For the R ule o f Law THE REVIEW

INTERNATIONAL COMMISSION OF JURISTS

HUMAN RIGHTS IN THE WORLD East Timor 1 Pakistan 19 Haiti 6 South Africa (KaNgwane) 21 Japan 15 Western Sahara 25

COMMENTARIES UN Commission on Human Rights 33 Individual Petitions under the Convention on Racial Discrimination 40

ARTICLES Developments in International Human Rights Law Eric Suy 44 The Fight against Torture J.H. Burgers 47 Plant Genetic Resources Upendra Baxi and Clarence Dias 49 Arrest and Detention in Mexico Raul F. Cardenas 58 Self Rule Proposals for Canadian Indians 63

The Dark Side of Trees Cecil Rajendra 68

No. 32 June 1984 Editor: Niall MacDermot Human Rights in the World

East Timor and Self-Determination

Since December 1975, the United Na­ Prior to the April 1974 coup in Portugal, tions General Assembly has passed numer­the political system in East Timor reflected ous resolutions on East Timor, assertingthe character of the Portuguese dictator­ the right of the people to self-determina­ ship. It was considered a province of Por­ tion and demanding that they be enabledtugal under the Organic Law of Portuguese freely to determine their future under UNOverseas Territories of 1953. Under Por­ auspices. Indonesia, on the other hand,tuguese rule the territory was divided into claims that the integration of East Timor thirteen administrative divisions, called with Indonesia was the result of an act ofConcelhos or Councils with populations self-determination by the representatives ofranging from 25,000 to 84,000. The ad­ the people. As is frequently the case in suchministration of theConcelhos was headed disputes, the historical facts are complex. by the administrator do concelho, a Portu­ East Timor, previously known as Por­guese official whose powers were very ex­ tuguese Timor, is situated at the south-east­ tensive and varied. EachConcelho was fur­ ern extremity of, the sprawling Indonesianther divided intopostos or sub-districts, ad­ archipelago. The people are predominantly ministered by anadministrator do posto. Malay or Malanesian in origin with someBy 1974, there were some 58 postos and African, Arab and Chinese influences. The60% of their administrators were Timorese. most widely spoken language in the terri­These Timorese became politically active in tory if Tetum. Until 1975, it was a colonythe territory after the April 1974 coup in of Portugal for more than four hundred Portugal. years. The coup brought to power the Armed East Timor’s population, approximately Forces Movement (MFA) whose objectives 650,000 in 1974, is largely rural. It is eco­ were to establish democracy in Portugal nomically backward and in the colonial pe­and withdrawal from Portugal's colonies. riod was heavily dependent on imports andIn June of the same year, the new regime subsidies from Portugal. The majority of in Portugal spelt out three options for the the population depend on subsistenceTimorese people. They were: continued as­ farming. Socially, the territory is character­ sociation with the metropolitan power, in­ ised by the survival of traditional groupings,dependence, or integration with Indonesia. loyalties and beliefs. Although Catholicism Interestingly, it was Portugal that offered had made some impact and Islam had a few integration with Indonesia as one of the adherents, the local animist beliefs of the options, when Indonesia had stated on pre­ people remain the dominant religion. vious occasions that it had no territorial claims to Portuguese Timor. gration party advocating ‘recolonisation’ Within a few weeks of the coup in Por­ should not be allowed to play a role in de­ tugal, political groupings emerged in East colonisation talks. Timor. The three main political parties that Fretilin’s impatience, combined with its emerged at first represented the three op­ interests in radical agrarian and educational tions offered by the Portuguese govern­reforms, alienated the UDT which unilater­ ment. They were the Timorese Democratic ally withdrew from the coalition at the end Union or UDT, the Association of Timorese of May. Social Democrats or ASDT, which later be­ Fretilin boycotted the talks that took came the Revolutionary Front of Indepen­place in Macau between 26 and 28 June dent East Timor (Fretilin), and the Timor­since Apodeti was a participant. After the ese Popular Democratic Association of conference, the Portuguese government pro­ Apodeti. claimed a constitutional law based on the The UDT started as a party strongly in conference text agreed to by UDT and favour of continued association with Por­Apodeti. The new law provided for a three- tugal but later changed its position to fed­ year interim period before the termination eration with Portugal as an intermediaryof Portugal sovereignty. It also provided step before achieving complete indepen­for the setting up of a High Commissioner’s dence. The ASDT or Fretilin advocated the Council, comprising a High Commissioner ‘right to independence and the rejection ofand five Joint Secretaries, two of them to colonialism and countermeasures againstbe nominated by Portugal and the other neocolonialism7. Though initially the lead­three to come from UDT, Fretilin and ers of ASDT envisaged a lengthy time frame Apodeti respectively. There was also to be for the process of decolonisation, their a consultative government council consist­ position changed in September 1974 whening of two representatives nominated by ASDT became Fretilin and the leaders de­ each of the regional councils. In addition, manded an immediate declaration from theeach of the three political parties was to Portuguese authorities that they would nominate four members to the government grant independence to East Timor. Thecouncil. The new law stated that elections Apodeti, claiming that there were close eth­ would be held in October 1976, envisaging nic and cultural links between the peoplethe end of Portuguese sovereignty two of East Timor and Indonesia, advocated in­years later. tegration with Indonesia. In contrast with It is well-known that in many decoloni­ the other two parties, Apodeti never gained sation situations opposing political inter­ large support, but it became a focal point ests have found it difficult to arrive at a for Indonesian interests in relation to Eastconsensus and East Timor was no excep­ Timor. tion. But the political crisis in Portugal, In January 1975, the two main parties,particularly shifts in the ideological posi­ UDT and Fretilin, agreed to form a coali­ tion within the MFA, aggravated the rifts tion. On 7 May of the same year the firstwithin the parties in East Timor. For exam­ phase of talks on decolonisation took place ple, after the abortive right-wing coup by between the Portuguese authorities and aforces under the leadership of General joint delegation of UDT and Fretilin mem­Spinola, the suspicion of the UDT Leaders bers. At the talks Fretilin objected to the increased that the MFA officers were con­ inclusion of Apodeti in the future talks tospiring to place Fretilin in the leading deco­ be held in Macau, arguing that a pro-inte­lonisation role at the expense of the UDT. This state of flux was effectively usedTimor and was responsible for its decoloni­ by Indonesia to create further tensionsation. The two Ministers agreed on the among the parties. The Indonesian news­need to hold a meeting of all political par­ papers frequently alleged Chinese and Viet­ties of East Timor with a view to ending namese involvement in Timor, saying,the in fighting. particular, that the members of Fretilin On 28 November, Fretilin declared East were receiving military training from Viet­Timor an independent ‘Democratic Repub­ namese officers who had entered East lic’ and announced that some fifty Afro- Timor clandestinely. These reports created Asian countries had pledged support to the fears among the conservative section of thenew republic. On 1 December, Mozambique population. announced its recognition of East Timor The state of tension and mistrust be­under Fretilin. tween the parties culminated in a coup by The Portuguese government rejected the UDT. On 11 August 1975, members of Fretilin’s declaration as well as a statement the UDT attacked and seized key installa­made on 29 November by UDT, Apodeti tions and gained control of the capital, Dili.and two other parties which said that Freti­ This was followed by an outbreak of vio­ lin’s action had removed the last remains of lence between members of UDT and Freti­Portuguese sovereignty and declared East lin. Already, by 20 August the territoryTimor to be part of the Indonesian territo­ was in the midst of a civil war. On 26 Au­ry. On the next day, 30 November, Portu­ gust, the Portuguese governor and his staff guese representatives at the United Nations left Dili for Atuaro, an island 30 miles formally requested the UN to help settle north of Dili. On 11 October, Fretilin an­the East Timor question. nounced that it was in full control of the On 7 December, Indonesia made a full- territory and had established a transitionalscale invasion of East Timor, seized the administration. However, this was counter­capital, Dili, and drove the Fretilin sup­ ed by the Indonesian government sayingporters to the hills. The Portuguese govern­ that pro-Indonesian forces had control ofment reacted by breaking diplomatic rela­ large areas of the territory and predicting tions with Indonesia and said it would seek that by the end of October they would re­the help of the UN to put an end to Indo­ gain control of the whole of it. nesia’s military intervention. On the other Meanwhile, the then Australian Primehand, Indonesia reacted by stating that Minister, Mr. Gough Whitlam, ruled out Portugal’s sovereignty had ended on 28 any military or political role for Australia November when Fretilin declared indepen­ in East Timor, stating that “the future of dence. the territory is a matter for resolution by On 11 December, the UN Trusteeship Portugal and the Timorese people them­ Committee called on Indonesia to with­ selves, with Indonesia also occupying andraw and urged it to desist from ‘further important place because of its predominantviolation’ of East Timor’s territorial integri­ interest”. ty. The next day the General Assembly, in In the first week of November, the In­a resolution passed by 72 votes to 10 with donesian Foreign Minister met with his43 abstentions, called on Indonesia to Portuguese counterpart in Rome and theywithdraw from East Timor to enable the issued jointly a ‘memorandum of under­people to decide their own future and con­ standing’. This noted that Portugal repre­demned the military intervention. sented the legitimate authority in East According to some sources, by the end of December there were nearly 20,000 In­territory. donesian soldiers in East Timor and reports The latter point is not an acceptable jus­ were smuggled out of the territory indicat­ tification for denying the people their right ing that the Indonesian troops were in­to self-determination. Paragraph 3 of the volved in systematic killing of Fretilin sup­UN Declaration on the Granting of Inde­ porters including civilians. According topendence to Colonial Countries and Peoples, some reports, nearly 10,000 people were states that: “Inadequacy of political, eco­ alleged to have been killed within the first nomic, social or educational preparedness few weeks of the invasion. should never serve as a pretext for delaying Meanwhile, with the help of the Indone­independence.” sian authorities, the leaders of the UDT, As for the cultural ties, the East Ti­ Apodeti and two other smaller parties es­ morese generally speaking may belong to tablished a ‘Provisional Government of Eastthe South-East Asian family of cultures but Timor’ (PGET). In February 1976, the there are doubts as to their direct link with PGET announced that all political partiesthe Indonesian culture. According to Pro­ had ‘dissolved themselves’ and a new uni­fessor Shepherd Forman1, a leading author­ fied party had been created. Another PGET ity on the anthropology of East Timor, "It statement said that a 'People's Assembly’ manifests an ethnic heterogeneity which had been set up by ‘consensus and consent7,characterises the entire region from the implying that the members were chosen Philippines to Australia and from the is­ and not elected. On 31 May, the newlylands east of Papua New Guinea to the convened People’s Representative CouncilMalagasy Republic”. He has also noted that of East Timor approved a petition to inte­ it "... did not come under the aegis of the grate with Indonesia. The Indonesian gov­early Javanese/Islamic principalities and, ernment, on 29 June, announced its officialhistorical conjecture notwithstanding, In- acceptance of the merger and a bill legalis­ do-Javanese and Islamic influences barely ing the annexation of the territory wascan be noted, except insofar as Dutch hege­ passed by the Indonesian Parliament on mony15 later effected the spread of some July. ideas, particularly in the political domain, Two questions that arise in relation toto Western Timor. East Timor, under Por­ the invasion by Indonesia and the subse­tuguese rule was largely exempt from those quent annexation of East Timor are wheth­influences”. er the armed intervention made by Indone­Even if one accepts the argument of the sia was justified in law and whether the Indonesian authorities and looks for factors people of East Timor participated in a gen­ that unite both cultures and people, inte­ uine act of self-determination. gration between them cannot legitimately Indonesia has argued that basically its be imposed by force. interest in the territory of East Timor arises The Indonesian government seeks to jus­ out of the geographic, historic, ethnic and tify its armed intervention by saying that it cultural ties which makes East Timor an in­had a moral responsibility to guarantee the tegral part of the Indonesian archipelago. peaceful decolonisation of East Timor and Further, it has also stated that indepen­the internal strife endangered national sec­ dence for East Timor was unrealistic inurity and the stability of the South-East view of the economic backwardness of the Asian region.

1) Quoted inTimor — A People Betrayed, by James Dunn, the Jacaranda Press, p. 3. In answer to this it may be said that In­sal suffrage”, and neither the parties which donesia’s moral responsibility was to ‘pro­ declared on 29 November 1975 that East mote the realisation of the right of self-de­ Timor was part of Indonesian territory, nor termination’ in accordance with the provi­the ‘People’s Representative Council’ which sions of the charter. These provisions state approved it in May 1976 were appointed that, ‘members shall refrain in their inter­by any such democratic processes. national relations from the threat or use of As for the threat to the security of In­ force against the territorial integrity or po­ donesia and the region, it is difficult to un­ litical independence of any state’. derstand how a small territory in the midst Indonesia claims that “from the outset... of civil strife could have been a threat to it firmly supported the free and democratic Indonesia which has a considerable military exercise of the right to self-determination strength, by the people of East Timor in accordance Indonesia also claimed that it intervened with... the Charter of the United Nations for humanitarian reasons at the request of and resolution 1514 (XV) and 1541 (XV) the UDT, Apodeti and two other parties, of the General Assembly”2. The latter re­ which wanted Indonesia to put an end to solution specifies the conditions for a validthe civil strife. The doctrine of humanitar­ act of self-determination resulting in inte­ian intervention is not recognised by the gration with an independent state in theseUN Charter and is generally considered by terms: international lawyers to be now outdated. In any event, as was said in ICJ Review No. “(a) The integrating territory should have 8 of June 1972 on the Indonesian invasion attained an advanced state of self-of East Pakistan, “... unilateral action is government with free political insti­likely to be arbitrary and to lack the disin­ tutions, so that its peoples would terested character which humanitarian in­ have the capacity to make a respon­ tervention should possess”. Moreover, when sible choice through informed and Indonesia intervened the matter was already democratic processes; before the UN and the Indonesian interven­ “(b) The integration should be the result tion by no means stopped the bloodbath. of the freely expressed wishes of the The killings continued with the Indonesian Territory’s peoples acting with full forces themselves taking part. knowledge of the change in their sta­ As to the present state of opinion in tus, their wishes having been expres­East Timor, it is impossible to obtain any sed through informed and democratic realiable and independent account of it as processes impartially conducted and Indonesia refuses to permit independent based on universal adult suffrage. Theobservers to visit the territory to assess the United Nations could, when it deemssituation. This ban applies even to Indone­ it necessary, supervise these proces­sian citizens who are equally in the dark ses.” about events there. Such reports as have come out of East Never before nor since the IndonesianTimor indicate a degree of repression which annexation of East Timor have there beensuggests that the government has little pop­ any “informed and democratic processesular support. These include reports of sys­ impartially conducted and based on univer­tematic use of torture, arbitrary killings and

2) Decolonisation — East Timor, Indonesian Department of Foreign Affairs,p. 42. disappearances. Amnesty International hasmassive violations of human rights contin­ published extracts from a handbook of mil­ ue and as long as access to East Timor by itary interrogators on the case of torture visitors is severely restricted, it will be dif­ practices. In 1983 the ICRC suspended itsficult for the Indonesian government to activities in the territory following the re­convince the international community that fusal of the Indonesian authorities to grantthe people of East Timor have freely ac­ ICRC delegates access to all villages requir­ cepted integration with Indonesia. ing assistance. As long as these reports of

Haiti

The Republic of Haiti (27,750 km2) oc­ sician, Dr. Franijois Duvalier, later known cupies a third of the island of Haiti, of as ‘Papa Doc’, was elected President. It which the other two-thirds are the territory took Duvalier two years to establish an ab­ of the Dominican Republic. The border be­solutist and dictatorial regime. Then, hav­ tween the two States was determined un­ing gathered all power into his hands, he der a Treaty of 1929, supplemented by an­unleashed a savage campaign of political other of 1935. In addition to the main is­repression against all who opposed him. He land, there are various neighbouring islands,made persecution and terror his mode of one of which is La Tortuga, famous in liter­government. Human rights and fundamen­ ature for having been the base and refugetal freedoms were violated and ignored, of Caribbean pirates. The population of and a climate of general insecurity was gen­ Haiti amounts of some 6 million inhabi­erated for the people. His government was tants. based on repressive groups of supporters, Haiti is the first example of a successful mainly a body of militia called the Volun­ rebellion of black slaves against their white teers for National Security and better masters and against the colonial authorities. known as the ‘Tontons Macoutes’. He plac­ As a result of the rebellion, France, which ed his political followers in key government had replaced Spain as the colonial power, posts, controlled the economy and depriv­ proclaimed in 1793 the liberation of all ed the legislative and judicial branches of slaves in the colony. Having tasted freedom,all real power. By a constitutional amend­ the struggle was renewed for independencement of June 1964, he was designated Pres­ of the people. Eventually, a general insur­ident for Life (art. 99 of the Constitution), rection overcame the French troops andin replacing the article which provided for Haiti’s independence was proclaimed on the 1 election of the President by popular January 1804. Haiti thus became one ofvote for a term of six years. the first countries on the American conti­ In 1971 he had further amendments nent to obtain its freedom. made to the Constitution enabling his re­ In 1957, another period began in Haiti’sgime to continue even after his death. Arti­ history, that of ‘Duvalierism’, when a phy­cle 99 Of the Constitution confirmed his designation as President for Life, enumerat­ 1949 concerning the Right to Organise ed in 12 paragraphs his “merits”, listed his and to Bargain Collectively, No. 105 of numerous honorific titles and stressed the 1957, concerning the Abolition of Forc­ need for the Republique Duvalieriste (sic) ed Labour, and No. I l l of 1958 con­ to continue. In article 100, he was empow­ cerning Discrimination in respect of Em­ ered to designate his successor, who was ployment and Occupation; also to be President for Life (article 104). - the Convention on the Elimination of The successor designated by Papa Doc was Racial Discrimination of 1965; his son, Jean-Claude Duvalier. - the Convention on the Prevention and One obstacle still remained to be sur­ Punishment of the Crime of Genocide, mounted: this was that under the 1963 of 1948;and Constitution the minimum age for the of­- the Convention for the Abolition of fice of President was 40 years whereas his Slavery of 1956. son Jean-Claude was then only 18 years old. Accordingly, article 91 was amended Haiti is not, however, a party to the In­ in 1971 to lower the minimum age to 18 ternational Covenants on Civil and Political years. For the sake of consistency, the mi­Rights, and on Economic, Social and Cul­ nimum age for election as a Deputy of thetural Rights of 1966. Legislative Chamber was also reduced to 18 At the national level, the rights and du­ years (art. 50). ties of citizens were laid down in some In April 1971, Francois Duvalier died,thirty articles of the Constitution, as well and his son became President for Life. Onas in laws and regulations. A large number 27 August 1983, the Constitution wasof these rights exist only on paper. again amended, in the space of one week, Under the Constitution of August 1983, confirming the Life Presidency of Jean-the administration of the State purports to Claude Duvalier and empowering him tobe based on the three powers - the Execu­ designate his successor, although this time tive, Legislative and Judicial. These are sup­ not necessarily a member of his family, andposed to act independently and may not reinforcing the control of the State by the delegate the functions entrusted to them Executive (arts. 107, 108 and 109). by the Constitution.

