INTERNATIONAL HUMAN RIGHTS SEMINAR Chicago-Kent College of Law Law 686-081-02 Prof. B. Brown Thurs. 4 - 5:50 PM Office 855 Classroom 547 tel. 906-5046 Fall Semester 2008
A. Seminar Description:
This seminar will focus upon human rights, their status as international law and the major issues in the implementation and enforcement of that law. An additional focus will be on the human rights implications of globalization. After considering the philosophical origins of human rights, the seminar will examine the process by which sovereign nation-states have come to recognize an increasing number of these rights as part of positive international law. The focus will be upon the Universal Declaration of Human Rights, the two International Covenants on Human Rights and a number of other human rights treaties. The course will consider the extent to which the standards set out in these texts can be said to reflect a true international consensus on human rights. In this context, it will also focus upon the many remaining disagreements about the definition and scope of those rights, and upon the problems encountered when individuals attempt to invoke international human rights standards in domestic legal systems. The seminar will survey various mechanisms for the promotion, protection and implementation of international human rights, including those of international organizations such as the United Nations, and those of non-governmental organizations such as Amnesty International. Whenever possible, the legal issues being discussed will be related to contemporary developments in human rights, and to issues of US foreign policy involving considerations of human rights. B. Required Text:
Henry J. Steiner & Philip Alston, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS, 3rd edition, Oxford Univ Press, (2008).
Because current developments in international human rights will frequently be discussed in class, students are also expected to follow international current events relating to human rights by reading a daily newspaper.
C. Course Requirements and Grading
The first two seminar sessions will consist largely of lectures and class discussion about the history of international human rights and the place of international human rights law in the international legal order. A key goal at this stage will be to ensure that all students in the seminar have a basic grasp of what international law is, and of how it is created and develops. After the first two weeks we will shift to a seminar format emphasizing student participation.
An important goal of the seminar is to assist students in developing the ability to organize a concise and coherent presentation. Accordingly, every student enrolled for Seminar Credit will make at least two presentations during the course of the seminar. The first (the theme presentation) will summarize a general theme from the syllabus based on the assigned readings in the primary textbook, which the student will be responsible for presenting and explaining to the seminar. The second (the topic presentation) will be on a topic, to be defined by each student in consultation with me, that will ultimately be the focus of the required seminar paper. In general, student paper topics should focus on an important contemporary human rights issue that raises disputed issues of international law and policy. Student presentations should normally last between 10 and 15 minutes.
Students are encouraged to develop and propose topics reflecting their particular interests. I will also distribute a list of possible paper topics. Topic selections and proposals should be discussed with me as soon as possible so that they can be finalized by the end of February at the absolute latest. Those presenting a topic early in the semester will be evaluated more leniently. If necessary, topics will be assigned by default. According to the rules applicable to all seminars at Chicago-Kent, a seminar paper of at least 25 pages in length, exclusive of footnotes, is required. The topic of this paper must be approved in advance, and a draft of the paper must be submitted and discussed with me before you write the final version. Ordinarily the paper will focus upon a topic which the student has presented to the seminar. Papers cannot be purely descriptive. They must advance and defend a specific thesis concerning international human rights law. A draft of the seminar paper should be submitted as soon as possible and by November 24th at the latest. The final version must be submitted before the first day of exam period.
Each student will prepare and distribute to the class a 2 page preliminary report on her topic at least one class session before the topic presentation is scheduled to be discussed. The preliminary report should include a concise and analytical introduction to the key issues raised by the topic, a brief bibliography, and identify 3-5 major issues or questions related to the topic which can serve as the basis for further class discussion. Prior to the class discussion of a student's topic she will make a 10-15 minute presentation building upon the preliminary report. Everyone will be expected to contribute to the discussion in class, and this discussion should be used by the presenting student as a vehicle for developing new ideas, points of law and research avenues for the benefit of the research paper to follow. Seminar credit students will be evaluated on the basis of their overall contribution to discussions as well as on the basis of the preliminary report, the two presentations, and of course the seminar paper. Some LLM and exchange students may take an exam in lieu of writing a seminar paper but must do the two presentations as well. Attendance and participation are absolutely essential. Unexcused absences will result in a reduced grade, an incomplete or failure according to the circumstances. Human Rights Syllabus 2 Fall 2008
Some Key Websites Relating To International Human Rights
The Document Supplement to our coursebook Henry J. Steiner & Philip Alston, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS, 3rd edition (2008), is found online http://www.oxfordtextbooks.co.uk/orc/ihr3e The UN High Commissioner for Human Rights (and UN Human Rights Council) http://www.ohchr.org/english/ The United Nations Headquarters Home Page http://www.un.org/ International Criminal Tribunal for the Former Yugoslavia Home Page http://www.un.org/icty/
The University of Minnesota International Human Rights Library (best, in general, for human rights related documents!) http://www1.umn.edu/humanrts/ Amnesty International Online (Click Library link for County Reports) http://www.amnesty.org/ The Human Rights Watch Home Page http://www.hrw.org/ How to Make a Complaint to the UN Human Rights Treaty Bodies Online (New and useful site) http://www.bayefsky.com/
ORGANIZING YOUR PAPER AROUND A THESIS STATEMENT Each seminar paper must set out and defend a clear and strong thesis involving contested issues of international human rights law. The following website discusses the process of developing and writing a thesis statement. http://www.indiana.edu/~wts/pamphlets/thesis_statement.shtml
CLASS WEBSITE I will establish a website for the seminar within a week or so after the beginning the semester http://www.kentlaw.edu/classes/
Human Rights Syllabus 3 Fall 2008
Weekly Seminar Themes
WEEK 1 INTRODUCTION
Chapter 1. Introduction to Human Rights Issues and Discourse: Several short readings on human rights and natural law will be discussed, including: Course Website: Readings on the Origins of Human Rights Cicero, quotes from The Republic, and On the Laws (52 B.C.) John Locke, Second Treatise on Government (excerpts) (1690) The Declaration of Independence (1776) The Declaration of the Rights of Man and Citizen (1789). The Universal Declaration of Human Rights Time permitting, we may also discuss the following readings from the assigned textbook: Readings: Text. pp. 1-57. WEEK 2 DEVELOPMENT OF THE MODERN INTERNATIONAL LAW OF HUMAN RIGHTS
Background on international law The Antelope, 23 U.S. 66 (1825) Art 38 of the Statute of the International Court of Justice Be prepared to discuss: What is the nature of the international legal system? What is positive international law, and how does it develop? Background on the Human Rights Movement in International Law Online Doc. Supp.: Universal Declaration of Human Rights (1948). Course Website: Eleanor Roosevelt: Address to the United Nations General Assembly on the Adoption of the Universal Declaration of Human Rights (1948) Bartram S. Brown, From State-Centric Int'l Law Towards a Positive Int'l Law of Human Rights, Excerpt from The Protection of Human Rights in Disintegrating States: A New Challenge, 68 CHI-KENT L. REV. 203 (1992). Assigned Readings: Text. pp. 58-148. Prepare to Discuss: Question 2, p. 84.
WEEK 3 CIVIL AND POLITICAL RIGHTS
Chapter 3. Civil and Political Rights Assigned Readings: Text, pp. 152-174 (introduction), pp. 175-224 (CEDAW), and 224- 262 (Torture). Online Doc Supp: International Covenant on Civil and Political Rights Convention on the Elimination of Discrimination Against Women (CEDAW) Convention Against Torture Human Rights Syllabus 4 Fall 2008
WEEK 4 ECONOMIC AND SOCIAL RIGHTS
Chapter 4. Economic and Social Rights: Globalization and the Right to Development. Assigned Readings: Text, pp. 263-320 (Rationale, Concept and Justiciability), 321-358 (India & South Africa), 358-374 (Intl Monitoring of ESC Rights.) Online Doc. Supp. Intl Covenant on Economic, Social and Cultural Rights ). Course Website: President Franklin Roosevelt’s FOUR FREEDOMS SPEECH (January 6, 1941) Jamin B. Raskin , Book review of THE SECOND BILL OF RIGHTS: `FDR'S UNFINISHED REVOLUTION AND WHY WE NEED IT MORE THAN EVER, ` by Cass R. Sunstein Human rights and extreme poverty, Commission on Human Rights resolution 1999/2 Declaration on the Right to Development UN General Assembly Resolution (U.N. Doc. A/41/53 (1986). (Online Doc Supp. ) WEEK 5 CULTURAL CHALLENGES TO THE UNIVERSALITY OF HUMAN RIGHTS
Chapter 6. Rights or Duties as Organizing Concepts Assigned Readings: Text, pp. 475-516. Chapter 7. Conflict in Culture, tradition and Practices: Challenges to Universalism Assigned Readings: Text, pp. 517-539 (Universalism & Cultural relativism), 540-568 Makau wa Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties (excerpts), 35 VA. J. INT'L L. 339 (1995). Articles re Human Rights in Africa Howard W. French, Letter from China: U.S.-China relationship isn't the most vital one, INTERNATIONAL HERALD TRIBUNE (on China’s effect upon African human rights issues), May 3, 2006, at Page 2 Michael Wines, A Highly Charged Rape Trial Tests South Africa's Ideals, THE NEW YORK TIMES, April 10, 2006. Nat Hentoff, Mugabe's shameful apologists, THE WASHINGTON TIMES, August 8, 2005. Moyiga Nduru, South Africa: Lesbians Live In Fear Of Violence, Extreme Prejudice, IPS - INTER PRESS SERVICE, February 23, 2006. The New Times, Can the AU Deliver Africa from Her Woes?, ZIMBABWE STANDARD, January 27, 2006. Tinashe Chimedza, Africa Is Taking Herself Seriously, ZIMBABWE STANDARD, January 22, 2006.
Human Rights Syllabus 5 Fall 2008
WEEK 6 NATIONAL SECURITY, TERRORISM AND LIMITATIONS ON HUMAN RIGHTS
Chapter 5 Assigned Readings: Text, pp. 375-416, 432-456.
WEEK 7 THE UNITED NATIONS SYSTEM FOR THE PROMOTION OF HUMAN RIGHTS
Chapter 9. Intergovernmental Enforcement of Human Rights Norms: The United Nations System Assigned Readings: Text, pp. 735-765 (Res 1503 and 1235 procedures), 765-790 (Thematic special procedures), 791- 843 Establishing the UN Human Rights Council).
WEEK 8 THE ICCPR AND THE HUMAN RIGHTS COMMITTEE
Chapter 10. Treaty Bodies: The ICCPR Human Rights Committee Assigned Readings: Text, pp. 844-925.
Human Rights Committee, General Comment on Reservations to Human Rights Treaties WEEK 9 REGIONAL HUMAN RIGHTS MECHANISMS
Chapter 11. Regional Arrangements: A Laboratory for Globalzation? Assigned Readings: Text, pp. 925-933, 933-964 & 1001-1020 (European system), 1020- 1048 ( Inter-American System), 1062-1083 (African System). Soering v. United Kingdom, European Court of Human Rights (1989) 11 Ehrr 439 William Andrews Case, Inter-American Commission for Human Rights Materials on the African Human Rights System African [Banjul] Charter on Human and Peoples' Rights (excerpts) Dinah Shelton, Analysis of African Commission for Human Rights Decision Regarding Communication 155/96, 96 A.J.I.L. 937 (2002) Khartoum Unsuitable to Elect African Judges, AFRICA NEWS, January 20, 2006. Chidi Anselm Odinkalu, How The Judges Of The African Court Emerged, ACCRA MAIL, January 30, 2006. PanAfrica; AU Court of Justice to Operate Soon, AFRICA NEWS, January 25, 2006. WEEK 10 NON-STATE ACTORS AND HUMAN RIGHTS
Chapter 15. Non-State Actors and Human Rights Assigned Readings: Text, pp. 1385-1433..
Human Rights Syllabus 6 Fall 2008
WEEK 11 HUMAN RIGHTS IN THE DOMESTIC LEGAL ORDER
Chapter 12. Vertical Interpenetration: Intl Human Rights Law within States’ Legal and Political Orders Assigned Readings: Text, pp. 1087-1156. Chapter 13. Horizontal Interpenetration Assigned Readings: Text, pp. 1156-1177. Sei Fujii v. California, 38 Cal. 2d 718 (1952) Handout on The Bricker Amendment Controversy UK Human Rights Act of 1998 Filartiga v. Pena-Irala, 630 F.2d 876 (1980) US Reservations to the ICCPR WEEK 12 THE ENFORCEMENT BY STATES AGAINST VIOLATOR STATES AND HUMANITARIAN INTERVENTION
Chapter 13. Enforcement by States against Violator States Bartram Brown, Barely Borders, 26 HARV. INT'L REV. 52 (2004). Kofi A. Annan, Two concepts of sovereignty, THE ECONOMIST, 18 September 1999 Richard H. Cooper and Juliette Voinov Kohler, The “Responsibility to Protect:” The New Global Moral Compact, © 2006. WEEK 13 MASSIVE HUMAN RIGHTS TRAGEDIES: PROSECUTIONS AND TRUTH COMMISSIONS
Chapter 14. Massive Human Rights Tragedies: Prosecutions and Truth Commissions Assigned Readings: Text, pp. 1243-1291, 1291-1319, 1331-1385. Definition of International Crimes Prosecuted At Nuremberg Excerpts on War Crimes from the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
WEEK 14 Open
Human Rights Syllabus 7 Fall 2008
Essential Elements of each Student Presentation (10-15 minutes): 1. Two page Preliminary Report distributed to the class a week before (for the Topic Presentation only, not for the Theme Presentation) 2. Brief definition of the subject 3. Historical context (where appropriate) 4. Why the subject is important 5. How the subject relates to some of the other important themes and topics in the Seminar 6. Differing views on the subject, if any, and their implications 7. Your personal views on the subject, and why you hold them (i.e. justification and not mere conclusion). 8. Identify 3-5 associated sub-topics for possible discussion by the seminar
Seminar papers must: 1. Be submitted electronically as an e-mail attachment 2. Include the student’ s name on the first page 3. Use footnotes not endnotes 4. Have a table of contents at the beginning which includes all headings in your outline indicating the page number for each of them
Human Rights Syllabus 8 Fall 2008 Prof. Bartram S. Brown Handout on The Bricker Amendment Controversy
Following the Second World War, various treaties were proposed under the aegis of the United Nations (e.g. the Genocide Convention, the Universal Declaration of Human Rights). Conservatives were worried that these treaties could be used to expand the power of the Federal government at the expense of the people and the states. These fears arose largely from two Supreme Court rulings, Missouri v. Holland, 252 U.S. 416 (1920), and United States v. Pink, 315 U.S. 203 (1942). In particular, many of these conservatives feared that human rights treaties might require the US to end de jure racial segregation and discrimination, which were still quite legal here in 1951. (This changed w/ Brown v. Board of Education (1954) and the 1964 Civil Rights Act.) In response to these fears the Bricker Amendment was proposed as an amendment to the US Constitution in the period between 1951-1954. It is unofficially named after Senator John W. Bricker, a conservative Ohio Republican. Section 1 "A provision of a treaty which conflicts with this constitution shall not be of any force or effect." (Reflected fears concerning the implications of Missouri v. Holland (1919)) Section 2 "No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this constitution or any other matter essentially within the domestic jurisdiction of the United States." (Reflected fear that international organizations might become involved in the US over issues such as civil rights/human rights) Section 3 "A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress." (would make all treaties non-self executing in the US) Section 4 "All executive and other agreements between the President and any international organization, foreign power, or official thereof shall be made only in the manner and to the extent to be prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this article." **************************************** A full 63 Senators originally endorsed the amendment, so the Eisenhower administration had to negotiate carefully to preserve its constitutional prerogatives. The Bricker Amendment was defeated only after John Foster Dulles promised that the Eisenhower Administration did not intend for the US to become a party to any Human Rights treaties The vote was 55 for and 40 against on February 25, 1954. An amended weaker version proposed by Senator George of Georgia (consisting of the first two sections only, and originally supported by Eisenhower but later rejected by him) missed Senate approval by a single vote on February 26, 1954. Page 1 630 F.2d 876, *; 1980 U.S. App. LEXIS 16111, **
DOLLY M.E. FILARTIGA and JOEL FILARTIGA, Plaintiffs-Appellants, v. AMERICO NORBERTO PENA-IRALA, Defendant-Appellee
No. 191, Docket 79-6090
UNITED STATES COURT OF APPEALS, SECOND CIRCUIT
630 F.2d 876; 1980 U.S. App. LEXIS 16111
October 16, 1979, Argued
June 30, 1980, Decided
Some especially important passages are marked by bold emphasis not appearing in the original and added by Prof. B.S. Brown
CASE SUMMARY an alleged torturer was found and served with process by an alien within the borders of the United States. PROCEDURAL POSTURE: Appellants challenged a judgment of the United States District Court for the Eastern District of New York, dismissing appellants' OPINIONBY: complaint for want of subject matter jurisdiction KAUFMAN pursuant to Fed. R. Civ. P. 12(c). OPINION: OVERVIEW: Appellants were citizens of Paraguay. They filed an action in the United States against [*877] appellee, also a citizen of Paraguay, for wrongfully Upon ratification of the Constitution, the thirteen causing the death of a family member. Appellants former colonies were fused into a single nation, one alleged that appellee tortured and killed the man in which, in its relations with foreign states, is bound both retaliation for his father's political actions and beliefs. to observe and construe the accepted norms of The district court dismissed the action for want of subject international law, formerly known as the law of nations. matter jurisdiction. Appellants challenged the district Under the Articles of Confederation, the several states court's decision. Official torture has been prohibited by had interpreted and applied this body of doctrine as a the law of nations. The prohibition was clear and [*878] part of their common law, but with the founding unambiguous and admitted no distinction between of the "more perfect Union" of 1789, the law of nations treatment of aliens and citizens. The court determined became preeminently a federal concern. that deliberate torture perpetuated under color of official authority violated universally accepted norms of the [HN1] Implementing the constitutional mandate for international law of human rights, regardless of the national control over foreign relations, the First Congress nationality of the parties. Whenever an alleged torturer established original district court jurisdiction over [**3] was found and served with process by an alien within the "all causes where an alien sues for a tort only borders of the United States, federal jurisdiction was (committed) in violation of the law of nations." Judiciary appropriate. The court determined that its jurisdiction Act of 1789, ch. 20, § 9(b), 1 Stat. 73, 77 (1789), was appropriate. The court reversed the decision of the codified at 28 U.S.C. § 1350. Construing this rarely- district court, which dismissed the appellants' complaint invoked provision, we hold that deliberate torture for want of subject matter jurisdiction. perpetrated under color of official authority violates universally accepted norms of the international law of OUTCOME: The court reversed the district court's human rights, regardless of the nationality of the parties. dismissal of appellants' complaint for want of subject Thus, whenever an alleged torturer is found and served matter jurisdiction. The court determined that jurisdiction with process by an alien within our borders, § 1350 was appropriate and the matter could be heard because provides federal jurisdiction. Accordingly, we reverse Page 2 630 F.2d 876, *; 1980 U.S. App. LEXIS 16111, **
the judgment of the district court dismissing the complaint for want of federal jurisdiction. n1. Duarte is the son of Pena's companion, I Juana Bautista Fernandez Villalba, who later accompanied Pena to the United States. The appellants, plaintiffs below, are citizens of the Republic of Paraguay. Dr. Joel Filartiga, a physician, describes himself as a longstanding opponent of the In July of 1978, Pena sold [**6] his house in government of President Alfredo Stroessner, which has Paraguay and entered the United States under a visitor's held power in Paraguay since 1954. His daughter, Dolly visa. He was accompanied by Juana Bautista Fernandez Filartiga, arrived in the United States in 1978 under a Villalba, who had lived with him in Paraguay. The visitor's visa, and has since applied for permanent couple remained in the United States beyond the term of political asylum. The Filartigas brought this action in the their visas, and were living in [*879] Brooklyn, New Eastern District of New York against Americo Norberto York, when Dolly Filartiga, who was then living in Pena-Irala [**4] (Pena), also a citizen of Paraguay, for Washington, D. C., learned of their presence. Acting on wrongfully causing the death of Dr. Filartiga's seventeen- information provided by Dolly the Immigration and year old son, Joelito. Because the district court Naturalization Service arrested Pena and his companion, dismissed the action for want of subject matter both of whom were subsequently ordered deported on jurisdiction, we must accept as true the allegations April 5, 1979 following a hearing. They had then contained in the Filartigas' complaint and affidavits for resided in the United States for more than nine months. purposes of this appeal. Almost immediately, Dolly caused Pena to be served The appellants contend that on March 29, 1976, with a summons and civil complaint at the Brooklyn Joelito Filartiga was kidnapped and tortured to death Navy Yard, where he was being held pending by Pena, who was then Inspector General of Police in deportation. The complaint alleged that Pena had Asuncion, Paraguay. Later that day, the police wrongfully caused Joelito's death by torture and brought Dolly Filartiga to Pena's home where she was sought compensatory and punitive damages of $ confronted with the body of her brother, which 10,000,000. The Filartigas also sought to enjoin evidenced marks of severe torture. As she fled, Pena's deportation to ensure his availability for horrified, from the house, Pena followed after her testimony at trial. n2 The cause of action is stated as shouting, "Here you have what you have been looking arising under "wrongful death statutes; the U. N. for for so long and what you deserve. Now shut up." Charter; the Universal Declaration on Human [**7] The Filartigas claim that Joelito was tortured and Rights; the U. N. Declaration Against Torture; the killed in retaliation for his father's political activities American Declaration of the Rights and Duties of and beliefs. Man; and other pertinent declarations, documents Shortly thereafter, Dr. Filartiga commenced a and practices constituting the customary criminal action in the Paraguayan courts against Pena international law of human rights and the law of and the police for the murder of his son. As a result, Dr. nations," as well as 28 U.S.C. § 1350, Article II, sec. 2 Filartiga's attorney was arrested and brought to police and the Supremacy Clause of the U. S. Constitution. headquarters where, [**5] shackled to a wall, Pena Jurisdiction is claimed under the general federal threatened him with death. This attorney, it is alleged, question provision, 28 U.S.C. § 1331 and, principally has since been disbarred without just cause. on this appeal, under the Alien Tort Statute, 28 U.S.C. § 1350. n3 During the course of the Paraguayan criminal proceeding, which is apparently still pending after four years, another man, Hugo Duarte, confessed to the n2. Several officials of the Immigration and murder. Duarte, who was a member of the Pena Naturalization Service were named as defendants household, n1 claimed that he had discovered his wife in connection with this portion of the action. and Joelito in flagrante delicto, and that the crime was Because Pena has now been deported, the federal one of passion. The Filartigas have submitted a defendants are no longer parties to this suit, and photograph of Joelito's corpse showing injuries they the claims against them are not before us on this believe refute this claim. Dolly Filartiga, moreover, has appeal. stated that she will offer evidence of three independent autopsies demonstrating that her brother's death "was the n3. Jurisdiction was also invoked pursuant to result of professional methods of torture." Despite his 28 U.S.C. § § 1651, 2201 & 2202, presumably in confession, Duarte, we are told, has never been convicted connection with appellants' attempt to delay or sentenced in connection with the crime. Pena's return to Paraguay. Page 3 630 F.2d 876, *; 1980 U.S. App. LEXIS 16111, **
