elected. The technological possibility of broadcasting replaces interactive communication trough emissions, this has changed the situation of interdependence of liberties429. It has changed the causal interaction between three fundamental capacities that build active participation: freedom of speech, freedom of association, deliberation capacity. While the television media have profited the political parties and the public actors turned the media into self-referent powers, networks have led NGOs to widen their horizontal dimension, to increase their transnational participation and partnership in civil society. While virtualisation of interactive communication has cancelled the
427 “In the United Kingdom the Royal Society for the Protection of Birds has more members than the three main political parties put together”, F. Dodds, Foreword ix, in Michele M. Betsill and Elisabeth Corell (eds), NGO Diplomacy. The Influence of Nongovernmental Organizations in International Environmental Negotiations (MIT Press 2007, MIT Press, Cambridge, Massachusetts). 428 The Tiananmen Square killings were shown directly on Western televisions, as they took place. The Zapatista leader during a rebellion in southern Mexico could transmit press releases to the US from his portable computer. 429 Timothy E. Cook, Governing with the news: The news media as a political institution (University of Chicago Press Chicago1998). 128 political association and turned the public process of representation by delegation into a private practice of cooptation430, and political society have closed civil society, NGOs have grown in number and in trust among the people and build by new nets an open society.
7.2 NGOs as upholders of civil culture. The first front of defense and control of democratic liberties lies in civil culture, and it might be said that only as a last resort does control lies in the hands of International Non-governmental Organizations. The culture of rights is often better represented and promoted by NGOs inside a domestic political system or/and by information from outside. Accountability requires agencies whose goal is not the political exercise of the power (as it is for parties) but the monitoring of governmental performances and the redressing of abuses. In state-based democracies, the control of institutional performance - and even opposition - is supposed to be a function of the state non-elective powers themselves431. Political responsibility is a superior-inferior relation interne to the hierarchy of command. By contrast, a government, which has representative origin and civil obligations, is responsible to the holders of rights. Whether constitutional rights become liberties enjoyed by the governed, whether state powers provide a system of common utilities or not, whether a system is set up to transform public money in public privileges, all this questions are empirically evaluable through the analysis of the institutional performances. Non-governmental agencies, which cooperate with UN treaty bodies have the reputation of objectivity and impartiality in assessing the real status of liberties in each country. Human rights NGOs have earned trust432 and legitimacy because they have tested the legal boundaries of political regimes. NGOs, as implementation watch dogs, can provide the expertise that is necessary to test the obligation ex post, and play a new important role in verifying output legitimacy. Transparency International (TI), for example, which addresses corruption, especially political corruption, has played a crucial role in orienting policies. Institutions such as the World Bank and the International Monetary Fund now regard corruption as one of the main obstacles to development. The United Nations Convention against Corruption, which TI promoted, has been ratified by 140 states433.