Constitutional framework Executive power

Haiti is a party to the following, among This is exercised by the President for other, international instruments relatingLife, to although the national Constitution human rights: establishes that “National sovereignty is an attribute of all citizens. The people shall - the Universal Declaration of Humanexercise the prerogatives of sovereignty di­ Rights; rectly, through 1) the election of the Presi­ - the American Convention on Humandent of the Republic...”. In practice, Hai­ Rights of 1969; tians have not been able to take part in the - the International Labour Organisation’selection of the President during the last 20 Conventions, No. 87 of 1948 concern­years. The institution of a Life Presidency ing Freedom of Association and Protec­ is incompatible with the exercise of this tion of the Right to Organise, No. 98 of political right. The head of the Executive has extremely mally in session for only three months of wide powers which often supersede the the year, a period which can be extended. powers of the other branches. He is respon­ In the last few years, the practice has been, sible for the general administration of the at the close of the annual session, for the country, the appointment and dismissal Chamberof to confer full powers on the Pres­ State employees, the conduct of foreign af­ident for Life during the nine-month legis­ fairs, the command of the armed forces, of lative recess, and to suspend for the same the police and of the militia, etc. period numerous rights which the Constitu­ tion grants to the people. In some years, the suspension has extended to as many as Legislative power 24 rights. The full powers authorise the President to approve legislative decrees in This is exercised by a single chamber all matters that he deems useful in the known as the Legislative Chamber, consist­“general interests of the Republic”. It will ing of 59 deputies elected directly by the be appreciated that, as a result, the Haitian people. In certain cases, for instance in or­people have lived for years in a semi-perma­ der to amend the Constitution or to con­nent defacto state of emergency for 9 out stitute itself a High Court of Justice to try of each 12 months. The legislature has thus members of the government, this body is become virtually a facade, since it retains called the National Assembly. only a fraction of its legislative powers and The first legislative elections organised the President can at any time deprive it by Jean-Claude Duvalier were held in 1979.even of these powers. Only one opposition candidate was elected. The draft laws approved by the Legisla­ The second elections took place on 12 Feb­tive Chamber are submitted to the Presi­ ruary 1984, but not a single opponent wasdent, who has an almost unqualified right elected. A mission sent on that occasion byof veto. The Constitution of 1983 amended Americas Watch and the Lawyers Commit­ its earlier text to the effect that if the Pres­ tee for International Human Rights1 con­ident exercises his right of veto, his views cluded that “the recent elections in Haitimay only be over-ridden by the Chamber if make a mockery of democratic proce­ there is unanimity among its members (art. dures”. According to the survey made on87). This means that it is only necessary the spot by these two human rights organi­ for one Deputy to support the views and sations, only two opposition political par­objections of the President for these to be ties were allowed to take part; their main accepted and the draft law amended or re­ officials were prevented from participating, jected. This is an utterly anti-democratic their active members were threatened, ha­ provision which has no parallel in any rassed and arrested, there was no press free­ other text or constitutional law. dom to enable opponents to make their points of view known, and there were no checks or controls to prevent electoral Judicial power fraud. The Legislative Chamber, which is re­ This is exercised by the Court of Cassa­ sponsible for approving the laws, is nor­tion, the Courts of Appeal and the lower

1) “Election 1984: Duvalier Style. A report on Human Rights in Haiti based on a mission of inquiry”, March 1984. courts. Both the judges and the judicial of­ the economic and social backwardness of ficers are appointed by the President for the country. This move indicated that there Life, although judges cannot be removed were social forces in Haiti ready to move from office except for reasons expressly towards and to demand democracy. It soon stated by law. resulted in an open and critical press, the An analysis of the way in which the Judi­formation of political parties which called cial Power is exercised leads to the conclu­ for participation and economic measures to sion that, save in exceptional cases, it keepsremedy the crisis, and the creation of non­ within the limits imposed upon it by the dic­governmental human rights organisations tatorship, and that as a result it has been re­such as the Haitian League of Human miss in its duty of applying the law and de­Rights and the National Commission for fending the rights of the inhabitants, partic­Human Rights. Lawyers, for their part, ularly in political cases. It has no true inde­were extremely active in defending detain­ pendence, something which is of special im­ ees and political prisoners. portance in the difficult conditions of Haiti. Unhappily, this period of liberalisation In response to the criticisms that manylasted for only a short time, less than three political prisoners remain in prison foryears. The regime then began again to use months or even years without coming toits apparatus of repression which it had kept trial, the parliament passed a law in August intact. Critics of the regime or its policies 1977 setting up a Court of State Security were once again persecuted, arrested with­ Tribunal, which functioned outside theout charges or with vaguely worded accusa­ structure of the normal judiciary. The pro­tions and threatened or expelled from the cedures and decisions of this Court werecountry without the right to return. The re­ strongly criticised by Haitian lawyers andpression was less overt and more subtle: eventually, in March 1979, it was integrat­there were no longer as in the past large-scale ed by another law into the structure of themassacres or public executions with the bo­ ordinary courts. dies of the victims displayed to the gazes of passers-by. All this points to the view that the liberalisation was motivated by a wish Freedom of opinion and expression to improve the image of the regime abroad and pave the way for the grant of interna­ There is no radio or press freedom in tional credits, rather than by any genuine Haiti and the television stations are com­desire to achieve a pluralistic democracy. pletely under government control. On 28 September 1979, a new press law In 1977, Jean-Claude Duvalier announc­was passed restricting freedom of expres­ ed a programme of liberalisation of the re­ sion. The law required every person wish­ gime, which was enthusiastically greeted ing to work as a journalist to register as both within and outside the country. Thesuch and to obtain permission in advance, hope grew that it would be possible to leave and new publications had to obtain the ap­ behind the marks of a regime which, since proval of the authorities before they could 1957, had been characterised by brutality, be issued. The law also created the offence arbitrary action and the denial of rightsof defaming or insulting the President for and which had contributed to increasingLife or his family2. Owing to the wide-

2) Sylvio Claude, the well-known leader of the Christian Democrat Party in Haiti, was condemned on the basis of this law. spread protests with which it was greeted, Nevertheless, torture continues to be a this law was amended in March 1980, al­common practice in Haiti. At the beginning though the provisions which had been cri­of 1983, Mr. Gerard Duclerville, a young ticised remained in force in their essentials.Catholic layman, was severely tortured in Freedom of expression, although recog­ the Dessalines barracks. Strong pressure nised by the Constitution, has been severelybrought to bear on his behalf led to his re­ curtailed by the press law referred to, by lease in February 1983, but no explanation various laws on the security of the State,was ever given as to why he had been ar­ by the periodic enforcement of legislative rested and tortured, or subsequently re­ declarations suspending fundamental rightsleased. and conferring full powers upon the Presi­ Amnesty International recently de­ dent for Life, and by the Law against Com­nounced the ill-treatment meted out to Mr. munism of 29 April 1969, which makes Frank Blaise, a Haitian teacher and agron­ Communist beliefs and the disseminationomist of 70 years of age. He had travelled of “communist or anarchist doctrines” lia­to Haiti from the United States where he ble even to the death penalty3. normally lives and on 25 August 1983, some weeks after his arrival, he was arrested and taken to the Dessalines barracks for in­ Political repression — terrogation. He was asked about trips he treatment of prisoners had made to African countries and about a book he had written analysing the different Duvalierism has been and still is charac­agricultural policies applied by successive terised by the enforcement of a merciless Haitian governments. When the questioning political repression, in legal and illegal ways, was over, he was forced to strip to his un­ which is directed from the Government derwear and locked up in a tiny cell with a Palace itself and is not subject to control ofcement floor. It was damp, dark, almost any kind by other organs of the State. It isunventilated and full of mosquitoes. He in this respect that we have referred to the was given nothing but a mattress on the lack of independence of the judiciary. floor and a bucket for his physical needs. A mission dispatched by the Inter-Amer- Once a day, at dawn, he wastaken out of ican Commission on Human Rights (of thehis cell to wash. He was kept in these con­ OAS) to Haiti in August 19794, reported ditions, despite his age, for 77 days until he on the situation of human rights there. Onewas finally released on 19 November 1983, of the conclusions of the report referred to and returned to the United States. No the large number of persons who had died charge was brought against him nor was he as a result of summary executions or whilegiven any reason for his detention. Hun­ held in prison, especially in 1975 and 1976.dreds of people have been held for long pe­ In this respect, there has since then been riods,a sometimes of several months, with­ notable improvement. It should also be out any formal charge being brought against said that the government has decreed vari­them and without being taken before a ous amnesties which led to the release of a judge. great many prisoners (in 1972, 1973, 1975, Haitian lawyers encounter endless diffi­ 1976 and 1977). culties in the exercise of their profession

3) This law was commented on in the ICJ Review No. 25 of December 1980. 4) See ibid. when they try to concern themselves withwith hard labour for the crimes of “at­ trials for political offences. They are intim­tempted arson, conspiracy against the secu­ idated, arrested and often taken by forcerity of the State and insulting the Head of to the airport and expelled from the coun­State”. National and international reaction try. The Centre for the Independence was of vociferous and the sentence was quash­ Judges and Lawyers gave an account in ed its by the Court of Appeals. Sent again for Bulletin No. 7 of April 1981 of the persecu­trial, Claude and the other defendants were tion suffered by distinguished defencesentenced in August 1982 to between 4 counsel, such as Lafontant Joseph, Jean-and 6 years’ imprisonment. A month later Jacques Honorat, Joseph Maxi and Eugenethey were pardoned by the President for Gregoire. Life and were released, although Claude The prisons lack the most rudimentarywas kept under strict house surveillance. In requirements of hygiene and sanitation, thethese circumstances he was visited in No­ prisoners are given very poor food, and me­vember 1982 by a French lawyer, sent by dical and dental attention is either lackingthe International Commission of Jurists to altogether or very sporadic. Deaths often review the situation of human rights in occur in prison, either as a direct result ofHaiti. Some time later, Sylvio Claude went torture and ill-treatment or indirectly“underground” until he was again arrested through an illness (such as tuberculosis)in October 1983, tortured and then released which would not be fatal in normal circum­without any charge being brought against stances. him on 24 December 1983. The provisions of Haitian law which es­ A measure often used against opposition tablish rights and safeguards such as, for leaders has been expulsion from the coun­ example, that every person arrested musttry. This is wholly illegal. It is an adminis­ be brought before a judge within 48 hours trative act, without any law or decree to au­ of his arrest for the judge to decide wheth­ thorise it and without any judicial control. er the arrest was lawful and that there may Duvalierism is supported at the political be no punishment save as authorised byand economic levels by a small Creole oli­ law and then only after a legal trial, andgarchy which is allowed to enjoy a high in­ the provisions which expressly prohibit tor­ come, often increased by corruption, in­ ture, all these have become a dead letter in cluding the appropriation for their own cases which the authorities consider affect benefit of large sums of money taken from or threaten the security of the State or the foreign aid. government. The political repression is exercised One instance of penal proceedings whichthrough the Armed Forces, which are well- drew international attention to the short­trained and equipped with modern weap­ comings of the administration of justice inons, aided by the Police and their security Haiti was the prosecution of Mr. Sylvio services, in particular the so-called Detec­ Claude, well-known as the leader of the op­ tive Service (S.D.) and by the above-men­ position and President of the Christiantioned body of militia called Volunteers Democrat Party, one of the first indepen­for National Security (V.S.N.) and popular­ dent political parties to have been created ly known as the Tontons Macoutes. The during the period of liberalisation from Tonton Macoutes have played a major role 1977 to 1979. Arrested for the fifth time in the installation and subsequent mainte­ in 1980, he was tried with 20 other people nance in power of Franijois Duvalier and and sentenced to 15 years’ imprisonmenthis son Jean-Claude. They have achieved notoriety for abuses and ill-treatment of allthat is the Jean-Claudist National Council kinds. of Action (CONAJEC), i.e., the party of the President for Life. New forms of opposition are also emerg­ The opposition ing at the trade union level and in the coun­ tryside, despite the strict limitations in In the last few years, opposition to the practice as well as in law on the rights of Duvalier regime has been developing slowlyassembly, association and unionisation. but surely and, in spite of the repression,There have been large-scale conflicts and has begun to question the tenets on whichdemonstrations by peasants, one of the this regime is founded. Up to now, the vari­most outstanding being the movement ous opposition groups and parties have fail­against the construction of two hydroelec­ ed to unite or form a common front so astric dams in the Artibonite valley, which to offer a real alternative to the existing the peasants considered to be against their power. The diaspora of the Haitians and interests. They believed that the project the forced exile or imprisonment of manywould benefit the capital and the transna­ of the opposition leaders have contributed tional enterprises, but would harm them by largely to this failure. flooding some of the most fertile land in Three trends can be identified withinHaiti and rendering it unusable for them. the opposition, namely: Another example is the opposition to the 1980 plan for the elimination of the Hai­ — centrist, such as the Social Christian Par­tian pig species (and its replacement by an­ ty (PSC), Christian Democrat Party other). The plan was drawn up by the gov­ (PDC) and the Reunion of Progressiveernment at the instigation of North Ameri­ National Democrats of Haiti (RDNP); can and Mexican companies. — left-wing, both Marxist and non-Marxist, The Catholic Church of Haiti has reacted comprisong the 18th of May Revolu­ strongly in the last few years, after a long tionary Organisation (or 18 May), theperiod of silence following its neutralisa­ National Movement of 28th November,tion by Francois Duvalier in the 1960s. Unified Party of Haitian CommunistsThis 'new church’ with its oecumenical vo­ (PUCH) and the Union of Haitian Dem­cation follows the path for aiding the poor ocratic and Patriotic Forces (IFOPA- laid down in the Episcopal Conference at DA); Puebla in 1979. It lays stress on the Char­ — right-wing, such as the Haitian National ter of the Haitian Church for Human Pro­ People’s Party (PPNH) and the Federa­ motion, approved by the Episcopal Confer­ tion for the Liberation of Haiti (FLH). ence and made public in December 1983, in which an appeal was made for the resto­ There are other associations and groups ration of the inalienable rights of the hu­ but of all those named, only two have beenman being and specific proposals were able to act with some degree of freedom made for the transformation of Haitian so­ and thenonly for short periods. The rest ciety. have been exposed to repression to a greater The Protestant Churches also play a pro­ or lesser degree and have had to remain inminent part in promoting human rights and clandestinity. in formulating and financing projects and There is only one political party that works to overcome situations of extreme can freely exercise its rights in Haiti andpoverty. The economic and social situation health personnel left in the country are concentrated in the capital and the towns The economic and social situation of theand are few and far between in the rural Haitian people is undoubtedly the worst inareas where the great majority of the popu­ the whole American continent. The gap be­lation live. tween the numerically tiny oligarchy andEducation also shows enormous defi­ the masses of the poor is also the most ciencies. Illiteracy is 80% and even higher marked. in the countryside. There are very few pub­ Most of the almost 6 million inhabitants lic schools in the rural areas and children live in extreme poverty, while the oligarchyfrom those areas who have received school­ controls the plantations of sugar, coffee, ing either obtained it because they were cocoa and sisal, the best land for food sent to the towns or because they attended crops, the supermarkets, the hotels and private schools and colleges. This state of tourist restaurants, the big shops, the luxu­affairs prevails despite article 204 of the rious real estate and the construction in­Constitution of Haiti, which states that dustry. Their ownership of these is shared “schooling is obligatory and shall be pro­ with foreign investors and with a numbervided free of charge by the State”. of transnational companies which regard A project launched in 1981 to teach the government as a safety factor for their children during their first years of school­ investments and are attracted by a weaking in Creole, their mother tongue, and trade union movement and low productionthen to continue in French, the official lan­ costs. guage, was dropped in 1982 and the Minis­ A few statistics may help to complete ter who had sponsored it fell from power. this picture. Per capita, income is $ 120 a Education, in short, is limited to an urban year, but for peasants and others in theand affluent minority. rural areas it is $ 60 a year. Unemployment is hard to estimate because there are no re­ liable figures, but, according to the ILO, Foreign aid 62% of the active population is either total­ ly or partly unemployed. In the last few years the country has re­ Infant mortality was estimated by theceived large sums in cash and kind to fi­ World Bank in 1978 to be 149 per thou­nance development projects and to palliate sand and life expectancy 51 years. Owingthe serious problems of food and health, as to malnutrition, many children have beenwell as other shortcomings. This aid has irrevocably affected in their mental andnot been able to achieve the objectives for physical development and they remain vul­which it was given, chiefly due to corrup­ nerable to infectious and contagious dis­tion, waste and poor management. Part of eases and are prone to die from diseases the aid received in cash has gone - either that would be curable in a well-nourisheddirectly or indirectly - into the bank ac­ child. counts of members of the government, of The situation of health care is disastrous. the Duvalier family and their supporters. Half the doctors, nurses and health person­Part of the food and medicaments supplied nel trained in Haiti have left the country,by governments and international agencies for political reasons, for lack of employment is sold on the growing black market. Inqui­ opportunities, or having been tempted byries undertaken by the MiamiHerald into the salaries paid in other countries. The the food aid given to Haiti by the United States government led to the conclusionthe United States or the other Caribbean that a large number of sacks of grain form­ countries, but who often perish by drown­ ing part of this aid were sold in Miami by ing in the Caribbean before being able to Haitians living there, who had reintroducedarrive at their destination. In other cases, them into the United States as contreband.they are forcibly returned to Haiti or hous­ In Haiti itself, from 10% to 50% of these ed in jails in the United States and Puerto cereals were sold on the black market5. Rico until it is decided what to do with Corruption has become institutionalisedthem. at alarming levels. When hurricane Allen Another serious situation is that of the swept the southern coast of Haiti in 1980,“braceros” or manual workers, who go to accusations were made that members of the neighbouring Dominican Republic on a the government and of the Duvalier familycollective labour contract to cut the sugar had illegally appropriated several million cane crop, and who are subjected to work­ dollars’ worth of the aid provided by the ing conditions that are considered akin to United States, that soldiers in the regular slavery by the United Nations Working army had seized a truck loaded with blan­ Group on Slavery. This problem has since kets donated by the Church at the Port-au- 1979 been repeatedly referred to the Work­ Prince airport, and that the truck had sub­ing Group by the Anti-Slavery Society bas­ sequently been returned but not the blan­ed in London. In its last report, dated May kets, that food packets sent by the United 1983, following several missions to the Nations were being stolen on the quays ofDominican Republic, a clear description is Les Cayes, and that government officialsgiven of these problems: harassment by were seizing large quantities of foodstuffs military guards in the plantations, forced that had been stored by the Church against labour, 14 hours of work a day for 7 days the emergency in the warehouses of the a week, deplorable living conditions, a mis­ Catholic Aid Service in the locality of erable wage, no social security or medical Jeremie. assistance and the sale of Haitian men, women and children. The Haitian workers, numbering from The Haitian diaspora 15,000 to 20,000, cross the border legally for the annual cane harvest. The two gov­ Almost a million Haitians have takenernments have signed agreements to regu­ the path of emigration, for political or eco­ larise this situation which provides for a nomic reasons or both. The selective exile number of measures to protect the work­ of political and trade union leaders and ac­ers, including the appointment of Domini­ tivists that was familiar in the past has now can and Haitian inspectors. The agreements, developed into a mass exodus of peasants,however, are not observed and the owners workers and ordinary people. In the lastof the sugar plantations establish their own few years, this phenomenon has been com­rules which impose these slavery-like condi­ mented on in the world press, owing to thetions. Even worse is the situation of thou­ so-called “boat people” of the Caribbean. sands of others who cross the border ille­ These are thousands of people who leave gally at harvest-time and who, with their the island secretly in fragile boats in searchstatus of “illegals”, are even more vulner­ of what they hope will be a better life in able. It is estimated that between 85% and

5) The Miami Herald, 19 December 1982. 95% of the cane-cutters in the 16 sugar to be disturbed by this tragic state of af­ plantations of the Dominican Republic arefairs. On the contrary, it serves in a way as Haitians. an escape valve by reducing the internal The following estimates have been made pressure built up by the political repression of the number of Haitian exiles: 400,000and poverty. It also serves as an appreciable in the United States, 300,000 in the Domi­source of foreign exchange which the exiles nican Republic, 40,000 in Canada, 30,000send to their families in Haiti. in the Bahamas, 20,000 in French Guinea, But the diaspora has begun to organise 10,000 in Surinam, 8,000 in France, 5,000itself, to acquire a better understanding of in Guadeloupe, 2,000 in Martinique, andthe reasons for exile, to support the oppo­ thousands more in Colombia, Mexico, sition movements inside Haiti and to create Venezuela and various countries of Europea collective awareness that the situation and even Africa6. will change only with the end of the dicta­ The Haitian government does not seemtorship.

The Mentally 111 in Japan

For some time, the United Nations and The debate within the United Nations its specialised agencies, regional inter-gov­ and elsewhere on the rights of the mentally ernmental organisations and non-govern­ill has shown that it is a difficult and sensi­ mental organisations, have been concernedtive issue and that, when assessing the pro­ with the protection of rights of mental pa­ tection afforded to the mentally ill in dif­ tients. A study on the protection of theferent countries, the differences in res- rights of the mentally-ill has been complet­ sources and socio-cultural practices have to ed by the Special Rapporteur, Mrs. Erica be taken into consideration. Irene Daes, of the United Nations Sub- Nevertheless, recent reports concerning Commission on the Prevention of Discrim­the situation of patients in mental health ination and the Protection of Minoritiesinstitutions in Japan raise questions about (E/CN.4/Sub.2/1983/17). In 1980, the In­the adequacy of the legal protection af­ ternational Commission of Jurists, in col­forded to these patients. laboration with the International Associa­ At the beginning of 1970, a well-known tion of Penal Law, prepared draft guide­ daily in Japan,Asahi, serialised a report on lines for the protection of persons sufferingthe condition of patients in a mental hospi­ from mental disorder, which were submit­ tal. The report was based on the first-hand ted to the Sub-Commission. These were experience of a journalist on the staff of closely followed in the preparation of the the paper who succeeded in having himself text at present being discussed by a work­admitted as an alcoholic. His report alleged ing group of the Sub-Commission. that the patients were often physically as-

6) These estimates, like much of the information in this article, were taken fromHaiti — briser les chalnes, prepared by CETIM, Editions Favre, Lausanne, Switzerland, 1984. saulted and otherwise ill-treated, detained They are physically abused and overdosing in isolation cells and not provided withof drugs is common. Once inside, a patient enough food or other basic amenities, and cannot communicate with his relatives, that the doctors were indiscriminate in pre­friends or lawyer. The health authorities do scribing drugs for the patients. not check the conditions of mental hospi­ The same reporter, writing some years tals and there is no independent supervi­ later, said that in spite of the public debate sory mechanism to prevent the abuses tak­ that took place after his earlier report things ing place in the mental hospitals. had not changed much in the mental hospi­ Even if these allegations are applicable tals in Japan. His view has been supportedonly to some of the mental institutions of by recent reports about the deaths of two Japan, it is still an alarming situation in view patients in a mental hospital in Utsunomiyaof the large number of mental patients. Ac­ City in Japan. cording to official sources, in 1979 there According to information given by thewere 304,192 patients in mental hospitals. staff and inmates of the hospital, the first Unofficial sources say that by 1982 the death occurred in April 1983 when a pa­number had increased to nearly 320,000. tient was beaten with a one-metre metalFrom 1970 to 1982 there appears to have pipe for complaining about the food. The been a remarkable increase of nearly 70,000 second patient died in December 1983patients. after being beaten with fists and sticks for Several reasons are advanced for this in­ trying to escape from the hospital. crease. It is said that people who are unable Questions about these deaths were raised to cope with the rapid technological and in the Japanese Parliament in March 1984.other changes taking place in Japan be­ A report prepared by some members of come marginalised and are considered a Parliament on the situation in this particu­burden to society and the family, and the lar hospital alleged that the inmates were mental hospitals seem to provide a place routinely assaulted and were forced tofor such marginalised people. A general work, including in the erection of buildingslack of awareness about mental illness is and in a deep-freeze factory owned by thesaid to make people opt for the easy solu­ Superintendent of the hospital. The reporttion of detaining the mentally-ill in hospi­ also alleged that the hospital was under­ tals. Mental hospitals which are run by pri­ staffed and over-crowded. vate foundations or by individuals for pro­ According to lawyers who are working fit encourage voluntary and involuntary ad­ for the rights of the mentally ill in Japan,mission of patients. These institutions, conditions revealed in this particular hospi­which receive social welfare subsidies or tal are to be found in most of the mentalmedical insurance payments for the pa­ health hospitals in Japan. They say thattients, come to consider the patients as nearly 200 deaths have taken place in only‘fixed assets’. Attention was drawn in a one hospital in Utsunomiya without satis­WHO report1 to the possible effect of the factory explanations in the last three years.profit involved in some of these hospitals. The lawyers say that the human rights of The report said: "... these problems are mental patients are not respected. In manyparticularly bad when the proprietor, anxi­ hospitals, they are not provided with ade­ ous for a return on his investment, is put­ quate facilities, treatment and even food.ting pressure on the medical staff to increase