accuses them both of responsibility for his son's death. He may commence such a civil action Judge Nickerson stayed the order [**8] of either simultaneously with the commencement of deportation, and Pena immediately moved to dismiss the the criminal proceeding, during the time that the complaint on the grounds that subject matter jurisdiction criminal proceeding lasts, or within a year after was absent and for forum non conveniens. On the the criminal proceeding has terminated. In either jurisdictional issue, there has been no suggestion that event, however, the civil action may not proceed Pena claims diplomatic immunity from suit. The to judgment until the criminal proceeding has Filartigas submitted the affidavits of a number of been disposed of. If the defendant is found not distinguished international legal scholars, who stated guilty because he was not the author of the case unanimously that the law of nations prohibits under investigation in the criminal proceeding, no absolutely the use of torture as alleged in the civil action for indemnity for damages based complaint. n4 Pena, in support of his motion to dismiss upon the same deed investigated in the criminal on the ground of forum non conveniens, submitted the proceeding, can prosper or succeed. affidavit of his Paraguayan counsel, Jose Emilio Gorostiaga, who averred that Paraguayan law provides a full and adequate civil remedy for the wrong alleged. n5 Judge Nickerson heard argument on the motion to Dr. Filartiga has not [*880] commenced such an action, dismiss on May 14, 1979, and on May 15 dismissed the however, believing that further resort to the courts of his complaint on jurisdictional [**10] grounds. n6 The own country would be futile. district judge recognized the strength of appellants' argument that official torture violates an emerging norm of customary international law. Nonetheless, he felt n4. Richard Falk, the Albert G. Milbank constrained by dicta contained in two recent opinions of Professor of International Law and Practice at this Court, Dreyfus v. von Finck, 534 F.2d 24 (2d Cir.), Princeton University, and a former Vice President cert. denied, 429 U.S. 835, 97 S. Ct. 102, 50 L. Ed. 2d of the American Society of International Law, 101 (1976); IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. avers that, in his judgment, "it is now beyond 1975), to construe narrowly "the law of nations," as reasonable doubt that torture of a person held in employed in § 1350, as excluding that law which detention that results in severe harm or death is a governs a state's treatment of its own citizens. violation of the law of nations." Thomas Franck, professor of international law at New York University and Director of the New York n6. The court below accordingly did not University Center for International Studies offers consider the motion to dismiss on forum non his opinion that torture has now been rejected by conveniens grounds, which is not before us on virtually all nations, although it was once this appeal. commonly used to extract confessions. Richard Lillich, the Howard W. Smith Professor of Law at the University of Virginia School of Law, concludes, after a lengthy review of the The district court continued the stay of deportation authorities, that officially perpetrated torture is "a for forty-eight hours while appellants applied for further violation of international law (formerly called the stays. These applications were denied by a panel of this law of nations)." Finally, Myres MacDougal, a Court on May 22, 1979, and by the Supreme Court two former Sterling Professor of Law at the Yale Law days later. Shortly thereafter, Pena and his companion School, and a past President of the American returned to Paraguay. Society of International Law, states that torture is II an offense against the law of nations, and that "it has long been recognized that such offenses Appellants rest their [**11] principal argument in vitally affect relations between states." [**9] support of federal jurisdiction upon the Alien Tort Statute, [HN2] 28 U.S.C. § 1350, which provides: n5. The Gorostiaga affidavit states that "The district courts shall have original jurisdiction of a father whose son has been wrongfully any civil action by an alien for a tort only, committed killed may in addition to commencing a criminal in violation of the law of nations or a treaty of the proceeding bring a civil action for damages United States." Since appellants do not contend that against the person responsible. Accordingly, Mr. their action arises directly under a treaty of the United Filartiga has the right to commence a civil action States, n7 a threshold question on the jurisdictional against Mr. Duarte and Mr. Pena-Irala since he issue is whether the conduct alleged violates the law of Page 4 630 F.2d 876, *; 1980 U.S. App. LEXIS 16111, **
nations. In light of the universal condemnation of Id. at 700, 20 S. Ct. at 299. Modern international torture in numerous international agreements, and sources confirm the propriety of this approach. n8 the renunciation of torture as an instrument of official policy by virtually all of the nations of the n8. [HN3] The Statute of the International world (in principle if not in practice), we find that an Court of Justice, Arts. 38 & 59, June 26, 1945, 59 act of torture committed by a state official against one Stat. 1055, 1060 (1945) provides: held in detention violates established norms of the international law of human rights, and hence the law Art. 38 of nations. 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: n7. Appellants "associate themselves with" the argument of some of the amici curiae that (a) international conventions, whether their claim arises directly under a treaty of the general or particular, establishing rules expressly United States, Brief for Appellants at 23 n.*, but recognized by the contesting states; nonetheless primarily rely upon treaties and other international instruments as evidence of an (b) international custom, as evidence of a emerging norm of customary international law, general practice accepted as law; rather then independent sources of law. (c) the general principles of law recognized by civilized nations; [**12] (d) subject to the provisions of Article 59, The Supreme Court has enumerated the appropriate judicial decisions and the teachings of the most sources of international law. The law of nations "may highly qualified publicists of the various nations, as subsidiary means for the determination of the be ascertained by consulting the works of jurists, rules of law. writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions 2. This provision shall not prejudice the recognizing and enforcing that law." United States v. power of the Court to decide a case ex aequo et Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L. Ed. 57 bono, if the parties agree thereto. (1820); Lopes v. Reederei Richard Schroder, 225 F. Supp. 292, 295 (E.D.Pa.1963). In Smith, a statute Art. 59 proscribing "the crime of piracy (on the high seas) as The decision of the Court has no binding defined by the law of nations," 3 Stat. 510(a) (1819), was force except between the parties and in respect of held sufficiently determinate in meaning to afford the that particular case. basis for a death sentence. The Smith Court discovered among the works of Lord Bacon, Grotius, Bochard and other commentators a genuine consensus that rendered [**14] the crime "sufficiently and constitutionally defined." Habana is particularly instructive for present Smith, supra, 18 U.S. (5 Wheat.) at 162, 5 L. Ed. 57. purposes, for it held that the traditional prohibition The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, against seizure of an enemy's coastal fishing vessels 44 L. Ed. 320 (1900), reaffirmed that during wartime, a standard that began as one of comity only, had ripened over the preceding century into "a where there is no treaty, and no controlling settled rule of international law" by "the general assent of executive or legislative act or judicial decision, resort civilized nations." Id. at 694, 20 S. Ct. at 297; accord, id. must be had to the customs and usages of civilized at 686, 20 S. Ct. at 297. Thus it is clear that courts must nations; and, as evidence of these, to the works [**13] interpret international law not as it was in 1789, but as it of jurists and commentators, who by years of labor, has evolved and exists among the nations of the world research and experience, have made themselves today. See Ware v. Hylton, 3 U.S. (3 Dall.) 199, 1 L. Ed. peculiarly well acquainted with the subjects of which 568 (1796) (distinguishing between "ancient" and they [*881] treat. Such works are resorted to by "modern" law of nations). judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy The requirement that a rule command the "general evidence of what the law really is. assent of civilized nations" to become binding upon them all is a stringent one. Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules Page 5 630 F.2d 876, *; 1980 U.S. App. LEXIS 16111, **
upon others, in the name of applying international law. precepts embodied in this Universal Declaration Thus, in Banco Nacional de Cuba v. Sabbatino, 376 U.S. "constitute basic principles of international law." 398, 84 S. Ct. 923, 11 L. Ed. 2d 804 (1964), the Court G.A.Res. 2625 (XXV) (Oct. 24, 1970). declined to pass on the validity of the Cuban government's expropriation of a foreign-owned corporation's assets, [**15] noting the sharply n9. We observe that this Court has conflicting views on the issue propounded by the capital- previously utilized the U.N. Charter and the exporting, capital-importing, socialist and capitalist Charter of the Organization of American States, nations. Id. at 428-30, 84 S. Ct. at 940-41. another non-self-executing agreement, as evidence of binding principles of international The case at bar presents us with a situation law. United States v. Toscanino, 500 F.2d 267 diametrically opposed to the conflicted state of law that (2d Cir. 1974). In that case, our government's confronted the Sabbatino Court. Indeed, to paraphrase duty under international law to refrain from that Court's statement, id. at 428, 84 S. Ct. at 940, there kidnapping a criminal defendant from within the are few, if any, issues in international law today on borders of another nation, where formal which opinion seems to be so united as the limitations extradition procedures existed, infringed the on a state's power to torture persons held in its personal rights of the defendant, whose custody. international law claims were thereupon The United Nations Charter (a treaty of the United remanded for a hearing in the district court. States, see 59 Stat. 1033 (1945)) makes it clear that in [**17] this modern age a state's treatment of its own citizens n10. Eighteen nations have incorporated the is a matter of international concern. It provides: Universal Declaration into their own With a view to the creation of conditions of stability constitutions. 48 Revue Internationale de Droit and well-being which are necessary for peaceful and Penal Nos. 3 & 4, at 211 (1977). friendly relations among nations ... the United Nations
shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all Particularly relevant is the Declaration on the without distinctions as to race, sex, language or Protection of All Persons from Being Subjected to religion. Torture, General Assembly Resolution 3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N.Doc. A/1034 (1975),
which is set out in full in the margin. n11 The Id. Art. 55. And further: Declaration [*883] expressly prohibits any state from All members pledge themselves to take joint permitting the dastardly and totally inhuman act of [**16] and separate action in cooperation with the torture. Torture, in turn, is defined as "any act by which Organization for the achievement of the purposes set severe pain and suffering, whether physical or mental, is forth in Article 55. intentionally inflicted by or at the instigation of a public official on a person for such purposes as ... intimidating
him or other persons." The Declaration goes on to Id. Art. 56. provide that "(w)here it is proved that an act of torture or While this broad mandate has been held not to be other cruel, inhuman or degrading treatment or wholly self-executing, Hitai v. Immigration and punishment has been committed by or at the instigation Naturalization Service, 343 F.2d 466, 468 (2d Cir. of a public official, the victim shall be afforded redress 1965), this observation [*882] alone does not end our and compensation, in accordance with national law." inquiry. n9 For although there is no universal This Declaration, like the [**18] Declaration of agreement as to the precise extent of the "human Human Rights before it, was adopted without dissent rights and fundamental freedoms" guaranteed to all by the General Assembly. Nayar, "Human Rights: The by the Charter, there is at present no dissent from the United Nations and United States Foreign Policy," 19 view that the guaranties include, at a bare minimum, Harv.Int'l L.J. 813, 816 n.18 (1978). the right to be free from torture. This prohibition has Article 1 become part of customary international law, as evidenced and defined by the Universal Declaration of 1. For the purpose of this Declaration, torture Human Rights, General Assembly Resolution 217 means any act by which severe pain or suffering, (III)(A) (Dec. 10, 1948) which states, in the plainest of whether physical or mental, is intentionally terms, "[HN4] no one shall be subjected to torture." inflicted by or at the instigation of a public n10 The General Assembly has declared that the Charter official on a person for such purposes as Page 6 630 F.2d 876, *; 1980 U.S. App. LEXIS 16111, ** obtaining from him or a third person information well as arrangements for the custody and or confession, punishing him for an act he has treatment of persons deprived of their liberty in committed or is suspected of having committed, its territory, with a view to preventing any cases or intimidating him or other persons. It does not of torture or other cruel, inhuman or degrading include pain or suffering arising only from, treatment or punishment. inherent or incidental to lawful sanctions to the Article 7 extent consistent with the Standard Minimum Rules for the Treatment of Prisoners. Each state shall ensure that all acts of torture as defined in Article I are offenses under its 2. Torture constitutes an aggravated and criminal law. The same shall apply in regard to deliberate form of cruel, inhuman or degrading acts which constitute participation in, complicity treatment or punishment. in, incitement to or an attempt to commit torture. Article 2 Article 8 Any act of torture or other cruel, inhuman or Any person who alleges he has been degrading treatment or punishment is an offense subjected to torture or other cruel, inhuman or to human dignity and shall be condemned as a degrading treatment or punishment by or at the denial of the purposes of the Charter of the instigation of a public official shall have the right United Nations and as a violation of human rights to complain to, and to have his case impartially and fundamental freedoms proclaimed in the examined by, the competent authorities of the Universal Declaration of Human Rights. state concerned. Article 3 Article 9 No state may permit or tolerate torture or Wherever there is reasonable ground to other cruel, inhuman or degrading treatment or believe that an act of torture as defined in Article punishment. Exceptional circumstances such as a I has been committed, the competent authorities state of war or a threat of war, internal political of the state concerned shall promptly proceed to instability or any other public emergency may not an impartial investigation even if there has been be invoked as a justification of torture or other no formal complaint. cruel, inhuman or degrading treatment or punishment. Article 10 Article 4 If an investigation under Article 8 or Article 9 establishes that an act of torture as defined in Each state shall, in accordance with the Article I appears to have been committed, provisions of this Declaration, take effective criminal proceedings shall be instituted against measures to prevent torture and other cruel, the alleged offender or offenders in accordance inhuman or degrading treatment or punishment with national law. If an allegation of other forms from being practiced within its jurisdiction. of cruel, inhuman or degrading treatment or Article 5 punishment is considered to be well founded, the alleged offender or offenders shall be subject to The training of law enforcement personnel criminal, disciplinary or other appropriate and of other public officials who may be proceedings. responsible for persons deprived of their liberty shall ensure that full account is taken of the Article 11 prohibition against torture and other cruel, Where it is proved that an act of torture or inhuman or degrading treatment or punishment. other cruel, inhuman or degrading treatment or This prohibition shall also, where appropriate, be punishment has been committed by or at the included in such general rules or instructions as instigation of a public official, the victim shall be are issued in regard to the duties and functions of afforded redress and compensation, in accordance anyone who may be involved in the custody or with national law. treatment of such persons. Article 12 Article 6 Any statement which is established to have Each state shall keep under systematic been made as a result of torture or other cruel, review interrogation methods and practices as inhuman or degrading treatment or punishment Page 7 630 F.2d 876, *; 1980 U.S. App. LEXIS 16111, **
may not be invoked as evidence against the Rights and Fundamental Freedoms, Art. 3, Council of person concerned or against any other person in Europe, European Treaty Series No. 5 (1968), 213 any proceeding. U.N.T.S. 211 (semble ). The substance of these international agreements is reflected in modern
municipal i. e. national law as well. Although torture [**19] was once a routine concomitant of criminal These U.N. declarations are significant because interrogations in many nations, during the modern they specify with great precision the obligations of and hopefully more enlightened era it has been member nations under the Charter. Since their universally renounced. According to one survey, adoption, "(m)embers can no longer contend that they do torture is prohibited, expressly or implicitly, by the not know what human rights they promised in the constitutions of over fifty-five nations, n12 including Charter to promote." Sohn, "A Short History of United both the United States n13 and Paraguay. n14 Our State Nations Documents on Human Rights," in The United Department reports a general recognition of this Nations and Human Rights, 18th Report of the principle: Commission (Commission to Study the Organization of
Peace ed. 1968). Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and n12. 48 Revue Internationale de Droit Penal solemn instrument, suitable for rare occasions when Nos. 3 & 4 at 208 (1977). principles of great and lasting importance are being n13. U.S.Const., Amend. VIII ("cruel and enunciated." 34 U.N. ESCOR, Supp. (No. 8) 15, U.N. unusual punishments" prohibited); id. Amend. Doc. E/cn.4/1/610 (1962) (memorandum of Office of XIV. Legal Affairs, U.N. Secretariat). Accordingly, it has been observed that the Universal Declaration of n14. Constitution of Paraguay, Art. 45 Human Rights "no longer fits into the dichotomy of (prohibiting torture and other cruel treatment). "binding treaty' against "non-binding pronouncement,' but is rather an authoritative statement of the international community." E. There now exists an international consensus [**22] Schwelb, Human Rights and the International that recognizes basic human rights and obligations owed Community 70 (1964). Thus, a Declaration creates an by all governments to their citizens .... There is no expectation of adherence, and "insofar as the expectation doubt that these rights are often violated; but [**20] is gradually justified by State practice, a virtually all governments acknowledge their validity. declaration may by custom become recognized as laying down rules binding upon the States." 34 U.N. ESCOR, supra. Indeed, several commentators have concluded that Department of State, Country Reports on Human Rights the Universal Declaration has become, in toto, a part of for 1979, published as Joint Comm. Print, House Comm. binding, customary international law. Nayar, supra, at on Foreign Affairs, and Senate Comm. on Foreign 816-17; Waldlock, "Human Rights in Contemporary Relations, 96th Cong. 2d Sess. (Feb. 4, 1980), International Law and the Significance of the European Introduction at 1. We have been directed to no Convention," Int'l & Comp. L.Q., Supp. Publ. No. 11 at assertion by any contemporary state of a right to 15 (1965). torture its own or another nation's citizens. Indeed, United States diplomatic contacts confirm the universal Turning to the act of torture, we have little abhorrence with which torture is viewed: difficulty discerning its universal renunciation in the modern usage and practice of nations. Smith, supra, In exchanges between United States embassies and 18 U.S. (5 Wheat.) at 160-61, 5 L. Ed. 57. The all foreign states with which the United States maintains international consensus surrounding torture has found relations, it has been the Department of State's general expression in numerous international treaties and experience that no government has asserted a right to accords. E. g., American Convention on Human Rights, torture its own nationals. Where reports of torture elicit Art. 5, OAS [*884] Treaty Series No. 36 at 1, OAS Off. some credence, a state usually responds by denial or, less Rec. OEA/Ser 4 v/II 23, doc. 21, rev. 2 (English ed., frequently, by asserting that the conduct was 1975) ("No one shall be subjected to torture or to cruel, unauthorized or constituted rough treatment short of inhuman or degrading punishment or treatment"); torture. n15 International Covenant on Civil and Political Rights, 15. The fact that the prohibition of torture U.N. General Assembly Res. 2200 (XXI)A, U.N. Doc. is often honored in the breach does not A/6316 (Dec. 16, 1966) (identical [**21] language); diminish its binding effect as a norm of European Convention for the Protection of Human international law. As one commentator has put Page 8 630 F.2d 876, *; 1980 U.S. App. LEXIS 16111, **
it, "The best evidence for the existence of elaboration, we hold that the right to be free from international law is that every actual State torture is now among them. We therefore turn to the recognizes that it does exist and that it is itself question whether the other requirements for jurisdiction under an obligation to observe it. States often are met. violate international law, just as individuals . . . often violate municipal law; but no more than individuals do States defend their violations by In the twentieth century the international community claiming that they are above the law." J. has come to recognize the common danger posed by the Brierly, The Outlook for International Law 4-5 flagrant disregard of basic human rights and particularly (Oxford 1944). the right to be free of torture. Spurred first by the Great War, and then the Second, civilized nations have banded
together to prescribe acceptable norms of international [**23] behavior. From the ashes of the Second World War Memorandum of the United States as Amicus Curiae arose the United Nations Organization, amid hopes that at 16 n.34. an era of peace and cooperation had at last begun. Though many of these aspirations have remained elusive Having examined the sources from which customary goals, that circumstance cannot diminish the true international law is derived the usage of nations, judicial progress that [**42] has been made. In the modern age, opinions and the works of jurists n16 we conclude that humanitarian and practical considerations have combined [HN5] official torture is now prohibited by the law of to lead the nations of the world to recognize that respect nations. The prohibition is clear and unambiguous, for fundamental human rights is in their individual and and admits of no distinction between treatment of collective interest. Among the rights universally aliens and citizens. Accordingly, we must conclude that proclaimed by all nations, as we have noted, is the right the dictum in Dreyfus v. von Finck, supra, 534 F.2d at to be free of physical torture. Indeed, for purposes of 31, to the effect that "violations of international law do civil liability, the torturer has become like the pirate not occur when the aggrieved parties are nationals of the and slave trader before him hostis humani generis, an acting state," is clearly out of tune with the current usage enemy of all mankind. Our holding today, giving effect and practice of international law. The treaties and to a jurisdictional provision enacted by our First accords cited above, as well as the express foreign Congress, is a small but important step in the fulfillment policy [*885] of our own government, n17 all make it of the ageless dream to free all people from brutal clear that international law confers fundamental violence. rights upon all people vis-a-vis their own governments. While the ultimate scope of those rights will be a subject for continuing refinement and
Edits to this document © Bartram S. Brown 2004
SEI FUJII, Appellant, v. THE STATE OF CALIFORNIA, Respondent
L. A. No. 21149
Supreme Court of California
38 Cal. 2d 718; 242 P.2d 617; 1952 Cal. LEXIS 221
April 17, 1952
OVERVIEW: The alien resident, an alien Japanese who was ineligible to citizenship under the naturalization laws, challenged a judgment that certain real property purchased by ham had escheated to the State. He contended that the Alien Land Law had been invalidated by the U.N. Charter and that it violated the Fourteenth Amendment. The court reversed the lower court's judgment. The court held first that the U.N. Charter did not provide relief for the alien resident because it was not a self-executing treaty so as to supersede inconsistent state legislation as provided in U.S. Const. art VI. However, the court determined that the Alien Land Law violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The court held that the statutory classification of aliens on the basis of eligibility to citizenship was suspect because it in fact it classified on the basis of race or nationality. Applying a "most rigid scrutiny" standard of review, the court found that the legislation was not reasonably related to any legitimate governmental interest.
OUTCOME: The court reversed the judgment declaring that the property escheated to the State.
OPINIONBY: GIBSON
OPINION:
[*720] [**619] Plaintiff, an alien Japanese who is ineligible to citizenship under our naturalization laws, appeals from a judgment declaring that certain land purchased by him in 1948 had escheated to the state. There is no treaty between this country and Japan which confers upon plaintiff the right to own land, and the sole question [***2] presented on this appeal is the validity of the California Alien Land Law. n1
n1 The pertinent portions of the alien land law (1 Deering's Gen. Laws, Act 261), as amended in 1945, are as follows: [HN1] "§ 1. All aliens eligible to citizenship under the laws of the United States may acquire, possess, enjoy, use, cultivate, occupy, transfer, transmit and inherit real property, or any interest therein, in this state, and have in whole or in part the beneficial use thereof, in the same manner and to the same extent as citizens of the United States, except as otherwise provided by the laws of this state. [HN2] "§ 2. All aliens other than those mentioned in section one of this act may acquire, possess, enjoy, use, cultivate, occupy and transfer real property, or any interest therein, in this state, and have in whole or in part the beneficial use thereof, in the manner and to the extent, and for the purposes prescribed by any treaty now existing between the government of the United States and the nation or country of which such alien is a citizen or subject, and not otherwise. ... [HN3] "§ 7. Any real property hereafter acquired in fee in violation of the provisions of this act by any alien mentioned in Section 2 of this act, ... shall escheat as of the date of such acquiring, to, and become and remain the property of the state of California. ..."
[***3] United Nations Charter
It is first contended that the land law has been invalidated and superseded by the provisions of the United Nations Charter pledging the member nations to promote the observance of human rights and fundamental freedoms without distinction as to race. Plaintiff relies on statements in the preamble and in articles 1, 55 and 56 of the charter. n2
n2 [HN4] The preamble recites that "We the peoples of the United Nations determined ... to reaffirm faith in fundamental human rights ... and for these ends ... to employ international machinery for the promotion of the economic and social advancement of all peoples; have resolved to combine our efforts to accomplish these aims." Article 1 states that "The Purposes of the United Nations are: ... 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion ..." Articles 55 and 56 appear in chapter IX, entitled "International Economic and Social Cooperation." [HN5] Article 55 provides: "With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." Article 56 provides: "All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55."
[***4] [*721] It is not disputed that the charter is a treaty, and our federal Constitution provides that treaties made under the authority of the United States are part the supreme law of the land and that the judges in every state are bound thereby. (U.S. Const., art. VI) A treaty, however, does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. In the words of Chief Justice Marshall: A treaty is "to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract -- when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the Legislature must execute the contract, before it can become a rule for the court." ( Foster v. Neilson (1829), 2 Pet. (U.S.) 253, 314 [7 L.Ed. 415].) n3
n3 In Foster v. Neilson, certain treaty provisions were held not to be self-executing on the basis of construction of the English version of the document. Subsequently, upon consideration of the Spanish version, the provisions in question were held to be self-executing. ( United States v. Percheman, 7 Pet. (U.S.) 51 [8 L.Ed. 604].) Chief Justice Marshall's language in the Foster case, however, has been quoted with approval in later cases. ( United States v. Rauscher, 119 U.S. 407, 417-418 [7 S.Ct. 234, 239-240, 30 L.Ed. 425]; Valentine v. United States, 299 U.S. 5, 10 [57 S.Ct. 100, 103, 81 L.Ed. 5].)