431 Even the ombudsman is state function, “Mediateur de la Republique” in France, “Defensor del pueblo” in Spain and Latin American States, “Difensore civico” in Italy. 432 Cf. Edelman’s Barometer of Trust 2004-08. 433 The United Nations Convention against Corruption was adopted by the General Assembly on 31 October 2003 (Resolution 58/4). The treaty entered into force on 14 December 2005. As of 4 February 2008, there were 140 signatories. TI promoted even the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions which came into effect in February 1999. 129
International relations among states are based on diplomacy not on human rights policies. A UN member state may fail to provide security for citizens, to respect fundamental liberty, and it may practice torture, or not observe the principle of precaution in its environmental policies. Nevertheless, it can maintain normal diplomatic relations with other states. Moreover, it may not be consistent with the diplomatic function or useful for foreign policy to denounce the gulf between the political regime and the community of democracies to which it claims to be member. Even a state, which has an apparent rule of law and a democratic form, but in reality is a tyrannical regime might be a member of the United Nations and sit in the international club of civilized nations. All this cannot be tolerated by an NGO whose mission is to make human rights effective. The gap between legal order and political regime, in which the adhesion to HRs would have only the esthetic function to masque tyrannical practices, is in contradiction with the mission of organizations based on the punctual respect of HR provisions. Requiring that member states comply with HR obligations is the same that stating that each civilized state is responsible in its own jurisdiction, the only difference being that NGOs ask for the respect of HRs on behalf of the victims or citizens who are not allowed or cannot require it from their own government. Finally, political responsibility of democratic countries entails an ethical attitude towards isonomy which would allow the political authority to be made accountable under common rule. Democratic legitimacy is only effective whenever the governed and governors share the same public values434. However, many democratic states are ruled by permanent elites which do not believe435that democratic values are achievable and workable. The practices of elected and non elected powers are not always all symbiotic with the expectations of democratic people. Many delegative436 democracies lack effective “checks and balances”, and are only “semi-democracies”437, or even “pseudo democracies” which, like as authoritarian states, fail to uphold the rule of law438. As a result, in spite of the electoral mechanism, representatives are not really sanctionable for their non-fulfilments439,
434 "In a community organized around rules, compliance is secured to whatever degree it is--at least in part by perception of a rule as legitimate by those to whom it is addressed."' Franck, Legitimacy in the International System, 82 American Journal of International Law (1988) 706. 435 “People’s commitment to and faith in democratic values have been rising simultaneous to the decline of these values among the elite”, R Kothari, Rethinking Democracy (books.google.com 2005) 12. 436 O ‘Donnel, “Delegative Democracy”, 5, No 1 Journal of Democracy, 1994. 437 Peter Smith, Democracy in Latin America: Political Change in Political Perspective, OUP 2005, Diamond Larry and Leonardo Morlino, “The Quality of Democracy: An Overview”, 15 Journal of |Democracy, 2004, October, 210-31 438 Fareed Zakaria, “The Rise of Illiberal Democracy”, Foreign Affairs, Nov-Dec. (1997). 439 Larry Diamond, ““Elections without democracy: Thinking about Hybrid Regimes”, 13, No 2 Journal of Democracy (2002) 21-35; Andreas Schedler, Electoral 130 and states continue to be unwilling to enforce their constitutional obligations.
To sum up: in an international community of sovereign states, NGOs are obliged to play the role of being subsidiary to UN principal bodies (General Assembly and Security Council). However, in the present international society, in which the increasing involvement of different actors has characterized the “civil society” more and more, the role of NGOs cannot be considered to be only “consultative” in function, or only “non-governmental” in capacities. Non-governmental functions are inherent to the specializations that the evolution of an international society promotes and requires. In making laws and in monitoring440 the implementation of HRs, NGOs have brought new expertise to the field of HRs. Their authority is enshrined in the new specialisation of the Human Rights Law at an international level. For the first time in the modern era a branch of International Law has been built, independently of the expertise of states. NGO participation in IGOs limits the exercising of sovereignty and orients it towards HR issues. As international watchers of domestic regimes, NGOs provide essential information to the governed to help them better assess the governors; they are not really subsidiary to domestic governments as they can be critical, and act as pioneers of new rights. As agents of justice, NGOs fulfil the constitutional commitment based on the pledge nature of HR treaties. This commitment is expressed by the exercise of the civil autonomy outside the borders of the territorial state. In a civil society of free associations, actors who take the initiative for legitimate claims do not exert a function that the state neglects or fails to exert. It may exert a primary capacity and a fundamental liberty of the civil society as well as an actor who takes the economic initiative in a free market system. States do not have the duty to recognize a legitimate claim and even less to take the political initiative to make the law that is expected. Non-state actors have the capacity of creating the normative fact that they want to have recognized by states; and under given conditions, states cannot afford not to respond to legitimate claims that arise from non-state societies.
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Authoritarianism. The Dynamics of Unfree Competition, Lynne Rienner Publishers, 2006. 440 Cf. “The implementation machinery” in William Korey, NOGs and the Universal declaration of Human Rights A curious Grapevine, cit. 251 ff. 131