1) Assignment Report, by Clarke, D.H., 30 May 1968, p. 16. the income by overcrowding the institu­ The Mental Health Act does not provide tions”. for periodic review of the cases of those The Japanese Mental Health Act con­who are committed to the hospitals. Ex­ tributes to this state of affairs by providing cept by way of ahabeas corpus petition, for involuntary committal of the mentally-there is no other procedure by which a pa­ ill in the hospitals without adequate safe­ tient or the relative of the patient can take guards. Article 3 of the Act defines mental­ a proceedings before a court of law to ques­ ly-disordered persons as ‘psychotic persons tion the need for continued detention. This (including persons who are psychotic as asafeguard is, however, inadequate ashabeas result of intoxication), feeble-minded per­corpus was proved to be an ineffective rem­ sons and psychopathic personalities’. Un­edy. The Japanese Mental Health Act does der Article 29 of the Act, if, as a result of not provide for any judicial decision in the medical examination undertaken by twocase or of an involuntary detention, or any more certified mental health practitioners, right of appeal against it, or any automatic a person is diagnosed as mentally-disorder­periodic judicial review at reasonable inter­ ed and is liable to injure himself or others, vals to ascertain whether the patient still then the governor of a prefecture can com­needs to be confined. mit the person to a mental hospital. The following case illustrates the conse­ Under Article 33, an ‘administrator’ of aquences of involuntary commital without mental hospital can commit a person to the review. A man who was found drunk and hospital if that person has been diagnosed unconscious was committed to a mental as mentally disordered. Under Article 34 hospital as a guardian-less person. He was an administrator can commit a person pro­not permitted to contact relatives or visionally for not more than three weeks iffriends. After 26 months, his plight became the administration feels that a considerablepublic when he was arrested for murdering period of time is required for medical ex­ an employee of the mental hospital. While amination of that person. Under both thesesentencing him to seven years’ imprison­ Articles, consent of the patient is not nec­ment, the trial court referred to ‘the ex­ essary if persons responsible for the patienttreme wrongdoing of the hospital’s patient give their consent to committal. administration, where violent acts occurred The law does not specify whether an daily, and the long and unjust detention’. ‘administrator’ who has the power to com­ This case, coupled with the large num­ mit a mentally-ill person has to be a quali­ber of hospital patients and the fact that fied psychiatrist. It is said that in most the great majority of them are said to be mental hospitals the administrators are not held involuntarily, raises questions about qualified but that they commit a mental the adequacy of the Japanese Mental Health patient after referring the patient to the Act. The ‘draft body of principles and doctor on duty. The administrators of pri­guidelines for the protection of persons de­ vate mental hospitals commit persons to tained on grounds of mental ill-health or their own hospitals on the basis of diag­ suffering from mental disorder’, which is noses made by their own hospital doctors being considered by the United Nations and usually the relatives of the patients,Sub-Commission on Prevention of Discrim­ trusting the doctors, give their consent. ination and Protection of Minorities, states It is believed that more than four-fifths that, “involuntary admission is a great in­ of the patients currently in hospitals werefringement of the human rights and funda­ committed under Articles 33 or 34. mental freedoms of the patient”. The draft proposes that the recommendation of at from a court. In such cases, judicial review least two medical practitioners should be of lawfulness should be available at ‘reason­ required for an involuntary admission andable intervals’. that the decision should be taken by a InX v. United Kingdom, the European competent court or health tribunal. Fur­Court explained that the scope of the peri­ ther, it recommends that there should be odic judicial control of the lawfulness of periodic judicial review of all cases of invol­ the continued detention of persons of un­ untary admission. sound mind need not empower the court The following decisions of the European of review to substitute its own discretion Court of Human Rights on the detentionfor that of the decision-making authority. of persons of unsound mind and the safe­But the review must be wide enough to guards that should be afforded to them are bear on the essential conditions, especially also relevant2. on the questions of whether the patient’s InWinterwerp v. Netherlands, the court disorder still persisted, and whether the ad­ specified three minimum conditions beforeministrative authority was entitled to think there could be a 'lawful detention of a per­that his continued compulsory confinement son of unsound mind’: except in emergencywas necessary in the interests of public cases, a true mental disorder must be reli­ safety. ably established before a competent au­ In January1982, in response to the thority on the basis of objective medical European Court’s judgment, the govern­ expertise; the mental disorder must be of a ment of the United Kingdom introduced kind or degree warranting compulsory med­amendments to the Mental Health Act of ical confinement; and the validity of con­1959. Under the amended Act, Mental tinued confinement must depend onHealth the Review Tribunals are empowered to persistence of such a disorder. consider the substantive grounds for the In the same case, the European Courtcontinued detention of a restricted patient observed that special procedural safeguards and are required to order discharge where may be called for in order to protect the appropriate. Furthermore, patients are en­ interests of persons who, on account oftitled to apply directly to a Mental Health their mental disability, are not fully capa­Review Tribunal once in the second six ble of acting for themselves. The court months of their detention, and thereafter took the view that it would be contrary to once in any further twelve month period. the object and purposes of Article 5(4) In view of the emerging principles and (Right to take proceedings to test the law­ procedures for the protection of the rights fulness of arrest or detention) of the Euro­of persons suffering from mental disorder, pean Convention on Human Rights, toit in­ is suggested that the Japanese govern­ terpret it as making the detention of per­ ment should consider appointing an inde­ sons of unsound mind immune from subse­pendent high-powered Commission to re­ quent review of its lawfulness, merely be­view the situation of the mentally-ill with cause the initial decision had been issueda view to amending its Mental Health Act.

2) The decisions quoted are taken from the International Law of Human Rights, by Paul Sieghart, Oxford University Press, pp. 148 and 157. Pakistan — Women Under Threat

A remarkable organisation came into perately needed can be seen by a brief look existence in Pakistan in 1981. Women’sat enacted and proposed legislation and the Action Forum (WAF) is, in its own wordsopinions expressed by certain officials in “a non-political lobby consisting of wom­positions of power and influence. Not only en's organisations and concerned individu­does the Islamisation process begun by als working to safeguard the present status President Zia in 1979 restrict women's life­ of women and reverse the trend to isolatestyles but it also affects their status as and segregate them.” members of society on an equal footing In third world countries, especially those with men. The attempts to reduce women under martial law and in particular those into the status of second class citizens has the process of Islamisation, women have frightening implications and makes then in­ not been known for their ability to orga­creasingly vulnerable to exploitation as a nise themselves at national level, articulateresult of both discriminatory legislation their grievances and attempt to improve and the mentality that such an official po­ their status. WAF, however, working sition fosters. This mentality is exemplified through chapters set up throughout the by Dr. Israr Ahmed's publicly expressed country (whose activities are veted by theopinion that female employment should two oldest chapters, Karachi and Lahore) end and women should be restricted to has developed quickly into a dynamic forcetheir homes. Dr. Ahmed is a member of the in Pakistan with rapidly growing member­President’s advisory council, the Majlis-e- ship from all classes and constantly ex­Shoora, and is therefore, in a position to panding activities, such as organising sym­influence policy-making decisions in the posia and workshops, lobbying, acting as a country. Dr. Ahmed had a weekly TV show pressure group and taking part in and ini­in which he continued to make sexist state­ tiating mass demonstrations. These acts ments of a similar nature. One of WAF's have been directed against legislation in themajor successes was a campaign it ran to name of Islamisation which is severely dis­have him removed from this programme. criminatory against women. In many casesSimilarly offensive and potentially dan­ WAF argues that the legislation is not sup­ gerous for women's status are opinions ported by the Koran. such as those expressed by Justice Sheikh At a time when politicians have beenAftab Hussain, Chief Justice of the Federal unable to mount an effective nationalShari’a Court. Chief Justice Hussain, after movement in opposition to President Ziaexpressing the opinion that corrupt civil al-Huq because of differences in their goals, servants should be shot in public, went on women opposed to the President’s Islamisa­ to blame the problem on the efforts of of­ tion policies are presenting a united front,ficials to satisfy the material greed of their thus placing them in the forefront of al­wives. most all other political formations in Pa­ In 1979, the President promulgated the kistan at this time. Such unity makes themHadood ordinance laying down conditions a force to be reckoned with in a coun­for the imposition of the maximum penalty try where 52% of the population is fe­ for certain crimes such as murder, rape, male. theft and adultery. It excludes the evidence That an organisation like WAF is des­of women altogether. Therefore, if a murder is committed in the presence of a women diyat. This is specified in the Koran as ei­ but no male witnesses are present, the ma­ther blood money and the freeing of a be­ ximum punishment cannot be imposed lievingfor slave or fasting for two months. the crime. There is no suggestion that a slave should Shortly after the promulgation of this be half freed or half the compensation paid ordinance the President proposed anotherif the victim happens to be a women. There­ ordinance, in essence making the testimonyfore, as the WAF’s position paper asks, un­ of one man equal to that of two women. der what pretext does “the Council of This has serious repercussions for women Islamic Ideology put forth the ridiculous which touch every aspect of their lives. For and baseless assumption as in section 12(b) example, in a custody case, the evidence ofof the draft law which reads: ‘Where the the mother would be less acceptable than victim is a female, her diyat shall be one that of the father. Further, a rape case rely­ half of the scale specified’.” ing solely on the testimony of the victim The degradation of the status of women cannot be proved. is merely the culmination of a series of at­ In Lahore in February 1983, WAF de­tacks on women. The government of Zia monstrated against these proposed changes al-Huq has issued other proclamations ban­ in the law of evidence. Tear-gas and batonsning the participation of women athletes in were used by the police in order to break international and mixed sports events. At­ up the demonstration and local newspaperstempts have also been made to put an end said "the protest was marked by unprece­ to coeducation and to institute separate dented police brutality”.1 At least 20 universities for women. In addition some women were injured and another 30 arrest­moves were made toward repealing the ed. In spite at this demonstration which 1961 family laws ordinance which, after a had a firm body of support from men, the long struggle, had been finally passed in proposed legislation was pushed through 1961. This ordinance recognised women as less than a month later. rightful heirs of agricultural propery under WAF has also recently taken a positionIslamic law, made second marriages contin­ on a draft law proposed by the Council of gent on the consent of the first wife, made Islamic Ideology which reduces the value divorce more difficult for the male and for of a women’s life to half that of a man. In the first time gave women the right to ini­ its position paper of February 1984, WAF tiate divorce on certain specified grounds states that not a singleayat or verse from only. This ordinance was never adequately the Holy Koran is quoted in support of the implemented but it was seen as a major vic­ draft, for the simple reason that there is tory in that it showed the state recognised none, because “there is no justification forthe need for reforms to better the status of such a law in Islam.” women. If this ordinance is repealed it will The proposed ordinance concernsdiyat, deal a bitter blow to women’s rights in Pa­ the compensation for causing the death ofkistan. a believer (as sex is unspecified it presum­ WAF waged a successful campaign in ably applies equally to males and females). support of the family laws ordinance and A person found guilty of causing the deathfor the moment no proposals are actively of a believer is entitled if the victim's fami­ threatening it, but the potential threat still ly agrees to save his life by payment of exists and can be reactivated at any time.

1) International Herald Tribune, 22 February 1983. WAF feels that better representation of ments. As has been stated by WAF, the women on the Council of Islamic Ideologyfear is that "if the women, themselves, do and other decision-making bodies would benot express their concern and opinions, it a major step towards safeguarding the re­ is more than likely that issues which affect sults of 35 years of slow but steady pro­ their lives will be decided upon without gress in the field of women’s rights and to­ their participation. ward helping to ensure future develop­

South Africa — KaNgwane

KaNgwane is one of the ten tribal home­‘white’ South Africa. lands (bantustans) created by the South This bantustanisation policy, once fully African government to further entrenchimplemented, its would mean, in the words of policy of apartheid. The declared policy of the South Africa Minister of Bantu Admin­ South Africa is that the entire Black popu­ istration in 1978, “there will be not one lation should be arbitrarily assigned to oneBlackman with South African citizenship... or other of these homelands even though a Every Black man in South Africa will even­ large percentage of them have never lived tually be accommodated in some indepen­ in these areas and have expressed no desiredent new state in this honourable way and to do so. there will no longer be a moral obligation The homelands represent a total of 14% on this Parliament to accommodate these of the South African land mass and have topeople politically.” accommodate a theoretical population of ‘Independence’ strips Blacks of South 19.8 million; the remaining 82% of the landAfrican nationality. They become nationals is the preserve of the 4.5 million Whites of the new ‘state’ created for them by the and 3.4 million Asians and Coloureds. South African government; a state which is Blacks have no citizenship rights what­ generally carved out of the land in such a soever except within their own particularway as to avoid encroacing on white-domi­ bantustan. It is the policy of the Southnated areas and to exclude any land of par­ African government to ‘encourage’ (forcib­ticular value. Blacks from homelands which ly or otherwise) the Black population to become independent suddenly find them­ relocate to their designated homeland, and, selves aliens in their own country — a situa­ in addition, gradually to force ‘indepen­tion that is especially acute for those who dence’ on these homelands. This has alreadylive and work in white areas outside their happened to the bantustans of Transkei,designated bantustan. On ‘independence’ Ciskei, Venda and BophuthaTswana. Eachthe right to work outside one’s homeland has a president, parliament, flag and diplo­ceases except on special dispensation from matic service, though none has been recog­the South African government. As the nised by any state other than South Africa.homelands themselves are not economically Their ‘independence’ has enabled Southviable, being in general agriculturally poor, Africa to eliminate 8 million Blacks from with little industrial development and prac­ 1 tically no mineral wealth (boundaries havesembly concerned was necessary before its been drawn specifically to exclude valuablelegislative powers could be repealed. deposits), a large percentage of families de­ In a similar case brought against the pend on the income of members who com­South Africa government by the govern­ mute daily to work in industrial centresment of KwaZulu, the president’s action outside their ‘border’. was declared ultra vires. Following this the Even more dramatically affected by 'in­proclamation regarding KaNgwane was dependence’ are the citizens who have hadwithdrawn. KaNgwane officials were then no connection whatsoever with their desig­reinstated and the “Rumpff Commission”1 nated homeland, have lived and workedwas set up “to investigate, report on and elsewhere and who suddenly become for­make recommendations in regard to the eigners in their own community. They aredesirability or otherwise of incorporating able to continue their normal life onlythe South African territory of KaNgwane through the good graces of the South Afri­ into the Kingdom of Swaziland.” can government but are liable to be de­ As already stated, the leadership of Ka­ ported at any time to a bantustan that isNgwane have economic, humanitarian, po­ already economically incapable of support­litical and legal reasons for resisting ‘inde­ ing its resident population. pendence’ from South Africa. These rea­ The bantustan of KaNgwane is contigu­sons also apply to cession to Swaziland, ous with the northern and western borderswhich is seen as just another artifice by of Swaziland. In .1977 it was given certainwhich 750,000 Blacks can be excised from legislative powers, receiving a constitution‘white’ South Africa. and a legislative assembly. However, the It is true that Swaziland has for the past leadership of KaNgwane strongly resisted hundred years claimed thearea that now full ‘independence’ on economic, humani­constitutes KaNgwane, but there are argu­ tarian, political and legal grounds. In thements for saying that historically its case is face of this opposition the South Africa not strong for asserting sovereignty over government in 1982 by Proclamation this R area. In hisMemorandum on the Pro­ (108), unilaterally dissolved the constitu­posed Incorporation of KaNgwane into tion of KaNgwane and its legislative assem­Swaziland of August 1983, Dr. P.R. Maylam bly and announced its intention of cedingof the University of Natal, Durban enlarges KaNgwane to Swaziland. The governmenton his contention that “Swazi history is of KaNgwane and its leader Enos J. Mabuzacharacterised by ethnic diversity, shifting brought an action against the Governmentallegiances and regular secessions and mi­ of South Africa in the Supreme Court of grations, all of which made for fluidity and South Africa Transvaal Provincial Divisiona lack of definition in the Swazi territorial regarding the legality of the unilateral dis­ domain... It is accepted that the 1880 solution. It was argued that the 1971 Na­ boundary (between Swaziland and the tional States Constitution Act (which pro­Transvaal) was perhaps unfair to the Swazi. vides for the granting of certain legislative But against this, two points should be powers to the bantustans) limited the pow­ noted. First, the Swazi king at that time, ers of the South African president so that Mbandzeni, agreed to the demarcation. prior consultation with the legislative as­And second, there is no legal or historical

1) A high-level government Commission chaired by the Hon. F.L.H. Rumpff, former Chief Justice of the Appellate Division of the South Africa Supreme Court. justification for redrawing state boundariesTherefore any treaty purporting to cede on the basis of claims that are more than KaNgwane to Swaziland and denationalise one hundred years old.” Concerning this750,000 Black citizens would be void. latter point, regard must be had to the Blacks in South Africa have had no say principle of uti possidetis which has been in instituting the homeland policy, in gen­ generally adhered to during decolonisationeral, or the proposal to cede KaNgwane to in the Americas and Asia and is of specialSwaziland, in particular. As has been stated significance in Africa. Indeed, in 1964, thein the Lawyer’s Committee for Civil Rights Organisation of African Unity adopted Under a Law’s Brief for the Rumpff Com­ resolution which stated “Considering thatmission, “Self-determination must at least border problems constitute a grave and per­constitute a legal right to participate effec­ manent factor of dissension (the OAU) sol­tively in governing the territory... Accord­ emnly declares that all Member States ingly the right of all groups to have a say in pledge themselves to respect the borders decisions concerning the dismemberment existing on their achievement of nationalof the national patrimony is an integral independence.” This resolution, taken right in of self-deterination.” It cannot be tandem with subsequent state practice en­said that Blacks in South Africa have ever dorsing it has led Professor Brownlie to had a chance to exercise that right and that state that it now “provides the basis for a indeed “although, generally, national inde­ rule of regional customary international lawpendence from foreign domination is suffi­ binding those state which have unilaterallycient to satisfy the right of self-determina­ declared their acceptance of the principles tion, in the specific case of South Africa, of the status quo as at the time of indepen­ political independence from Britain did not dence.” fulfill the right of self-determination of the If the case for ceding KaNgwane to Swa­ Black people of South Africa.” Thus, the ziland is allowed to rest on such a justifi­essence of self-determination is the ability cation as uniting an ethnic group dividedto have a say in one’s destiny. In the par­ by colonial boundaries, this type of prece­ticular case of KaNgwane, the South Afri­ dent could lead to confusion and conflictcan government, although treating it as a throughout the continent. Indeed, Lesothopolitical entity, with a legislative assembly has an outstanding claim to the easternand constitution, is denying it any say in part of the Orange Free State which is bet­ its future. A request by the KaNgwane ter founded than that of Swaziland to theleadership for a referendum of KaNgwane eastern Transvaal. citizens on the proposed cession was refus­ It is, of course, lawful for two indepen­ed. Indeed, it has been argued that a refer­ dent states to enter into a treaty wherebyendum ofall South Africans is necessary to one cedes a portion of its territory to the fulfill the requirements of the principle of other. If, however, such a treaty conflicts self-determination. with a peremptory norm of international One of the most harrowing aspects of law (i.e. of jus cogens) it is void ab initio. the Black denationalisation policy of the The principles of racial non-discriminationSouth African government as exemplified and the right to self-determination are nowin its proposals regarding KaNgwane, is generally considered to be part ofjus co­ that Blacks resident in other parts of South gens. Both these principles have been vio­Africa, who have no connection with their lated by the South African government inallotted Bantustan other than their govern- its dealings with the Black population. ment-issued identity document, will live in constant insecurity, liable to be deported The leadership of KaNgwane feels that \ to Swaziland at any time. its prospects for industrial development are Under international law, nationalitygreater if it remains part of South Africa as laws must be consistent with internationalit has access to the South Africa market, conventions and customs. Thus, discrimina­receives aid from the South Africa govern­ tion on the grounds of race is proscribed. It ment through the KaNgwane Economic follows that a blanket denationalisation ofDevelopment Corporation and benefits 750,000 people on the basis of their sup­ from the government’s industrial decentral­ posed membership of a certain ethnic class isation policy. As Dr. Maylam says in his is a breach of international law. Memorandum “It is... in the interests of In addition, the acquisition of a new na­KaNgwane to cling on to these short-term tionality should have a voluntary element,benefits and to hold out for a stake in a with an opportunity for the population in­future, more egalitarian South Africa.” volved to express their agreement or dis­ It is also felt that an influx of such a agreement. As the KaNgwanes have neverlarge unwilling population, the majority of been and seem highly unlikely to be con­whom would feel press-ganged into becom­ sulted in any meaningful way regarding ingces­ Swazi, would have a deleterious effect sion, an enforced change of nationalityon the political situation in Swaziland, would be so arbitrary as to merit imme­ which is already uncertain and unstable. diate reaction by the world community in Bearing in mind the historical factors re­ accordance with the Stimson doctrine of garding the proposed cession of KaNgwane collective non-recognition. to Swaziland, as well as the total lack of As well as the breaches of internationalparticipation of Black South Africans in law which would occur on cession to Swa­general and KaNgwanes in particular in the ziland, economic considerations promptdecision-making process, and the seeming the KaNgwane authorities’ refusal to ac­ complete disregard for both the best inter­ cept incorporation into Swaziland. Mostests of the KaNgwane citizens and the hu­ importantly, as mentioned above, a largeman suffering involved in the potential ar­ percentage of KaNgwanes actually work bitrary uprooting of some 400,000 people, across the ‘border’ in ‘white’ South Africa. it can be clearly seen that the proposed ces­ Their ability to do so once they became sion of KaNgwane to Swaziland is but an­ Swazi citizens would be severely curtailedother mutation of South Africa’s apartheid as legal restrictions were placed on migrant policy and a blatant example of the lengths labourers from Lesotho, Botswana and to which it is prepared to go to ensure sep­ Swaziland in the early 1960s. Further, Swa­arate development for the White and Black ziland could not accommodate economical­population of South Africa. ly the theoretical population of KaNgwane In the words of Enos J. Mabuza, the should all its citizens be forced to return tovast majority of KaNgwanes “believe that their new homeland. the purpose of the proposed excision is to Swaziland is in a severe economic crisis,strip Swazi-speaking South Africans of the world price of sugar (its major export) their citizenship, deny them access to the having fallen by 56% between May 1981wealth and prosperity they helped build and May 1982. Rural impoverishment and is reduce the number of Black South widespread and manufacturing suffersAfricans so they can no longer strive and through dependence on foreign marketsstruggle for political rights in the land of and lack of diversification. their birth.” Since this article was written, the South by the leaders of Swaziland and KaNgwane. African government has “decided to dis­As the leadership of KaNgwane is totally solve the commission of inquiry investigat­opposed to incorporation into Swaziland, ing the proposed land [deal]” (Guardian, any such joint proposal would seem un­ 20 June 1984). The government will in fulikely. ­ ture consider only proposals made jointly

The Western Sahara1

The following questions are addressed in ahel es-sahel (the people of the littoral), the hope of shedding some light on “a tem­ since they lived in the extreme western porary decolonisation problem” which stretch of the Sahara desert. Ethno-cultur- seems as intractable as it is obscure: ally speaking, they are a sub-group of the beidan, or ‘Moors’, nomads of mixed Arab, - who are the people of Western Sahara, Berber and black African descent who speak the Saharawis? an Arabic dialect known as Hassaniya. - what kind of relations did they have his­ The Saharawi economy was based on torically with their Moroccan neighbours pastoral nomadism. The limited and dis­ to the north and with the Mauritanianpersed pastures required migration in rela­ tribes to the south? tively small groups. Saharawi society was - how did such an apparently barren terri­divided horizontally and vertically into tory as the Western Sahara come to be tribes and castes. At the top were free qa- colonised by Spain? bael. Beneath them were qabael of tribu­ - how and why did Morocco and Maurita­tary status, who were forced to pay tribute nia lay claim to the Western Sahara from for 'protection' to powerful free tribes. At the late 1950s? the bottom of the social scale were castes - what indigenous political parties and lib­of craftsmen and bards who were attached eration movements took shape withinto qabael of free or tributary status. the Spanish colony and what have the Each quabila was segmented into frac­ United Nations, the Organisation of Afri­tions. Politically, each tribe and fraction can Unity and the International Courtregulated its affairs through an assembly of Justice had to say about the contro­ (djemaa) of the heads of its most distin­ versy surrounding its future? guished families. The djemaa selected the group's sheikh, established its own body of The tribes, or gabael, in the region now law, the orf, to complement the Sharia, known as Western Sahara, were regarded and appointed a qadi (judge) to administer by themselves and their neighbours as thejustice.