2
[***5] [HN7] In determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse may be had to the circumstances surrounding its execution. (See Foster v. Neilson, 2 Pet. (U.S.) 253, 310-316 [7 L.Ed. 415]; United States v. Percheman, [*722] 7 Pet. (U.S.) 51, 58-59 [8 L.Ed. 604]; Jones v. Meehan, 175 U.S. 1, 10-23 [20 S.Ct. 1, 5-10, 44 L.Ed. 49]; Chew Heong v. United States, 112 U.S. 536, 539-543 [5 S.Ct. 255, 256-258, 28 L.Ed. 770]; Cook v. United States, 288 U.S. 102, 119 [53 S.Ct. 305, 311, 77 L.Ed. 641]; cf. Nielsen v. Johnson, 279 U.S. 47, 52 [49 S.Ct. 223, 224, 73 L.Ed. 607].) In order for a treaty provision to be operative without the aid of implementing legislation and to have the force and effect of a statute, it must appear that the framers of the treaty intended to prescribe a rule that, standing alone, would be enforceable in the courts. (See Head Money Cases [Edye v. Robertson], 112 U.S. 580, 598 [5 S.Ct. 247, 254, 28 L.Ed. 798]; Whitney v. Robertson, 124 U.S. 190, 194 [8 [***6] S.Ct. 456, 458, 31 L.Ed. 386]; Cook v. United States, 288 U.S. 102, 118-119 [53 S.Ct. 305, 311, 77 L.Ed. 641]; Valentine v. United States, 299 U.S. 5, 10 [57 S.Ct. 100, 103, 81 L.Ed. 5]; Bacardi Corp. v. Domenech, 311 U.S. 150, 161 [61 S.Ct. 219, 225, 85 L.Ed. 98].) It is clear that the provisions of the preamble and of article 1 of the Charter which are claimed to be in conflict with the alien land law are not self-executing. They state general purposes and objectives of the United Nations Organization and do not purport to impose legal obligations on the individual member nations or to [**621] create rights in private persons. It is equally clear that none of the other provisions relied on by plaintiff is self-executing. Article 55 declares that the United Nations "shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion," and in article 56, the member nations "pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." Although the member nations have obligated themselves to cooperate with the international organization in promoting respect for, and observance of, human rights, it is plain that it was contemplated that future legislative action by the several nations would be required to accomplish the declared objectives, and there is nothing to indicate that these provisions were intended to become rules of law for the courts of this country upon the ratification of the charter. The language used in articles 55 and 56 is not the type customarily employed in treaties which have been held to be self-executing and to create rights and duties in individuals. For example, the treaty involved in Clark v. Allen, 331 U.S. 503, 507-508 [67 S.Ct. 1431, 1434, 91 L.Ed. 1633, 170 A.L.R. 953], relating to the rights of a national of one country to inherit real property located in another country, specifically provided that "such national shall be allowed a term of three years in which to sell the property ... and withdraw the proceeds ..." free from any discriminatory taxation. (See, also, Hauenstein v. Lynham, 100 U.S. 483, 488-490 [25 L.Ed. 628].) In Nielsen v. Johnson, 279 U.S. 47, 50 [49 [***8] S.Ct. 223, 73 L.Ed. 607], the provision treated as being self-executing was equally definite. There each of the signatory parties agreed that "no higher or other duties, charges, or taxes of any kind, shall be levied" by one country on removal of property therefrom by citizens of the other country "than are or shall be payable in each State, upon the same, when removed by a citizen or subject of such state respectively." In other instances [HN8] treaty provisions were enforced without implementing legislation where they prescribed in detail the rules governing rights and obligations of individuals or specifically provided that citizens of one nation shall have the same rights while in the other country as are enjoyed by that country's own citizens. (Bacardi Corp. v. Domenech, n4 311 U.S. 150, 158-159 [61 S.Ct. 219, 224, 85 L.Ed. 98]; Asakura v. Seattle, 265 U.S. 332, 340 [44 S.Ct. 515, 516, 68 L.Ed. 1041]; see Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 273-274 [29 S.Ct. 424, 425-426, 53 L.Ed. 792]; Chew Heong v. United States, 112 U.S. 536, 541-542 [5 S.Ct. 255, 257, 28 L.Ed. 770].)
n4 It should be noted, however, that the treaty involved in the Bacardi case also contained a specific provision, not discussed by the court, that its terms "shall have the force of law in those States in which international treaties possess that character, as soon as they are ratified by their constitutional organs." (311 U.S. 150, 159 [61 S.Ct. 219, 224, 85 L.Ed. 98].)
3
[***9] It is significant to note that when the framers of the charter intended to make certain provisions effective without the aid of implementing legislation they employed language which is clear and definite and manifests that intention. For example, article 104 provides: "The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes." Article 105 provides: "1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2. Representatives of the [*724] Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization." In Curran v. City of New York, 77 N.Y.S.2d 206, 212, these articles were treated as being self-executory. (See, also, Balfour, Guthrie & Co. v. United States, 90 F.Supp. 831, 832.) The provisions in the charter pledging cooperation in promoting observance fundamental freedoms lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification. Instead, they are framed as a promise of future action by the member nations. Secretary of State Stettinius, chairman of the United States delegation at the San Francisco Conference where the charter was drafted, stated in his report to President Truman that article 56 "pledges the various countries to cooperate with the organization by joint and separate action in the achievement of the economic and social objectives of the organization without infringing upon their right to order their national affairs according to their own best ability, in their own way, and in accordance with their own political and economic institutions and processes." (Report to the President on the Results of the San Francisco Conference by the Chairman of the United States Delegation, the Secretary of State, Department of State Publication 2349, Conference Series 71, p. 115; Hearings before the Committee on Foreign Relations, United States Senate [Revised] July 9-13, 1945, p. 106.) The same view was repeatedly expressed by delegates of other nations in [***11] the debates attending the drafting of article 56. (See U.N.C.I.O. Doc. 699, II/3/40, May 30, 1945, pp. 1- 3; U.N.C.I.O. Doc. 684, II/3/38, May 29, 1945, p. 4; Kelsen, The Law of the United Nations [1950], footnote 9, pp. 100-102.) The humane and enlightened objectives of the United Nations Charter are, of course, entitled to respectful consideration by the courts and legislatures of every member nation, since that document expresses the universal desire of thinking men for peace and for equality of rights and opportunities. The charter represents a moral commitment of foremost importance, and we must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs. We are satisfied, however, that the charter provisions relied on by plaintiff were not [*725] intended to supersede existing domestic legislation, and we cannot hold that they operate to invalidate the Alien Land Law.
Fourteenth Amendment of the Federal Constitution The next question is whether the Alien Land Law violates the due process and equal protection clauses of the Fourteenth Amendment. Plaintiff asserts, first, that the statutory classification of aliens [***12] on the basis of eligibility to citizenship is arbitrary for the reason that discrimination against an ineligible alien bears no reasonable relationship to promotion of the safety and welfare of the state. He points out that the land law distinguishes not between citizens and aliens, but between classes of aliens, and that persons eligible to citizenship are given all the rights of citizens regardless of whether they desire or intend to become naturalized. Secondly, he contends that the effect of the statute, as well as its purpose, is to discriminate against aliens solely on the basis of race and that such discrimination is arbitrary and unreasonable. … (long discussion omitted) The California Alien Land Law is obviously designed and administered as an instrument for racial discrimination, and the most searching examination discloses no circumstances justifying classification on that basis. There is nothing to indicate that those alien residents who are racially ineligible for citizenship possess characteristics which are dangerous to the legitimate interests of the state, or that they, as a class, might
4
use the land for purposes injurious to public morals, safety or welfare. Accordingly, we hold that the alien land law is invalid as in violation of the Fourteenth Amendment. The judgment is reversed.
Edits to this document © Bartram S. Brown 2004
5 Excerpts from the Human Rights Act 1998 1998 Chapter 42 An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes. [9th November 1998] BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
Introduction 1.-(1) In this Act "the Convention rights" means the rights and fundamental freedoms set out in- (a) Articles 2 to 12 and 14 of the Convention, (b) Articles 1 to 3 of the First Protocol, and (c) Articles 1 and 2 of the Sixth Protocol, as read with Articles 16 to 18 of the Convention. (2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15). (3) The Articles are set out in Schedule 1. (4) The Secretary of State may by order make such amendments to this Act as he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol. (5) In subsection (4) "protocol" means a protocol to the Convention- (a) which the United Kingdom has ratified; or (b) which the United Kingdom has signed with a view to ratification. (6) No amendment may be made by an order under subsection (4) so as to come into force before the protocol concerned is in force in relation to the United Kingdom. Interpretation of Convention rights. 2. - (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any- (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, … whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. (2) Evidence of any judgment, decision, declaration or opinion of which account may have to be taken under this section is to be given in proceedings before any court or tribunal in such manner as may be provided by rules. … Legislation 3. - (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section- (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. 4. - (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. … (6) A declaration under this section ("a declaration of incompatibility")- (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made. … Public authorities 6. - (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if- (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section "public authority" includes- (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) In subsection (3) "Parliament" does not include the House of Lords in its judicial capacity.
2 US Reservations, Understandings and Declarations Upon Ratification of the International Covenant on Civil and Political Rights
TEXT OF RESOLUTION OF RATIFICATION
Resolved, (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on December 16, 1966, and signed on behalf of the United States on October 5, 1977, (Executive E, 95- 2), subject to the following reservations, understandings, declarations and proviso: I. The Senate's advice and consent is subject to the following reservations: (1) That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States. (2) That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below 18 years of age. (3) That the United States considers itself bound by Article 7 to the extent that "cruel, inhuman or degrading treatment or punishment" means the cruel and unusual treatment or punishment" means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States. (4) That because U.S. law generally applies to an offender the penalty in force at the time the offense was committed, the United States does not adhere to the third clause of paragraph 1 of Article 15. (5) That the policy and practice of the United States are generally in compliance with and supportive of the Covenant's provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14. The United States further reserves to these provisions with respect to individuals who volunteer for military service prior to age 18. II. The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Covenant: (1) That the Constitution and laws of the United States guarantee all persons equal protection of the law and provide extensive protections against discrimination. The United States understands distinctions based upon race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status -- as those terms are used in Article 2, paragraph 1 and Article 26 -- to be permitted when such distinctions are, at minimum, rationally related to a legitimate governmental objective. The United States further understands the prohibition in paragraph 1 of Article 4 upon discrimination, in time of public emergency, based "solely" on the status of race, colour, sex, language, religion or social origin not to bar distinctions that may have a disproportionate effect upon persons of a particular status. (2) That the United States understands the right to compensation referred to in Articles 9(5) and 14(6) to require the provision of effective and enforceable mechanisms by which a victim of an unlawful arrest or detention or a miscarriage of justice may seek and, where justified, obtain compensation from either the responsible individual or the appropriate governmental entity. Entitlement to compensation may be subject to the reasonable requirements of domestic law. (3) That the United States understand the reference to "exceptional circumstances" in paragraph 2(a) of Article 10 to permit the imprisonment of an accused person with convicted persons where appropriate in light of an individual's overall dangerousness, and to permit accused persons to waive their right to segregation from convicted persons. The United States further understands that paragraph 3 of Article 10 does not diminish the goals of punishment, deterrence, and incapacitation as additional legitimate purposes for a penitentiary system. (4) That the United States understands that subparagraphs 3(b) and (d) of Article 14 do not require the provision of a criminal defendant's counsel of choice when the defendant is provided with court-appointed counsel on grounds of indigence, when the defendant is financially able to retain alternative counsel, or when imprisonment is not imposed. The United States further understands that paragraph 3(e) does not prohibit a requirement that the defendant make a showing that any witness whose attendance he seeks to compel is necessary for his defense. The United States understands the prohibition upon double jeopardy in paragraph 7 to apply only when the judgment of acquittal has been rendered by a court of the same governmental unit, whether the Federal Government or a constituent unit, as is seeking a new trial for the same cause. (5) That the United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriated measures for the fulfillment of the Convention. III. The Senate's advice and consent is subject to the following declarations: (1) That the United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing. (2) That it is the view of the United States that States Party to the Covenant should wherever possible refrain from imposing any restrictions or limitations on the exercise of the rights recognized and protected by the Covenant, even when such restrictions and limitations are permissible under the terms of the Covenant. For the United States, Article 5, paragraph 2, which provides that fundamental human rights existing in any State Party may not be diminished on the pretext that the Covenant recognizes them to a lesser extent, has particular relevance to Article 19, paragraph 3, which would permit certain restrictions on the freedom of expression. The United States
2 declares that it will continue to adhere to the requirements and constraints of its Constitution in respect to all such restrictions and limitations. (3) That the United States declares that it accepts the competence of the Human Rights Committee to receive and consider communications under Article 41 in which a State Party claims that another State Party is not fulfilling its obligations under the Covenant. (4) That the United States declares that the right referred to in Article 47 may be exercised only in accordance with international law. IV. The Senate's advice and consent is subject to the following proviso, which shall not be included in the instrument of ratification to be deposited by the President: Nothing in this Covenant requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.
3 Provisions of the International Covenant on Civil and Political Rights Relevant to US Reservations to that Treaty
Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Article 8 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labour;
4 (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include: (i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations. Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile
5 offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. Article 11 No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. Article 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. Article 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. Article 14 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay;
6 (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non- disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Article 15 1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. Article 16 Everyone shall have the right to recognition everywhere as a person before the law. Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Article 18
7 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
. . . Article 47 Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.
Edits to this document © Bartram S. Brown 2004
8 The Harvard International Review Harvard University’s quarterly journal on international affairs Spring 2004 issue Symposium on The changing face of Interventionism Intervention: Issues of International Law by Bartram S. Brown*
Was the US-led attack on Iraq justified? The question comes from all corners of the globe, and opinions are varied. Our collective response should be to cooperate in thoughtfully examining the practical constraints, and legal limits, to military intervention. The issue is multifaceted, not black-and-white, but only by addressing it head-on can our planetary community hope to reach a consensus that will cement genuine autonomous international security for all. As a cornerstone of international law over 350 years, the principle of non- intervention has served many purposes and protected a range of different interests. Originally, it protected the sovereign prerogatives of the crowned heads who ruled Europe. Kingly rule is not totally obsolete, but the principle of non-intervention is now more likely to protect the democratic rights of self-determination and popular sovereignty. All along, it has helped to promote international peace and stability by discouraging the use of force against the territorial sovereignty and political independence of states. Today, both the reasons for the principle and the necessary exceptions to it can best be understood in terms of human rights. When the current system of international law began to develop, it was built upon new rules of sovereignty and non-intervention. This system, unlike the hierarchical Holy Roman Empire that preceded it, is based on the idea that each state is independent and has the same basic set of sovereign rights. Those who took responsibility for order and justice within the territorially-based state had all the rights of sovereignty under international law, including the exclusive right to make and enforce law within that state. The principle of non-intervention promotes the peaceful coexistence of autonomous sovereign states by banning each of them from the use of force or other interference within the territory of the others. International law recognizes each state’s rights of sovereignty and territorial integrity but it cannot guarantee that other states will respect those rights. The
* Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology; Visiting Fellow, Lauterpacht Research Centre for International Law, University of Cambridge, UK. international legal system is weak in that it lacks the centralized legislative and judicial organs and coercive executive powers that ensure the rule of law at the national level. Because of this weakness states must often rely upon self-help to protect their rights under international law. The classic form of self-help is self-defense. The Right of Self-Defense The most notable exception to the general principle of non-intervention stems from the right of self-defense. Customary international law develops when the behavior of States over time indicates they have accepted a rule of law. Under that law, two essential conditions limit the right of states to use force in self-defense. First, the use of force must be necessary. In 1841 US Secretary of State Daniel Webster described this requirement as “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” (Caroline Incident: Letter of April 24, 1841, Daniel Webster to Mr. Henry Stephen Fox) The second requirement is that the acts of self-defense must be proportionate to the threat. This customary standard does not condition the right on a prior armed attack. The rules of international law are built upon the premise that states, like people, have a natural right to defend themselves against the imminent threat of harm. Article 51 of the United Nations Charter states that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” To the extent that self-defense is indeed an inherent right, the use of force in anticipatory, or preemptive, self-defense could at times be justified even without a prior armed attack. This topic raises difficult issues of how to define and apply workable legal standards in matters affecting national security and the vital interests of states. Intervention on Behalf of Human Rights Proponents see humanitarian intervention as a fundamental exception to the principle of non-intervention. The basis for this exception—and not entirely a modern innovation—is the idea that the governments of sovereign states hold rights under international law only if they fulfill certain obligations, including the obligation to respect the fundamental rights and interests of the governed. As far back as 1625, Hugo Grotius noted that those rulers who “provoke their people to despair and resistance by unheard of cruelties, having themselves abandoned all the laws of nature, they lose the rights of independent sovereigns, and can no longer claim the privilege of the law of nations.” (The Law of War and Peace, 1625, Book II, Chapter VIII). This view was reinforced by developments at the national level, including such watershed events as the Glorious Revolution in England, the American Revolution, and the French Revolution. These events would eventually redefine the relationship between state and individual under both national law and international law. The crowned heads who exercised sovereignty in 17th century Europe were all sidelined or replaced. The values of democracy and popular sovereignty that brought such profound domestic change had their effect upon international law as well. These changes accelerated in the 20th century as international law moved farther away from the its original focus on the state-centered rights of sovereignty and began to stress respect for human rights and fundamental freedoms as a standard of governmental legitimacy. Nonetheless, the doctrine of humanitarian
12 Barely Borders-Intervention Issues of Intl2 Law Last printed intervention remains quite controversial especially since the adoption of the UN Charter in 1945. Intervention and Aggression One key rationale for the principle of non-intervention is to promote through local governmental rule the order and stability that are essential to the full enjoyment of human rights. In his 1941 “four freedoms” speech, Franklin Delano Roosevelt looked forward to a world in which all would enjoy “freedom from fear” once armaments had been reduced to the point where “no nation will be in a position to commit an act of physical aggression against any neighbor--anywhere in the world.” The concepts of aggression and intervention are quite distinct, if related. Unlike intervention, which may at times be justified, aggression is an international crime which is, by definition, unjustified. Several members of the Nazi High Command were convicted of crimes against peace, defined by the Nuremberg tribunal as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances.” In 1974, the UN General Assembly adopted a resolution defining aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The significance of this resolution is limited, however, because the Charter clearly states that Security Council alone is to determine the existence of any act of aggression. (Article 39) In any case, the definition merely restates the language of Article 2(4) of the UN Charter and does nothing to resolve the inherent ambiguities. The UN Charter According to Article 2 paragraph 4 of the UN Charter: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. This language makes it clear that the use of force can be justified under certain circumstances, but invites debate on what those circumstances might be. A strict reading might suggest that a violation occurs whenever one state uses force on the territory of another. Another interpretation is that forcible intervention is not prohibited unless it compromises the territorial integrity or political independence of a state in a way fundamentally inconsistent with the purposes of the United Nations. Of course the ambiguity in this UN Charter standard is no coincidence. It reflects the degree of consensus, or lack thereof, in 1945, among the key framers of the UN Charter, i.e. the US, the UK and the USSR. After almost 60 years of change in the international system, it is now time to develop a clearer, better standard on intervention which, along with the problem of terrorism itself, has become a burning issue of our time. The United Nations Charter recognizes only two explicit exceptions to the prohibition on the threat or use of force: It may be used in self-defense, (Article 51) and the UN Security Council may authorize its use to protect or restore international peace and security (Articles 39-42). Like other parts of the Charter, this broad prohibition reinforces the sovereign rights of the state. The Charter also affirms that the UN itself
12 Barely Borders-Intervention Issues of Intl3 Law Last printed lacks the authority to intervene in the domestic jurisdiction of its members unless the Security Council, as referred to above, decides that international peace and security are at risk. This much of the Charter seems to support the view that state sovereignty should preclude any intrusive international action for the protection of human rights. On the other hand, the Charter also heralds the emergence of a new international law of human rights which fundamentally challenges the traditional concept of sovereignty. The Charter states that promoting and encouraging respect for human rights is one of the basic purposes of the UN (Preamble and Article 1(3)), signifying that human rights have become a matter of international concern and not merely a question within the domestic jurisdiction of states. The concept of an international law of human rights redefines state sovereignty by recognizing that the people within the state have rights under international law which the government of the state has the obligation to respect and even to protect. This marks a radical departure from the traditional “state-centric” view of international law. International human rights treaties have solidified the status of human rights as part of international law. But who will protect these human rights when the national government fails to respect and protect them? More importantly, who will act to prevent genocide and other shocking atrocities against civilians? In practice, the Security Council rarely authorizes the use of force for any purpose, so the issue arises as to whether a state or group of states, acting without the authorization of the Security Council, can validly claim a right to intervene for humanitarian purposes. The recent practices of states in this regard may foreshadow the development of new rules of customary international law on humanitarian intervention, but global consensus on these rules of is still lacking. The governments of many states, especially those that are small, militarily weak, non-democratic or non-western, are understandably concerned that they might be potential targets of humanitarian intervention. They may feel that their sovereignty depends upon a strict interpretation of Article 2(4) which precludes any possibility of humanitarian intervention without the sanction of the Security Council. Even when forcible intervention is the only way to protect the human rights of innocent civilians, it still may not be worth the costs. Officially recognizing a right of humanitarian intervention could destabilize the world by undermining the prohibition on the use of force. The values at stake are truly momentous, and the debate continues on the status of humanitarian intervention under current law. The NATO bombing of Serbia to assist the Albanian Kosovars reopened consideration of this issue, even before recent events in Iraq. Justifications for the Iraq War One can briefly consider the 2003 intervention in Iraq to illustrate how different justifications for intervention may be used, or abused. A number of different legal justifications have been offered. The first is that the coalition acted to enforce a series of earlier Security Council resolutions calling for Iraq to eliminate its weapons of mass destruction. The problem with this argument is that it claims the legitimacy of the Security Council’s authority for an intervention that the Council very carefully and specifically declined to authorize. It is true that a long series of Security Council resolutions support the view that there were legitimate international objectives to be
12 Barely Borders-Intervention Issues of Intl4 Law Last printed achieved in Iraq (WMD disarmament among them) but this is separate from the issue of whether forcible intervention was justified in pursuit of these, or any other, objectives. Could intervention in Iraq be justified by the right of self-defense? President Bush argued, before the invasion, that Iraq’s weapons of mass destruction posed a threat to the United States that was unacceptable in a post 9-11 world. There had been no prior armed attack by Iraq against the US, and the Security Council had declined to authorize the use of force, so the US led “coalition” intervened on its own authority based on evidence of an imminent threat. Although Article 51 of the UN Charter does not authorize the use of force in the absence of a prior armed attack, it is reasonable to conclude that the preemptive self-defense can be justified in extremis. Even so, there will always be questions about the imminence of the threat if not the proportionality of the response. This is particularly true of the intervention in Iraq. The armed intervention in Afghanistan can more easily be justified as necessary for self-defense. Given the many reports of massive human rights violations by Saddam Hussein’s regime some have attempted, at least after the fact, to justify the invasion as an exercise in humanitarian intervention. But there are reasons to doubt that this was the principal motivation for US Intervention in Iraq, and these questions compound concerns about the legality of any act of forcible intervention not authorized by the Security Council. Humanitarian intervention is controversial due to doubts about its legality, and also because, in practice, there are typically unanswered questions concerning the popular will of the local people, the level of atrocities which warrant intervention, responsibility for civilian casualties resulting from the intervention, and the possible ulterior motives of the intervening state. Oversight by more effective international institutions could help address these concerns, but may not be on the horizon. There are difficult issues of where to draw the line balancing stability and non-intervention on the one hand and the risks and benefits of intervening for human rights on the other. One of those risks is that, in the worst case scenario, humanitarian intervention could itself become a pretext for aggression or oppression. The Difficulty of Formulating a Clear and Just Standard It is extremely difficult to formulate hard, complete, and fair rules governing such fundamental matters as the right of self-defense and the right of humanitarian intervention. The ambiguity of the UN Charter’s language on non-intervention and self- defense is illustrative of the difficulties involved. The ideal moral standards sometimes referred to as natural law can never be completely and perfectly captured in the concrete standards of positive (man-made) law. It is nonetheless important to develop and refine the standards of that law to the greatest possible extent. When a vague doctrine can be invoked by states to justify the use of force, they will be tempted to overuse and abuse it. This is inherently threatening to other states, particularly when those claiming this license are the most powerful states in the international community. Without clear legal standards to limit it, the practice of humanitarian intervention threatens both to allow powerful states to dominate the less powerful and to undermine the friendly relations among states in general. However well- intentioned a policy of forcible intervention may be, there is the risk that the benefits will be outweighed by the adverse impact upon overall international peace and security.
12 Barely Borders-Intervention Issues of Intl5 Law Last printed Realistic legal standards need to be flexible enough to accommodate the compelling humanitarian and security interests involved, yet concrete enough to permit the identification and condemnation of clear violations. A Human Rights Perspective on Intervention It would be naïve and possibly foolhardy to insist on a rigid and idealized version of international law banning armed intervention in all circumstances. If international law is to remain relevant, its rules must adapt to conditions in the contemporary world. A combination of economic, social and technological forces has made the world more interdependent than ever in terms of economics, culture and security. At the same time, the values of human rights and popular sovereignty have transformed the relationship between the state and the individual. In light of all this, the rules of international law governing intervention and non-intervention need to be updated and clarified. These rules, even as they stand today, can best be understood in terms of the human rights they seek to protect. A basic non-intervention rule is needed to discourage aggression and promote the global order and stability essential for the protection and enjoyment of all human rights. But non-intervention is a very state-centered principle. It assumes that national governments alone are responsible for human rights as well as all other matters “internal” to the state. Possible exceptions to the principle become relevant only when states fail to live up to these responsibilities. In human rights terms, the line between internal and external matters is not always clear. When a national government prepares or launches an attack on another state, or allows others on its territory (such as terrorists) to plan such attacks, then the right of self- defense may trump the principle of non-intervention. In similar fashion, proportionate acts of forcible intervention may sometimes be justified to protect the natural rights of people in the targeted state. When the government of a state dramatically fails to respect, protect, and ensure the human rights of its own populace, whether due to loss of government control, or worse yet, due to state policies of oppression and persecution, then humanitarian intervention may be both legal and appropriate. Despite the inherent difficulty of formulating and updating them, it is imperative to develop new and improved rules in this area, reflecting the realities of the early 21st Century world. US Exceptionalism Some believe that it would be impossible or even counterproductive to formulate better rules circumscribing the rights of self-defense and humanitarian intervention, especially as they might apply to the United States. Their reasoning is based on American Exceptionalism: the idea that the United States should get special treatment and remain free from the legal restraints applied to other states. The US is, in many ways, a unique global power because its economy is overwhelmingly dominant; because no comparable military power exists in the world; and, because US capacities are often essential for the success of UN peacekeeping and other uses of force by multilateral institutions. Some conclude that the United States should retain absolute freedom of action, not only for its own sake but also for that of the international community since, in many cases, only the United States has the power and the will to act. The problem with the exceptionalist argument is that it ignores the rights, concerns, perceptions and reactions of other states and therefore the ultimate costs of
12 Barely Borders-Intervention Issues of Intl6 Law Last printed such a policy. A country that draws too freely upon extraordinary exceptions to the rules will inevitably pay a price in terms of its reputation and ability to mobilize international support. No state can claim a unique exemption from accountability and law without being perceived, at least by many, as unprincipled and opportunistic. Only those strongly convinced that the US is a completely benevolent power will find this extreme form of exceptionalism to be palatable. If the US government believes international standards on the use of force are inadequate or too indefinite to safeguard legitimate state interests, it need not renounce the right to protect them. Instead, it should propose clarifications to the legal standards. The argument that no fair and effective international standards are possible is fatalistic and inadequate. In the past, the US has stepped forward to provide leadership in defining legal standards applicable to self-defense, war crimes and other important matters of national and international security. Our government should provide similar principled leadership today. US influence will be greater and the security of the US will ultimately be enhanced if we participate fully in the development of more effective international laws and institutions, rather than attempting to stake out a special place beyond legal restraint. At some time in the future another state with overwhelming military power may claim the right to forcibly intervene in the US. It would be prudent, both for humanitarian reasons and future self-interest, to help build a workable international law of intervention before that day comes. History Will be the Judge Serious consequences hinge on any decision to intervene, especially if the intervention is condemned as illegal or proves to be ill-advised. Having intervened in Iraq on its own authority, with very limited international support, the US now bears broad de facto responsibility for all that ensues there. This responsibility weighs heavily upon this country in economic, military, political and human terms. Failure to intervene can have its own costs. An imminent threat to national security, left unchallenged, could explode into a real crisis à la September 11. In 1994, the world ignored warnings of possible genocide in Rwanda until it was too late and over 500,000 people were massacred, a failure to act that brought shame to all those who could have prevented the tragedy. Sometimes intervention will be the right policy. But given the specific dangers to which civilians may be exposed and the general possibility that the use of force may undermine international peace and security, the burden must be on the intervenor to justify armed action. As incidents of intervention increase in frequency, the justification for such actions will be under even more scrutiny and criticism. Rarely will an international court have jurisdiction to rule upon the legality of any particular act of intervention. These judgments are usually left to world public opinion and, ultimately, to history. Thomas Jefferson wrote the Declaration of Independence out of “a decent respect for the opinions of mankind.” It was then important that the fledgling US be seen not as a lawless group of revolutionists and lawbreakers, but as a thoughtful society motivated by the need to establish a legitimate and independent state. The world’s view of the US
12 Barely Borders-Intervention Issues of Intl7 Law Last printed remains relevant today. It is important to any state seeking to guarantee its own security that it not be seen as the aggressor. Restoring human rights through armed intervention is difficult even when a quick military victory can be achieved. Local resentment of outside domination can complicate the realization of political objectives such as stability, prosperity and democracy. The involvement of the UN and other credible international institutions may help. Recent events in Afghanistan and Iraq show that some such international support will eventually be needed to bring ambitious policies of intervention to a positive conclusion.
12 Barely Borders-Intervention Issues of Intl8 Law Last printed THE “RESPONSIBILITY TO PROTECT:”
THE NEW GLOBAL MORAL COMPACT
Richard H. Cooper and Juliette Voinov Kohler*
Copyright © August 2006 Richard H. Cooper and Juliette Voinov Kohler Table of Contents Table of Contents ...... i Foreword - Letter from the Convenor of the R2P Coalition...... ii Synopsis ...... iv Introduction...... 1 I. The “responsibility to protect”: an historical breakthrough ...... 1 I.1. Bringing human rights protection to another level...... 2 I. 2. A new paradigm of international relations: we are our brothers’ keepers...... 6 II. A holistic approach to protecting populations from atrocity crimes...... 8 II.1. An introduction to atrocity crimes: genocide, war crimes and crimes against humanity ...... 8 II.2. The responsibility to prevent ...... 9 a) Addressing the root-causes of mass atrocities ...... 9 b) Addressing the direct causes of mass atrocities...... 11 II.3. The responsibility to react...... 11 a) Helping the State protect its populations...... 11 b) Coercive measures ...... 12 II.4. The responsibility to rebuild...... 15 III. The “responsibility to protect” and the United States of America ...... 16 III.1. The United States current foreign policy and the “responsibility to protect” ...... 16 a) From a minimum common denominator… ...... 16 b) … to a fully fledged answer to atrocity crimes...... 17 III.2. An opportunity to reassert America’s leadership...... 18 a) The perception of the United States in the world...... 18 b) Why the United States should act upon the responsibility to protect ...... 18 - Prudence and enlightened self interest ...... 19 - Morality ...... 20 c) The new global social contract ...... 21 Conclusion...... 23 Annex 1: Excerpt from A/RES/60/1...... 24 Annex 2: S/RES/1674 (2006)...... 26 About the authors...... 31 About the R2P Coalition...... 32
i Foreword Letter from the Convenor of the R2P Coalition
Over time, we the American people have been driven by our thirst for freedom, our mission to right wrong and to serve man. We have known periods of darkness in the past. But those difficult times triggered giant leaps towards a greater civilization for the benefit of our fellow men. Our ancestors rose in the face of turmoil and overcame formidable challenges. Their own consciences drove them to aspire to the best possible human behavior and to ascertain the high moral ground. Two hundred years ago, on March 2nd, 1807, the American people took the first historical step that would eventually lead to the abolition of slavery. And it was led by the conviction that racial segregation was immoral, that the American people outlawed this abhorrent practice nearly half a century ago.
There is no doubt in my mind: the desire for peace, justice and human dignity is written in the hearts and minds of all the American people. It is deeply rooted in our tradition. And it must remain so. Yet today, as mass atrocities repeatedly stain humanity, the world no longer turns to America for those moral inspirations that lie at the basis of freedom and human security. The abuses in Abu Ghraib and Guantanamo remind us that moral decay can be contagious and that we are not immune to evil behavior. And it should not come as a surprise that people around the globe have come to disbelieve that our country puts human rights above all other rights and that its flag is the flag not only of America but of humanity. Today, indeed, the claim that America is the greatest nation on earth and the leader of the civilized world is held in abeyance until we, the people of America, reestablish our country’s moral authority.
I was born in the age of genocide and other mass atrocities. I grew up and led my life truly believing that “never again” would, indeed, never be heard again. Yet, nestled in the comfort of a prosperous country where people lived in peace, I remained a bystander as sheer barbarity wrecked various corners of our world: Cambodia, the former Yugoslavia or Rwanda. When told or reminded of these atrocities, my senses were revolted, my soul was in turmoil, my heart bled, and with all my might – or so I thought - I condemned humanity for being so full of evil. I am today a senior citizen, and I still live in the age of genocide, crimes against humanity and war crimes. I realize that I can no longer be an occasional witness, a sincere yet superficial enemy of some of the most monstrous behaviors ravaging Uganda, the Democratic Republic of Congo and Darfur. Because mass atrocities not only disgrace their perpetrators. They shame all of us who, whether by calculation or indifference, default on our duty to uphold the lives and dignity of men.
ii Yet as I write, a quiet revolution is under way. In September 2005, the United Nations General Assembly adopted a declaration - the World Summit Outcome - whereby each and every State in the world accepted its responsibility to protect populations from genocide, crimes against humanity, ethnic cleansing and war crimes. The declaration also emphasizes that if a State relinquishes its responsibility to protect – whether by will or lack of capacity - this responsibility must be borne by the international community that can decide to intervene as a last resort. In the face of mass atrocities, every nation and thus every people on earth have pledged to be our brothers’ keepers. Without fanfare and with little notice, the obsolete principles underlying the Westphalian ordering of world affairs have been dramatically rewritten. We can no longer hide behind State sovereignty, a 400-years old shield, to excuse the shameful reflex and ongoing practice of remaining passive in the face of the most outrageous behaviors.
The United Nations has given us a historical opportunity. And we, the American people, must seize it now. We owe it to our ancestors. We owe it to ourselves. We owe it to future generations. We owe it to humankind.
It is prophecies and rebels that make history. In this case, the prophecy has already been uttered: atrocity crimes will be abolished. We all know this must be. We cannot afford to relegate the principle of the responsibility to protect to a set of enlightening words, an empty theory. What we need are for rebels against indifference and rebels against intolerance to gather and fulfill this prophecy. These rebels are the people who reject the horror of mass atrocities, wherever they occur. They are the people who believe that lofty ideals and high-mindedness must continue to drive the destiny of their country and of humanity. These rebels are the people who embrace their responsibility to protect any population from atrocity crimes. These rebels will turn a grand declaration into deeds. They will free humanity from hell on earth. These rebels are me … and you. The responsibility to protect is ours.
Yours respectfully,
Richard H. Cooper
iii Synopsis
Atrocity crimes1 – genocide, crimes against humanity, ethnic cleansing and war crimes - punctuate human history. Today, Darfur is in the public eye. Tomorrow, Northern Uganda or the Democratic Republic of Congo, whose populations have long suffered from atrocities, might shock the American people in a similar way. Or perhaps it will be another place on earth. What is certain, and however unfortunate you may think it is, is that we are not over with hell on earth.
Yet no one in his right mind would wish or not mind being a victim of massive killings, torturing or sexual assault. No one should be allowed to not care that fellow human beings are being slaughtered because of their religion, because of their race, because of the place they were born. All human beings are bound by the very fact that they are human and share many identical fears and hopes. As Martin Luther King Jr. expressed it: “All men are caught in an inescapable network of mutuality.” Each one of us should feel some level of responsibility in preventing human beings from becoming the victims of lunatics, whether in our country or in a distant land.
The purpose of this paper is to present the American people with the historical opportunity to engage in the abolition - in practice - of the most barbaric human behaviors: genocide, crimes against humanity, ethnic cleansing and war crimes. Two hundred years ago we succeeded in putting an end to one of the biggest disgraces for humanity - slavery – the time has come to eradicate atrocity crimes.
On September 2005, the United Nations General Assembly endorsed the norm of the “responsibility to protect” populations from mass atrocities. The World Summit Outcome reads:
“Each and individual State has the “responsibility to protect” its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in
iv cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the “responsibility to protect” populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.”
The core principles of the doctrine of the “responsibility to protect” are the following:
• State sovereignty includes the “responsibility to protect” populations from genocide, crimes against humanity, war crimes and ethnic cleansing.
• The “responsibility to protect” embraces the responsibility to prevent and the responsibility to react to such atrocities, as well as the responsibility to rebuild societies shattered by such atrocities.
• The prevention of genocide, crimes against humanity, war crimes and ethnic cleansing should be given priority.
• The international community also has the responsibility to help States protect their populations from genocide, crimes against humanity, war crimes and ethnic cleansing.
• If a State relinquishes its “responsibility to protect” - whether by lack of will or lack of capacity – this responsibility should be borne by the international community that can decide enforcement measures, including the use of force as a last resort.
Last fall, world leaders unanimously embraced the international community’s responsibility towards our fellow human beings victim of atrocity crimes. And on 28 April 2006, the Security Council reaffirmed the doctrine of the responsibility to protect2. These are huge steps forward. A unique opportunity we must seize. We too, the American People, must embrace our Nation’s “responsibility to protect” populations from hell on earth.
v Introduction
In September 2005, the United Nations General Assembly took a historical step. By endorsing the “responsibility to protect,” world leaders, including our own - President Georges W. Bush - laid the founding block for a revolutionary approach to dealing with the mass atrocities that have, over time, plagued nearly every corner of our planet. Yet this doctrine, and the potential it offers for putting an end to the most serious and massive human rights violations, remains surprisingly little noticed in our country.
Mass atrocities are man-made, therefore they may be solved by man. “No problem of human destiny is beyond human beings3.” The time is ripe for the American People to grasp the rationale and embrace the extraordinary potential of the norm of the “responsibility to protect.” Both our past and current events command that we live up to our responsibilities as members of a global human society that wants to be freed from mass atrocities. Over time and step by step, individual nations and the international community have endorsed the rules and built the delicate structure that are prerequisites for the abolition of genocide, crimes against humanity and war crimes. Today, with a 21st century still in its infancy, we have reached a tipping point. The foundations have been laid for the abolition of some of the biggest disgraces for humankind.
I. The “responsibility to protect”: an historical breakthrough
The “responsibility to protect” calls on each individual State to protect its populations from genocide, crimes against humanity, war crimes and ethnic cleansing. The international community shares this “responsibility to protect” populations from mass atrocities and should encourage and help individual States to exercise their responsibility. In case national authorities manifestly fail to protect their populations and if peaceful means are inadequate, the international community, through the United Nations Security Council, may take collective enforcement action to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing4.
The doctrine of the “responsibility to protect,” one of the greatest achievements of the 2005 General Assembly World Summit, seems quite straightforward and convincing. The “responsibility to protect” populations from atrocity crimes resonates well with some of our deepest and most noble human values: empathy and compassion. Yet what may seem at first as the reaffirmation of normally expected human behavior is actually a huge step forward as far as the international community is concerned: a new global social
1 contract. The norm of the “responsibility to protect” consecrates a new paradigm of international relations that affects the relationships not only between States, but between each State and populations threatened by mass atrocities, wherever part of the world they might be. This norm encapsulates a much-needed redefined balance between the contents of State sovereignty and the duty to not interfere in the internal affairs of States, two fundamental principles enshrined in the United Nations Charter5. The doctrine of the “responsibility to protect” also builds on the formidable expansion of human rights law that has progressively come to prohibit and criminalize genocide, crimes against humanity and war crimes.
I.1. BRINGING HUMAN RIGHTS PROTECTION TO ANOTHER LEVEL
The doctrine of the “responsibility to protect” builds on the twentieth century unprecedented growth of institutions and rules aimed at protecting human rights. Most recently, such achievements include the 1998 Rome Statute establishing the International Criminal Court - the ICC. This permanent judicial body - whose role is often ill-understood in our country - has jurisdiction over atrocity crimes. This Court will help ensure that the “architects of hell on earth,” to paraphrase Professor David Scheffer, are brought to justice. Fifty years before the establishment of the ICC, the 1948 Universal Declaration of Human Rights was the first global political instrument to articulate the most fundamental individual human rights.
Yet the origin of modern positive human rights and humanitarian international law predates the aftermath of the second-world war and the crisis of conscience its horrors triggered among many. The universal endorsement, in 1948, that all men are born free and have inalienable rights finds its roots in previous national and international achievements in the field of human rights. The 1800s in particular, the century of the Enlightenment that led to the American Revolution, sowed the seeds of the moral outrage that would dictate the ban of the biggest disgraces for humanity. Today a number of appalling behaviors are labeled crimes against humanity, genocide or war crimes. We owe this a great deal to the historical first steps taken two hundred years ago.
Our goal here is not to saturate you with the history of the human rights or humanitarian law movement. But it is sometimes helpful to look to the past - both our successes and our failures - to see with much greater clarity where we come from and what the obvious next steps are: what the future must be and, therefore, what we have to do today. A brief overview6 of what culminated in the abolition of enslavement, the commission of which may amount today to a crime against humanity, substantiates why the abolition - in practice and not just in theory- of genocide, crimes against humanity and war crimes, is the logical and necessary next step.
When the Founding Fathers of our Nation adopted the 1776 Declaration of Independence, they affirmed: “We hold these truths to be self-evident, that all men are created equal, that they
2 are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
This did not mean that slavery was abolished when our Nation was founded. To the contrary, our Constitution was specifically drafted in a way that could accommodate different interests within our Nation. On one hand were those that saw a contradiction between bondage for slaves and freedom for whites. Slavery was perceived as immoral and the terrible fate of slaves - “miserable creatures” – had to be ended. By the end of the 1700s, several States in our country had passed emancipation laws, for example Vermont and Connecticut. But few slaves lived in those States. On the other hand were those that considered that slavery and the slave trade associated with it amounted to a common and legitimate practice. Slavery had always existed it seemed, and at the end of the eighteenth century, more than three quarters of the world population lived in bondage of one kind or another, captive of various systems of serfdom or slavery. Slavery was even considered necessary: it provided cheap labor and it was felt that putting an end to this practice would, as we would say today, impose too high a burden on the economy. Slavery was so essential to some that its abolition plainly threatened the unity of our Nation.
The compromise reached on this sensitive issue back in 1776 is clear from Article 1 section 9 of our Constitution. This provision bars Congress from prohibiting, prior to 1808, the “migration or importation of such persons as any of the States now existing shall think proper,” but a tax or duty may be imposed on such importation. As appalling as it seems today, our Constitution was built on the premise that, technically, slaves were merchandise7.
Yet the Declaration of Independence would prove to be prophetic. Thirty years after the birth of our Nation, on 2 March 1807, the U.S. Congress passed an act to "prohibit the importation of slaves into any port or place within the jurisdiction of the United States ... from any foreign kingdom, place, or country." This act banning the importation of slaves on our soil entered into force on 1 January 1808, marking the United States’ historical first step towards the abolition of slavery8. Slavery itself was abolished throughout the United States on 18 December 1865 - following the end of the Civil War and two years after Lincoln's symbolic 1863 Emancipation Proclamation9.
The 13th Amendment to the US Bill of Rights affirms that: “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Section 2. Congress shall have power to enforce this article by appropriate legislation.”
We mention Section 2 of the 13th amendment - which the State of Illinois was the first to ratify - not only to offer a comprehensive reading of this constitutional provision. Section 2 of the 13th amendment is as cardinal as section 1: it ensures that the abolition of slavery is not merely a wish: it has to be reality. And for slavery to disappear from our soil, the ban needed to be - and is indeed still today - enforced.
3 The United States did not abolish the slave trade and slavery in isolation from the rest of the world. In the late years of the eighteenth century, the disgrace of this practice shocked the conscience of men not only in our country but in Europe, in Russia and in other parts of the American continent10. Laws abolishing the slave trade and emancipating slaves gradually reversed what had been the norm until then. And on 25 September 1926, the international community, through the League of Nations - the predecessor of the United Nations -, adopted the first international treaty that abolished worldwide all types of slavery11.
Yet even today, there remains a gap between these normative steps to abolish slavery and reality. Today, there are still nearly 3 million individuals worldwide that are slaves in the narrow sense. This figure rises to 27 million if one takes a broader definition of slavery that includes pawnage, bonded labor and servile concubinage12. The vast majority of the world’s slaves are in South Asia. But slavery is also practiced on our very soil. According to the CIA, 14,500 to 17,000 victims are trafficked into the “Land of the Free” every year, mostly due to human trafficking for domestic work, migrant farm labor, or work in the sex industry13. Still today, States, the United Nations, non governmental organizations, religious organizations and dedicated individuals are devoted to making the abolition of slavery a reality, in every corner of the world. And there is no doubt in my mind that they will succeed.
The world has come a long way from the days where it was perfectly normal to have two categories of human beings: those born and living free, and those born or held as slaves. Starting from the late 1700s, two hundred years of ongoing efforts were not in vain. The early abolitionists knew there simply could not be any another way: humanity had to be freed of the scourge of slavery. The remarkable time that was the eighteenth century marked the beginning of the end of slavery.
What we wanted to show here, and what we hope you will retain from this little exposé on the abolition of slavery, are the following five points.
• 1. Goals must not be shied away from merely because of their ambitious nature. The history of the abolition of slavery, for one, teaches us that even some of the most unthinkable goals can be achieved. In the 1800s, slavery was the norm. And many thought that the economy of the European empires as well as our own would collapse without slaves and the slave trade.
• 2. Goals that bring humanity to a higher level of civilization should guide us, with the conviction that these goals will, over time, be reached. Abolitionists were guided by their conscience: there was something inherently wrong in slavery, there was something inherently right in the fight for all human beings to be born and remain free in dignity and rights14.
• 3. Great achievements are built on a multitude of small steps that gradually converge, but whose ultimate success is triggered by tipping points: defining moments that will change the course of history. In our country, the 1808 ban was
4 an historical step towards the abolition of slavery. Similarly, even though the 1863 Emancipation Proclamation was a weak document for freeing slaves, it did have great moral force. It not only represented a major step toward the ultimate abolition of slavery in the United States: it had a great international impact. As the then historian Henry Adams noted, "The Emancipation Proclamation has done more for us than all our former victories and all our diplomacy15.”
• 4. Global goals are best achieved through global efforts. Here, I am not only thinking in terms of efficiency. But if our goal is to liberate humanity from some shameful behavior, then we, as human beings, will only truly be set free when all human beings are set free.
• 5. The entry into force of a legislative act prohibiting some type of behavior is not enough. For slavery to end, it is not enough to outlaw it: rules need to be implemented and enforced, with the use of force if necessary as a last resort.
Just as the 1808 ban and the 1863 Emancipation Proclamation were historical steps in our country towards the abolition of slavery, the endorsement of the “responsibility to protect” is an historical step towards the abolition of the worst crimes affecting populations: genocide, crimes against humanity and war crimes. The moral and political acceptance by world leaders, last September, of the doctrine of the “responsibility to protect” is the tipping point for the abolition of the most outrageous, barbaric and gravest crimes on earth.
Of course everyone - with the exception of a handful of lunatics - condemns mass atrocities. Alas, there is an ocean between rhetoric and practice as far as genocide, crimes against and humanity and war crimes are concerned. Proclaiming “not on my watch “ or “never again” gives us this false comfort that we are righteous. Yet the idea of abolishing, in practice, such mass atrocities is generally considered to be quite far fetched. After all, mass atrocities punctuate human history despite our legendary statements that “something should be done.” Many steps have been taken already in order to abolish mass atrocities. But as often, there remains a gap between the development or enactment of laws and their practical effect. For half a decade, the commission of genocide, war crimes and crimes against humanity has been outlawed. Yet the criminalization of these acts did not mean that such mass atrocities would no longer take place. A decade ago, genocide unfolded in Rwanda and in the former Yugoslavia. And today, although the International Criminal Court is up and running, populations in Darfur are victims of crimes against humanity. And populations in Northern Uganda and in the Democratic Republic of Congo are the victims of mass atrocities. What was missing until now, and what the endorsement of the “responsibility to protect” offers to us for the first time, is a founding block upon which the whole international community can build legitimate and effective tools to prevent and put and end to the most serious crimes affecting humankind, as well as rebuild societies shattered by such atrocities.
What is so special about this doctrine, what sets it a step ahead of so many efforts undertaken so far is that it revolutionaries two of the most cherished and fundamental
5 rules of international relations: the principle of equal sovereignty and the principle of non-interference in States’ internal affairs. Today, the international community accepts that State sovereignty knows limits when mass atrocities are occurring. Today, every single State agrees that the international community has responsibilities towards populations in other States. In other words, the international community can no longer afford to witness mass atrocities: it bears moral and political responsibility for their occurrence and should act accordingly.