1) An interesting and informative article on the Western Sahara by Tony Hodges of the Economist In­ telligence Unit was published in Third World Quarterly (January 1984, Vol. 6, No. 1). With their Kind agreement the article is here summarised. In an exceptionally arid and hostile en­time, the hinterland became a sanctuary for vironment which kept them dispersed, nonomad forces resisting the French advance single group could draw on sufficient powerinto the neighbouring regions of Maurita­ or resources to establish even a semblancenia, Morocco and Algeria. In 1934, the of supra-tribal government. French forces ‘pacified’ the border regions of the north-western Sahara and, at France’s behest, Spain at last occupied a few strate­ Spanish Colonisation gic points in the interior of its zone of des­ ert, including the town of Smara, the re­ The first European contact with the gion’s only pre-colonial settlement. Western Sahara came in the fifteenth cen­ Still, Spanish Sahara remained an almost tury. In 1441, the Portuguese made theirforgotten colony. From 1934 to 1946, it first slave raid and thereafter raiding alter­was governed as an offshoot of the Spanish nated with trading. The inlet at Dakhla, protectorate in northern Morocco. Then, where gold was acquired, was named Rio from 1946 to 1958, it formed part of Africa de Ouro by the Portuguese. Castile, which Occidental Espanola (AOE) with Ifni, a was the main rival to the Portuguese, sentsmall enclave on Morocco’s Atlantic coast. a force in 1476 to the Saharan coast to As late as 1952, there were only 216 civil­ build a fortress, Santa Cruz de Mar Peque- ian employees, 24 telephone subscribers na, which became a trade centre. Castile and 366 children in school in the whole of and the Portuguese agreed on spheres of in­Spanish Sahara. Almost all the Saharawis fluence along the coast under successiveremained nomads. treaties, signed in the years between 1479 In 1958, two years after Morocco’s inde­ to 1509. pendence, AOE was dissolved and Spain’s However, in 1524, Santa Cruz de Mar Saharan territory was converted into a Span­ Paquena was attacked and sacked by theish province, governed by a Governor-Gen- local population. Meantime, Spain’s inter­eral, with its own capital at El-Ayoun. Un­ est shifted to the Americas and it did not der a 1962 decree. El-Ayoun and Villa Cis­ renew its interest in the Western Sahara tillneros each had municipal status and so were 1881, when the Sociedad de Pesquen'asadministered by city councils. Smara and CanarioAfricanas established a pontoon inLa Guera were deemed ‘minor local entities’ the Rio de Oro Bay. In 1885, Spain estab­and were administered by local juntas. For lished a settlement, known as Villa Cisne­the territory as a whole, there was a 14- ros, on the bay. member provincial council. From 1963, The Spanish Sahara’s borders were de­ when the first election to these bodies was lineated by four successive Franco-Spanishheld, three procuradores represented the conventions, signed in 1886, 1900, 1904province in the Spanish parliament. Their and 1912. In all, Spain acquired 112,000number was raised to six in 1967. square miles of desolate desert, comprising As for the nomads (the overwhelming two outright colonies — Rio de Oro (71,000 majority of the population until the early square miles) and Saguia el-Hamra (31,650 1970s), the Spanish authorities continued square miles). a policy akin to ‘indirect rule' through the Since Spain was too weak to occupy its qabael’s traditional djemaas. As sedentari- allotted zone of desert, for more than thirty sation increased, the Spanish, in order to years Villa Cisneros remained the onlyfacilitate consultation with the Saharawi Spanish settlement in Western Sahara. Mean­population, established in 1967 a territorial Djemaa, composed of 82 members. They toured the territory in May 1975 reported represented tribal, rather than geographical (UN document no. A/10023/Rev. 1, p. 59): constituencies and less than half were di­ rectly elected. The assembly had a purely “At every place visited, the Mission was consultative rale. met by mass political demonstrations The economic changes of the 1960s and and had numerous private meetings with early 1970s brought about a rapid moder­ representatives of every section of the nisation of Saharawi society. The majority Saharan community. From all these it of Saharawis gave up their precarious no­ became evident to the Mission that madic way of life and settled in the towns there was an overwhelming consensus to take up wage-employment, set up as among Saharans within the territory in traders and sent their children to school. favour of independence and opposing The number of Saharawis living in the integration with any neighbouring coun­ three main towns, El-Ayoun, Sinara andtry... The Mission believes, in the light Villa Cisneros, tripled between 1967 and of what it witnessed in the territory, es­ 1974, reaching 40,600, or 55% of the Saha­ pecially the mass demonstrations of sup­ rawis recorded in the 1974 census. port for one movement, the Frente PO­ LISARIO... that its visit served as a cat­ alyst to bring into the open political Formation of the Polisario Front forces and pressures which had previ­ ously been largely submerged.” The profound changes within the Span­ ish colony and in the international arena during the 1960s gave rise to a modem ur­ The Role of the UN and the OAU, ban-based nationalist movement called the196 5 -1 9 7 4 Harakat Tahrir Saguia el-Hamra wa Oued ed-Dahab (Liberation Organization of Sa­ The UN General Assembly adopted its guia el-Hamra and Oued ed-Dahab). The first resolution on Western Sahara and Ifni Harakat Tahrir was a small clandestine in December 1965, in which it requested movement which advocated social reforms the government of Spain as the administer­ as well as decolonisation. But it did noting power to take all necessary measures continue for long and disintegrated in midfor the liberation of the territories of Ifni 1970 after being severely repressed. and Spanish Sahara and to this end to enter Saharawis living abroad in Morocco andinto negotiations on problems relating to Mauritania took the initiative in reorganis­sovereignty presented by these two territo­ ing the anti-colonial movement. The em­ries. bryo of the new movement was formed in While the population of Ifni clearly Zouerate in 1971—72 and finally in Maywished to join Morocco, the desires of 1973 the Frente Popular para la LiberacionWestern Saharans were unclear, in particu­ de Saguia el-Hamra y Rio de Oro, better lar in relation to the rival claims of Moroc­ known as the Polisario Front, was born. Inco and Mauritania. Accordingly, the UN its Second Congress in August 1974, Polisa­General Assembly, in its second resolution rio came out unambiguously in favour adopted of in December 1966, distinguished full independence. By 1974-75, the Polisa­the decolonisation procedures to be applied rio Front had become a mass movement. in Ifni and Western Sahara. It requested A United Nations mission of inquiry whichSpain ‘to determine at the earliest possible date, in conformity with the aspirations ofWestern Sahara for more than a decade, the indigenous people of Spanish Sahara Morocco was now deterined to thwart and in consultation with the governmentsSpain’s plan for internal autonomy, which of Mauritania and Morocco and any otherit saw as a prelude to independence, and interested party, the procedures for the force Spain to negotiate the territories’ ces­ holding of a referendum... with a view to sion to Morocco. King Hassan of Morocco enabling the indigenous population of thelaunched a patriotic crusade to recover the territory to exercise freely its right to self- ‘Moroccan Sahara’ which aroused enor­ determination'. mous enthusiasm among his people. This referendum proposal was repeated As a way of blocking the referendum, in all six subsequent resolutions adoptedMorocco persuaded the UN in December by the General Assembly between 19671974 to urge Spain to postpone the refer­ and 1973. endum, while the dispute was examined by The Organisation of African Unitythe International Court of Justice (ICJ). (OAU) began endorsing the UN resolutionsThe UN General Assembly agreed to do so on the Western Sahara from 1969. Even atand requested Spain to postpone its plans a session held in Rabat, Morocco, in Junefor a referendum until the ICJ had given 1972, the OAU’s Council of Ministers re­an advisory opinion on the following ques­ quested African states to “intensify theirtions: efforts to enable the population of Saha­ ra... to freely exercise their right to self- (1) Was Western Sahara (Rio de Oro and determination.” Sakiet El Hamra) at the time of coloni­ sation by Spain a territory belonging to no-one (terra nullius)? Prelude to Crisis, 1974—1975 (2) If the answer to the first question is in the negative, what were the legal ties Western Sahara’s future suddenly hung between this territory and the King­ in the balance when the Spanish govern­ dom of Morocco and the Mauritanian ment at last began to lay the ground work entity? for Spain's withdrawal from the territory. In July 1974, Spain announced a statute Afterof 27 sessions in June-July 1975, at autonomy known as the estatuto politico,which the governments of Spain, Morocco, under which the Djemaa was to be convert­Mauritania and Algeria (but not Polisario) ed into a legislative assembly, while a Gov­ were represented, the Court decided unani­ erning Council in which Saharans wouldmously be that Western Sahara had not been represented was to assume executive pow­terra nullius before Spanish colonisation ers. In the same year, in August, the Span­began in 1884. The Court held that the ish government announced that a referen­Western Sahara was inhabited by peoples dum would finally be held under UN aus­who, if nomadic, were socially and politi­ pices during the first half of 1975. cally organised in tribes and under chiefs Till then, Morocco and Mauritania hadcompetent to represent them. With respect tailored their policies to accommodate the to Morocco’s pre-colonial relations with UN’s decolonisation principles in the hope,these tribes, the Court was of the opinion, or expectation, that self-determinationby 14 votes to two, that: would lead to territorial integration. But, after soft-pedalling the Moroccan claim to “The inferences to be drawn from the information before the Court concern­The Madrid Accords ing internal acts of Moroccan sovereign­ ty and from that concerning interna­On the publication of the International tional acts are... in accord in not provid­Court of Justice’s advisory opinion on 16 ing indications of the existence, at theOctober 1975, King Hassan announced relevant period, of any legal tie of terri­that 350,000 volunteers would march, torial sovereignty between Western Sa­Quran in hand, across the Western Sahara hara and the Moroccan state. At the border to assert Morocco’s territorial claim. same time, they are in accord in provid­This precipitated events before the UN had ing indications of a legal tie of allegiance time to consider the ICJ’s conclusions. between the Sultan and some, though In Spain, General Franco had entered only some, of the tribes of the territory, into his long, final illness. Both his premier and in providing indications of some dis­and the heir to the Spanish throne, Juan play of the Sultan’s authority or influ­Carlos de Borbon, who became the acting ence with respect to those tribes. head of the state on 30 October, were de­ termined to avoid a military confrontation By 15 votes to one, the judges foundwith Morocco. Therefore, Spain began ne­ that: gotiations with Morocco on 21 October. On 6 November, King Hassan ordered at the time of colonisation by Spainhis ‘green marchers’ to enter Western Saha­ there did not exist between the territoryra. Spain had promised not to interfere of Western Sahara and the Mauritanianwith the marchers as long as they proceed­ entity any tie of sovereignty, or of alle­ed no further than a ‘dissuasion line’, about giance of tribes, or of ‘simple inclusion’ eight miles from the border, to which in the same legal entity. Spanish troops had already been pulled “There were merely legal ties relating to back. Three days after King Hassan ordered such matters as migration routes, the use the marchers to return since they had of wells, and the settlement of disputes.” achieved what was expected of the march. On 12 November, the negotiations were The Court concluded, therefore, that: resumed in Madrid and culminated two days later in a tripartite agreement between "... the materials and information pre­Spain, Morocco and Mauritania. Spain sented to it do not establish any tie ofagreed to “proceed forthwith to institute a territorial sovereignty between the terri­temporary administration in the territory, tory of Western Sahara and the King­in which Morocco and Mauritania will par­ dom of Morocco or the Mauritanian en­ticipate in collaboration with the Djemaa”, tity. Thus the Court has not found legaland finally to withdraw from Western Sa­ ties of such a nature as might affect the hara by the end of February 1976. application of resolution 1514 (XV) in Within a fortnight of the accords, a new the decolonisation of Western Sahara tripartite government took office in El- and, in particular, of the principle ofAyoun. In January, the Spanish troops self-determination through the free andwithdrew, leaving the main towns in Mo­ genuine expression of the will of theroccan or Mauritanian hands. Some smaller peoples of the Territory.” settlements were occupied by Polisario be­ (ICJ Advisory opinion of fore being seized by Moroccan or Maurita­ 16 October 1975) nian troops. The members of the Djemaa proved far of the smaller and remote outposts it occu­ less pliant than the signatories of the Ma­pied in 1975-76. Morocco has built a con­ drid accords had anticipated. At an extra­tinuous defence line in order to seal off the ordinary session held under Polisario aus­whole north-western corner of Western Sa­ pices on 28 November, 67 of the Djemaa's hara, enclosing El-Ayoun, Smara and the 102 members proclaimed the assembly's territory’s valuable phosphate mines at dissolution and their unconditional supportBou-Craa. for Polisario, and set up a 41-member Pro­ Meanwhile, the Saharan Arab Democrat­ visional Saharawi National Council. ic Republic (SADR) was proclaimed by the Morocco and Mauritania succeeded inprovisional Saharawi National Council on persuading 57 members of the Djemaa to 27 February 1976 to fill the juridical vacu­ attend a rump session of the assembly inum left by the formal termination of Span­ El-Ayoun on 26 February 1976, and voteish rule. The SADR’s leading bodies tend unanimously to give ‘full approval’ to West­to overlap in function and composition ern Sahara’s ‘reintegration with Morocco with those of Polisario itself. The SADR’s and Mauritania’. Spain officially ended constitution,its which was adopted by the 91-year period of colonial rule on the sameThird Congress in August 1976, states that day. the functions of the supreme legislative and Six weeks later, on 14 April 1976, West­ executive body, the Council for the Com­ ern Sahara was formally partitioned by Mo­mand of the Revolution (CCR), will be per­ rocco and Mauritania. formed transitionally by the Front’s execu­ tive committee until the holding of the first General People’s Congress after the The War recovery of sovereignty. So far, the SADR has been recognised Polisario singled out Mauritania, the by 56 states2 of which 29 are African weaker of its enemies, as the main focus of states. its attacks, which caused great damage to the Mauritanian economy. A new military government which took power in Maurita­The OAU and the UN, 1976-1983 nia in July 1978, signed a peace agreement with Polisario on 5 August 1979. The Mau­ The annexation of Western Sahara by ritanian government stated that ‘it does notMorocco transgressed two of the OAU’s have and will not have territorial or anymost hallowed principles - the right of co­ other claims over Western Sahara’. Moroc­ lonial peoples to self-determination and the can troops occupied the areas that had sanctity of the frontiers, albeit artificial, in­ been under Mauritania, thereby obstructingherited from the European powers. the Polisario from taking control of them. At its summit meetings in 1976 and Polisario’s war with Morocco is continu­ 1977, the OAU did not take any substan­ ing and Morocco has now abandoned manytive position on Western Sahara but refer-

2) Algeria, Angola, Benin, Botswana, Burundi, Cape Verde, Chad, Congo, Ethiopia, Ghana, Guinea- Bissau, Lesotho, Libya, Madagascar, Mali, Mauritius, Mauritania, Mozambique, Rwanda, Sao Tome and Principe, Seychelles, Sierra Leone, Swaziland, Tanzania, Togo, Uganda, Upper Volta, Zambia, Zimbabwe; Afghanistan, Iran, Kampuchea, Laos, North Korea, South Yemen, Syria, Vietnam, Bolivia, Costa Rica, Cuba, Dominica, Mexico, Nicaragua, Panama, St. Lucia, Grenada, Buyana, Ja­ maica, Surinam, Venezuela, Kiribati, Nauru, Papua New Guinea, Solomon Islands, Tuvalu, Vanuatu. red the problem to an extraordinary sum­by the adoption of a resolution by consen­ mit, which was never held. In 1978, an adsus, which for the first time named Moroc­ hoc committee of five African heads of co and Polisario as the parties to the con­ state, known as the ‘wise-men’, was set upflict and urged them to undertake direct to consider ‘all the data on the question ofnegotiations. They were asked to meet Western Sahara, among which, the exercise with the implementation Committee as of the right of the people of this territory soon as possible, so that the referendum to self-determination7. could be held within six months, i.e., by The 1979 OAU summit meeting endors­December 1983. ed the ‘wise-men’s’ proposals which includ­ As for the UN, its General Assembly ed an immediate ceasefire and the exercise continued to reaffirm the inalienable right by the people of Western Sahara of their of the people of Western Sahara to self- right to self-determination, through a gen­ determination and independence (Resolu­ eral free referendum. tion 37/28, 1982). Morocco refused to attend a meeting of the ad hoc committee in December 1979 but agreed to do so in July 1980 as a wayEconomic Resources of avoiding the SADR’s attendance at a meeting of the OAU as a member state, Besides the existence of some oil and since 26 of the 50 African states had by iron ore, the territory is known for its large then recognised the SADR. phosphate deposits and fishing resources. The OAU’s 1981 Nairobi summit ap­ About 1 million tons of fish are caught in pointed an implementation Committee,Western Sahara’s waters each year. The ter­ composed of the presidents of Kenya, Gui­ritory's total phosphate deposits are esti­ nea, Mali, Nigeria, Sierra Leone, Sudan andmated to be 10 billion tons. From 1969, Tanzania, to take all necessary measures toSpain had been exploiting the deposits and guarantee the exercise of a general and reg­exports began in 1972. In 1975, annual ular referendum. Despite holding two meet­output was said to be 2.6 million tons. The ings in 1981 and 1982, the Committee fail­phosphate industry came to a standstill in ed to make any real progress, because Mo­ 1975 after the outbreak of war between rocco refused to recognise Polisario as its Polisario and Morocco. Mining was resum­ adversary. ed on a small scale in 1982, after the com­ With the Committee’s lack of progress, pletion of the ‘wall’. the supporters of the SADR within the OAU tried to seat it as the organisation’s 51st I member. The SADR took its seat at a session The World Powers of the OAU's Council of Ministers in Feb­ ruary 1983. However, eighteen states joined Though the USSR has publicly support­ Morocco in a protest walk-out, thereby en­ed the Western Saharans' right to self-deter­ dangering the two-thirds quorum required mination, it has not recognised the SADR. for holding its meetings. The SADR took a The main reason is that the USSR values its voluntary and temporary decision notgrowing to economic relationship with Moroc­ take its seat and this finally enabled theco. The USSR signed a ‘contract of the I OAU to hold its summit meeting in Junecentury’ in 1978 under which it will pro­ 1983. vide $ 2 billion for the development of Mo­ Polisario was rewarded for this gesture rocco’s huge Meskala phosphate deposits and will trade oil, chemicals, timber and Department official told Congress in 1981.3 ore-carriers for phosphate and phosphoric The Reagan administration set up a joint acid over the next 30 years. military commission with Morocco in 1982 As for the USA, Morocco is of great stra­ and proposed to treble its Foreign Military tegic value because of its geographical loca­ Sales (FMS) credit to Morocco from $ 30 tion, en route to the Middle East. In Maymillion in fiscal year 1982 to $ 100 million 1982, Morocco signed an agreement givingin 1983. This policy of increased support the USA’s Rapid Deployment Force transit was clearly reflected in the UN when the facilities at Moroccan air-bases. ‘Morocco is USA was the only Western power to cast a important to broad American interests andnegative vote in 1982 on the resolution on occupies a pivotal strategic area’, a State Western Sahara.

3) Morris Draper, Deputy Assistant Secretary, Near Eastern and South Asian Affairs, in Arms Sales in North Africa and the Conflict in the Western Sahara: an assessment of US policy, p. 3. COMMENTARIES

UN Commission on Human Rights

The most positive outcome of the 1984 those States which consented to be subject session of the UN Commission on Humanto it. Rights was the agreement reached without Among the agreed articles are those a vote upon the draft Convention againstwhich provide for ‘universal jurisdiction’. Torture. The draft has been forwarded to This means that a State Party in whose ter­ the General Assembly with all but two of ritory a person is found who is alleged to the articles agreed. The two left for deci­ have committed torture in any other coun­ sion at a higher level both relate to imple­ try shall be under an obligation, if it does mentation. Article 19 deals with the con­not extradite him, to try him itself, provid­ sideration by the proposed Committee ing the necessary evidence is available. In against Torture of States Parties’ reports on other words, no State which is a party to their implementation measures. The out­the Convention will be a ‘safe haven’ for a standing issue is whether the Committee torturer. should be able to make only ‘general com­ Other articles impose upon States Par­ ments’, as is the case under the Interna­ties duties tional Covenant on Civil and Political Rights, and as the Soviet countries in par­- to take effective legislative, administra­ ticular wish, or whether, as other countries tive and judicial measures to prevent prefer, the Committee should be able to torture, make ‘comments and suggestions’. This - not to extradite or return a person to a would be in line with the Convention oncountry where there are reasonable the Elimination of Racial Discrimination grounds to believe he would be in dan­ which permits “suggestions and general rec­ ger of being tortured, ommendations”. - to penalise all acts of torture, The other point of disagreement is per­ - to assist other countries to bring tor­ haps of greater importance. Article 20 pro­ turers to justice, poses an unprecedented implementation- to give instruction on the prohibition of measure which would permit the Commit­ torture in the training of police, military tee against Torture to institute on its own and medical personnel, public officials, initiative, and without any formal com­ prison officials and interrogators, plaint, a confidential inquiry if it received- to investigate promptly and impartially apparently reliable information of a sys­ allegations of torture, and tematic practice of torture in the territory - to give redress to victims of torture. of a State Party. The question at issue here is whether this procedure should be manda­ At the instigation of the International tory on all States Parties, or as the Soviet Commission of Jurists and Amnesty Inter­ countries contend, should apply onlynational, to nearly all the non-penal provisions of the Convention apply not only to thetor­ Chairman, Mr. Kooijmans, was adopted ture but to all “other acts of cruel, in­on Grenada. It called upon all States to human or degrading treatment or punish­show the strictest respect for its sover­ ment”. Unfortunately, this does not applyeignty, independence and territorial integ­ to civil redress to victims. rity, and reaffirmed the inalianable right of the people of Grenada to decide their own future, and the obligations of all States not Israeli Occupied Territories to interfere or intervene in its internal affairs. As on previous occasions the Commis­ The resolution on. Afghanistan called sion began its work by discussing at lengthagain for the withdrawal of all foreign the situation in the Israeli occupied terri­troops so as to permit the Afghan people tories, the right to self-determination, and to choose freely their own form of govern­ Southern Africa and Apartheid. The resolu­ment and their economic, political and tions on Israel followed familiar patterns, social system. The resolution on Kampu­ but included a proposal that the Securitychea also called for the withdrawal of for­ Council should be asked by the Generaleign forces; that on the Western Sahara Assembly to adopt the measures referred took note of the resolution of the Organ­ to in Chapter VII of the UN Charter for its isation of African Unity calling for direct persistent violation of human rights of thenegotiation between Morocco and the Poli- population of Palestine and other occupiedsario and a peace-keeping force during the Arab territories. Chapter VII relates to organisation and conduct of a referendum; action with respect to threats or breaches and that on Namibia called again for the of the peace and acts of aggression, and ending of its illegal occupation by South may take the form either of economic Africa. sanctions, as was done against Southern Rhodesia, or military action. Among the human rights violations condemned in South the Africa and Apartheid resolutions were mass arrests, collective punishment, administrative detention, sys­There were in all six resolutions dealing tematic repression against cultural and edu­with South Africa, Namibia, the Conven­ cational institutions, the imposition oftion on the Crime of Apartheid, and Israeli citizenship and identity documentsRacism and Racial Discrimination. The on Syrian citizens of the Golan Height, theCommission condemned the massive and proliferation of Israeli settlements, and the cruel denials of human rights under the arming of settlers to commit acts of vio­ apartheid regime in South Africa and Nam­ lence against the Arab population. ibia and South Africa’s military attacks against neighbouring African states. All specialised agencies, and in particular the S elf-determination International Monetary Fund (IMF) and the World Bank were requested to refrain Issues on self-determination were de­from granting any type of loans to the bated for four full days. Situations fre­racist regime in South Africa. Another quently referred to were Afghanistan,resolution endorsed the Sub-Commission’s Kampuchea, Grenada, Central America andproposal for a Special Rapporteur to study Western Sahara. A resolution proposed bythe achievement made and obstacles en­ countered during the first Decade for countries; Action to Combat Racism and Racial Dis­ - proposing that a seminar be organised, crimination. It suggested that the study in collaboration with the ILO, on ways should propose new or additional meas­ and means to eliminate exploitation of ures for examination by the Sub-Commis­ child labour in all parts of the world; sion. - calling upon the government of Iran to cease immediately the use of children in the armed forces of Iran, especially in The Sub-Commission time of war; - recommending the establishment of Following last year’s decision to invite a group of experts designated by the the Chairman of the Sub-Commission to Sub-Commission, WHO, UNESCO and attend the Commission, the report of the UNICEF to conduct a study on the Sub-Commission was presented by its phenomenon of traditional practices Chairman. The discussion in the Commis­ affecting the health of women and sion this year was more conciliatory children; towards the Sub-Commission. This was re­ - recommending that the report of Mr. ferred to by the Chairman of the Sub-Com- Eide and Mr. Mubanga Chipoya on con­ mission, who commented that there was a scientious objection to military service welcome awareness of the complementary should be printed and given the widest nature of their respective tasks and of the distribution; need to preserve the Sub-Commission’s - recommending the appointment of Mr. independent status. Mubanga Chipoya as a Special Rappor­ Based on the Sub-Commission’s report teur to prepare an analysis of current the Commission adopted resolutions: trends and developments concerning the right of everyone to leave any country, - recommending to ECOSOC the appoint­ including his own, and to return to his ment by the Sub-Commission of a country, and Special Rapporteur to undertake a - deciding to postpone to next year con­ study in consultation with the Centresideration of the Sub-Commission reso­ for Social Development of the causal lution concerning the terms of reference connection between serious violationsfor a High Commissioner for Human of human rights and disability; Rights. - commending the Working Group on Indigenous People for its efforts to es­ The representative of Brazil introduced tablish a long term programme of work a draft decision calling upon the Sub-Com­ and saying that it looked forward to mission to refrain from submitting draft receiving the draft standards regarding resolutions concerning situations which the right of indigenous people; are under consideration under the confi­ - expressing its concern at the persistencedential procedure 1503, as it had done this of tensions and conflicts in Centralyear in the cases of Afghanistan and Para­ America and the increase in outsideguay. He argued that the Sub-Commission interference and acts of aggressioncould in the future send resolutions on against the countries of the region, andevery situation being considered under extending its firmest support to the 1503 procedure, thereby rendering the pro­ efforts of the Contadora group of cedure meaningless. In the debate on this proposal the view was expressed that this In extending the Working Group’s man­ proposal would set a bad precedent if it date for another year, the Commission imposed a blanket prohibition of this kind. urged governments to consider with special Some suggested that the Sub-Commission attention the wishes of the Group to visit should be requested to study the problem their countries. of any possible conflict between resolu­ tions under the public procedures and un­ der resolution 1503. Finally the Commis­Chile sion voted to postpone consideration of the draft decision to the next year. The Commission once again reiterated The resolution on Paraguay was, how­its dismay at the disruption in Chile of the ever, adopted under a later item dealing traditional democratic legal order and its with the human rights of persons under de­institutions, particularly through the main­ tention or imprisonment. The resolutiontenance and institutionalisation of emer­ expressed serious concern at the applica­gency legislation and the extension of mili­ tion of the state of siege in Paraguay for tary jurisdiction. It urged the Chilean auth­ more than twenty years and invited orities the to investigate and clarify the fate of government of Paraguay to consider end­persons who were arrested and disappeared, ing it in order to encourage the promo­ to respect the right to life and physical in­ tion of and respect for human rights in thetegrity by halting the practice of torture, country. to respect the right of Chilean nationals to Under the same agenda item the Com­ live in and freely enter and leave their mission adopted a resolution urging Israelcountry, to restore the full enjoyment and to release immediately all civilians arbi­ exercise of trade union rights, to restore trarily detained since the beginning of theand respect economic, social and cultural invasion of Lebanon. In another resolutionrights and to cooperate with the Special it expressed concern at the extensive deten­Rapporteur. tion in many parts of the world of persons who exercise the right to freedom of opin­ ion and expression, appealed for their re­Gross violations lease, and decided to review the matter at its next session. The Chairman announced before the public discussion on gross violations that situations relating to Albania, Benin, Haiti, Missing and disappeared persons Indonesia in relation to East Timor, Para­ guay, Philippines, Turkey and Uruguay The report1 of'the Working Group on were under consideration under the con­ Disappearances admitted that the progress fidential procedure of ECOSOC Resolu­ has been slow in finding solutions, and con­tion 1503. cluded that the time might have arrived for In the public discussion under this the Commission to adopt a more active agenda item the Commission had before it role and make a firmer appeal to the gov­ reports on Poland, Iran, Guatemala, El Sal­ ernments concerned to cooperate with thevador and Sub-Commission resolutions on Group. Afghanistan and Sri Lanka. Besides these situations numerous other country situa­favourable to a reconciliation between tions were referred to by the members, ob­ different sectors of Polish society”. Some servers and NGOs. One such interventiondelegations raised the question whether a on Nicaragua was made by a Miskito Indiannumber of key martial law provisions had refugee from Nicaragua who spoke as a not been institutionalised. The draft reso­ delegate of the Honduran government. Onlution on Poland requesting the Secretary a point of order raised by the Nicaraguan General to continue direct contacts with representative, the Chairman stated that he the government of Poland was postponed had received information from the Hon­to next year by 17 votes to 14 with 12 duran representative that this person wasabstentions. an accredited member of their delegation. Many delegates considered it very unusual for a government to accredit and present Guatemalaa refugee from another country as an official member of its delegation. While presenting his report3 on Guate­ mala the Special Rapporteur, Viscount Colville of Culross, said that a major prob­ Poland lem had been that of checking the allega­ tions of terrible human rights violations The report2 on Poland was presented which had for years emanated from Guate­ by the Under Secretary General Patriciomala. In his report the Rapporteur fre­ Ruedas, who replaced Mr. Hugo Gobbi as quently referred to this problem of verifi­ a representative of the Secretary General tocation and suggested that the government undertake a thorough study of the humanshould devise a system of inquiry. A num­ rights situation in Poland. The Polish auth­ber of NGO representatives considered that orities, holding that the Commission's the report corresponded little with the real resolution on Poland was an interferencesituation in Guatemala. The Commission in its internal affairs, refused to cooperatedecided to extend the mandate of the with the Secretary General’s representative.Special Rapporteur for another year and However, Mr. Ruedas has stated in his re­ expressed its profound concern at the con­ port that he visited Poland on official busi­tinuing massive violations of human rights ness and met various government officials,in Guatemala, particularly the violence members of the Catholic church and others against non-combatants, widespread repres­ and his report was based on informationsion, massive displacement of rural and obtained from various sources as well as indigenous people, and disappearances and information gathered during his visit. killings. The brief report after dealing with the legislative and other developments con­ cludes that "The suspension and thereafterIran the lifting of martial law, as well as the enactment and implementation of the The Commission expressed its deep con­ clemency measures and subsequently cern the at the continuing violations of human amnesty law have produced conditionsrights in Iran, in particular summary or

2) E/CN.4/1984/26. 3) E/CN.4/1984/30. arbitrary executions, torture, detentionof the foreign forces. without trial and religious intolerance. It The Commission also requested the urged the government as a State Party to Secretary General to appoint an expert to the International Covenant on Civilvisit and Equatorial Guinea to study the best Political Rights to respect and ensure to all way of implementing the plan of action individuals within its territory the rightsproposed by the United Nations. In a sep­ recognised in the Covenant. It requestedarate decision it decided that further con­ the Chairman to appoint a Special Repre­ sideration of the situation in Sri Lanka was sentative of the Commission to establish not called for. contact with the government and to make a thorough study of the human rights situ­ ation there. The confidential Resolution 1503 procedure

El Salvador The ICJ Secretary General speaking under the item on further promotion and Referring to the report4 of the Special encouragement of human rights, brought Representative, Mr. Jose A. Pastor Rid- to the attention of the Commission the ruejo, the Commission expressed its deep prolonged delays of the 1503 procedure. concern at the fact that the gravest viola­He made the following suggestions for tions of human rights are persisting in Elaccelerating it: Salvador. It regretted that the appeals for the cessation of acts of violence formulated 1) “that when a situation is referred to by the General Assembly and the inter­ the Commission by the Sub-Commis- national community in general had notsion, the government concerned be re­ been heeded and that the promulgation of quested to provide a substantive reply an amnesty law and the creation of a na­before the meeting of the Commission, tional human rights commission had not failing which the Commission will altered the general situation of human assume the truth of the allegations is rights. The mandate of the Special Repre- admitted; sentatitive was extended for another year.2) that once a situation has been referred by the Sub-Commission, any additional information relating to it in further Afghanistan communications be furnished directly to the Commission; The Commission endorsed the Sub- 3) that when the Commission has exam­ Commission’s recommendation to the ined the situation and the government’s ECOSOC that a Special Rapporteur be reply and observations, if any, it should appointed to examine the human rights as a general rule appoint a Special Rap­ situation in Afghanistan with a view to porteur to make a thorough study, formulating proposals which could contrib­ unless it decides not to proceed further ute to ensuring full protection of the with the matter; and human rights of all residents of the coun­4) that the author of the original com­ try before, during and after the withdrawal munication should have an opportunity to answer the reply of the government The Commission, strongly deploring the or its observations on the situation re­large number of summary or arbitrary ferred to”. executions, including extra legal executions which continue to take place in various The full text of the intervention will beparts of the world, decided to extend the found in Appendix D of ICJ Newslettermandate of Mr. Amos Wako and asked him No. 20. to pay special attention to cases in which summary or arbitrary execution is immi­ nent or threatened. Summary and arbitrary executions

Mr. Amos Wako, the Special Rappor­ Economic, Social and teur on this subject, presented his secondCultural Rights report5 to the Commission. His analysis of the information he received indicates that On the Right to Development the Com­ summary or arbitrary executions take placemission had this year before it a ‘consoli­ in situations of political upheaval, internaldated text’ of a draft declaration prepared armed conflict, suppression of opposition by the working group of governmental ex­ groups or individuals, and abuse of powerperts on this subject, and regarded by them by agencies entrusted with law enforce­as providing ‘an informal technical basis for ment. For each of these situations he gave further work’. The ICJ Secretary-General specific examples without naming the urged that the Draft Declaration should country or countries concerned. He alsoexpand its treatment of participation, mak­ identified the following factors as likely to ing clear that it must be at all levels of foment the conditions for summary ordecision making and at all stages of the arbitrary executions: absence of demo­development process, “starting from the cratic political process, existence of special setting of overall objectives, through the security measures such as states of siege or planning of programmes and ending with emergency, existence of special courts,their implementation and evaluation”, as control of the judiciary by the executive orstated in the UN Secretary General’s Pre­ military power, existence of secret police liminary Report on popular participation. security forces and para-military groups The full text of this intervention is at outside the normal law enforcement agentsAppendix A of ICJ Newsletter No. 20. or military personnel. He also drew atten­ Under the item on economic, social tion to the following economic and socialand cultural rights the Commission recom­ factors: inequitable distribution of wealth, mended that Mr. Raul Ferrero’s study on ethnic conflicts, religious intolerance andthe New International Economic Order and racial discrimination. In response to ap­the Promotion of Human Rights should be peals from various sources making allega­ published and given the widest possible tions of imminent or threatened summarydistribution. executions, he sent urgent messages to the Under another item, the Commission concerned governments, namely Bangla­invited the Sub-Commission to consider desh, Belize, Chile, Ghana, Guatemala, elaborating a draft of a second Optional Iran, Iraq, Libya, Malawi and Sri Lanka. Protocol to the International Covenant on Civil and Political Rights, aiming at the his contacts with the government of abolition of the death penalty, and decidedUganda and to bring to its attention the to consider this matter further under thetypes of assistance the government of item on the status of the Covenants. Uganda can draw upon. On Bolivia it asked Another resolution calls upon States tothe Secretary General to examine ways and take effective measures to prohibit propa­ means and possible resources for rapid im­ ganda for war, in particular the formu­plementation of projects suggested by the lation, propounding, dissemination andCommission’s special envoy in his report. propaganda of political and military doc­ The Commission's Working Group on trines and concepts intended to providethe Draft Convention on the Rights of the ‘legitimacy’ for the first use of nuclear Child and on the Draft Declaration on the weapons, and in general to justify therights of national, ethnic, religious and ‘admissibility’ of unleashing nuclear war. linguistic minorities will continue their The Commission also proposed that the work next year. Meanwhile the Commis­ General Assembly should hold a special sion has asked the Sub-Commission to pre­ commemorative meeting during its 1985 pare a definition of the term “minority” session to celebrate the fortieth anniver­taking into account studies in this field. sary of the end of the Second World War In the elections to membership of and the founding of the United Nations,the Sub-Commission, the Commission re­ and to consider on that occasion ways andelected 11 of the existing members and 15 means of avoiding the spread of all forms new members for the three year period of totalitarian ideologies or practices. ending in September 1987. The absence of Under the agenda item on advisorythe Chairman of the Working Group on services, the Commission adopted resolu­ Indigenous Peoples, Mr. Asbjorn Eide, will tions concerning Uganda and Bolivia.be It much regretted by those interested in asked the Secretary General to continueits work.

Individual Petitions Under the Convention on the Elimination of Racial Discrimination

Article 14 of the above Convention en­of Racial Discrimination (CERD) to receive tered into force on 3 December 1982, and consider communications from individ­ following the deposit with the Secretary- uals or groups of individuals. The other General of the declaration by Senegal, theStates which made the declaration in tenth State party to recognise the compe­ accordance with Article 14 are: Costa Rica, tence of the Committee on the EliminationEcuador, France, Iceland, Italy, Norway, Netherlands, Sweden and Uruguay. tion to the Committee? The answer is to Until now, the CERD has examinedbe found in the first paragraph of Article reports from States Parties about the legis­ 14, which does not distinguish between lative, judicial, administrative and othercitizens and non-citizens, but simply refers measures taken to give effect to the pro­ to “individuals or groups of individuals visions of the Convention. The Conventionwithin the jurisdiction of a State party”. defines the term “racial discrimination” toThis resulted in a very interesting debate in mean any distinction, exclusion, restrictionthe Committee when reviewing rule 90 of or preference based on race, colour, de­ the provisional rules of procedure about scent or national or ethnic origin which hasadmissibility. the purpose or effect of nullifying or im­ The rule reads as follows: pairing the recognition, enjoyment or exer­ cise, on an equal footing, of human rights “With a view to reaching a decision on and fundamental freedoms in the political,the admissibility of a communication, the economic, social, cultural or any otherCommittee or its Working Group shall field of public life. ascertain: Due to the entry into force of Article 14 of the Convention, the CERD wasa) That the communication is not anony­ called upon to examine the preliminary mous and that it emanates from an indi­ draft provisional rules of procedure sub­ vidual or group of individuals subject to mitted by the Secretary-General. These the jurisdiction of a State party recog­ rules have been grouped into three main nizing the competence of the Commit­ categories: tee under Article 14 of the Convention; b) That the individual claims to be a victim - general provisions (rules 79 to 84) re­ of a violation by the State party con­ lating to the collection of information cerned of any of the rights set forth in by the Secretary-General on cases the Convention. As a general rule, the brought before the Committee; communication should be submitted by - the procedure for determining admissi­ the individual himself or by his relatives bility of communications (rules 85 to or designated representatives; the Com­ 92); and mittee may, however, in exceptional - the consideration of communications on cases, accept to consider a communica­ their merits (rules 93 to 96). tion submitted by others on behalf of an alleged victim when it appears that In drawing up the preliminary draft the the victim is unable to submit the com­ Secretary-General took into consideration munication himself, and the author of the relevant provisional rules of procedure the communication justifies his acting of the Human Rights Committee, as well on the victim’s behalf; as its practice. There is, however, one im­ c) That the communication is compatible portant difference. Article 14 enables the with the provisions of the Convention; CERD Committee, when considering State d) That the communication is not an abuse Party reports, to formulate suggestions and of the right to submit a communication recommendations. It is not, like the Hu­ in conformity with Article 14; man Rights Committee, limited to general e) That the individual has exhausted all comments. available domestic remedies, including, Who is entitled to present a communica­ when applicable, those mentioned in paragraph 2 of Article 14. However, this According to Rule 94, "admissible shall not be the rule where the applica­ communications shall be considered by the tion of the remedies is unreasonablyCommittee in the light of all information prolonged; made available to it by the petitioner and f) That the communication is, exceptthe State party concerned. . . After con­ in the case of duly verified exceptionalsideration of an admissible communication, circumstances, submitted within sixthe Committee shall formulate its opinion months after all available domestic thereon. The opinion of the Committee remedies have been exhausted, includ­shall be forwarded, through the Secretary- ing, when applicable, those indicated inGeneral, to the petitioner and to the State paragraph 2 of Article 14.” party concerned, together with any sugges­ tions and recommendations the Committee Three opinions were expressed on themay wish to make . . . The State party con­ latter part of sub-paragraph (b): the first cerned shall be invited to inform the Com­ favoured its deletion; the second was notmittee in due course of the action it takes opposed to deletion but thought it advis­ in conformity with the Committee’s sug­ able to indicate that the person or persons gestions and recommendations.” There is representing the victim should be subjectan important provision in Rule 96 which to the same jurisdiction as the victim; the enables the Committee to "issue communi­ third favoured the text and stressed that, ques, through the Secretary-General, for if the modification were adopted, it would the use of information media and the gen­ be likely to exclude non-political organisa­eral public regarding the activities of the tions which sought objectively to promote Committee under Article 14 of the Con­ human rights, and, on the contrary, wouldvention.” benefit organisations which acted from At the time of writing, it appears that political motives. Another member of the the committee has not yet received any Committee observed that the suggested communication under Article 14 of the modification could in fact prevent theConvention. This raises the question Committee from examining some of the whether the States Parties which have most serious cases of racial discrimination, made the declaration have undertaken the i.e., those in which the individuals arenecessary steps to make persons under placed by their governments in a situationtheir jurisdiction aware of their rights and making it impossible for them to submit a remedies. It is to be remembered that the communication. In the end, the secondStates Parties have agreed to “assure to part of sub-paragraph (b) was adopted as everyone within their jurisdiction effective drafted by the Secretariat. protection and remedies, through the com­ Throughout the rules of procedure petence of national tribunals and other the word “author” has been replaced by State institutions, against any act of racial “petitioner” in order to follow, as far as discrimination . . .” Furthermore, “any possible, the wording of Article 14 of the State party which makes a declaration Convention. In this respect, it was ex­under Article 14 may establish or indicate plained that, from a legal standpoint, the a body within its national legal order which petitioner remains the legal entity lodgingshall be competent to receive and consider the complaint, whether or not a lawyer or petitions from individuals. . . who claim to other representative submitted communica­be victims of a violation . . . and who have tions on behalf of the alleged victim. exhausted other available local remedies”. The entry into force of this procedure be hoped that the procedure under Article for individual complaints marks an import­14 will have a real deterrent effect and con­ ant step in the struggle for the eliminationtribute, as stated in the preamble of the of all forms of racial discrimination. The Convention, “to prevent and combat racist experience of the Human Rights Commit­doctrines and practices in order to promote tee and of the European Human Rightsunderstanding between races and to build Commission has shown the significance ofan international community free from all the right of individual petition for the pro­ forms of racial segregation and racial dis­ tection of human rights. It is essential forcrimination”. It should also lead, as has the individual to have the means to see thatdone the jurisprudence of the Human his rights are respected, without which he Rights Committee, to important legal de­ would be powerless in face of a State velopments in the interpretation of the which fails to recognise his rights. It is to provisions of the Convention. ARTICLES