I. 2. A NEW PARADIGM OF INTERNATIONAL RELATIONS: WE ARE OUR BROTHERS’ KEEPERS
The doctrine of the “responsibility to protect” has the potential of bringing the protection of human security to an unprecedented level, an achievement that was possible thanks to the steady strengthening of human rights institutions over the years. The doctrine of the responsibility also encapsulates a much-needed redefined balance between the contents of State sovereignty and the duty to not interfere in the internal affairs of States. The endorsement of the “responsibility to protect” lays the foundations of a new paradigm of international relations based on the affirmation that we are our brothers’ keepers.
One can only really grasp the extent of the impact of the doctrine of the “responsibility to protect” on international relations by looking back in time. We previously used our past to show that unthinkable successes – the abolition of slavery – could become reality, therefore lifting what we would call “mental” barriers to the abolition of mass atrocities. Let us briefly ponder over the evolution of international relations in order to evidence the significance of the doctrine of the “responsibility to protect.”
It is often said that the 1648 Peace of Westphalia initiated modern times as it marked the beginning of the modern system of nation-states. Yet internally, the essence of sovereignty was then of control by the sovereign over its people – not of responsibility by the sovereign for his people. Externally, the principle of sovereignty upon which the Westphalian Order relied produced the basis for rivalry, not community of States. The international system of States was guided by exclusion, not integration. International relations were scarce and based on strictly reciprocal terms. The idea that all States and all Peoples had interests in common which would better be pursued on a collaborative basis would have been viewed as sheer fantasy, an unrealistic and dangerous fantasy.
The end of the nineteenth century witnessed two trends. Industrialization, the expansion of international commerce and the growing interdependence of economies, for one, made it clear that there is some meaning in developing international relations based on cooperation. But the expansion of international relations on the eve of the twentieth century is as much influenced by a more ethical approach to world affairs: the realization that all humans are bound by the very fact that they are humans. The promotion of peace, economic and social development as well as the protection of human rights become a flagship of international relations. To summarize, and up to this day, two forces drive the evolution of international relations: realist concerns and idealist objectives.
6 Following the second world war, the international community enshrined the new principles that would govern the relations between States in the United Nations Charter. You will find there the principle of States’ equal sovereignty, which finds its roots in the Westphalian Order. You will also find the principle of non-interference in internal affairs, which is a corollary of the principle of equal sovereignty. But the post-1945 era rejects the Westphalian narrow approaches to State sovereignty and international relations by laying the foundation of an international community united in the promotion of peace, justice, social and economic progress and human rights for all Peoples.
The founding members of the Charter stroke a delicate balance between the prerogatives of individual States and their commitment to humanity. This balance is evolving by nature and has evolved over the past. The expansion of the international mechanisms to protect human rights for example witnesses our common will to make the world a better place. But States, just like individuals, have conflicting interests or views that can hamper progress. And States, just like individuals, do not automatically have the same view of what “progress” actually is. This is where the doctrine of the “responsibility to protect” finds all its relevance.
The “responsibility to protect” is a judicious way to reconcile, on one hand, the attributes of State sovereignty and the duty to not interfere in domestic issues with, on the other hand, the international community’s purpose to promote and encourage respect for human rights and fundamental freedoms. First, it is now acknowledged that State sovereignty implies the following dual responsibility. At the external level, and according to the principle of equal sovereignty, each State must respect the sovereignty of other States. Internally, each State has responsibilities towards the dignity and basic rights of all the people within that State: the protection of human rights must be seen as part of the definition of State sovereignty. Second, the duty to not interfere in domestic issues is a relative, not an absolute concept. Even at the time of its adoption, the Charter acknowledged that the existence of a “threat to international peace and security” under Chapter VII legitimized the Security Council to take enforcement action against a State. During the 1990s, the international community gradually labeled internal situations, such as massive human rights violations or humanitarian emergencies, as “threats to international peace and security” which could justify enforcement action. And from now on, under the doctrine of the “responsibility to protect,” the commission of genocide, crimes against humanity, war crimes as well as ethnic cleansing constitutes a threat to international peace and security. Such mass atrocities are not “domestic issues”: they are issues of concern to the whole community of States, and by implication to all of us. Accordingly, the international community must join forces to preserve all populations from atrocity crimes.
The doctrine of the “responsibility to protect” was first elaborated by the International Commission on Intervention and State Sovereignty in 200116. The formulation of this norm was one attempt to lift the deadlock between those favorable and those opposed to so-called “humanitarian interventions.” Humanitarian intervention is a controversial concept. It has sometimes been stretched so far as to give a general and unlimited right to
7 States to militarily intervene in another State in order to put an end to a humanitarian crisis. From the perspective of a number of countries, including many from the developing world, the humanitarian objective of intervention may well not be a genuine goal: it might mask indirect attempts by rich and powerful countries not only to impose their values on weaker States, but to actually control their government and get access to their resources. To support this assertion, these countries can easily pinpoint to inconsistencies in the Security Council responses to crises - remember Rwanda - and to the underlying economic, geo-strategic and political motivations of permanent members when deciding to intervene on humanitarian grounds – see Iraq17. For a number of other countries, on the other hand, the international community has a moral duty to stop mass atrocities that shock the conscience of humanity. The dividing issue for those countries supporting humanitarian intervention is whether or not to develop a framework that will offer more legal and political certainty to military intervention for humanitarian purposes. Can the use of force be selective or does it need to be standardized?
Fundamentally, the substantive issues are still the same today, but the new language proposed by the ICISS, endorsed by the 2004 UN report of the High-level panel on threats, challenges and changes18 and unanimously embraced by world governmental leaders in September 2005, is allowing the international community to look at them from a new perspective: from now on, the focus is on the victims of atrocity crimes and on the responsibilities of States and the international community towards them. II. A holistic approach to protecting populations from atrocity crimes
The “responsibility to protect” calls for a continuum of actions that are clustered in three categories: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild.
II.1. AN INTRODUCTION TO ATROCITY CRIMES: GENOCIDE, WAR CRIMES AND CRIMES AGAINST HUMANITY
Of the three types of crimes that currently fall within the jurisdiction of the ICC, “genocide” is by far the one that has the most resonance in the general public. “Genocide” means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: - killing members of the group; - causing serious bodily or mental harm to members of the group; - deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; - imposing measures intended to prevent births within the group; - forcibly transferring children of the group to another group.
8 The definition of genocide, which was engraved in the 1949 Genocide Convention, is quite narrow. The intention to destroy a group may be difficult to prove. And “genocide” cannot qualify acts committed against political or social groups.
“Crimes against humanity” are a much broader category of crimes. A crime against humanity means specific acts committed as part of a widespread or systematic attack directed against any civilian populations, with knowledge of the attack. Such acts include: murder, extermination, enslavement, deportation or forcible transfer, imprisonment, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, some types of persecution, enforced disappearance of persons, apartheid, and other inhumane acts of similar character intentionally causing great suffering or serious injury to body or to mental or physical health. In our opinion, “ethnic cleansing” falls within this definition of “crimes against humanity”.
Both genocide and crimes against humanity may be committed during or in the absence of a conflict.
“War crimes,” on the other hand, means specific acts committed against people who do not take part in the fighting (civilians, medics, chaplains, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war).
II.2. THE RESPONSIBILITY TO PREVENT
The responsibility to prevent crimes against humanity, genocide, war crimes and ethnic cleansing encompasses a whole range of actions to address both the root-causes and the direct causes of mass atrocities. During the 2005 World Summit, the international community agreed that prevention should be the priority focus of the efforts aimed at protecting populations from mass atrocities. This makes perfect sense: if prevention succeeds, mass atrocities will not occur.
a) Addressing the root-causes of mass atrocities
Addressing the root causes of mass atrocities means tackling those causes that constitute underlying factors for instability in a country. Poverty, political repression and uneven distribution of resources are generally considered as some of the structural causes of civil unrest and conflict. Preconditions for genocide and other mass killings include structural causes such as political systems based on exclusionary ideologies and autocratic rule, ethnic and religious cleavages, low economic development and a low economic and political interdependence19.
The prevention of mass atrocities thus calls for a whole range of measures such as economic and social development, protection of the environment, promotion of the rule of law and of justice, respect for human rights, good governance and security sector reform.
9 Adopting and implementing preventive measures at the domestic level is an ongoing responsibility of each and every State. In the United States as well, we do so, and must continue to do so. The international community also has an important role to play in this regard, whether through bilateral relations, regional concerted efforts or global endeavors. The provision of development assistance, the promotion of private investment, training programs and, as a general rule, friendly relations among States based on cooperation all contribute to the building of stable societies.
At the global level, a number of initiatives have been taken to establish a framework conducive to preventing mass atrocities. The United Nations Secretary General Koffi Annan has recently put greater effort to prevent genocide. In 2004, he appointed a Special Advisor on the prevention of genocide as one effort to put in place a high-level official with a specific responsibility to act as an early warning mechanism. And in May 2006, Kofi Annan appointed a high-level panel of individuals whose mandate is to provide guidance and support to the work of the Secretary-General’s Special Adviser on the Prevention of Genocide, Juan E. Méndez, and to contribute to the broader efforts of the United Nations to prevent genocide. In the eyes of Gareth Evans, member of this panel, the task will be to fully operationalize the international community’s “responsibility to protect” populations from genocide20.
The international community has in the past and must continue in the future to build a network of incentives, both positive and negative, that will influence behaviors in a decisive way. Some of the preventive measures adopted by the international community can provide positive incentives for the leaders in a country, in the sense that a specific course of action that is expected to be taken will be rewarded. This is for example the case with conditional foreign assistance. The preventive measures adopted by the international community can also provide negative incentives in the sense that the lack of progress by a country in tackling the structural causes of mass atrocities or worse, the building of a climate conducive to mass atrocities, might generate consequences that the country will try to avoid. One example of such a preventive mechanism is the newly established Human Rights Council that will undertake a universal review of the fulfillment by each State of its human rights obligations21. Another example of a prevention mechanism that recently came into operation is the International Criminal Court (ICC)22. We mentioned this institution earlier on, and because it is such a breakthrough in the ordering of world affairs we will repeat what we said: the ICC is the first permanent international judicial body that has the competence to prosecute and try the alleged perpetrators of genocide, war crimes or crimes against humanity when the case is not being investigated or prosecuted by any state that has jurisdiction over it. It is the Court of last resort for those most responsible for mass atrocities. For humanity, it means moving towards the end of impunity. For unscrupulous leaders, it means thinking twice before engaging in barbaric behavior.
There is still ample room and serious need for a strengthening of preventive mechanisms: the picture needs to be completed. We know that if prevention fails, we have basically failed our primary responsibility to avoid mass atrocities. This is why it is
10 so important to develop the appropriate rules and mechanisms for prevention to actually work. The use of “soft power” tools is common practice and their role is important. But when we are faced with atrocity crimes, the international community must stand ready to put in place preventive mechanisms that will have a decisive impact. The international community desperately needs to put in place a vital piece of the prevention puzzle: a standing mechanism that will have the capacity to deter the commission of genocide, crimes against humanity and war crimes.
In order for the international community to fulfill its responsibility to prevent genocide, crimes against humanity and war crimes, we need:
• To empower the international community with a standing mechanism that will have the capacity and the legitimacy to enforce the judicial mandate of the ICC by arresting alleged perpetrators of atrocity crimes and stop mass atrocities in their infancy23.
Now, let’s assume that these preventive steps have not been taken or that, for whatever reason, they have failed. When a country is on the bridge of chaos, this is when the direct causes of mass atrocities must be tackled.
b) Addressing the direct causes of mass atrocities
Addressing the direct causes of mass atrocities also calls for a whole set of actions to be taken. Yet these efforts do not focus on the long or medium term. They are intended to address short-term issues whose resolution, or at least tackling of, is expected to have a decisive impact on the possible degeneration of a situation. Direct prevention efforts include diplomatic efforts (good offices, mediation, preventive deployment of peacekeepers), the imposition of sanctions and the threat of the coercive use of force.
II.3. THE RESPONSIBILITY TO REACT
When prevention has failed and a situation degenerates in the commission of mass atrocities, the “responsibility to protect” requires that the State concerned respond appropriately. This is an essential attribute of its sovereignty. If that State does not assume this responsibility, be it by will or by lack of capacity, then a secondary responsibility to react falls on the international community.
a) Helping the State protect its populations
There are two kinds of steps that the international community should take in order to help a State protect its populations. On one hand, the international community has the responsibility to use peaceful means to help leaders put an end to a crisis. Diplomatic efforts such as mediation, negotiation, enquiry and conciliation, should be used as a priority and may very well be used alongside other types of reactive measures. Such peaceful means do not exclude using diplomatic pressure and various forms of arm-
11 twisting that will induce State leaders to comply with their responsibilities towards their populations24. On the other hand, the international community has the responsibility to directly protect populations in danger through the delivery of humanitarian assistance and the provision of protective measures to refugees and internally displaced persons.
b) Coercive measures
There may very well be situations where the State whose populations are subjected to atrocity crimes does not want any help. Either its leaders are the very perpetrators of crimes, or they are accomplices of other groups committing genocide, crimes against humanity and war crimes, or they just fear any type of foreign intrusion.
Recourse to coercive measures means that specific steps are taken by the international community without the consent of the government concerned. Under the UN Charter, the international community can adopt coercive measures through the Security Council when a situation amounts to a threat to international peace and security and when peaceful measures have not led to a satisfactory outcome. Coercive measures include sanctions and the use of force.
The imposition of sanctions by the Security Council is still the subject of controversies. You may have heard of the terrible impacts of the sanctions that were imposed without discrimination on the Iraqi population. And you certainly have heard on the Oil-for-food scandal that has plagued the United Nations. Sanctions are a very delicate tool, which explains why, despite several years of efforts to develop guidelines regulating the imposition of sanctions, little progress has formally been made25. Even more controversial, and actually extremely sensitive, is the use of force without the consent of the parties involved, a measure all agree should only be resorted to in extreme cases.
The rules regulating the resort to the use of force against a State were very carefully drafted by the founders of the United Nations. The basic rule then - and still now - is that States are prohibited from having recourse to the threat or use of force against another State. This rule, of paramount importance, can be overruled only in two cases: when a State exercises its right to self defense; and when the Security Council has determined, under UN Charter Chapter VII, the existence of a threat to the peace, breach of peace or act of aggression.
When they adopted the United Nations Charter, the founding States were quite ambitious. And as you surely know, the United States – in particular Eleanor Roosevelt - was a driving force behind the drafting of this treaty. The founding States knew that in order for the Security Council to effectively discharge its primary responsibility for the maintenance of international peace and security, that body needed the capacity to do so. This is why the founders of the UN expressed in the Charter their willingness to empower the international community, through the Security Council, with the capacity to react forcefully to threats to the peace. Under article 43 of the Charter, all members undertook
12 to make available to the Security Council armed forces, assistance and facilities necessary for the purpose of maintaining international peace and security. These would be available to the Security Council on its call, should it decide that the existence of a threat to peace, breach of peace or act of aggression required coercive action to be taken. If that was the case, the forces would come under the strategic direction of the Military Staff Committee composed of the Chiefs of Staff of the five Security Council permanent members (China, France, Russia, the United Kingdom and the United States). What a wonderful plan. What visionaries of a credible collective system of security. If only it had worked…
In the 1950s, it became apparent that the arrangements under article 43 would not materialize. And for the fifty years that the Cold War lasted, the Security Council’s ability to authorize or use coercive action to restore peace was hijacked by the political opposition between the East and the West. This does not mean that the international community did not engage at all within the framework of the UN in order to stabilize conflict situations and protect populations from mass atrocities. But this engagement - which took the form of peacekeeping – was grounded on the following three principles: the consent of the parties involved, the impartiality of peacekeepers, and a use of force limited to self-defense26.
You can easily see the limitations of this approach: what if the parties to a conflict do not consent to the deployment of peacekeepers? What if they do, but then engage in mass atrocities? The 1990s, in particular the genocides that occurred in the former Yugoslavia and in Rwanda despite a peacekeeping presence, are cruel reminders that on some occasions there is no peace to keep: peace still has to be made and in the meantime populations need to be protected - with or without the consent of their torturers.
Since 199927, and this is extremely encouraging, peacekeepers have been increasingly authorized to use force under UN Charter Chapter VII in order to “protect civilians under imminent threat” of physical violence28. In other words, the consent of isolated peace spoilers is no longer a requirement for the deployment of a peacekeeping operation: operations must have the adequate capacity to counter hostilities and protect populations29. This welcome trend was confirmed on 28 April 2006 in the Security Council’s resolution on the protection of civilians in armed conflicts30. Yet despite these improvements, peacekeeping remains confined to situations where a peace agreement has been signed and where the main parties to the conflict consent to the presence of the peacekeepers. We do not mean to not do justice to such operations: in the last decade, peacekeeping operations, together with peacemaking activities, have fulfilled their promise to reduce conflicts and their usual share of mass atrocities31. However, in situations where there is no consent and where diplomacy and sanctions have failed, the last resort remains the use of force by the international community to protect populations from crimes against humanity, war crimes and genocide.
The deadlock characterizing the recourse to the use of force without the consent of the parties in conflict - peace enforcement - was lifted in 1990 when the Security Council, for the first time, authorized the use of force under Chapter VII. Following the invasion
13 of Kuwait by Iraq, the Security Council authorized member States to use “all necessary means” to “restore international peace and security.” Since 1990, the Security Council authorized, or subsequently endorsed, the use of force under UN Charter Chapter VII in several instances. In most of these cases, the use of force was requested or supported by the legitimate government of the targeted State – whether in charge or in exile. This type of intervention occurred in Liberia32, in Haiti33, in Sierra Leone34, in East Timor35 and in the Democratic Republic of Congo36. In a minority of cases, the use of force was decided without the consent of the authorities in charge, whether there was no clear authority in charge - like in Somalia37 - or whether the consent was not given at the time of the adoption of the resolution – like in Rwanda38. Still on other rare occasions, a coalition of States used force to restore peace and security without a clear mandate from the Security Council acting under Chapter VII, such as in Kosovo39 and more recently in Iraq40.
In all these cases, humanitarian concerns were put forward as a key justification for military intervention41. Yet the international community did not intervene in a principled manner in order to prevent and stop mass atrocities. Genocide unfolded in Rwanda and Bosnia under the eyes of a rather passive international community before a more robust action was decided. Also disturbing, it was argued that intervention in Kosovo actually made the human rights situation worse.
We want to make a point clear: under the current institutional framework, the use of force to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing still falls in two distinct categories - peacekeeping or peace enforcement. If the main parties involved in a conflict agree to a peace agreement and to the deployment of peacekeeping troops, such troops can be deployed with a protective mandate, if and only if States volunteer the necessary troops and equipment. If the main parties involved in a conflict still want to fight and engage in atrocity crimes, the Security Council – since it is devoid of any capacity to act on behalf of the international community – can authorize those States that volunteer to do so to use force in order to restore peace and security.
We will draw two lessons from the current framework. First, the doctrine of the “responsibility to protect” is a moral and political duty for States to prevent and stop genocide, mass atrocities and war crimes wherever they occur. This doctrine does not, in itself, legally bind States to protect the vulnerable. Second, the UN, acting for the international community, was not empowered with the capacity to deliver on the “responsibility to protect”: it does not yet have the personnel – civilian, police or military - to go on the ground and stop acts of hell. And it has to rely on ad hoc arrangements that have to be negotiated, one by one, with individual countries42.
What more noble goal for us, for our country, to build on the doctrine of the “responsibility to protect” and, together with the other members of the international community, fulfill its promise and abolish mass atrocities?
In order to fulfill the responsibility to react to genocide, crimes against humanity and war crimes, we would ideally need:
14 • To transform the doctrine of the “responsibility to protect” into a legally binding commitment;
• To put in place a legitimate and effective triggering mechanism that will provide the link between early warning and an actual response on the part of the international community.
• To develop a doctrine in the area of peace operations that includes guidelines (mandates and rules of engagement) on the legitimate, coherent and effective use of force to enforce the “responsibility to protect” populations from atrocity crimes whether in the framework of a peacekeeping operation, or during a peace enforcement operation43.
• To develop precautionary principles such as those recommended by the ICISS: that the intention of intervening States be right, that the use of force is used as a last resort, that means are proportional to ends, and that there is a reasonable prospect that the consequences of action are not likely to be worse than the consequences of inaction.
II.4. THE RESPONSIBILITY TO REBUILD
The third aspect of the “responsibility to protect” is the responsibility to rebuild societies in post-conflict situations with a view to achieving sustainable peace. In theory, this is the least controversial aspect of the “responsibility to protect.” Indeed, experience has shown that only careful consolidation of peace and the laying of a sound basis for development can avoid the recurrence of armed conflict or mass atrocities. Take Rwanda, Burundi, Uganda, Indonesia or Iraq: mass atrocities occurred more than once. In practice, however, the responsibility to rebuild faces a number of challenges.
The 2005 World Summit Outcome does not expressly endorse the terminology “responsibility to rebuild”, yet one can argue that the notion of rebuilding is included in each State’s commitment to build its own capacities - and help other States build theirs - to protect populations from atrocity crimes. More specifically, the World Summit Outcome establishes a Peacebuilding Commission44, one small step towards rebuilding. This intergovernmental advisory body will bring together all relevant factors to marshal resources and to advise on and propose integrated strategies for post-conflict peace building and recovery45. Despite the inherent difficulties in rebuilding societies shattered by mass atrocities, there is hope that the Peace Building Commission will deliver on its promise and contribute to avoiding recurring instabilities with their potential share of mass atrocities.
15 III. The “responsibility to protect” and the United States of America
III.1. THE UNITED STATES CURRENT FOREIGN POLICY AND THE “RESPONSIBILITY TO PROTECT”
a) From a minimum common denominator…
The endorsement of the doctrine of the “responsibility to protect” during the General Assembly 2005 World Summit means that the international community was able to find a common base upon which to elaborate further measures aimed at preventing and reacting to atrocity crimes as well as rebuilding societies shattered by genocide, war crimes, crimes against humanity and ethnic cleansing.
The overarching goal of the “responsibility to protect” is to free humanity from the commission of atrocity crimes. This revolutionary doctrine offers the perspective of a holistic approach that transcends time lines – prevention, reaction, rebuilding – and calls for the use of a variety of tools – diplomatic, legal, judicial, economic, social, police and military.
The unanimous embrace of the “responsibility to protect” is but one step, even if historical, towards actually dealing with mass atrocities: it is the minimum common denominator States with various and sometimes opposing national interests could agree upon. The next step – the strengthening and the implementation of all the components of the doctrine of the “responsibility to protect” – is still a long and tortuous way ahead.
A first step towards the implementation of some aspects of the “responsibility to protect” was taken on 28 April 2006 when the Security Council adopted its resolution on the protection on civilians in armed conflict46. It is the first time that the Security Council endorses the doctrine of the “responsibility to protect,” a step that has a major significance since it is the UN body that has primary responsibility for dealing with threats to international peace and security, including atrocity crimes. Although the scope of the resolution is not the same as that of the doctrine of the responsibility to protect47, the Security Council requires specific steps to be taken by States and the international community in order to protect civilians. These include: - To end impunity and prosecute those responsible for atrocity crimes; - To ensure that the mandates of peacekeeping, political and peacebuilding missions include where appropriate and on a case-by-case basis, provisions regarding the protection of civilians and clear guidelines on what missions can do to achieve this goal.
16 b) … to a fully fledged answer to atrocity crimes
During the negotiations of the World Summit Outcome48, our government expressed support for the “responsibility to protect,” underlining that there is “clear” risk to international peace and security in cases of genocide, war crimes, crimes against humanity and ethnic cleansing. Our government underscored that the international community must, in these circumstances, be prepared to use peaceful means to protect populations. Our government, however, opposed any step aimed at regulating the use of force to protect populations from mass atrocities. As Gareth Evans wrote: the US “very definitively did not want any guidelines adopted that could limit in any way the Security Council’s - and by extension its own – complete freedom to make judgments on a case by case basis”49.
Today, the slaughter in Darfur is in the public eye. We owe it in part to a handful of dedicated journalists and to an amazing grassroots movement who is appealing to our country to act50. Even our officials invoke the norm of the “responsibility to protect” to call for stronger measures in order to both induce the Sudanese government to comply with its “responsibility to protect” as well as to deliver protection to the victims of mass atrocities51. Yet we must go beyond. Mass atrocities do not deserve ad hoc responses. Ad hoc responses are inefficient and costly, not only in terms of financial costs. Ad hoc responses have great political costs. And they waste precious time. Ad hoc responses have no logic but to lead to institutionalized and standing mechanisms. We cannot, should not, have to nearly reinvent the rule each time our conscience is so shocked that we feel the urge to march down the streets of Washington or Chicago.
More than fifty years have elapsed since the founders of the United Nations laid down their vision of a peaceful world. Their vision encompassed a collective system of security which was only credible and effective because the promise of peace could be delivered, if required, on the ground. Yes indeed, it is time to build on the norm of the “responsibility to protect” and to fulfill the promises of the founding fathers of the United Nations.
These are exciting and decisive times for humankind. It is our aspiration that we, the American People, take advantage of such remarkable times to lead the way for the abolition of mass atrocities. It is our wish that the American people and its leaders will seize this opportunity and make the “responsibility to protect” a flagship of our country’s foreign policy. It is our hope that a contemporary historian will, in the future, be remembered for saying: "The way America has strengthened and implemented the “responsibility to protect” has done more for us and the world than all our former victories and all our diplomacy.”
17 III.2. AN OPPORTUNITY TO REASSERT AMERICA’S LEADERSHIP
Strengthening and implementing the doctrine of the “responsibility to protect” can help the United States restore its credibility in the international arena. And this, to our chagrin, we badly need.
a) The perception of the United States in the world
During the 1990s, the United States had a commanding position in the world. Today, the perception of our country has dramatically changed. A majority of people in the world feels that our country is not having a positive influence in the world52. According to a 2005 study by the Pew Research Center53, “anti-Americanism is deeper and broader now than at any time in modern history.” Why? The size and overwhelming power of the United States is one part of the answer. The rest of the world fears and resents this colossus. Even in the United Kingdom, the United States’ most trusted ally, 55% see our country as a threat to global peace. This fear is exacerbated, and that’s the other part of the answer, by the way the United States behaves at the international level: too quick to act unilaterally, not properly addressing the world’s problems (such as climate change, peace in the Middle East, or the International Criminal Court) and widening the gulf between the rich and the poor.
Let’s face it. The anti-American sentiment stems from a widespread disagreement over specific policy issues coupled with the unfortunate perception that our government is acting in an arrogant way and on the basis of double standards. How far have we come from the Wilsonian dream whereby the world will turn to America for those moral inspirations that lie at the basis of all freedom, the dream that America puts human rights above all other rights, and that her flag is the flag not only of America but of humanity54?
It's time for America to get right55.
b) Why the United States should act upon the responsibility to protect
Implementing the “responsibility to protect” has a broad range of fundamentally important practical implications:
• To prevent or, to the very least, put an end to mass atrocities; • To hold perpetrators of mass atrocities accountable for their acts, thereby putting an end to impunity in cases of genocide, crimes against humanity and war crimes; • To promote reconciliation in crisis-afflicted societies; • To contribute to the building of stable societies less prone to mass atrocities; • To reinforce the rule of law by ensuring the effectiveness of - and compliance with - international law, in particular the UN and the ICC; • To guarantee and enforce international justice; • To contribute to the maintenance of international peace and security.
18 All these objectives are in the interest of America for they lead to a more just and stable world community. For some of us, these goals are sufficiently noble and wise to justify a passionate engagement in favor of embracing and fully realizing the potential of the norm of the “responsibility to protect.” Yet for others, these practical implications might seem too abstract. How palatable is the “maintenance of international peace and security?” How much does the delivery of justice to a victim of mass atrocities in a distant country directly impact me, as an individual? You may ask yourself: why should I care beyond feeling sorry for those miserable people? Or, is it that we find refuge in the dehumanization of a situation? Do we allow ourselves to consider that the victims of mass atrocities are no more than the “miserable creatures” that our ancestors saw in the victims of slavery?
Beyond the political and legal arguments, there are two distinct and compelling cases to be made in favor of the “responsibility to protect.” The first one stems from prudence and enlightened self interest. The second is commanded by ethics.
- Prudence and enlightened self interest
Preventing and putting an end to atrocity crimes is in every individual’s own interest. Nobody would want to be the victim of genocide, of torture, of slavery. Everyone wants to live in a society where the chance of occurrence of mass atrocities is null. Every society should be built in a way that will prevent the commission of genocide, crimes against humanity as well as war crimes. This is why the sum of individuals that compose American society certainly want to live in a country whose leadership has embraced and fully implements the “responsibility to protect” on its very soil. This means, for example, promoting tolerance between communities, fighting social and economic exclusion, promoting justice and the rule of law, ensuring our leadership’s accountability, and making sure our military troops are properly trained about the jus in bello i.e. the laws applicable in warfare.
Embracing the international community’s “responsibility to protect” populations in other countries from genocide, crimes against humanity and war crimes is also in each individual’s self interest. We will agree with many that it seems more difficult to make the case for the global dimension of the “responsibility to protect.” But we only agree in as far as this statement is built on the assumption that there is indeed no global dimension to world affairs. And to take this view is to look at the world through the lenses of the seventeenth century, when the Westphalian Order called for world affairs to be based on the control of populations, not their protection; on the rivalry, not community of States; on exclusion, not integration. But can we live in the 21st century and conduct world affairs based on a vision of the world that is four centuries old? When our very own country did not even exist? Surely no.
We are convinced that there is a relationship between the protection of human most basic rights and wider international security, including our own national and personal security. It is unfortunate, but barbaric acts by some too often lead to objectionable behavior by
19 others. Let’s not forget the reports of abuses at Guantanamo56. War and mass atrocities bring out the evil in us. Let’s remember Abu Ghraib. Moral decay may be contagious and those to whom evil is done might do evil in return. The pious pretense that evil does not exist within us, but only within others and that therefore it is of no concern to us, only makes evil vague and menacing57. And we quote: “Only among people who think no evil can Evil monstrously flourish58.” Prudence and self-interest command that we do not ignore hell on earth. Prudence and self interest forbid us to think that somehow we cannot, will not, be affected by evil.
Those of you who still do not see the necessary connection between us and victims of atrocity crimes cannot seriously remain deaf to prudential arguments based on human and countries’ interdependence. We live in a global economy. Events in a distant country may have clear impacts at home. Today we are dependant on the provision of goods that are produced in some countries with weak human rights records. Some think the way forward is to put an end to such relationships before we might suffer from an overnight social uprising with potential mass atrocities that will have impacts on our economy. But this approach – isolationist in nature – will contribute to destroying the delicate web among nations and Peoples that we have contributed to build over years, over centuries. And we know that unstable societies, abandoned nations or failed States can be the ultimate refugee for terrorists. Why take the risk, especially when we know far too well the price we then might have to pay.
Prudence and self-interest invite us to cooperate with States and help them build stable societies that will bring out the best in them, and thus the best in us, societies that will not be prone to large-scale horrors, societies that will not be the cradle for breeding terrorists.
- Morality
Why should we care about ethics and morality? Because philosophers as ancient as Plato have taught us that ethics provide us with the most sensible and sustainable answers to the question: “How should we live?” Moral guidance is what we seek when we aspire to the best possible human behavior, including when we are dealing with world affairs.
Let us start with the obvious. Today, there is universal acceptance that mass atrocities should not happen. There is no society or culture on earth that values genocide, crimes against humanity or war crimes. And the immorality of such behaviors was unanimously embraced by world leaders during the 2005 World Summit. This is a field where moral relativism simply does not exist. The basic moral question to be answered is not why we should care for populations that are victim of mass atrocities. This question has already been answered. Rather, what we must ask ourselves is: how should we, the American people, want our country to protect populations from atrocity crimes?
20 Before turning to this more delicate question, let us summarize the moral case for the doctrine of the “responsibility to protect”: why – as world leaders have already agreed – should the international community have the moral and political “responsibility to protect” populations from atrocity crimes?
The answer is that the protection of those going through hell is deeply rooted in empathy, a very deep human feeling. It is no coincidence that all religious traditions impose an obligation of immediate help to a person in need regardless of who she or he is. In the Christian tradition, for example, the classic story of this kind is that of the Good Samaritan. Mercy, compassion and practical charity all stem from various religions and, together, form a universal moral code. As Elie Wiesel so rightly expressed it as he referred to ongoing mass atrocities: “How can a citizen of a free country not pay attention? How can anyone, anywhere not feel outraged? How can a person, whether religious or secular, not be moved by compassion?”59
Indeed, we cannot. But how far should we go?
c) The new global social contract
It is when we talk about the means to prevent or stop mass atrocities, that one realizes how much different countries, different cultures, different societies, different groups, even different individuals will offer differing assessments. Beyond the general framework endorsed by the General Assembly and the requirements adopted by the Security Council, there is no obvious universal code of conduct on how to implement all the facets of the “responsibility to protect.” Especially when we ponder over the use of force to protect populations, we enter the realm of moral relativism, political controversy and legal uncertainty. But let’s not stop here, because moral relativism is often the refuge of repressive regimes. And, in our quest for moral guidance on how to prevent and stop mass atrocities, let’s not succumb to the dangers of moralism60: • moral self-inflation, whereby one instinctively adopts a stance of moral superiority over others and thereby becomes insensitive to the flaws in its own; • moral oversimplification, whereby outrage acts as a substitute for insight; • the illicit imposition of values on others. Let’s not allow political controversies stop us. Political will is something that needs to be built. Political consensus is the result of delicately conducted negotiations. Yes, it requires work and the capacity to not only take, but to give. Let’s get to work. And finally, let’s overcome the current legal uncertainties and build a normative framework based on legitimate, strong and enforceable rules of law.
How does this vision translate itself in concrete steps? In order for our country to exert itself nobly, we need our leaders to pledge to the American People and to all the Peoples of the world that our country will protect populations from mass atrocities. This is the first step we must take to abide by the “responsibility to protect”: to make this new global social contract a flagship of our country’s foreign policy. We must also ask from
21 our leaders that they reclaim collaborative leadership at the global level. The United States must lead in the establishment of effective, legitimate and consistently applied mechanisms - based on the rule of law - to prevent and react to mass atrocities, as well as guide the rebuilding of societies shattered by such atrocities.
The norm of the “responsibility to protect” offers humanity a universal moral and political foundation that compels us to abolish genocide, crimes against humanity and war crimes not only on paper, but on the ground. The norm of the “responsibility to protect” also provides us with a comprehensive approach to reach this goal. Doing so is not only in our hands, it is within our reach.
22 Conclusion
A hundred and fifty years ago, Abraham Lincoln stated: “This declared indifference, but as I must think, covert real zeal for the spread of slavery, I can not but hate. I hate it because of the monstrous injustice of slavery itself. I hate it because it deprives our republican example of its just influence in the world ... and especially because it forces so many really good men amongst ourselves into an open war with the very fundamental principles of civil liberty.”61
Today, to not act upon our moral obligation to stop the monstrous injustice of atrocity crimes does a very similar thing: it forces each and every one of us into an open war with the very fundamental principles of our Nation and it deprives our Nation of its just influence in the world.
The universal endorsement of the doctrine of the “responsibility to protect” populations from atrocity crimes is an historical opportunity for our country and the world to put an end to genocide, crimes against humanity and war crimes. We cannot afford to not seize it and truly realize the new global moral compact that we all aspire to.
23 Annex 1: Excerpt from A/RES/60/1
24 25 Annex 2: S/RES/1674 (2006)
26 27 28 29 30 About the authors
Richard H. Cooper is the Convenor of the R2P Coalition. He is also the Founder of General Welfare Group LLC, a family owned Investment Company with over 100 investment partnerships, joint ventures and strategic alliance in the United States and abroad. He has been with the company for 30 years.
General Welfare Group LLC provides joint venture capital for knowledgeable well organized institutional partners. General Welfare Group LLC can also function as an intermediary on complex projects requiring both technical and financial expertise. General Welfare Group LLC can also act as a guarantor on worthy high-risk projects having appropriate social significance.
Mr. Cooper is a graduate of New York University. He completed the program on Investment Decisions & Behavioral Finance at the John F. Kennedy School of Finance at Harvard University and is a member of the Society of Quantitative Analysts. He is married with four children. He is a member of the Board of the Chicago Council on Foreign Relations and serves on its executive Committee. He also serves as a member of the International Advisory Committee of the International Crisis Group. He is a Life Trustee of the Chicago Symphonic Orchestra. He is on the Board of Directors of the Boy Scouts of America, Chicago Council and is a Life Member of the National Eagle Scout Association. He also serves on the Board of Directors of the Lupus Foundation of America. He is also on the Governor’s Public Arts Advisory Committee.
Juliette Voinov Kohler is the Deputy-Convenor of the R2P Coalition and the Executive Director of the Committee for Humanitarian Justice. She specializes on the doctrine of the responsibility to protect and on how to ensure the effectiveness of the international criminal justice system.
Dr. Voinov Kohler obtained her PhD summa cum laude from the Law Faculty of the University of Geneva (Switzerland). Her thesis analyzed the compliance mechanism of the Kyoto Protocol on climate change. This work was awarded the “Professor Walter Hug” prize and was published by Schulthess ed. in April 2006. Dr. Voinov Kohler holds a law degree from the University of Geneva and an L.L.M. with merit from the London School of Economics. She also was admitted to the bar in Geneva.
Dr. Voinov Kohler worked for three years for the Federal Department of Foreign Affairs of Switzerland (Berne, New York). For two years she was the Deputy Head of the environmental office. In her capacity as a government representative, she elaborated and negotiated the legal, institutional, budgetary and political aspects of several multilateral environmental agreements. During her one-year appointment at the Swiss Mission to the United Nations in New York, she managed a project on fostering a donor-recipient dialogue on humanitarian assistance. Prior to joining the public service, Dr. Voinov Kohler practiced law for three years in a Geneva-based law firm.
31 About the R2P Coalition
The R2P Coalition is a nonpartisan and not-for-profit grassroots organization. The mission of the R2P Coalition is to convince the American people and its leaders to embrace the norm of the responsibility to protect as a domestic and foreign policy priority.
The Convenor of the R2P Coalition is Richard H. Cooper. The Deputy Convenor is Juliette Voinov Kohler.
A core-group of individuals - the R2P Steering Committee – provides guidance as well as oversight on how the goals of the R2P Coalition are achieved.
The members of the R2P Coalition Steering Committee are: - Gareth Evans, President and CEO, The International Crisis Group - Susan Mayer, Dean, Harris School of Public Policy, University of Chicago - William Pace, Executive Director, Institute for Global Policy - Ken Roth, Executive Director, Human Rights Watch - Paul Rutgers, Executive Director, Council of Religious Leaders of Metropolitan Chicago - Adele Simmons, President, Global Philanthropy Partnership
The R2P Advisory Board is composed of eminent personalities who provide advice to the R2P Steering Committee and the R2P Coalition Convenor.
The members of the Advisory Board are: - Cherif Bassiouni, President Emeritus, International Human Rights Law Institute, DePaul University - Marshall Bouton, President, The Chicago Council on Global Affairs - David Scheffer, Director, Center for International Human Rights, Northwestern University School of Law - Ruth Messinger, President, American Jewish World Service - Mary Page, Director, Human Rights and International Justice, MacArthur Foundation - Gloria White-Hammond, Chairwoman, One Million Voices for Darfur
For more information: R2P Coalition C/o General Welfare Group LLC 611 Enterprise Drive Oak Brook 60523 IL Tel: 1 630-573-4403 [email protected] http://www.R2Pcoalition.org
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* We are grateful to all of those who provided us with their support and offered their kind advice. We thank in particular David Scheffer, Director of the Center for International Human Rights at Northwestern University School of Law, and Nicole Deller, Program Advisor for WFM-IGP. The views expressed in this report are those of the authors alone. They do not necessarily reflect the views of all the members of the R2P Coalition. 1 The terminology “atrocity crimes” was introduced by David Scheffer as including: genocide, crimes against humanity (including ethnic cleansing) and serious war crimes. See David Scheffer, The Future f Atrocity Law, 25 Suffolk Transnat’l law Review 389 (2002). In this paper, we include “war crimes” as defined under the ICC Statute. 2 SC res. 1674 (2006). 3 John F. Kennedy. 4 See Para. 138 and 139 of GA resolution A/RES/60/1 (World summit outcome) available at http://www.un.org/Depts/dhl/resguide/r60.htm. 5 See article 2.2 and article 2.7 of the UN Charter. 6 See ADAM HOCHSSHILD, BURY THE CHAINS, Houghton Mifflin Company (Boston/New York), 2005. 7 Desiree R. Hopkins, “Abolition of the Atlantic Slave Trade in the United States,” 7 July 1999, TED Case Studies available on: http://www.american.edu/TED/slave.htm 8 This ban, which did not ban the internal slave trade, or the involvement in the international slave trade externally, preceded the adoption, in the United Kingdom, of the Abolition of the Slave Trade Act on March 25, 1807. 9 Amendment XIII, proposed to the legislatures of the several states by the Thirty-eighth Congress on January 31, 1865, ratified on December 6, 1865, with final recognition of the amendment on December 18 1865. 10 Sweden was the first country to abolish slavery in 1335. During the eighteenth century, abolitionist movements sprung in various parts of the world, especially in Europe and America. In Portugal, slavery was abolished in 1761 (but not until 1847 in the colony of St Barthélemy). In Canada, the Act Against Slavery was passed by Upper Canada on 9 July 1793. France actually abolished slavery twice. On 4 February 1794 France freed all the slaves in its Empire, yet Napoleon reinstated slavery in 1802 and it was definitively abolished in 1848. In Britain, the slave trade was banned on 1 January 1808. The Slavery Abolition Act, passed on 23 August 1833, outlawed slavery itself in the British colonies. On August 1, 1834 all slaves in the British Empire were emancipated, but still indentured to their former owners in an apprenticeship system which was finally abolished in 1838. 11 The Convention entered into force on 9 March 1927. Under this Convention slavery is "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised,” whilst slave trade "includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.” 12 See: http://en.wikipedia.org/wiki/Slavery#The_contemporary_status_of_slavery 13See: http://www.freetheslaves.net/slavery/faqs/ 14 As Abraham Lincoln declared: “I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I can not remember when I did not so think, and feel.” Letter to Albert G. Hodges, April 4, 1864. Collected Works of Abraham Lincoln, vol. 7, p. 281, Rutgers University Press (1953, 1990). 15See wikipedia: http://en.wikipedia.org/wiki/Emancipation_Proclamation#Immediate_historical_impact 16 Report of the ICISS: http://www.iciss.ca/menu-en.asp 17 For an analysis of how the US misused the concept of humanitarian intervention to invade Iraq, see Kenneth Roth, “War in Iraq: not a humanitarian intervention.” 2004, available on: http://hrw.org/wr2k4/3.htm#_Toc58744952 18 UN doc. A/59/565, Para. 199-203, available on: http://www.un.org/ga/59/documentation/list5.html. 19 Barbara Harff, “No lessons learned from the Holocaust? Assessing risks of genocide and political mass murder since 1955,” American Political Science Review, vol. 97 N.1, February 2003.
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20 Although the official UN press release is not as explicit (http://www.un.org/News/Press/docs/2006/sga1000.doc.htm), this is how Gareth Evans sees the mandate of the committee (http://www.crisisgroup.org/home/index.cfm?id=4094) 21 See GA res. A/60/L.48 of 24 February 2006. 22 For the text of the Rome Statute of the ICC, see: http://www.icc-cpi.int/about.html 23 For an analysis of this issue, see Juliette Voinov Kohler, Cooper Family Foundation, “A judicial approach to mechanism to operationalize the “responsibility to protect”: The case for an international Marshals service,” March 2006, on file with author: [email protected]. For a similar idea about the need to rely on an international judicial approach to trigger the enforcement role of the Security Council, see Rev. Dr. Konrad Raiser, “The responsibility to protect,” 13 November 2003, available on: http://www.globalpolicy.org/empire/humanint/2003/11raiser.htm 24 Pressure can be brought upon government leaders by stalling progress on issues of interest to the State concerned (adhesion to an international organization for example) or the referral of a situation to the ICC. 25 The Working Group on General Issues on Sanctions has issued some recommendations in September 2002, including that the guidelines of the various sanctions committees established by the Security Council be harmonized. See http://www.un.org/Docs/sc/committees/sanctions/documents.htm. For an update on progress made so far, in particular the stumbling blocks preventing an agreement to be reached, see the Chairman’s report on the 2002-2003 work of the working group, doc S/2003/1197. 26 This rule was included in the guidelines issued by UN Secretary General Kurt Waldheim in 1973. See UN Doc S/11052/Rev.1 (27 October 1973) 27 In 1961, peacekeepers were authorized to use force to prevent the occurrence of civil war in the Republic of Congo. This was an exception that States carefully avoided to repeat in the future peacekeeping operations until the end of the 1990s. See res. 161 of 21 February 1961 and res. 169 of 24 November 1961 regarding ONUC, the peacekeeping force in the Republic of the Congo. 28 See Simon Chesterman, “The use of force in UN peace operation,” external study for the Peacekeeping Best Practices Section (August 2004); and Victoria K. Holt, “The “responsibility to protect”: considering the operational capacity for civilian protection,” Discussion paper (January 2005), Henry L. Stimson Center 29 See para. 92 of GA resolution A/RES/60/1 (World summit outcome) available at http://www.un.org/Depts/dhl/resguide/r60.htm. 30 SC res 1674 (2006). 31 HUMAN SECURITY CENTRE, LIU INSTITUTE FOR GLOBAL ISSUES, HUMAN SECURITY REPORT (2005), available on: http://www.humansecuritycentre.org. 32 On 19 November 1992, the SC adopted resolution 788 that calls for a complete weapons embargo against Liberia and authorizes ECOWAS, through ECOMOG, to enforce it under the terms of Chapter VII. 33 On 31 July 1994, the SC adopted resolution 940 which authorized a multinational force to “use all necessary means” to, inter alia, maintain a secure and stable environment. 34 On 8 October 1997, the SC adopted resolution 1132 which determined the existence of a threat to international peace and security and authorized ECOWAS to enforce an arms embargo against the Armed Forces Revolutionary Council. On 7 February 2000, the SC adopted resolution 1289 that strengthens the UNMASIL peace keeping force and gives it an extended mandate under Chapter VII. 35 On 15 September 1999, the SC adopted resolution 1264 which authorizes, under Chapter VII, an Australian-led multinational force to restore peace and security in East Timor. The resolution however expressly acknowledges Indonesia’s consent to the enforcement operation and it is doubtful whether all five permanent members would have agreed to such military action without Indonesia’s consent. 36 The SC did not authorize the use of force before the March 2003 invasion, and the Iraqi government violently opposed it. 37 On 3 December 1992, the SC adopted resolution 794 that recognizes that the “magnitude of the human tragedy” in Somalia constitutes a “threat to international peace and security” and authorizes the use of “all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia.” 38 On 22 June 1994, the SC adopted resolution 929 that recognizes that the “magnitude of the humanitarian crisis in Rwanda constitutes a threat to peace and security in the region” and authorizes France to use “all necessary means” to improve security and protect civilians. At the time of the adoption of this resolution,
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Kagame was opposed to the french intervention. It however unilaterally declared a ceasefire following the deployment of the troops under UN mandate and, as a consequence, consented to this military intervention. 39 On 23 September 1998, the SC adopted resolution 1199 which affirmed that the situation in Kosovo constituted a threat to peace and security in the region and demanded action to improve the humanitarian situation. It also specified that if there was no progress, the SC would consider further action. On 13 October 1998, NATO started an air campaign, invoking resolution 1199 as legitimizing the use of force. 40 The United Nations Organization Mission in the Democratic Republic of Congo (MONUC) was established by SC resolution 1258 of 6 August 1999 and SC resolution 1279 of 30 November 1999. On 24 February 2000, the SC, acting under Chapter VII, adopted resolution 1291 which strengthens the mandate of MONUC and authorizes the use of “necessary means” to fulfill its mandate. On 1 October 2004, resolution1565 further strengthened MONUC’s mandate and authorized it “to use all necessary means, within its capacity and in the areas where its armed units are deployed, to carry out the above tasks.” MONUC operates with the consent of the government of the DRC. 41 See THOMAS G. WEISS & DON HUBERT, THE “RESPONSIBILITY TO PROTECT”: RESEARCH, BIBLIOGRAPHY, BACKGROUND, SUPPLEMENTARY VOLUME TO THE REPORT OF THE INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY (IDRC 2001), available on: http://www.idrc.ca/en/ev-9439-201- 1-DO_TOPIC.html. 42 At the UN, there is currently a lot of work going into the establishment of a “strategic reserve”: the commitment of a particular State to keep units at a certain level of readiness and for which the State has given some sort of pre-authorization for rapid deployment if needed. 43 See Simon Chesterman, “The use of force in UN peace operation,” external study for the Peacekeeping Best Practices Section (August 2004). The development of guidelines is particularly opposed by the US (who refuses to limits its freedom to make judgments on a case by case basis) and a number of developing countries (who argue that regulating the use of force would somehow encourage it). 44 Para. 97-105 of GA resolution A/RES/60/1 (World summit outcome) available at http://www.un.org/Depts/dhl/resguide/r60.htm. 45 GA res. A/60/180 46 SC res. 1674 (2006). For background information on the negotiations of this resolution, see the Security Council Report, “Update report on the protection of civilians in armed conflict,” 8 March 2006 and 20 April 2006, available on: http://www.securitycouncilreport.org/. 47 The resolution is limited to civilians (not populations), it is limited to protection in times of armed conflict, and it has a wider scope than atrocity crimes. 48 See the US written position on the “responsibility to protect,” 30 August 2005, available on: http://www.un.int/usa/reform-un.htm 49 Gareth Evans “From humanitarian intervention to the responsibility to protect,” Keynote address to the Symposium on Humanitarian intervention, University of Wisconsin, Madison, 31 March 2006, on file with author. See also William Pace and Nicole Deller, “Preventing future genocides: an international responsibility to protect,” in World Order (2005), vol. 36 No 4. 50 See the “Save Darfur Coalition”: http://www.savedarfur.org/home. 51 See the statement by US Secretary of State Condoleezza Rice on 13 April 2006, available on: http://www.alertnet.org/thenews/newsdesk/N133221996.htm; and the letter from Senator Clinton to President Bush on 16 March 2006, available on: http://www.vote- smart.org/speech_detail.php?speech_id=160291&keyword=sudan&phrase=&contain= 52 World Public Opinion, 4 June 2004, available on: http://www.worldpublicopinion.org/pipa/articles/btglobalizationtradera/90.php?nid=&id=&pnt=90&lb=brg lm 53 Pew Research Center, Trends 2005, Chapter 7 “Global Opinion,” available on: http://pewglobal.org/commentary/display.php?AnalysisID=104 54 Woodrow Wilson (1856-1924), U.S. president. Address at Independence Hall, Philadelphia (July 4, 1914). 55Maria Weston Chapman (1806-1885), U.S. abolitionist. Speech, 1855, New York. "How Can I Help to Abolish Slavery." 56 See the 16 February 2006 Report of five independent investigators of the United Nations Commission on Human Rights.