Developments in International Human Rights Law

— an address to an NGO Conference in Geneva on 10 December 1985 to mark the 35th anniversary of the Universal Declaration of Human Rights

by Eric Suy

Please allow me first, in my capacity as could interfere. However, as a result of Director-General of the United Nationsevents of which you are aware, the authors Office at Geneva to welcome you to the of the Charter resolved to put an end to Palais des Nations. The few days you will that era and to make human rights an im­ spend with us will be of great importance. portant instrument of peace that was to be You will be able to take stock of the 35 further strengthened in the Universal Dec­ years that have elapsed since the adoptionlaration of Human Rights. of the Universal Declaration of Human At this stage, I would like to make a few Rights and learn lessons from the past other points. When the Charter and the while looking to the future, a future which Universal Declaration of Human Rights may enable us to devise new means of pro­were adopted, the international com­ moting respect for human rights and draw munity was not at all what it is today. up new texts and even new conventions.Most of the States of which it is now com­ Your ideas on these two topics will un­posed did not even exist and it was rela­ doubtedly lead you to some important tively small. The outlook at the time was conclusions on the future developmentpredominantly of what I would call western. human rights. In this connexion, I wouldAt that time, the members of the inter­ like to share with you some thoughts on national community did not, moreover, the past and on the future. face the same problems that now confront First, the past: the members of the Group of 77 or the If we go back almost 40 years to 1945, non-aligned countries. This has to be borne to the time of the adoption of the Charter, in mind in order to understand some of the we are struck by one particular fact. For remarks I will make later. The Universal the first time, an international text gaveDeclaration of Human Rights, which was serious consideration to the question oforiginally a resolution of the United respect for human rights: the authors of Nations General Assembly, was not a text the Charter were the first to regard respect of positive law but only a recommenda­ for human rights as an instrument of peace.tion. In view of the lofty principles it In the days of the League of Nations, embodies and as effect began to be given respect for human rights was regarded as an to human rights, however, it gradually internal affair of States in which no inter­came to be accepted as a text of positive national organization or any other Statelaw and, in the 1966 Covenants, its basic elements took the form of binding inter­moreover, a number of non-governmental national instruments. organizations have begun to play a key role The growing importance assumed by in the protection of human rights. I need human rights in the 20 odd years betweennot stress the fact that they work day and the time of the adoption of the Charter night to ensure that human rights are de­ and 1966 shows that the revolution which nounced and publicized. Their activities its authors sought to bring about has ex­ make it possible for public opinion and ceeded all expectation. World public opin­States as well to keep abreast of the human ion is making it increasingly apparent thatrights situation throughout the world. As I human rights no longer mean only respectstated earlier, the Universal Declaration of for human rights and are no longer only Humanan Rights was the result of the efforts instrument for peace. Although positionsof what might now be regarded as only a based on national sovereignty are stillhandful of States. Fashioned as it was occasionally adopted in discussions in theby a particular category of States, which Commission on Human Rights and otherwould now be called the States of the bodies, human rights have been removedNorth, it did not reflect the ideals, views from the private sphere of States and are and perceptions of the majority of States no longer regarded as “private property”. that now form part of the international The Charter, the Universal Declaration community. Imperceptibly, moreover, a of Human Rights and the Covenants havetrend towards the regionalization of human served as a basis for the adoption of other rights began to develop in western Europe, international instruments relating, for Latin ex­ America and Africa. This trend is ample, to the elimination of racial dis­ also to be seen in the work of the United crimination, genocide and apartheid. Con­Nations General Assembly, where the siderable advances have also been made inThird Committee, in particular, has been the important field of international hu­discussing the problem of the regionaliza­ manitarian law. tion of human rights for several years. In a relatively short time, internationalWhether this is a destructive element is relations have undergone unprecedentedsomething only time will tell. changes. In 1945 and even in 1948, no oneA related question is whether the re­ would ever have said that States would gionalization of human rights is prejudicial have to account to an international forumto the idea that human rights are indivisible for their conduct in matters relating toand universal. In practice, there is a tend­ human rights. No such possibility was en­ency to believe that the provisions of the visaged even when the Universal Declara­Covenants and the Universal Declaration of tion of Human Rights was adopted. Human Rights are only of limited value The adoption of the International Cove­and that each region has to formulate rules nants on Human Rights led to the estab­for the protection of human rights that are lishment of the very important procedurebased on its own ideology and cultural of requiring States to submit regular re­ identity. My personal opinion is that the ports to a committee of independent elaboration of regional conventions would experts on the measures they have taken tobe a positive development, but this is a give effect to, and ensure observance of,matter that you may wish to discuss. human rights. This obligation and this pro­ Let us now try to see what the future cedure have, in my view, revolutionizedholds in store. I have referred to the prob­ international relations. Since that time,lem of regionalization, but, as far as human rights are concerned, we have to see rights and the monitoring of human rights whether we should move ahead and try to is, contrary to what might be expected, the find other areas where further codification result not of the efforts of the Commission would be desirable. Is there further room on Human Rights, but of the efforts of the for codification in this area? The recentlycommittees of independent experts set up invented concept of the right to develop­under the Covenants and other instruments. ment is another topic that you probably The mass media display keen interest in wish to discuss at greater length. What is the work of the Commission on Human the right to development? Can it be codi­ Rights, which is a political body if ever fied? Can it be regarded as a human right there was one and which regards human in the conventional sense? What doesrights it as an instrument of international pol­ involve? Are we not creating further prob­icy (although they should not be), whereas lems by assuming that human rights can bethe work of the committees of experts is promoted both at the regional level and at usually overlooked. I have yet to see the in­ the international level by establishing ternational a press pay any attention to the new category of human rights? Is this newperiodic reports which States have to sub­ category really necessary? Would it not bemit to the Human Rights Committee or better to improve what we have instead of attach any importance to the careful scru­ being carried away by ideas whose time has tiny to which such reports are subjected. not yet come? Perhaps we might focus on We must not, however, go to the other trying to improve monitoring procedures,extreme and underestimate the work of the thereby doing everything that needs to beCommission on Human Rights: the work of done. Indeed, although the procedure of its Sub-Commissions is extremely valuable requiring States to submit periodic reports and the recent procedure of entrusting spe­ to a committee of independent experts is acial rapporteurs with the task of investigat­ revolutionary one, it has not yet been useding some particularly odious practices is an to the full. It is a step in the right direction important and very promising innovation. — and a good one - but, in my view, non­Human rights are far too important to governmental organizations have to con­be judged by purely political and diploma­ sider the possibility of establishing new, tic standards. They are not a government’s more effective and more binding proce­prerogative. They are just as much a mat­ dures and have to take account of the prac­ter of concern to those who are governed, tical and political problems involved innamely, individuals. their implementation. With these few thoughts, I shall con­ What I have to say in conclusion mayclude this introduction and express hope seem somewhat critical. When the United that, within a few days, you will have a Nations was established, the Commission clearer idea of human rights problems. I on Human Rights was set up under thealso hope that, now that we have taken Economic and Social Council. The Com­stock of the 35 years that have elapsed mission on Human Rights is the onlysince the adoption of the Universal Declar­ United Nations body that deals with hu­ation of Human Rights, you will be able to man rights. However, the committees set look to the future of human rights both up under the International Covenantsfrom and the point of view of substance and other United Nations conventions are notfrom that of monitoring procedures. United Nations bodies. It is nevertheless I wish you a fruitful stay in Geneva interesting to note that progress on humanand every success in your work. The Fight Against Torture by J.H. Burgers*

I should like to make some comments tion about. This colleague was Dr. Theo on the significance of the conventionvan Boven, who later became Director of against torture which we are trying to bring the Human Rights Division here in Geneva. about. That day in December 1975, I was sur­ I would consider the conclusion of suchprised at Dr. van Boven’s reaction: he sadly a convention an important contributionremarked to that he did not know whether the struggle for eradicating the evil of tor­ this was really something for which I ture. At the same time, we should place should congratulate him. It remained to this importance in proper perspective. The be seen, he said, whether the Declaration convention would a be contribution, it against Torture would turn out to be just would not bethe solution to the problem another addition to the mountain of rhet­ of putting a stop to torture. We should not oric, or would have a genuine impact on expect miracles. When some day in the fu­the real world. ture the convention against torture entersI must admit that during the second half into force, we cannot expect that this byof the nineteen-seventies, that is after the itself is sufficient to make torture disap­ adoption of the Declaration, torture was pear. Much more will be required. probably perpetrated in this real world on In the struggle for the protection of an even larger scale than during the first human rights, it is necessary to be both a half. And yet, this is no reason for despair. believer and a skeptic. A recollection of In the struggle for human rights, docu­ such healthy skepticism comes to my ments are not sufficient. But they are by mind. On the 10th of December of 1975, no means unimportant. the day after the General Assembly had In this connection I should like to recall adopted the Declaration against Torture, another epoch in the struggle for human I congratulated a colleague of mine in therights, namely the era of the Enlighten­ Dutch Ministry of Foreign Affairs, a col­ment in the eighteenth and the first part of league who during the preceding months the nineteenth century. and weeks had spent an enormous amountAll too often torture is referred to as a of work in helping to bring this Declara­ "medieval” practice. I think this is not

* Mr. J. H. Burgers (Netherlands) was the Chairman/Rapporteur of the Working Group of the UN Commission on Human Rights which drew up the Draft Convention against torture. This article is taken from his speech to the Commission when the Draft Convention was adopted unanimously on 29 February 1984. entirely fair towards the Middle Ages. were founded. The fight against torture Apparently it is not sufficiently well-was one of the principal elements of the known that the two centuries immediatelyhuman rights movement which developed following the close of the Middle Ages in the era of the Enlightenment. And this were a period of remarkable cruelty in the fight was successful. What I wish to em­ treatment of alleged offenders. It was a phasize now is that an important part of period during which capital punishmentthis fight concentrated on standard-setting. was applied to an ever-increasing numberAs a result, national laws were changed in of offences. It was also a period during most European countries. The human which torture was a standard element of rights movement brought about a change in criminal procedure in most Europeanmental attitudes, a change in actual prac­ countries. I may mention, for instance,tices, and a change in legislation. All these that when the famous Dutch lawyer Hugo developments went hand in hand and mu­ Grotius was an attorney-general in Holland,tually reinforced each other. one of his functions was to be present Now I am very well aware of the fact when suspected criminals were tortured onthat such changes are not irreversible. In the rack. In those days torture was routine.the first half of the present century, re­ If we compare the situation in Europe gimes came into power in some big Euro­ at the end of the seventeenth century withpean countries which used torture deliber­ the situation at the end of the nineteenthately and massively as an instrument of century from the viewpoint of the occur­policy. This experience has been one of the rence of systematic torture practices, it is roots of the Second Human Rights Move­ a difference as between night and day. Atment which was born at about the same the end of the nineteenth century, torturetime as the United Nations and of which did no longer play a significant role in theour own Commission is so-to-say an off­ Western world. This radical change had not spring. We can never think that we have been brought about by forces of nature, itwon the final victory, we must always had been effected by the dedicated and expect new lapses into cruelty and oppres­ perseverent work of men. sion. But what I wanted to convey to you In the course of the eighteenth century,by recalling the experience of 200 years a growing number of individuals in manyago, is that action for the promotion and European countries began to protestprotection of human rights, isnot useless, against the cruelty which then character­even if its results are not perennial. The ized the administration of criminal justice.fight against torture is not a hopeless fight, I mention in particular the Italian scholarand standard-setting is an important and Cesare Beccaria, the author of the famous indispensable part of that fight. Therefore work “Dei delitti e delle pene” (“On of­ I do look forward to the conclusion of the fences and sanctions”), a book that madeinternational convention against torture an enormous impact. Many other booksand other cruel, inhuman or degrading and pamphlets were published, associations treatment or punishment. Preservation and Access to Plant Genetic Resources

by Upendra Baxi and Clarence Dias

The war against human deprivation hasber 1983. Events at the November 1983 to be waged at many different levels and inFAO meeting underscored the need for many arenas. In this article we seek tosocial-action groups in the South to play draw the attention of those engaged in pro­a larger role in bringing into being an moting development, which will liberate equitable, international system for insuring the poor through participatory and self- preservation and access to the world’s reliant social action, to the problem of plant genetic resources. plant genetic resources (PGR). At first It is a fact of geography that the world's sight, the problem of PGR might seem an centres of plant genetic diversity are to be esoteric diversion from concerns for socialfound in the countries of the South. The transformation at the grassroots’ level. But South holds seventy-five percent of the this is not so. The problem of PGR is press­ world’s plant varieties. Time and again, in ing and real. It bears vitally upon thethe past and now, the nations of the North struggle for liberation of the impoverished have collected germ plasm from the South, people of the South. It offers prospects of stored it and used it. It is difficult to over­ collaboration for individuals and groups. Itstate the North’s dependence on the South calls for urgent and sustained initiatives fojrby germ plasm. For example, every Cana­ and on behalf of the impoverished. dian wheat variety contains genes intro­ In 1981, the Mexican government, tak­duced from up to 14 different third world ing the initiative, introduced a proposal incountries. Disease resistance in American the Food and Agriculture Organizationpeas has come from Peru, Iran and Turkey of the United Nations (FAO) to deal with while new spinach varieties are protected the problem of PGR. This proposal was by genes from India, China, Iran and Tur­ adopted by FAO in the form of a resolu­ key. Egypt, China and Ethiopia have all tion calling for the Director-General of contributed genes barely to maintain pro­ FAO to produce studies and appropriate duction in Europe and North America. proposals on the feasibility of establishing Thus, the South is "gene-rich,” while the an international plant gene bank, andNorth a is “crop-rich.” legally-binding convention to insure thePGR assume importance for a number full exchange of plant genetic materials.of reasons. New and improved varieties of These studies were to form the basis of plants (bred for higher yield or for disease action at the next FAO meeting in Novem­resistance or for stress tolerance or any combination of them are produced byinternational civil servants, opinion makers, cross-breeding of the propagative material leaders of multinationals and of govern­ (the germ plasm) of plants.1 Moreover, ments. For far too long, the problem of genetic engineering techniques make it pos­world hunger has been dealt with exclu­ sible to mutate existing genes and newsively by the well fed. If PGR is a common varieties of plants can be created with the heritage of mankind, the starving millions desired genetic traits. Given the crucial im­ought to know what that “heritage” is and portance of PGR, it is indeed ironic that must begin to have some kind of say in its the South, which is the main source of use and development. PGR, finds itself dependent on the North As stated earlier, the war against human for continued access to crop germ plasm. deprivation has to be waged at many levels, Control over major crop germ plasm is also in many arenas. One such arena is food! control over political destinies of the South. What you do with seeds has much to do At a conservative estimate, about fifty-fivewith control over the entire food system. percent of collected germ plasm is with the Control over seeds will determine what North. The North politically controls crops will be grown, what inputs shall be thirty-two important crops and has notused, who will buy the grain and how it shown any scruple in using its dominationmay be marketed. The experience of the in generating political dependencies. Green Revolution provides interesting in­ In recent years, countries in the Southsights into the relationships between PGR and in the North have both tended to ex­and impoverishment. press the view that PGR are the common heritage of mankind. But recently, coun­ tries in the South are reappraising this posi­ The Role of Multinationals tion since it appears that so far as PGR is in the Seed Industry concerned, the principle of common heri­ tage of mankind seems to serve to promote Today seed business is big business. In an inequitable drain of PGR from South tothe rich, industrialized countries of the North with no assurance that the SouthNorth, the seed industry has been attract­ will be guaranteed access to its own PGR ing an investment of well over fifty billion once they have been placed in private cor­U.S. dollars. The commercial seed market porate collections in the North. of the U.S. (estimated at thirteen billion For people in the countries of the South dollars) is mostly in the private sector. In (especially the poor) there are further the last decade, seed companies have been problems with the concept of “common taken over by huge multinationals whose heritage of mankind” as it relates to PGR. primary interests lie in petroleum products It seems strange but true that deliberations including fertilizers and pharmaceuticals. and decisions concerning the common heri­This growing, multinational agribusiness tage of mankind rarely involve the majoritysector is certainly not directly aimed at of people constituting mankind. The cur­providing real or enduring solutions to the rent concept of mankind seems to exhaustproblems of world hunger. In the first, and itself in diplomats, technocrats, scientists,the last analysis, corporate seed industry