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57 This is an adapted quote from Aleister Crowley (1875-1947), British occultist. The Confessions of Aleister Crowley, ch. 33 (1929, revised 1970). 58 Logan Pearsall Smith (1865-1946), U.S. essayist, aphorist. "Other People," Afterthoughts (1931). 59 Elie Wiesel, “On the atrocities in Sudan,” Remarks delivered at the Darfur Emergency Summit convened at the Graduate Center of the City University of New York on July 14, 2004, by the American Jewish World Service and the United States Holocaust Memorial Museum. 60 See C. A. J. Coady, “The Ethics of armed humanitarian intervention,” July 2002, United States Institute for Peace, available on: http://www.usip.org/pubs/peaceworks/pwks45.html 61 Abraham Lincoln (1809-1865), U.S. president, speech at Peoria, Illinois, Oct. 16, 1854. Collected Works of Abraham Lincoln, vol. 2, p. 255, Rutgers University Press (1953, 1990).
36 From: The Economist 18 September 1999
Two concepts of sovereignty by Kofi A. Annan As heads of state and government gather in New York for the annual session of the UN General Assembly Kofi Annan, the UN secretary-general, gives us his thoughts on international intervention in humanitarian crises, and the changes needed for the next century.
The tragedy of East Timor, coming so soon after that of Kosovo, has focused attention once again on the need for timely intervention by the international community when death and suffering are being inflicted on large numbers of people, and when the state nominally in charge is unable or unwilling to stop it. In Kosovo a group of states intervened without seeking authority from the United Nations Security Council. In Timor the council has now authorised intervention, but only after obtaining an invitation from Indonesia. We all hope that this will rapidly stabilise the situation, but many hundreds—probably thousands—of innocent people have already perished. As in Rwanda five years ago, the international community stands accused of doing too little, too late. Neither of these precedents is satisfactory as a model for the new millennium. Just as we have learnt that the world cannot stand aside when gross and systematic violations of human rights are taking place, we have also learnt that, if it is to enjoy the sustained support of the world’s peoples, intervention must be based on legitimate and universal principles. We need to adapt our international system better to a world with new actors, new responsibilities, and new possibilities for peace and progress. State sovereignty, in its most basic sense, is being redefined—not least by the forces of globalisation and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty—by which I mean the fundamental freedom of each individual, enshrined in the charter of the UN and subsequent international treaties—has been enhanced by a renewed and spreading consciousness of individual rights. When we read the charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them. These changes in the world do not make hard political choices any easier. But they do oblige us to think anew about such questions as how the UN responds to humanitarian crises; and why states are willing to act in some areas of conflict, but not in others where the daily toll of death and suffering is as bad or worse. From Sierra Leone to Sudan, from Angola to Afghanistan, there are people who need more than words of sympathy. They need a real and sustained commitment to help end their cycles of violence, and give them a new chance to achieve peace and prosperity. The genocide in Rwanda showed us how terrible the consequences of inaction can be in the face of mass murder. But this year’s conflict in Kosovo raised equally important questions about the consequences of action without international consensus and clear legal authority. It has cast in stark relief the dilemma of so-called “humanitarian intervention”. On the one hand, is it legitimate for a regional organisation to use force without a UN mandate? On the other, is it permissible to let gross and systematic violations of human rights, with grave humanitarian consequences, continue unchecked? The inability of the international community to reconcile these two compelling interests in the case of Kosovo can be viewed only as a tragedy. To avoid repeating such tragedies in the next century, I believe it is essential that the international community reach consensus—not only on the principle that massive and systematic violations of human rights must be checked, wherever they take place, but also on ways of deciding what action is necessary, and when, and by whom. The Kosovo conflict and its outcome have prompted a debate of worldwide importance. And to each side in this debate difficult questions can be posed. To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might say: leave Kosovo aside for a moment, and think about Rwanda. Imagine for one moment that, in those dark days and hours leading up to the genocide, there had been a coalition of states ready and willing to act in defence of the Tutsi population, but the council had refused or delayed giving the green light. Should such a coalition then have stood idly by while the horror unfolded? To those for whom the Kosovo action heralded a new era when states and groups of states can take military action outside the established mechanisms for enforcing international law, one might equally ask: Is there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the second world war, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents and in what circumstances? Nothing in the UN charter precludes a recognition that there are rights beyond borders. What the charter does say is that “armed force shall not be used, save in the common interest.” But what is that common interest? Who shall define it? Who shall defend it? Under whose authority? And with what means of intervention? In seeking answers to these monumental questions, I see four aspects of intervention which need to be considered with special care. First, “intervention” should not be understood as referring only to the use of force. A tragic irony of many of the crises that go unnoticed or unchallenged in the world today is that they could be dealt with by far less perilous acts of intervention than the one we saw this year in Yugoslavia. And yet the commitment of the world to peacekeeping, to humanitarian assistance, to 2 rehabilitation and reconstruction varies greatly from region to region, and crisis to crisis. If the new commitment to humanitarian action is to retain the support of the world’s peoples, it must be—and must be seen to be—universal, irrespective of region or nation. Humanity, after all, is indivisible. Second, it is clear that traditional notions of sovereignty alone are not the only obstacle to effective action in humanitarian crises. No less significant are the ways in which states define their national interests. The world has changed in profound ways since the end of the cold war, but I fear our conceptions of national interest have failed to follow suit. A new, broader definition of national interest is needed in the new century, which would induce states to find greater unity in the pursuit of common goals and values. In the context of many of the challenges facing humanity today, the collective interest is the national interest. Third, in cases where forceful intervention does become necessary, the Security Council—the body charged with authorising the use of force under international law—must be able to rise to the challenge. The choice must not be between council unity and inaction in the face of genocide—as in the case of Rwanda— and council division, but regional action, as in the case of Kosovo. In both cases, the UN should have been able to find common ground in upholding the principles of the charter, and acting in defence of our common humanity. As important as the council’s enforcement power is its deterrent power, and unless it is able to assert itself collectively where the cause is just and the means available, its credibility in the eyes of the world may well suffer. If states bent on criminal behaviour know that frontiers are not an absolute defence—that the council will take action to halt the gravest crimes against humanity—then they will not embark on such a course assuming they can get away with it. The charter requires the council to be the defender of the “common interest”. Unless it is seen to be so—in an era of human rights, interdependence and globalisation— there is a danger that others will seek to take its place. Fourth, when fighting stops, the international commitment to peace must be just as strong as was the commitment to war. In this situation, too, consistency is essential. Just as our commitment to humanitarian action must be universal if it is to be legitimate, so our commitment to peace cannot end as soon as there is a ceasefire. The aftermath of war requires no less skill, no less sacrifice, no fewer resources than the war itself, if lasting peace is to be secured. This developing international norm in favour of intervention to protect civilians from wholesale slaughter will no doubt continue to pose profound challenges to the international community. In some quarters it will arouse distrust, scepticism, even hostility. But I believe on balance we should welcome it. Why? Because, despite all the difficulties of putting it into practice, it does show that humankind today is less willing than in the past to tolerate suffering in its midst, and more willing to do something about it. Copyright 1999, The Economist 3
4 INTERNATIONAL CRIMES PROSECUTED AT NUREMBERG
(EXCERPT FROM) "CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL (IMT)," IN AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS (LONDON AGREEMENT), AUGUST 8, 1945, 58 STAT. 1544, E.A.S. NO. 472, 82 U.N.T.S. 280:
II. JURISDICTION AND GENERAL PRINCIPLES
Article 6. The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the count where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.
Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
Questions: • This was the first document to define crimes against humanity. Does this raise issues of ex post facto (retroactive) criminal responsibility? • Could all of the Nazi Regime’s Genocide against Jews, Gypsies and others within Germany be prosecuted under rubric (c) above? Why not? Excerpts from the CONVENTION (IV) RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR (Signed at Geneva, 12 August 1949, U.N.T.S. No. 973, vol. 75, p. 287) PART I GENERAL PROVISIONS Article 1. The High Contracting parties undertake to respect and to ensure respect for the present Convention in all circumstances.
Art. 2. In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. The provisions of part II are, however, wider in application, as defined in Article 13. Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention.
Art. 5 Where in the territory of a party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
Art. 146. The High Contracting parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting party concerned, provided such High Contracting party has made out a prima facie case. Each High Contracting party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. Art. 147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Art. 148. No High Contracting party shall be allowed to absolve itself or any other High Contracting party of any liability incurred by itself or by another High Contracting party in respect of breaches referred to in the preceding Article.
GETTING A CASE TO THE ICC
Step I: Ratification of the ICC Statute The Statute must be ratified by 60 States to take effect and establish the ICC (Article 126(1)) The ICC will have jurisdiction only over crimes committed after the Statute enters into effect. (Article 11(1))
Step II: Preconditions to the exercise of the ICC's jurisdiction Before the ICC can act its jurisdiction must be accepted by either: (Article 12(2)) The Territorial State The State of Nationality of the Accused (where crime was allegedly committed) (The US in the case of US nationals)
“A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5." Article 12(1) When necessary, other states may also accept ICC jurisdiction by declaration (Article 12(3))
Step III: Initiation of investigations and prosecutions Who can initiate investigations leading to possible ICC prosecutions? Three possibilities under Article 13:
Referral of a situation by Referral of a situation by the Initiation of an investigation by a State-Party Security Council the Prosecutor proprio motu (on his own authority)
A basic right of a parties No need for precondition in Special limits apply to the Prosecutor's to the Statute Step II to be met in this case initiation of an investigation proprio motu Based on the special role of the (Article 15) Council under the UN Charter Pre-trial Chamber of the ICC must approve in maintaining international any investigation initiated by the Prosecutor peace and security by finding: Could involve the Security “reasonable basis to proceed with an Council in enforcing the ICC's investigation” requests for cooperation from states that the case “appears to fall within the (Article 87(7)) jurisdiction” of the ICC
Step IV: Admissibility/Complementarity The deference of the ICC to the jurisdiction of national courts The most general and effective jurisdictional limit on the ICC lies in its relationship to national courts The jurisdiction of the ICC "shall be complementary to national criminal jurisdictions." (Article 1) A threshold of "admissibility" applies to ensure that the ICC will have jurisdiction only in exceptional cases, as a sort of "safety net" to prevent impunity for serious international crimes This provides the best assurance for the US that US nationals are unlikely ever to be tried by the ICC unless the US government decides to allow it
© 1999 Bartram S. Brown Chicago-Kent College of Law The Standard of Admissibility (Article 17)
The ICC shall not proceed with The only exception to (a) and (b) is if: any case if: the state concerned " is unwilling or unable genuinely to carry out (a) It is being investigated or the investigation or prosecution" prosecuted by a State which Unwillingness standard requires "one of more" of the following: has jurisdiction national proceedings or decision made for the purpose of shielding (b) It has been investigated by the person from criminal responsibility Article 17(2)(a) a State which has jurisdiction over it and the State has unjustified delay in the proceedings is inconsistent with an intent to decided not to prosecute the bring the person concerned to justice Article 17(2)(b) person concerned proceedings not being conducted independently or impartially, and (c) The person has already conducted in a manner which, in the circumstances, is inconsistent with been tried for the same conduct an intent to bring the person concerned to justice Article 17(2)(c) (d) The case is not of sufficient Inability standard considers whether: gravity to justify further "due to a total or substantial collapse or unavailability of its action by the Court national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings Article 17(3)
Admissibility can be challenged at various stages, but only once by any person or state (Article 19(4))
Preliminary Ruling on Admissibility at the Initiation of a Case Any state with jurisdiction over the case can assert its superior right to exercise that jurisdiction (Article 18) the ICC Prosecutor must notify all states with jurisdiction of any investigations commenced States have one month to notify Prosecutor of their own investigation of the persons concerned ICC Prosecutor must defer to any State’s investigations, unless a Pre-Trial Chamber decides to authorize the investigation (i.e. finds the case to be admissible) The State may appeal the Pre-Trial Chamber’s decision
Other challenges to the admissibility of a case (Article 19) Admissibility may be determined by the ICC on its own motion, or An accused may bring a challenge, or A state with jurisdiction, may also bring a challenge on the ground it is investigating or prosecuting the case, or has already done so A state whose acceptance of jurisdiction is required, as a precondition of the exercise of jurisdiction under Article 12
Step V: Possibility of Deferral Pursuant to Decision of the Security Council "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions." (Article 16)
© 1999 Bartram S. Brown 2 Chicago-Kent College of Law Step VI: Investigation/Evaluation by the Prosecutor After the referral of a situation by a State Party or by the Security Council, the Prosecutor evaluates the information made available to him or her Prosecutor makes a preliminary decision whether to proceed with the investigation based on whether: (Article 53) (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor decodes not to proceed the referring State Party or the Security Council if it referred the case is informed along with the Pre-Trial Chamber
Decision there is no reasonable basis to proceed Otherwise Prosecutor proceeds to investigate Referring Party, and Pre-Trial Chamber are notified Collects evidence, seeks testimony, seeks cooperation of states and international organizations Pre-Trial Chamber may review the decision at the request of the referring party or on its own initiative Is to respect rights of persons during the investigations (Article 55) Process may end here
Step VII: Pre-Trial Chamber decides upon the issuance of orders and warrants requested by Prosecutor for purposes of investigation (Articles 57-58) Summons to appear, measures to preserve evidence, arrest warrants Article 58 sets out the standards for issuance of an arrest warrant Ideally the arrest warrant leads either to: arrest by the custodial state and surrender to the ICC, or voluntary appearance before the ICC of the person whose arrest is sought
Step VIII: Confirmation of charges before trial (Article 61) Within a reasonable time after the person's surrender or voluntary appearance before the Court or in the absence of the person charged if the presence of that person cannot be secured After informing the person charged, and/or his or her counsel, of all charges and evidence, The Pre-Trial Chamber holds a hearing to determine whether to confirm the charges Document setting out the charges must be provided to the person and his or her counsel At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. Pre-Trial Chamber confirms or dismisses each charge
© 1999 Bartram S. Brown 3 Chicago-Kent College of Law 10 Wheat. 66, 6 L.Ed. 268 (Cite as: 23 U.S. 66) [PRIZE. INSTANCE COURT. SLAVE TRADE.] The ANTELOPE. February Term, 1825
These cases were allegations filed by the Vice-Consuls of Spain and Portugal, claiming certain Africans as the property of subjects of their nation. The material facts were as follows: A privateer, called the Colombia, sailing under a Venezuelean commission, entered the port of Baltimore in the year 1819; clandestinely shipped a crew of thirty or forty men; proceeded to sea, and hoisted the Artegan flag, assuming the name of the Arraganta, and prosecuted a voyage along the coast of Africa; her officers and the greater part of her crew being citizens of the United States. Off the coast of Africa she captured an American vessel, from Bristol, in Rhode Island, from which she took twenty-five Africans; she captured several Portuguese vessels, from which she also took Africans; and she captured a Spanish vessel, called the Antelope, in which she also took a considerable number of Africans. … This vessel, thus freighted, was found hovering near the coast of the United States, by the revenue cutter, Dallas, under the command of Captain Jackson, and finally brought into the port of Savannah for adjudication. The Africans, at the time of her capture, amounted to upwards of two hundred and eighty. On their arrival, the vessel, and the Africans, were libelled, and claimed by the Portuguese and Spanish Vice-Consuls reciprocally. They were also claimed by John Smith, as captured jure belli. They were claimed by the United States, as having been transported from foreign parts by American citizens, in contravention to the laws of the United States, and as entitled to their freedom by those laws, and by the law of nations. Captain Jackson, the master of the revenue cutter, filed an alternative claim for the bounty given by law, if the Africans should be adjudged to the United States; or to salvage, if the whole subject should be adjudged to the Portuguese and Spanish Consuls.
Mr. Chief Justice MARSHALL delivered the opinion of the Court, and, after stating the case, proceeded as follows: … That the course of opinion on the slave trade should be unsettled, ought to excite no surprise. The Christian and civilized nations of the world. *115 with whom we have most intercourse, have all been engaged in it. However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern times by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully interrupt. It has claimed all the sanction which could be derived from long usage, and general acquiescence. That trade could not be considered as contrary to the law of nations which was authorized and protected by the laws of all commercial nations; the right to carry on which was claimed by each, and allowed by each. … …In the beginning of this century, several humane and enlightened individuals of Great Britain devoted themselves to the cause of the Africans; and, by frequent appeals to the nation, in which the enormity of this commerce was unveiled, and exposed to the public eye, the general sentiment was at length roused against it, and the feelings of justice and humanity, regaining their long lost ascendency, prevailed so far in the British parliament as to obtain an act for its abolition. The utmost efforts of the British government, as well as of that of the United States, have since been assiduously *116 employed in its suppression. It has been denounced by both in terms of great severity, and those concerned in it are subjected to the heaviest penalties which law can inflict. In addition to these measures operating on their own people, they have used all their influence to bring other nations into the same system, and to interdict this trade by the consent of all. Public sentiment has, in both countries, kept pace with the measures of government; and the opinion is extensively, if not universally entertained, that this unnatural traffic ought to be suppressed. While its illegality is asserted by some governments, but not admitted by all; while the detestation in which it is held is growing daily, and even those nations who tolerate it in fact, almost disavow their own conduct, and rather connive at, than legalize, the acts of their subjects; it is not wonderful that public feeling should march somewhat in advance of strict law, and that opposite opinions should be entertained on the precise cases in which our own laws may control and limit the practice of others. Indeed, we ought not to be surprised, if, on this novel series of cases, even Courts of justice should, in some instances, have carried the principle of suppression farther than a more deliberate consideration of the subject would justify. …(examines cases in various jurisdictions on the disposition of seized slave ships) *118 The principle common to these cases is, that the legality of the capture of a vessel engaged in the slave trade, depends on the law of the country to which the vessel belongs. If that law gives its sanction to the trade, restitution will be decreed; if that law prohibits it, the vessel and cargo will be condemned as good prize. This whole subject came on afterwards to be considered in the Louis, (2 Dodson's Rep. 238.) The opinion of Sir William Scott, in that case, demonstrates the attention he had bestowed upon it, and gives full assurance that it may be considered as settling the law in the British Courts of Admiralty as far as it goes. The Louis was a French vessel, captured on a slaving voyage, before she had purchased any slaves, brought into Sierra Leone, and condemned by the Vice Admiralty Court at that place. On an appeal to the Court of Admiralty in England, the sentence was reversed. In the very full and elaborate opinion given on this case, Sir William Scott, in explicit terms, lays down the broad principle, that the right of search is confined to a state of war. It is a right strictly belligerent in its character, which can never be exercised by a nation at peace, except against professed pirates, who are the enemies of the human race. The act of trading in slaves, however detestable, was not, he said, 'the act of freebooters, enemies of the human race, renouncing every country, and ravaging every country, in its coasts and vessels, indiscriminately.' It was not piracy. *119 He also said, that this trade could not be pronounced contrary to the law of nations. 'A Court, in the administration of law, cannot attribute criminality to an act where the law
2 imputes none. It must look to the legal standard of morality; and, upon a question of this nature, that standard must be found in the law of nations, as fixed and evidenced by general, and ancient, and admitted practice, by treaties, and by the general tenor of the laws and ordinances, and the formal transactions of civilized states; and, looking to those authorities, he found a difficulty in maintaining that the transaction was legally criminal.' The right of visitation and search being strictly a belligerent right, and the slave trade being neither piratical, nor contrary to the law of nations, the principle is asserted and maintained with great strength of reasoning, that it cannot be exercised on the vessels of a foreign power, unless permitted by treaty. France had refused to assent to the insertion of such an article in her treaty with Great Britain, and, consequently, the right could not be exercised on the high seas by a British cruiser on a French vessel. … In the United States, different opinions have been entertained in the different Circuits and Districts; and the subject is now, for the first time, before this Court. The question, whether the slave trade is prohibited by the law of nations has been seriously propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness. That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of general *121 usage. That which has received the assent of all, must be the law of all. Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful. Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favour of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, it was carried on without opposition, and without censure. A jurist could *122 not say, that a practice thus supported was illegal, and that those engaged in it might be punished, either personally, or by deprivation of property. In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. How is this right to be lost? Each may renounce it for its own people; but can this renunciation affect others? No principle of general law is more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can
3 rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be devested only by consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it. … It follows, that a foreign vessel engaged in the African slave trade, captured on the high-seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored.
Edits to this document © Bartram S. Brown 2004
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The ICJ is the principal legal organ of the United Nations. Under Article 93 of the UN Charter, all UN member states are ipso facto parties to the ICJ Statute, but they are not required to submit any case to it except in cases where they have consented or promised to do so. The ICJ only has jurisdiction to decide cases that states consent to submit to it for decision. That consent can take the form of binding treaties or declarations of varying scope.
Statute of the International Court of Justice Article 38(1)
(This article, describing the law to be applied by the ICJ when deciding cases within its jurisdiction, is generally considered to be the most authoritative enumeration of the sources of International Law) (All emphasis added)
"1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, [.e. that only the parties bound by the decision in any particular case,] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Consider:
How do rules from each of these different sources come to be part of international law? Do all these sources involve positive law? Might any of them reflect natural law?
20 S.Ct. 290 44 L.Ed. 320 (Cite as: 175 U.S. 677) THE PAQUETE HABANA. THE LOLA. Nos. 395, 396.
Argued November 7, 8, 1899.
Decided January 8, 1900.
APPEAL from decrees of the District Court of the United States for the Southern District of Florida condemning vessels as prize of war. Reversed.