1) ‘Germ plasm’ is the substance contained in germ cells, by which hereditary characters are trans­ mitted. A ‘gene’ is an element of the germ plasm concerned with the transmission and development or determination of hereditary characters (Webster’s Dictionary). seeks profit and power, not peace and laboratories for testing where effective development. monitoring is weak or lacking. The Green Revolution occurred because From all this, it should be easy to un­ government planners were expecting bump­derstand the connection between multi­ er crops from the new so-called, high-yield­ national interests in seeds, agro-chemicals ing varieties (HYV) of seed. But strictly and drugs and medicines. Multinationals speaking, these varieties are really high re­ need plants for making drugs. A leading sponse varieties which produce their yield pharmaceutical company has acknowl­ only in response to the application of edged a that 40 per cent of the global turn­ number of inputs. HYV came as a package over in the industry is based on plant mate­ - an extremely profitable package for the rials and it goes as high as 90 per cent in multinationals which provide the agro­areas such as antibiotics and laxatives. This chemical pesticides and fertilizers. factor gives many multinationals added in­ On the estimate of the United Nationscentive to oppose any control through Food and Agriculture Organization (FAO)international agencies to regulate collection the third world consumption of pesticides and use of germ plasm. is going to rise from 160,000 tons in the The Green Revolution saw the introduc­ early seventies to over 800,000 tons by thetion of high-yielding varieties (HYV) of mid eighties. Pesticides and herbicides have seed. Initially, government planners, and become necessary to protect the new vari­the more affluent farmers welcomed HYV, eties which tend to be vulnerable to dis­being lured by the attraction of bumper eases. It has been estimated that 375,000 crops, more profits, and the prospect of third world peasants become ill every year surplus available to provide export earnings. from pesticides, and that 10,000 die. Sub­ For poorer farmers, HYV were either be­ stantial amounts of fertilizers also come yond reach or worse still, became an instru­ from the North: fertilizer shortage in 1974 ment for securing their total debt bondage is estimated to have cost the poor countries as their credit needs increased to pay for of the South a loss of 15 million tons of the inputs needed by HYV. HYV comes as grain - enough to feed 90 million people. part of a package including agro-chemicals Other elements of the package include like pesticides and fertilizers. This package farm tools and agricultural equipment to proved extremely profitable to the multi­ be imported from the North. nationals. The connection between chemicals and With all these costs, imposing heavy de­ seeds is now being strengthened. Seed coat­mands on the parlous foreign exchange re­ ing (designed to “safen” new plants againstserves, the HYV have not always promoted unwelcome intruders in the soil) and seedincreased agriculture production. In 1973- pelleting (adding fungicide and plant74, Bengali farmers lost 80 percent of the growth regulators to the clay base of the rice crop, and seedlings for the next crop, pellet) are by now standard devices, arisingbecause high water in river deltas destroyed from the preeminence of chemical com­ the new variety where the traditional ones panies in the seed industry. The impact ofwould have survived. In 1972, Brazil lost these innovations on food productionhalf is of its national wheat crop when it was yet to be assessed but it is likely that chem­ exposed to a disease which it could not ically-coated seeds and plants may generatewithstand. In 1975, Indonesian farmers microtoxins fatal to the consumers, espe­lost half a million acres of rice to leafhop- cially in the poor countries often used asper insects for similar reasons. Undeterred by such “trivial” casualties, agribusinessneering techniques do not as yet, and may keeps on converting world hunger andnot ever, create genes. They can, and do, misery into corporate power and profits. mutate them. To make new varieties, plant Needless to add, the poorer farmers have breeders have to look for desired genes. been hardest hit, being unable to bear theSeed germ plasm has to be found, wherever risk of such crop failures. Moreover, the located. This, of necessity, involves gene- Green Revolution has contributed to im­drain from South to the North. The gene- poverishment in other ways. Land has beendrain affects the world’s pool of PGR in taken away from crops with a high nutri­two distinct ways. First, successful muta­ tional value (like millets) and allocated totions of genes and the large scale use of the crops likely to be leading export earners. It new varieties adversely affects the preexist­ is being increasingly acknowledged, evening plant varieties in nature. Sometimes the by its early promoters and proponents,effects are devastating in their reach. The that the Green Revolution has made theplant varieties simply disappear. For ex­ rich richer and the poor hungrier. Not un­ample, from 30,000 varieties of rice plants fairly, the Green Revolution has been con­at the beginning of this century, India will sidered as a pacesetter in national pauper­be left with only 15 at the end of the cen­ ization. The seed technology, being mar­tury. Egypt, which has been the home for keted by multinationals, has left agricul­onions for thousands of years, now pro­ ture in the South chemically dependent. ducesIn only one variety: the hybrid winter some instances this has led to permanentonion Giza 6 Improved. New hybrid vari­ degradation of the physical environmenteties of barley have annihilated 70 per­ for food production. The high costs of in­ cent of natural varieties of barley in Saudi puts has led to pauperization of the indi­Arabia and the Lebanon. The rate of gene­ viduals and indebtedness of nations strug­tic erosion is alarming: the world will soon gling to meet the foreign exchange costs of have lost one-sixth of all its living species such inputs. The search for alternatives inby the end of this century. And it is not agriculture which are less input dependentmerely a matter of loss of plant varieties. will inevitably involve new approaches With to every plant type lost, there will also plant breeding, and for this access to PGR be a loss of ten to thirty animal or insect is vital. But plant breeders in the south arespecies directly or indirectly dependent on beginning to find their access to PGR (sup­such plant. posedly part of the common heritage of Second, there are heavy germ plasm mankind) being increasingly restricted. losses. Plant breeders and seed multina­ tionals hoard the germ plasm of the South: but they do not use it all or preserve it. Pri­ Genetic Erosion vate firms exercise “life and death” powers over germ plasm under their collection and Erosion of plant genetic resources is storage. For example, the United Fruit occurring in the North and South alike atCompany probably has control of about an alarming pace. The narrowing of thetwo-thirds of all the world’s collected plant base is inevitable when new and bananaim­ germ plasm. It announced on May proved varieties (of undeniable superiority)11, 1983 that it may close down its con­ emerge. servation program. As many as 700 rubber The growth of biotechnology has con­ cultivars (cultivated varieties) collected tributed to genetic erosion. Genetic engi­from Southeast Asia, Brazil and Sri Lanka were held by Firestone Tire and Rubbercovering 33 crops. And most of these insti­ Company. On April 29, 1983, the com­tutions have problems of storage facilities, pany announced simply that its germ plasmqualified personnel, evaluation of materials research work had been “suspended.” stored, and finally of “creation of essential These examples (and they abound) repre­links between gene banks and breeding pro­ sent “commerciogenic erosion” of PGR, grammes.” The FAO’s International Bu­ motivated by corporate profit and power. reau of Plant Genetic Resources (IBPGR) Control over major crop germ plasm is laments (in an expert group report), “enor­ also control over political destinies of mous losses of valuable materials arising the South. About fifty-five percent of col­out of the lack of organization, continuity lected germ plasm is with the North. And and finance.” this is a conservative estimate. The North Another significant factor of note is politically controls thirty-two important that none of the proposals before FAO are crops and has not shown any scruple attempting in to tackle the substantial prob­ using its domination in generating politi­lem of “commerciogenic erosion” of PGR. cal dependencies. The seriousness of the problem of ero­ Moreover, most elites of the South are sion of PGR is beyond doubt. There is no permitted by people to diminish, and eradi­ time for complacency. Time is running out. cate, their endowment of PGR. The rapid As even the Executive Secretary of the rate of deforestation and organized failure International Board of Plant Genetic Re­ to achieve and operate a National Forest sources himself said on December 2, 1982: Policy threatens our plant genetic reserves. “If the work is not done in the next The irrigation and power policies which 5-10 years, we’re finished.” lead to construction of dams, policies or And the work will not get done until it non-policies regarding environmental andbecomes an important component of the marine pollution, flood control and relatedpoor people’s struggle in the South. ecology policies also threaten the national plant gene heritage. Our governments, anxious to protect PGR as common heri­Privatization and Plant tage of mankind, must also be made anx­Genetic Resources ious to protect and preserve the national heritage. By privatization we refer to a variety It is in this overall context that the callof processes which result in a resource, a by Mexico for the creation of an Inter­product, or a technology being moved national Gene Bank assumes great signifi­from the public domain (i.e., the com­ cance in the battle against genetic erosion.mons) into the control (and often the All governments of the South enthusiasti­ownership) of private hands, be they indi­ cally supported it. But such is the overt vidual or corporate. Privatization inevitably and covert opposition from the North, that creates problems of access: what was freely the November 1983 agenda includes a Re­accessible earlier becomes, as a result of port by the Director-General which merely privatization, either totally inaccessible or recommends that the present existing net­accessible under restricted conditions work "could be considered as constitutingwhich are often onerous and usually more in practice an international gene bank.”costly. The existing network comprises 38 institu­ As far as plant varieties and crops are tions in 29 countries holding collectionsconcerned, what has been privatized in- eludes the following: tional plant breeding technologies through plant breeders’ rights legislation. This was 1. germ plasm and plant genetic resources followed by similar efforts to extend such essential to further plant breeding workprotection to products resulting from re­ and tissue culture research; cent advances in biotechnology. The crea­ 2. elite breeding lines which are used in thetion of property rights provides a strong in­ development of new plant varieties; centive for privatization. Rights of owner­ 3. new commercial plant varieties, and inship and control are vital both in establish­ the case of tissue culture research, newing market monopolies and in preserving products and new applications andexisting market monopolies. uses of products; and In the third world the spread of privati­ 4. scientific and technological processes zation has occurred for several reasons. In which have created (3) above. recent decades developing country govern­ ments, faced with a crucial need to step up Germ plasm resources are critical to domestic food production, have turned to plant breeding work. New technologies for high-yielding varieties (HYV) of crops, plant breeding have direct and immediateoften supplied by large transnationals implications for developing countries, espe­(TNCs). These countries have usually had cially in agriculture, and hence increasing(and continue to have) very weak regula­ privatization in this critical area of tissuetory and administrative mechanisms to deal culture technology is of special concern towith the day-to-day operations of transna­ developing countries. tional corporations after they have been let It is important to view the phenomenoninto the country. A variety of malpractices of privatization in its historical context inhave occurred as a result. the first world and in the third world. Pri­ Moreover, third world governments have vatization occurred in the first world as a(at times unwittingly and at other times product of several forces. Several large wittingly and in direct collusion) facilitated chemical transnational corporations, fear­the market penetration of TNCs by includ­ ing the impacts of environmental regula­ing the products of the latter in a “pack­ tion, began to look for new products that age” delivered by government agencies and they could sell in the global markets which comprising credit, water, fertilizers, pesti­ they already commanded. Seeds came to cides, and extension services. A few third be viewed as a delivery mechanism forworld countries have succumbed to pres­ products of these companies such as pesti­ sures and adopted plant patenting and cides and fertilizers. With the advent of plant breeders’ rights legislation. hybridization (and its built-in "natural”For the third world, privatization cre­ patent), seed itself -became a commercially ates problems of lack of or restricted ac­ profitable product. cess; perpetuation of technological depen­ Transnationals observed the close rela­dencies; inappropriateness of “packaged” tionship in the industrial sector betweentechnologies; and inequities regarding the patent protection and market control andcosts and terms on which access to such market monopolies, with higher prices and “privatized” technologies can be secured. profit margins. Efforts were mounted by Moreover, privatization in third world and concerned segments of industry to extendfirst world alike, restricts the free flow of patent or equivalent protection, first, toresearch information, thus inhibiting the new plant varieties resulting from conven­diversity, if not the pace, of technological innovation. 2. create a demand for an appropriate seed Thus, it is imperative that strategies be technology, as explained below; evolved in the third world (and industrial­3. campaign for conservation of germ ized countries alike) to: plasm as a national heritage and for legal and policy constraints on germ plasm 1. arrest and, if possible, reverse the cur­ collections by or under the auspices of rent trend toward greater privatization; multinationals; and 4. campaign for high priority dedication of 2. cope with the adverse consequences re­ adequate resources for National Gene sulting from existing privatization. Banks under public sector management; 5. campaign for a periodic white paper from the governments as to the state of Some Possibilities for PGR in the country; and Social-Action Groups 6. demand an effective regulation of plant breeding activities in the private sector. We hope we have demonstrated the seri­ ous dimensions of the problem of PGR What would be an appropriate seed as it concerns the people who are trying to technology? Technically, this would at liberate themselves through participatory, least mean development of plant varieties self-reliant social action. What may social- with vigour - that is, adverse soil toler­ action groups in the South do to help? ance, draught tolerance, deep water and Several lines of action are neededlocal, at flood tolerance, disease and insect resis­ national, regional andinternational levels. tance. There is also need to develop peren­ At the local level, first and foremost, nials. there is need for communicating the avail­ The appropriate seed technology will able information regarding the problem of need to strike a balance among the follow­ PGR to the people in their language and id­ing competing needs: iom. People rooted to the soil and living on land will have little difficulty in relating the- the needs of farmers to grow a safe crop linkages between PGR and their own plight. at low cost; Second, out of a dialogue with the - the needs of consumers to have ade­ people may arise possibilities of action at quate and continuous supplies at a rea­ the local, national, regional and interna­sonable price; and tional levels. Innovative initiatives are being- the need to secure greater profitability taken by farmers in the South to halt PGR to the farmer producer rather than to erosion and to restore traditional plant the multinationals. varieties. These must be encouraged and strengthened. Perhaps the most significant aspects of At the national level, the task is the seed technology choices in the third world most challenging and complex. Social- relate to distribution, income and nutrition action groups and lawyers working witheffects of the technology. If reaching and them might consider any or all of the fol­ helping the smaller farmers and rural poor lowing measures: is an objective, seed technologies can, and should, be biased to disproportionately 1. demand an integrated forest, ecology benefit the rural poor. Hard policy choices and energy policy; needed to achieve this may involve: a) preference for stable over unstable seed. mechanical requirements will reduce Poorer farmers find it difficult enough dependence on those who monopolize to obtain seed. If they once obtain a tractors or other machines. stable seed, they can replant from their own resources, year to year, without At the regional level, there is need to loss of yield; communicate action, both at the national b) higher-yielding varieties of the food and international levels, to kindred social- crops grown and eaten by the poorer action groups. sections of the community (e.g., millets) At the international level, it seems im­ can be expected to benefit them dispro­portant to indicate solidarity with the gov­ portionately. Thus, the choice of crop ernments and leadership of the South by to which to devote seed-breeding ex­ supporting the Mexican Resolution 6/81, pertise may itself benefit, to a greater acknowledging the principle that PGR con­ or lesser extent, the poorer rural com­ stitutes a common heritage of mankind, munities; and supporting the establishment of an c) preference for varieties with high yields international gene bank. After the Novem­ of calories under conditions of lowber 1983 FAO meeting, there has been fertility will favour the poorer farmers much obfuscation of the key issues in­ who have more difficulty obtainingvolved. Key PGR problems are being side­ fertilizers; lined while an institutional struggle be­ d) water-stress tolerance will benefit those tween the IBPGR and FAO is developing less well-endowed farmers whose fields for control over whatever international are likely to be short of water; gene banking facilities are to be estab­ e) storage for long duration, susceptibility lished. The North has succeeded in replac­ to wetness; ing the Mexican call for an international, f) short-duration varieties may dispropor­ binding convention on the exchange of tionately benefit farmers who are un­PGR. Instead, the South has been thrown able to plant on schedule because ofthe crumb of a voluntary “undertaking” in inability to obtain inputs; this regard. The undertaking represents, at g) varieties with a high return to labor- best, a first step and much concerted effort intensity may favour poorer farmerswill be needed if further progress is to be who can rely on their family labourachieved. with negligible opportunity; Social-action groups in the South need h) varieties which will fit into existingnot confine their actions to arenas within traditional farming systems and existingthe U.N. system. The matters involved are or anticipated farm labour will tend to of a global nature and they have implica­ benefit the poorer, smaller men who are tions for millions of people. There is a unable or less able than their better-off need, therefore, to politicize the issue on a neighbours to attract or pay casual mass scale. There is a need to work with labour; peasant movements and farmers’ associa­ i) varieties which can be inter-planted withtions in the South to help internationalize other crops to reduce risk and increase the issue from below. Among others, the calorie yields (and perhaps nitrogenfollowing courses of action might be appro­ fixation) may benefit those with verypriate: small plots of land; and j) varieties which are independent of1. Mass meetings that include peaceful marches to UN offices and some embas­ less that human rights’ law (both national sies to hand over petitions and appeals. and international) needs to be effectively 2. A massive signature campaign amonginvoked. Law is, after all, an instrument of farmers and concerned people againstpolicy — a kind of social technology to be genetic erosion and the dominance ofdeveloped to meet human needs. The PGR the North in the control of genetic problem poses stern challenges to the inter­ resources. national human rights’ community. The 3. Some joint meetings and campaignsright to food and other rights essential to with third world groups in Europe and the satisfaction of basic human needs need America including “gene resources pro­to be brought to life and need to be made tection marches." a reality for the growing masses of the im­ poverished in the South. The struggle The problem of plant genetic resources against impoverishment has to be waged in may seem remote and far into the future tomany different arenas and around many some. But the fact is that the issues in­ different issues. PGR is one such issue and, volved touch the lives of tens of millions ofmoreover, is an issue requiring urgent and people all over the world and especially concerted attention of social-action groups those who are poor and powerless. It is pre­ and lawyers in both the North and the cisely on behalf of the poor and the power­ South. Arrest and Detention in Mexico

by Raul F. Cardenas*

Mexico has a written Constitution andtitle, while the fifth specifies the powers the fundamental principle of the legal sys­of the States of the Federation which also tem is the supremacy and inviolability ofhave a republican and representative form the Constitution. The Constitution aloneof is government that reflects the will of the supreme in the Republic and from it ema­people. The basic unit of its territorial divi­ nate the secondary laws. Another funda­sion and of its political and administrative mental principle is that of legality, by organisation is the Tree Municipality’. virtue of which the rights guaranteed to the The Constitution of Mexico adopted a inhabitants of the Republic are defined andrigid system in that the procedure for its the form of government accepted by the amendment in Article 135 is complicated. Mexican people is determined on the basisNevertheless, the requirements specified in of article 40 of the Constitution, which that article have not proved, as was hoped, states that it is the will of the Mexican an obstacle to the numerous constitutional people to establish themselves as a repre­ amendments that have been made from sentative. democratic and federal republic1917 to the present day. composed of States that are free and sov­ Those who support the principle of the ereign as regards matters internal to them, immutability of the Constitution consider but are united in a federation foundedthe in large number of amendments made to accordance with the principles sanctionedit a serious shortcoming, whereas others and laid down in the fundamental law. who deny the importance of this principle In the third title of the Constitutionbelieve that the constitutional reforms have reference is made to the division of powers paved the way for the peaceful develop­ between the legislative, executive and judi­ment of the legal and political system, and cial branches, which may not be united ineven for the inclusion of the so-called a single person or body, nor may the legis­social guarantees in the Constitution. lative power be invested in a single indi­ The purely individual rights embodied vidual, save in the case of extraordinaryin Chapter I of the first title of the Consti­ powers granted to the executive pursuanttution, which are also known as human to the provisions of the Constitution. rights, fundamental rights, subjective pub­ The attributes and competence of these lic rights or rights of the governed, have different powers are defined in the thirdnot been amended, including those relating

* Professor of Criminal Law and a practicing lawyer in Mexico; Member of the International Com- mission of Jurists. to the right to a fair trial, since any textual preceded by a charge, accusation, or amendment of them would provoke a complaint for a credible party or by serious public reaction. other evidence indicating the probable These individual rights now include the guilt of the accused; in cases offlagrante social rights as a result of later amendments delicto, any person may arrest the to the original text of 1917. They are usu­ offender and his accomplices, turning ally classified by students of the Constitu­ them over without delay to the nearest tion in the following broad categories: authorities. Only in urgent cases insti­ rights of equality, rights of freedom, rights tuted by the public attorney without of property and rights of security. How­ previous complaint or indictment and ever, the Mexican jurist, Don Juventino V.when there is no judicial authority avail­ Castro, starting from the principle that a able, may the administrative authorities, human being is by nature free and hison their strictest accountability, order freedom takes precedence over the State, the detention of an accused person, proposes a different classification, viz.: turning him over immediately to the judicial authority and which must be a) rights of freedom, in writing, shall specify the place to be b) juridical rights and searched, the person or persons to be c) procedural rights. arrested, and the objects sought, the proceedings to be limited thereto; at The rights of freedom relate to personal the conclusion of which a detailed state­ freedom, freedom of action, freedom of ment shall be drawn up in the presence belief and economic freedom, while the of two witnesses proposed by the occu­ juridical rights comprise the right of equal­ pant of the place searched, or by the ity before the law, the right to be heard by official making the search in his absence a competent court, the right to justice and or should be refuse to do so. the right to property, and the procedural Administrative officials may enter rights those relating to non-retroactive private homes for the sole purpose of application, legality, the strict application ascertaining whether the sanitary and of the law and due process in judicial pro­ police regulations have been complied ceedings. with; and may demand to be shown the It is precisely in this last group that books and documents required to prove human rights are most often infringed compliance with fiscal rulings, in which in Mexico, especially those laid down in latter cases they must abide by the pro­ article 16 of the Constitution which relates visions of the respective laws and be to warrants of arrest: subject to the formalities prescribed for cases of search.’’ “Article 16. No one shall be molested in his person, family, domicile, papers, or Don Eduardo Herrera y Lasso, a Mexi­ possessions except by virtue of a writtencan jurist, states that “128 years after the order of the competent authority stat­ promulgation of the 1857 Constitution, ing the legal grounds and justificationand 60 years after the Constitution of for the action taken. No order of arrest 1917, illegal arrests are still the main prob­ or detention shall be issued against anylem”. He goes on to refer to “the same person other than by the competentabuses, the same rigorous isolation . . .to judicial authority, and unless same frighten is the unhappy victims and force them to make involuntary confessions,ent administration was forced to take steps which are nearly always fa lse ... the to abolish anti-constitutional repressive “secret arrangements and covert proceed­bodies and to plan for proper police coor­ ings ...” as well as “restrictions on the dination, a move that was viewed with rights of the defence, which prevent the favour by the general public. prisoner and his counsel from being present One of the newspapers with the largest at the hearing of evidence against him . . .”. circulation in the country,Excelsior, has It is only the perpetrators of the violations referred to the security plan drawn up by who have changed. The violations are nowthe President, and emphasised that the committed by members of the police result of several decades without any con­ force during unconstitutional detentionstrol has been to give the capital, and indeed “for purposes of investigation”. the country in general, a police force that The drafters of the 1917 text were, in has acted arbitrarily and unconstitution­ fact, concerned to prevent any kindally. of “It made for the violation of human illegal arrest and ensure that no one shouldrights and gave such bodies the image of be taken into custody without a judge’sillegal groups whose weapons are fear and order, unless the accused was caught ininsecurity”. flagrante delicto. In theNovedades, and in other periodi­ Mexican justice was formerly relativelycals published in Mexico City and the Pro­ successful in applying the provisions of thevince, stress has been laid on the impor­ Constitution, but in the last few years, andtance of police coordination, but at the especially from 1976 to 1982, it has be­ same time concern has been voiced that the come a common practice to take the ac­ Federal Constitution may be violated and cused into custody and hold him incom­that the country may move towards a municado without a judicial order, andpolice state, with consequences such as only later bring him before the judicial have been experienced in other South authorities, in open violation of article 16American countries. Moreover, lawyers of the Constitution. have never tired of pointing to the spec­ Unfortunately, many federal judgestacle of the police acting without control, have accepted this anomalous situationcreating clandestine prisons in which hu­ without voicing any kind of criticism, andman rights are trampled upon, and violat­ although respect for the law is now much ing laws deriving from the Constitution, greater than before, this unhappy practice such as the Law of Extradition. has grown up through constant usage and In the periodicalProcess (No. 377 of 23 toleration over the years. People are ar­ January 1984), reference is also made to rested without a warrant in certain casesthe National Public Security Plan advo­ and, after a confession has been wrungcated by the Ministry of the Interior, from them, they are held in custody at the which proposes to establish coordinated judge’s disposal. The judges for their part action between the Federal and State gov­ have taken refuge in a much criticised legalernments in order to root out delinquency. decision of the Supreme Court to the This Plan consists in concerting a number effect that the illegality of the confession of joint actions, which will ensure coopera­ must be proved by the person unjustlytion among the organs of the Federation to detained. achieve the common goal of expanding the However, in view of an alarming rise inscope of enjoyment of the rights afforded the number of crimes committed, the pres­ by the law, with the citizen as the sole beneficiary. It states that the basic purpose article 128 of the amended Federal Code of the Plan is to build up the morale of the for Penal Proceedings, instead of prohibit­ police forces through modernisation, coor­ ing the criminal police from arresting per­ dination between police, judicial and pre­sons except within the terms of article 16 ventive bodies, and giving the people anof the Constitution, specifies that: opportunity to take part in the planning of public security. “Article 128. The officials who perform At the national level, the Plan aims to the functions of criminal police shall reform the legal framework of the police, decide in each case which persons must judicial and preventive institutions; to es­remain in custody and in what place, tablish a programme of reorganisation, and shall enter these facts in the respec­ technological development and new opera­ tive record. tional systems, and also a complete pro­ If no decision is taken by the Federal gramme for greater professional skills and Office of the Public Prosecutor, the incentives, in order to improve the services Office shall be informed without delay provided by the police forces. so that it may be in possession of the These objectives are positive, but the facts and take the decision that is legally general climate is one of mistrust, and the required of it. press takes a pessimistic attitude as a re­ sult of certain grave events that have come As of the time at which it is determined to light. It is true that there is a serious to hold the detainee in custody, the increase in criminality in Mexico at the Office of the Public Prosecutor shall in­ present time, and this must be combatted, form him of the charge against him and but in view of the fear of violations of the of his right to nominate a person to de­ Constitution and human rights it is neces­fend him, and shall record that he has sary to proceed with caution and to keep been so notified in the documents of strictly within the bounds of the law. the case. The Office of the Public Prose­ As has already been said, the violation cutor shall receive the evidence which of article 16 of the Constitution has be­ the detainee or his defence counsel shall come a common practice in recent years. provide at the appropriate time in the On the pretext of fighting the widespread preliminary inquiries and, for the pur­ corruption suspects are arrested, and, in pose of these inquiries, shall take the express violation of their constitutional evidence into account in accordance rights, made to confess whatever crime with the requirements of the law in they are accused of. They are then placed order to decide whether to request the at the disposal of a judge, who either has to court to order his imprisonment or re­ release them or accept the violation of the lease as appropriate. When it is not pos­ law that has taken place, and make a for­ sible for the defence to submit all the mal order for their detention based on the evidence for the defence, it shall be en­ police report. titled to present the remaining evidence Although the torture that accompanied to the judicial authorities, and the arrests has largely been eliminated, illegal­ Office of the Public Prosecutor shall ity still continues in the sense that an arrestthen begin the criminal proceedings if is made for the purpose of conducting an all the requirements of the law are met.” investigation and not an investigation for the purpose of making an arrest. In fact, This reform effected some improvement in the law. However, the confirmation thatplace them at the disposal of the nearest the judicial police can indicate in each caseauthority. On the contrary, the reforms of who should remain in custody and where,the Penal Code authorise, in contradiction and recording this in the relevant docu­with the text of the Consituttion, that offi­ ment, preserves a dangerous procedure. Itcials who perform the functions of criminal disregards what is expressly stated in the police may decide in each case which per­ Constitution, namely that no order sons of shall remain in custody and in what arrest or imprisonment may be issuedplace. This reform does not give full pro­ except by a judicial authority and unlesstection it against the violation of funda­ is proceded by a denunciation, charge ormental rights expressly laid down in the complaint on a matter punishable by im­Constitution. prisonment, and unless the denunciation,There is still a long way to go before charge or complaint is supported by a there is full respect for human rights. If sworn statement made by a person worthythis is the position in matters that are of trust, or by other information which within the jurisdiction of federal justice, points to the supposed liability of the the situation in the States of the Fed­ accused. The only exceptions are cases oferation and the Municipalities is far worse flagrante delicto, when any person mayas regards the infringement of human seize the offender and his accomplices, andrights. Self Rule Proposals for Canadian Indians

In response to the many complaintsits hearing. Through such information they voiced about difficulties in the relationshipwould learn "that Indians were not pagan between Indians and the Canadian Federaland uncultured, but peoples who moved Government, the House of Commons, atfrom free, self-sustaining First Nations to the end of 1982, set up a Special Commit­ a State of dependency and social disorga­ tee on Indian Self-Government (hereafternisation as the result of a hundred years of “the Committee”). It was directed, among nearly total government control”. other things, to make recommendations to This control can be seen, for example, Parliament . .in regard particularly to in the suppression of the First Nations' possible provisions of new legislation andown complex traditional forms of gov­ improved administrative arrangements toernment and their substitution by band apply to some or all Band [Indian] Govern­councils - an artificial form of government ments on reserves. . . ” imposed on the Indian people by the The Committee traveled to all regions of Indian Act 1876. Although tribal coun­ Canada to hear oral testimony. It also re­cils, treaty organisations, and provincial re­ ceived written submissions and commis­gional and national associations of various sioned research projects. This is a brief kinds play a vital role in the political activi­ summary of the resulting report which con­ties of the Indian people, band councils are tains many innovative recommendationsthe only Indian governmental organisation for government action, including constitu­recognised in the Indian Act. Band councils tional changes. exercise delegated powers and “are more The report underscores the misconcep­ like administrative arms of the [Federal] tions and lack of understanding aboutDepartment of Indian Affairs [and North­ Indian history and culture that continueern Development (DIAND)] than they are to exist. Both have caused a one-sided andgovernments accountable to band mem­ negative portrayal of the Indian people andbers”. blinded non-Indians to their own part inThe Indians resent the Indian Act be­ producing the stereotype “that victimizes cause of its constraints and yet depend on people of the First Nations* as drunks and it for the special rights it provides. The welfare recipients, unable to practice Committee saw the Act, and the massive acceptable standards of conduct and in­control over Indian affairs exercised by the capable of learning”. DIAND, as the main obstacles to Indian The Committee expressed the wish that development and self-sufficiency. It is all Canadians could benefit from the infor­claimed that the DIAND makes planning mation it had received during the course ofand budgetary decisions without adequate

* The term which the Indian nations use to designate themselves. input from bands. Chiefs and councillors “The council’s role in representation of are placed in an awkward position becausethe people’s wishes, is for the most part, they are accountable to DIAND for moneysignored by both senior levels of govern­ received, but they are also accountable toment. All too often band governments their people, whose priorities and needs are must resort to confrontation, to media often at variance with DIAND require­events, to expensive lobbying just to get ments. In addition all the legally recognisedheard. powers of bands and band councils are de­ . . Again, in a government’s function fined in andlimited to those specifically of allocation the bands of our experience mentioned in the Indian Act. Thusare as for the most part restricted by the Act “many important matters necessary to theand the Department’s policy to the deliv­ functions of government in modern societyery or distribution of resources as allocated are omitted from the Act “great uncer­ by the Department. Stripped of the author­ tainty about the legal capacity of bandsity to operate the fundamental functions and band councils has resulted e.g. canof a government, current band governments band council sign contracts or bring laware little more than factotums of federal suits in the name of the band? ’’This un­control.” (Quesnel Community Law Centre, certainty is a great impediment to bandSpecial 20: 168-169). initiatives.” There have been various attempts at and Band councils have limited by-law mak­proposals for rectifying the situation as it ing powers under section 81 of the Indiannow stands. But these have all involved Act. However, these are totally inadequate change within the existing framework. The for 20th century living, e.g. bands do notCommittee however is adamant in its re­ have power to enact zoning and buildingport that the strait-jacket provided by the by-laws in connection with land develop­Indian Act and the policies of the DIAND ment. The limited powers that do exist are must be completely removed and a new even further reduced because they can startbe made, founded firmly upon self-gov­ rendered invalid by federal laws, federalernment for the First Nations. regulations, the Minister’s disallowance or Being governed in a manner of its own even provincial laws ‘of general applica­choosing, having control over its own re­ tion’. sources and deciding its own policies and The band councils’ role was described priorities would allow each First Nation to by many witnesses before the Committeeexpress its own collective identity (the as that of administrators of governmentIndian Act makes no allowance for the policy: great diversity among First Nations) and “Under the current system of bandwould reverse the trend of dependency and government, the chief and council are lack so of initiative which are the result of restricted in providing the three basic func­federal control of funding and policy­ tions of government that it can hardly bemaking. called government at all, but more properly A brief resume follows of the Commit­ the administraton of federal policy at local tee’s recommendations for accomplishing level. Under the current Act the councilthe move to Indian self-government. can regulate little, except weeds and dogs Many Indian witnesses asserted that on the reserves, without the blessing first rights implicitly recognised in the Royal of the Minister and his administrative armProclamation of 1763 and in the treaties, (the DIAND), provide a basis in law for Indian people to exercise an inherent right to self-govern­ ernment to enter into agreements with ment. This was at variance with traditional recognised Indian First Nation govern­ constitutional interpretation which was ments as to the jurisdiction that each that all primary legislative powers were government wishes to occupy and con­ deemed vested in Parliament or in provin­cerning funding. Once concluded, these cial legislatures. However, the Constitution agreements would provide the frame­ Act 1982 could well have altered this situa­ work in Canadian law for each particu­ tion by its recognition and affirmation of lar Indian First Nation, and for them “existing aboriginal and treaty rights”. It the Indian Act would cease to apply. may now be that Indian governments haveThe Indian Act would, however, remain implicit legislative powers that are at pres­ in force for those bands that wished to ent unrecognised. The Committee, how­ continue under it and would provide a ever, recommended settling the question legal structure while agreements were once and for all by explicitly stating and being negotiated. entrenching in the Constitution the right3) Legislation under the authority of Sec­ of Indian peoples to self-government. tion 91 (24) of the Constitutional Act Indian First Nation governments would 1867 designed to allow Parliament to form a distinct order of government in occupy the field of legislation in rela­ Canada with their jurisdiction defined. tion to Indians and lands reserved for Until such constitutional amendment canIndians, particularly where the absence be made, the Committee recommended of federal legislation has resulted in the that the federal government should intro­ extension of provincial jurisdiction to duce such legislation as would lead to the Indian lands and people. Parliament maximum possible degree of self-govern­ would then vacate these areas of juris­ ment immediately. Such legislation should diction to recognised Iiidian govern­ be developed jointly and the First Nations ments, thus ensuring that provincial themselves should have the responsibility laws would not apply on Indian lands of selecting a method of designating repre­ except by agreement of the First Nation sentatives to negotiate on their behalf. It governments. With this legislation in is important that any such legislation pro­ place and supported by appropriate vide a wide and flexible framework to agreements, Indian First Nations could allow for the different needs and goals and be self-governing in areas in which they aspirations of the peoples of the First wish to legislate. Nations. The Committee recommended three such legislative measures: The Committee further recommended that any changes of policy possible under 1) The enactment of an Indian First Na­existing law that would enhance self- tion Recognition Act committing thegovernment and that are acceptable to federal government to recognise Indiandesignated representatives of Indian First governments accountable to their peo­Nations be taken without waiting for the ple; establishing criteria to be met by enactment of new legislation. any First Nation government wishing to Regarding the scope of powers of the be recognised as self-governing; andnew Indian First Nation governments, the elaborating a procedure under which Committee “agrees that full legislative and self-government would be accorded. policy-making powers on matters affecting 2) Legislation authorising the federal gov­ Indian people and full control over the territory and resources within the boun­cases where settlement cannot be reached, daries of Indian lands should be among thethus avoiding the situation where the fed­ powers of Indian First Nation governments.eral government is both defendent and judge. Existing claims should not be re­ “A first Nation government should havegarded as being superseded by law. authority to legislate in such areas as social The Committee hoped that claims settle­ and cultural development, including educa­ments, Indian control and development of tion and family relations, land and resourcetheir land base, new arrangements for re­ use, revenue-raising, economic and com­source revenue-sharing and other long­ mercial development and justice and lawterm entrenched financial arrangements enforcement among others. First Nationwould in due course provide Indian First governments may also wish to make ar­Nation governments with assured funding. rangements with the federal and/or provin­In the interim, grants would be necessary cial governments to continue existing pro­and are justified. The Committee recom­ grammes. mended that these take the form of direct The Committee recommended the estab­ grants to all Indian First Nation govern­ lishment of “a specialised tribunal to de­ments recognised by the federal govern­ cide disputes in relation to agreements be­ment as being accountable to their people. tween Indian First Nations and other gov­They should be sufficient to enable ernments. Its structures, powers and proce­Indian First Nation governments to correct dures should be jointly decided by theany serious deficiencies in community federal government and designated repre­infrastructure and to begin economic sentatives of Indian First Nations”. development by setting goals, defining As First Nation control of Indian landsstrategies and acting to realise their poten­ is the first and most obvious move neededtial. The Committee further recommended to promote self-government, the Commit­ that one-time funding be made available to tee recommended that the federal govern­ Indian bands to assist them in developing ment recognise and entrench in the Con­their governments. stitution, the legal rights of Indian First The Committee recommended that the Nations to the lands, waters and resourcesfederal government and designated repre­ of all areas now classified as reserves or in sentatives of Indian First Nations jointly future considered as Indian lands, includ­appoint and fund an independent secre­ ing the power to decide upon methods of tariat to provide a neutral forum for con­ land-holding and land management ducting on negotiations. Further, in view of reserves. the past history of bad relations between The Committee further laid heavy em­ the DIAND and the First Nations it recom­ phasis on the just and effective settlementmended that a new Ministry of State for of the many outstanding land claims asIndian a First Nation Relations be estab­ major way of expanding the land andlished to manage and coordinate the fed­ resource base of Indian First Nation gov­eral government’s relations with Indian ernments. It laid down certain basic ground-First Nation governments. Ministerial re­ rules as to how this should be accom­ sponsibilities would include the duty to plished, including adequate financial sup­promote the interests of First Nations. A port to enable First Nation governments tocorresponding phasing out of the pro­ pursue their claims adequately and thegrammes of DIAND should be started and institution of a quasi-judicial process incompleted within five years. In addition, the Committee supported the principle of affecting their rights. establishing an independent officer to mon­The report of the Committee has been itor and report to Parliament on official published and will no doubt be the subject action affecting First Nations as well as the of much discussion in Canada. Whether or setting up of an advocacy office undernot these far-reaching recommendations Indian auspices and federally funded,are accepted, the fact that they should to enable the office to represent Indianhave been made by a Parliamentary Com­ First Nation interests in legal disputesmittee is of more than local interest. The Dark Side of Trees

The truth burns so they turned their faces away from the sun . . .

When small liberties began to fray . . . When their constitution was being chipped away When their newspapers were shut down . . . When their rule of law was twisted round . . . When might became right and their friends were carried off screaming in the pitch of night. . .

They chose silence feigned blindness pleaded ignorance.

And now when the shadow of the jackboot hangs ominous over their beloved land they walk as zombies unable to distinguish right from wrong from right their minds furred with lichens like the dark side of trees.

The truth burns so they turned their faces away from the sun . . .

Cecil Rajendra

from Hour of Assassins and other Poems (Bogle — L’Ouverture Publications, 141 Coldershaw Road, Ealing London W13 9DU) MEMBERS OF THE INTERNATIONAL COMMISSION OF JURISTS

KEBA MBA YE Judge of Int’l Court of Justice; former Pres. Supreme (President) Court, Senegal, and UN Commission on Human Rights ROBERTO CONCEPCION Former Chief Justice, Philippines (Vice-President) HELENO CLAUDIO FRAGOSO Advocate; Professor of Penal Law, Rio de Janeiro (Vice-President) JOHN P. HUMPHREY Prof. of Law, Montreal; former Director, UN Human (Vice-President) Rights Division ANDRES AGUILAR MAWDSLEY Prof. of Law, Venezuela; former Pres. Inter-American Commission BADRI A AL-AWADHI Dean, Faculty of Law and Sharia, Univ. of Kuwait ALPHONSE BONI President of Supreme Court of Ivory Coast WILLIAM J. BUTLER Attorney at law, New York RAUL F. CARDENAS Advocate; Prof. of Criminal Law, Mexico HAIM H. COHN Former Supreme Court Judge, Israel AUGUSTO CONTE-MACDONELL Advocate; member of Parliament, Argentina TASLIM OLAWALE ELIAS Pres., Int’l Court of Justice; former Chief Justice of Nigeria ALFREDO ETCHEBERRY Advocate; Professor of Law, University of Chile GUILLERMO FIGALLO Former Member of Supreme Court of Peru LORD GARDINER Former Lord Chancellor of England P. TELFORD GEORGES Chief Justice, Supreme Court, The Bahamas LOUIS JOXE Ambassador of France; former Minister of State P.J.G. KAPTEYN Councillor of State, Netherlands; former Prof. of Int’l Law MICHAEL D. KIRBY Judge, Federal Court of Australia KINUKO KUBOTA Former Prof. of Constitutional Law, Japan RAJSOOMER LALLAH Judge of the Supreme Court, Mauritius TAI-YOUNG LEE Director, Korean Legal Aid Centre for Family Relations SEAN MACBRIDE Former Irish Minister of External Affairs RUDOLF MACHACEK Member of Constitutional Court, Austria J.R.W.S. MAWALLA Advocate of the High Court, Tanzania FRANCOIS-XAVIER MBOUYOM Director of Legislation, Ministry of Justice, Cameroon FALI S. NARIMAN Advocate, former Solicitor-General of India NGO BA THANH Member of National Assembly, Vietnam TORKEL OPSAHL Prof. of Law, Oslo; Member of European Commission GUSTAF B.E. PETREN Judge and Deputy Ombudsman of Sweden SIR GUY POWLES Former Ombudsman, New Zealand SHRIDATH S. RAMPHAL Commonwealth Secr.-Gen.; former Att.-Gen., Guyana DON JOAQUIN RUIZ-GIMENEZ Prof. of Law, Madrid; Defender of the People (Ombuds­ man) of Spain TUN MOHAMED SUFFIAN Lord President, Federal Court of Malaysia CHITTI TINGSABADH Advocate; Prof. of Law; former Supreme Court Judge, Thailand CHRISTIAN TOMUSCHAT Professor of Int’l Law, University of Bonn MICHAEL A. TRIANTAFYLLIDES Pres. Supreme Court, Cyprus; Member of European Com­ mission AMOS WAKO Advocate, Kenya; Secr.-Gen., Inter African Union of Lawyers J. THIAM HIEN YAP Attorney at Law, Indonesia

HONORARY MEMBERS

Sir ADETOKUNBO A. ADEMOLA, Nigeria HANS HEINRICH JESCHECK, Federal ARTURO A. ALAFRIZ, Philippines Republic of Germany DUDLEY B. BONSAL, United States JEAN FLAVIEN LALIVE, Switzerland ELI WHITNEY DEBEVOISE, NORMAN S. MARSH, United Kingdom United States JOSE T. NABUCO, Brazil PER FEDERSPIEL, Denmark LUIS NEGRON FERNANDEZ, Puerto Rico T.S. FERNANDO, Sri Lanka Lord SHAWCROSS, United Kingdom W.J. GANSHOF VAN DER MEERSCH, EDWARD ST. JOHN, Australia Belgium MASATOSHI YOKOTA, Japan SECRETARY-GENERAL

NIALL MACDERMOT States of Emergency — Their Impact on Human Rights A comparative study by the International Commission of Jurists, 1983. Available in english (ISBN 92 9031 019 X). Swiss Francs 40 or US$ 19.50, plus postage. This 480-page publication contains detailed studies on states of emergency in 20 countries during the 1960s and 1970s, a summary of the replies to two question­ naires sent to 158 governments, and an analysis of this material by the staff of the ICJ, followed by a set of recommendations. The country studies on Argentina, Ca­ nada, Colombia, Eastern Europe (Czechoslovakia, German Democratic Republic, Hungary, Poland, USSR, Yugoslavia), Greece, Ghana, India, Malaysia, Northern Ire­ land, Peru, Syria, Thailand, Turkey, Uruguay and Zaire are based on papers prepared by experts, mostly from the countries concerned. The two questionnaires related to the law and practice under states of exception, and administrative detention. The concluding chapter of general observations and conclusions is followed by 44 rec­ ommendations for implementation at international and national levels. ★ ★ ★ Rural Development and Human Rights in South East Asia Report of a Seminar in Penang, December 1981. Published jointly by the ICJ and the Consumers' Association of Penang (CAP) (ISBN 92 9037 017 3). Available in english, Swiss Francs 10, plus postage. Ways in which human rights of the rural poor can be adversely affected by pro­ cesses of maldevelopment are illustrated with a wealth of detail in this report. The 12 working papers on such topics as land reform, participation in decision-making, the role and status of women and social and legal services are reproduced in full along with the important conclusions and recommendations of the seminar. ★ ★ ★ Human Rights in Islam Report of a seminar in Kuwait, Geneva, 1982, 95 pp. Available in english (ISBN 92 9037 014 9) and french (ISBN 92 9037 015 7), Swiss Francs 10, plus postage. The purpose of this seminar was to provide a forum for distinguished moslem law­ yers and scholars from Indonesia to Senegal to discuss subjects of critical impor­ tance to them. It was organised jointly with the University of Kuwait and the Union of Arab Lawyers. The Conclusions and Recommendations cover such subjects as economic rights, the right to work, trade union rights, education, rights of minori­ ties, freedom of opinion, thought, expression and assembly, legal protection of human rights and women’s rights and status. Also included are the opening ad­ dresses, a key-note speech by Mr. A.K. Brohi and a summary of the working papers. ★ ★ ★ Civilian Administration in the Occupied West Bank by Jonathan Kuttab and Raja Shehadeh. An analysis of Israeli Military Government Order No. 947, 44 pp. Published by Law in Service the of Man,West Bank affiliate of the ICJ. Swiss Francs 8, plus postage. This study examines the implications of the establishment of a civilian administrator to govern the affairs of the Palestinian population and Israeli settlers in the West Bank. Questions of international law and the bearing of this action on the course of negotiations over the West Bank’s future are discussed.

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