Mr. Justice Gray delivered the opinion of the court:
These are two appeals from decrees of the district court of the United States for the southern district of Florida condemning two fishing vessels and their cargoes as prize of war. Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Cuban birth, living in the city of Havana; was commanded by a subject of Spain, also residing in Havana; and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her catch, the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockading squadron she had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition on board, and made on attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture. The Paquete Habana was a sloop, 43 feet long on the keel, *679 and of 25 tons burden, and had a crew of three Cubans, including the master, who had a fishing license from the Spanish government, and no other commission or license. She left Havana March 25, 1898; sailed along the coast of Cuba to Cape San Antonio, at the western end of the island, and there fished for twenty-five days, lying between the reefs off the cape, within the territorial waters of Spain; and then started back for Havana, with a cargo of about 40 quintals of live fish. On April 25, 1898, about 2 miles off Mariel, and 11 miles from Havana, she was captured by the United States gunboat Castine. The Lola was a schooner, 51 feet long on the keel, and of 35 tons burden, and had a crew of six Cubans, including the master, and no commission or license. She left Havana April 11, 1898, and proceeded to Campeachy sound, off Yucatan, fished there eight days, and started back for Havana with a cargo of about 10,000 pounds of live fish. On April 26, 1898, near Havana, she was stopped by the United States steamship Cincinnati, and was warned not to go into Havana, ... We are then brought to the consideration of the question whether, upon the facts appearing in these records, the fishing smacks were subject to capture by the armed vessels of the United States during the recent war with Spain. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. This doctrine, however, has been earnestly contested at the bar; and no complete collection of the instances illustrating it is to be found, so far as we are aware, in a single published work although many are referred to and discussed by the writers on international law, notable in 2 Ortolan, Regles Internationales et Diplomatie de la Mer (4th ed.) lib. 3, chap. 2, pp. 51-56; in 4 Calvo, Droit International (5th ed.) ss 2367-2373; in De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi, ss 191-196; and in Hall, International Law (4th ed.) s 148. It is therefore worth the while to trace the history of the rule, from the earliest accessible sources, through the increasing recognition of it, with occasional setbacks, to what we may now justly consider as its final establishment in our own country and generally throughout the civilized world. The earliest acts of any government on the subject, mentioned *687 in the books, either emanated from, or were approved by, a King of England. In 1403 and 1406 Henry IV. issued orders to his admirals and other officers, entitled 'Concerning Safety for Fishermen--De Securitate pro Piscatoribus.' By an order of October 26, 1403, reciting that it was made pursuant to a treaty between himself and the King of France; and for the greater safety of the fishermen of either country, and so that they could be, and carry on their industry, the more safely on the sea, and deal with each other in peace; and that the French King had consented that English fishermen should be treated likewise,--it was ordained that French fishermen might, during the then pending season for the herring fishery, safely fish for herrings and all other fish, from the harbor of Gravelines and the island of Thanet to the mouth of the Seine and the harbor of Hautoune. And by an order of October 5, 1406, he took into his safe conduct and under his special protection, guardianship, and defense, all and singular the fishermen of France, Flanders, and Brittany, with their fishing vessels and boats, everywhere on the sea, through and within his dominions, jurisdictions, and territories, in regard to their fishery, while sailing, coming, and going, and, at their pleasure, freely and lawfully fishing, delaying, or proceeding, and returning homeward with their catch of fish, without any molestation or hindrance whatever; and also their fish, nets, and other property and goods soever; and it was therefore **295 ordered that such fishermen should not be interfered with, provided they should comport themselves well and properly, and should not, by color of these presents, do or attempt, or presume to do or attempt, anything that could prejudice the King, or his Kingdom of England, or his subjects. 8 Rymer's Foedera, 336, 451. The treaty made October 2, 1521, between the Emperor Charles V. and Francis I. of France, through their ambassadors, recited that a great and fierce war had arisen between them, because of which there had been, both by land and by sea, frequent depredations and incursions on either side, to the grave detriment and intolerable injury of the innocent *688 subjects of each; and that a suitable time for the herring fishery was at hand, and, by reason of the sea being beset by the enemy, the fishermen did not dare to go out, whereby the subject of
2 their industry, bestowed by heaven to allay the hunger of the poor, would wholly fail for the year, unless it were otherwise provided,--Quo fit, ut piscaturoe commoditas, ad pauperum levandam famen a coelesti numine concessa, cessare hoc anno cmnino debeat, nisi aliter provideatur. And it was therefore agreed that the subjects of each sovereign, fishing in the sea, or exercising the calling of fishermen, could and might, until the end of the next January, without incurring any attack, depredation, molestation, trouble, or hindrance soever, safely and freely, everywhere in the sea, take herrings and every other kind of fish, the existing war by land and sea notwithstanding; and, further, that during the time aforesaid no subject of either sovereign should commit, or attempt or presume to commit, any depredation, force, violence, molestation, or vexation to or upon such fishermen or their vessels, supplies, equipments, nets, and fish, or other goods soever truly appeartaining to fishing. The treaty was made at Calais, then an English possession. It recites that the ambassadors of the two sovereigns met there at the earnest request of Henry VIII. and with his countenance, and in the presence of Cardinal Wolsey, his chancellor and representative. And towards the end of the treaty it is agreed that the said King and his said representative, 'by whose means the treaty stands concluded, shall be conservators of the agreements therein, as if thereto by both parties elected and chosen.' 4 Dumont, Corps Diplomatique, pt. 1, pp. 352, 353. The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536. Bynkershoek, Quaestiones Juris Publicae, lib. 1, chap. 3; 1 Emerigon des Assurances, chap. 4, s 9; chap. 12, s 19, s 8. France, from remote times, set the example of alleviating the evils of war in favor of all coast fishermen. In the compilation entitled 'Us et Coutumes de la Mer,' published by Cleirac in 1661, and in the third part thereof, containing 'Maritime or Admiralty Jurisdiction,-- la Jurisdiction de la *689 Marine ou d' Admiraute--as well in time of peace, as in time of war,' article 80 is as follows: 'The admiral may in time of war accord fishing truces--tresves pescheresses--to the enemy and to his subjects; provided that the enemy will likewise accord them to Frenchmen.' Cleirac, 544. Under this article, reference is made to articles 49 and 79 respectively of the French ordinances concerning the admiralty in 1543 and 1584, of which it is but a reproduction. 4 Pardessus, Collection de Lois Maritimes, 319; 2 Ortolan, 51. And Cleirac adds, in a note, this quotation from Froissart's Chronicles: 'Fishermen on the sea, whatever war there were in France and England, never did harm to one another; so they are friends, and help one another at need,-- Pescheurs sur mer, quelque guerre qui soit en France et Angleterre, jamais ne se firent mal l'un a l'autre; aincois sont amis, et s'aydent l'un a l'autre au besoin.' The same custom would seem to have prevailed in France until towards the end of the seventeenth century. For example, in 1675, Louis XIV. and the States General of Holland by mutual agreement granted to Dutch and French fishermen the liberty, undisturbed by their vessels of war, of fishing along the coats of France, Holland, and England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1, vol. 2, p. 278. But by the ordinances of 1681 and 1692 the practice was discontinued, because, Valin says, of the faithless conduct of the enemies of France, who, abusing the good faith with which she had always observed the treaties, habitually carried off her fishermen, while their own fished in safety. 2 Valin sur l'Ordonnance de la Marine (1776) 689, 690; 2 Ortolan, 52; De Boeck, s 192.
3 The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of war, has been familiar to the United States from the time of the War of Independence. On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral, informing him that the wish he had always had of alleviating, as far as he could, the hardships of war, had directed his attention to that class of his subjects *690 which devoted itself to the trade of fishing, and had no other means of livelihood; that he had thought that the example which he should give to his enemies, and which could have no other source than the sentiments of humanity which inspired him, would determine them to allow to fishermen the same facilities which he should consent to grant; and that he had therefore given orders to the commanders of all his ships not to disturb English fishermen, nor to arrest their vessels laden with fresh fish, even if not caught by those vessels; provided they had no offensive arms, and were not proved to have made any signals creating a suspicion of intelligence with the enemy; and the admiral was directed to communicate the King's intentions to all officers under his control. By a royal order in council of November 6, 1780, the former orders were confirmed; and the capture and ransom, by a French cruiser, **296 of The John and Sarah, an English vessel, coming from Holland, laden with fresh fish, were pronounced to be illegal. 2 Code des Prises (ed. 1784) 721, 901, 903. Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty, was one of April 11, 1780, by which it was 'ordered that all causes of prize of fishing boats or vessels taken from the enemy may be consolidated in one monition, and one sentence or interlocutory, if under 50 tons burthen, and not more than 6 in number.' Marriott's Formulary, 4. But by the statements of his successor, and of both French and English writers, it appears that England, as well as France, during the American Revolutionary War, abstained from interfering with the coast fisheries. The Young Jacob and Johanna, 1 C. Rob. 20; 2 Ortolan, 53; Hall, s 148. In the treaty of 1785 between the United States and Prussia, article 23 (which was proposed by the American Commissioners, John Adams, Benjamin Franklin, and Thomas Jefferson, and is said to have been drawn up by Franklin), provided that, if war should arise between the contracting parties, 'all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen, *691 unarmed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price.' 8 Stat. at L. 96; 1 Kent, Com. 91, note; Wheaton, History of the Law of Nations, 306, 308. Here was the clearest exemption from hostile molestation or seizure of the persons, occupations, houses, and goods of unarmed fishermen inhabiting unfortified places. The article was repeated in the later treaties between the United States and Prussia of 1799 and 1828. 8 Stat. at L. 174, 384. And Dana, in a note to his edition of Wheaton's International Laws, says: 'In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupation is not to be disturbed in war.' Wheaton, International Law (8th ed.) s 345, note 168.
4 Since the United States became a nation, the only serious interruptions, so far as we are informed, of the general recognition of the exemption of coast fishing vessels from hostile capture, arose out of the mutual suspicions and recriminations of England and France during the wars of the French Revolution. ... Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815, wrote: 'It has been usual *696 in maritime wars to exempt from capture fishing boats and their cargoes, both from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people. This custom, so honorable to the humanity of civilized nations, has fallen into disuse; and it is remarkable that both France and England mutually reproach each other with that breach of good faith which has finally abolished it.' Wheaton, Captures, chap. 2, s 18. This statement clearly exhibits Wheaton's opinion that the custom had been a general one, as well as that it ought to remain so. His assumption that it had been abolished by the differences between France and England at the close of the last century was hardly justified by the state of things when he wrote, and has not since been borne out. During the wars of the French Empire, as both French and English writers agree, the coast fisheries were left in peace. 2 Ortolan, 54; De Boeck, s 193; Hall, s 148. De Boeck quaintly and truly adds, 'and the incidents of 1800 and of 1801 had no morrow,--n'eurent pas de lendemain.' In the war with Mexico, in 1846, the United States recognized the exemption of coast fishing boats from capture. In proof of this, counsel have referred to records of the Navy Department, which this court is clearly authorized to consult upon such a question. Jones v. United States, 137 U. S. 202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80; Underhill v. Hernandez, 168 U. S. 250, 253, 42 L. ed. 456, 457, 18 Sup. Ct. Rep. 83. By those records it appears that Commodore Conner, commanding the Home Squadron blockading the east coast of Mexico, on May 14, 1846, wrote a letter from the ship Cumberland, off Brazos Santiago, near the southern point of Texas, to Mr. Bancroft, the Secretary of the Navy, inclosing a copy of the commodore's 'instructions to the commanders of the vessels of the Home Squadron, showing the principles to be observed in the blockade of the Mexican ports,' one of which was that 'Mexican boats engaged in fishing on any part of the coast will be allowed to pursue their labors unmolested;' and that on June 10, 1846, those instructions were approved by the Navy Department, of which Mr. Bancroft was still the head, and continued to be until he was appointed Minister to *697 England in September following. Although Commodore Conner's instructions and the Department's approval thereof do not appear in population, and indeed of all things destined to contribute to the maintenance of the enemy's army in the Crimea;' and that the property destroyed consisted of large fishing establishments and storehouses of the Russian government, numbers of heavy launches, and enormous quantities of nets and gear, salted fish, corn, *700 and other provisions intended for the supply of the Russian army. United Service Journal of 1855, pt. 3, pp. 108-112. Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels employed in catching and bringing to market fresh fish, no instance has been found in which the exemption from capture of private coast fishing vessels honestly pursuing their peaceful industry has been denied by England or by any other nation. And the Empire of Japan (the last state admitted into the rank of civilized nations), by an ordinance
5 promulgated at the beginning of its war with China in August, 1894, established prize courts, and ordained that 'the following enemy's vessels are exempt from detention,' including in the exemption 'boats engaged in coast fisheries,' as well as 'ships engaged exclusively on a voyage of scientific discovery, philanthrophy, or religious mission.' Takahashi, International Law, 11, 178. International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U. S. 113, 163, 164, 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139. Wheaton places among the principal sources international law 'text-writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent.' As to these he forcibly observes: 'Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally *701 impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles.' Wheaton, International Law (8th ed.), s 15. Chancellor Kent says: 'In the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished **300 jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law.' 1 Kent, Com. 18. It will be convenient, in the first place, to refer to some leading French treatises on international law, which deal with the question now before us, not as one of the law of France only, but as one determined by the general consent of civilized nations. 'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in 1855, 'are good prize. Not all, however; for it results from the unanimous accord of the maritime powers that an exception should be made in favor of coast fishermen. Such fishermen are respected by the enemy so long as they devote themselves exclusively to fishing.' 1 Pistoye et Duverdy, tit. 6, chap. 1, p. 314. ... This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent
6 states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way. Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce. This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter. Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing vessels from capture is perfectly justiciable, or, in other words, of judicial jurisdiction or cognizance. Calvo, s 2368. Nor are judicial precedents wanting in support of the view that this exemption, or a somewhat analogous one, should be recognized and declared by a prize court. *709 By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war, and therefore not subject to capture. It has been usual for the government sending out such an expedition to give notice to other powers; but it is not essential. 1 Kent, Com. 91, note; Halleck, chap. 20, s 22; Calvo, s 2376; Hall, s 138. In 1813, while the United States were at war with England, an American vessel on her voyage from Italy to the United States was captured by an English ship, and brought into Halifax, in Nova Scotia, and, with her cargo, condemned as lawful prize by the court of vice admiralty there. But a petition for the restitution of a case of paintings **303 and engravings which had been presented to and were owned by the Academy of Arts in Philadelphia was granted by Dr. Croke, the judge of that court, who said: 'The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favor and protection. They are considered, not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species.' And he added that there had been 'innumerable cases of the mutual exercise of this courtesy between nations in former wars.' The Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445, 482. In 1861, during the war of the Rebellion, a similar decision was made in the district court of the United States for the eastern district of Pennsylvania, in regard to two cases of books belonging and consigned to a university in North Carolina. Judge Cadwalader, in ordering these books to be liberated from the custody of the marshal and restored to the agent of the university, said: 'Though this claimant, as the resident of a hostile district, would not be entitled to restitution of the subject of a commercial adventure in books, the purpose of the shipment in question gives to it a different *710 character. The United States, in prosecuting hostilities for the restoration of their constitutional authority, are compelled incidentally to
7 confiscate property captured at sea, of which the proceeds would otherwise increase the wealth of that district. But the United States are not at war with literature in that part of their territory.' He then referred to the decision in Nova Scotia, and to the French decisions upon cases of fishing vessels, as precedents for the decree which he was about to pronounce; and he added that, without any such precedents, he should have had no difficulty in liberating these books. The Amelia, [FN1] 4 Phila. 417. In Brown v. United States, 8 Cranch, 110, 3 L. ed. 504, there are expressions of Chief Justice Marshall which, taken by themselves, might seem inconsistent with the position above maintained, of the duty of a prize court to take judicial notice of a rule of international law, established by the general usage of civilized nations, as to the kind of property subject to capture. But the actual decision in that case, and the leading reasons on which it was based, appear to us rather to confirm our position. The principal question there was whether personal property of a British subject, found on land in the United States at the beginning of the last war with Great Britain, could lawfully be condemned as enemy's property, on a libel filed by the attorney of the United States, without a positive act of Congress. The conclusion of the court was 'that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war.' 8 Cranch, 129, 3 L. ed. 510, 511. In showing that the declaration of war did not, of itself, vest the Executive with authority to order such property to be confiscated, the Chief Justice relied on the modern usages of nations, saying: 'The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation,' and again: 'The modern rule, then, would seem to be that tangible property *711 belonging to an enemy, and found in the country at the commencement of war, ought not to be immediately confiscated; and in almost every commercial treaty an article is inserted stipulating for the right to withdraw such property.' 8 Cranch, 123, 125, 3 L. ed. 509. The decision that enemy property on land, which by the modern usage of nations is not subject to capture as prize of war, cannot be condemned by a prize court, even by direction of the Executive, without express authority from Congress, appears to us to repel any inference that coast fishing vessels, which are exempt by the general consent of civilized nations from capture, and which no act of Congress or order of the President has expressly authorized to be taken and confiscated, must be condemned by a prize court, for want of a distinct exemption in a treaty or other public act of the government. To this subject in more than one aspect are singularly applicable the words uttered by Mr. Justice Strong, speaking for this court: 'Undoubtedly no single nation can change the law of the sea. The law is of universal obligation and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation, or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which, when generally accepted, became of universal obligation.' 'This is not
8 giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws; but it is recognition of the historical fact that by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact, we think, we may take judicial notice. Foreign municipal laws *712 must indeed be proved as facts, but it is not so with the law of nations.' The Scotia, 14 Wall. **304 170, 187, 188, sub nom. Sears v. The Scotia, 20 L. ed. 822, 825, 826. The position taken by the United States during the recent war with Spain was quite in accord with the rule of international law, now generally recognized by civilized nations, in regard to coast fishing vessels. On April 21, 1898, the Secretary of the Navy gave instructions to Admiral Sampson, commanding the North Atlantic Squadron, to 'immediately institute a blockade of the north coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west.' Bureau of Navigation Report of 1898, appx. 175. The blockade was immediately instituted accordingly. On April 22 the President issued a proclamation declaring that the United States had instituted and would maintain that blockade, 'in pursuance of the laws of the United States, and the law of nations applicable to such cases.' 30 Stat. at L. 1769. And by the act of Congress of April 25, 1898, chap. 189, it was declared that the war between the United States and Spain existed on that day, and had existed since and including April 21, 30 Stat. at L. 364. On April 26, 1898, the President issued another proclamation which, after reciting the existence of the war as declared by Congress, contained this further recital: 'It being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice.' This recital was followed by specific declarations of certain rules for the conduct of the war by sea, making no mention of fishing vessels. 30 Stat. at L. 1770. But the proclamation clearly manifests the general policy of the government to conduct the war in accordance with the principles of international law sanctioned by the recent practice of nations. On April 28, 1898 (after the capture of the two fishing vessels now in question), Admiral Sampson telegraphed to the Secretary of the Navy as follows: 'I find that a large number of fishing schooners are attempting to get into Havana from their fishing grounds near the Florida reefs and coasts. They are generally manned by excellent seamen, belonging *713 to the maritime inscription of Spain, who have already served in the Spanish navy, and who are liable to further service. As these trained men are naval reserves, most valuable to the Spaniards as artillerymen, either afloat or ashore, I recommend that they should be detained prisoners of war, and that I should be authorized to deliver them to the commanding officer of the army at Key West.' To that communication the Secretary of the Navy, on April 30, 1898, guardedly answered: 'Spanish fishing vessels attempting to violate blockade are subject, with crew, to capture, and any such vessel or crew considered likely to aid enemy may be detained.' Bureau of Navigation Report of 1898, appx. 178. The admiral's despatch assumed that he was not authorized, without express order, to arrest coast fishermen peaceably pursuing their calling; and the necessary implication and evident intent of the response of the Navy Department were that Spanish coast fishing vessels and their crews should not be interfered with, so long as they neither attempted to violate the blockade, nor were considered likely to aid the enemy. The Paquete Habana, as the record shows, was a fishing sloop of 25 tons burden, sailing under the Spanish flag, running in and out of Havana, and regularly engaged in
9 fishing on the coast of Cuba. Her crew consisted of but three men, including the master, and, according to a common usage in coast fisheries, had no interest in the vessel, but were entitled to two thirds of her catch, the other third belonging to her Spanish owner, who, as well as the crew, resided in Havana. On her last voyage, she sailed from Havana along the coast of Cuba, about 200 miles, and fished for twenty-five days off the cape at the west end of the island, within the territorial waters of Spain, and was going back to Havana, with her cargo of live fish, when she was captured by one of the blockading squadron, on April 25, 1898. She had no arms or ammunition on board; she had no knowledge of the blockade, or even of the war, until she was stopped by a blockading vessel; she made no attempt to run the blockade, and no resistance at the time of the capture; nor was there any evidence *714 whatever of likelihood that she or her crew would aid the enemy. In the case of the Lola, the only differences in the facts were that she was a schooner of 35 tons burden, and had a crew of six men, including the master; that after leaving Havana, and proceeding some 200 miles along the coast of Cuba, she went on, about 100 miles farther, to the coast of Yucatan, and there fished for eight days; and that, on her return, when near Bahia Honda, on the coast of Cuba, she was captured, with her cargo of live fish, on April 27, 1898. These differences afford no ground for distinguishing the two cases. Each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in number, had no interest in the vessel, and received, in return for their toil and enterprise, two thirds of her catch, the other third going to her owner by way of compensation for her use. Each vessel went out from Havana to her fishing ground, and was captured when returning along the coast of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the sea, and kept alive on board. Although one of the vessels extended her fishing trip across the Yucatan channel and fished on the coast of Yucatan, we cannot doubt that each was engaged in the coast fishery, and not in a commercial adventure, within the rule of international law. The two vessels and their cargoes were condemned by the district court as prize of war; the vessels were sold under its decrees; and it does not appear what became of the fresh fish of which their cargoes consisted. **305 Upon the facts proved in either case, it is the duty of this court, sitting as the highest prize court of the United States, and administering the law of nations, to declare and adjudge that the capture was unlawful and without probable cause; and it is therefore, in each case,---- Ordered, that the decree of the District Court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs.
Edits to this document © Bartram S. Brown 2004
10
Readings on the Origins of Human Rights
Compiled and Edited by Professor Bartram S. Brown
For the sole use of his International Human Rights Class
Chicago-Kent College of Law
CICERO Excerpts from THE LAWS and from THE REPUBLIC, 52 B.C. p. 1
JOHN LOCKE, Excerpts from THE SECOND TREATISE OF GOVERNMENT, 1690 p. 3
THOMAS JEFFERSON THE DECLARATION OF INDEPENDENCE, July 4, 1776. p. 7
THE MARQUIS DE LAFAYETTE DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN Approved by the National Assembly of France, August 26, 1789 p. 9
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS Adopted by the United Nations General Assembly, 10 December 1948 p. 11
1 Cicero on the Universal Nature of True Law (circa 52 B.C.)
(all emphasis added)
There in fact a true law - namely, right reason - which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong. Its commands and prohibitions always influence good men, but are without effect upon the bad. To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation , and to annul it wholly is impossible. Neither the senate nor the people can absolve us from our obligation to obey this law, and it requires no Sextus Aelius to expound and interpret it. It will not lay down one rule at Rome and another at Athens, nor will it be one rule to-day and another tomorrow. But there will be one law, eternal and unchangeable, binding at all times upon all peoples; and there will be, as it were, one common master and ruler of men, namely God, who is the author of this law, it interpreter, and its sponsor. The man who will not obey it will abandon his better self, and, in denying the true nature of a man, will thereby suffer the severest of penalties, though he has escaped all the other consequences which men call punishments.1
Out of all the material of the philosophers' discussions, surely there comes nothing more valuable than the full realization that we are born for Justice, and that right is based, not upon man's opinions, but upon Nature. This fact will immediately be plain if you once get a clear conception of man's fellowship and union with his fellow-men. For no single thing is so like another, so exactly its counterpart, as all of us are to one another. Nay, if bad habits and false beliefs did not twist the weaker minds and turn them in whatever direction they are inclined, no one would be so like his own self as all men would be like all others.2
1 Cicero, THE REPUBLIC, II, 22. 2 Cicero, THE LAWS, I, 10, 28-29. 2 Excerpts from THE SECOND TREATISE OF GOVERNMENT
by JOHN LOCKE
Digitized by Dave Gowan
John Locke's "Second Treatise of Government" was published in 1690. The complete unabridged text has been republished several times in edited commentaries. This is based on the paperback book, "John Locke Second Treatise of Government", Edited, with an Introduction, By C.B. McPherson, Hackett Publishing Company, Indianapolis and Cambridge, 1980. None of the McPherson edition is included in the text; only the original words contained in the 1690 Locke text is included. The 1690 edition text is free of copyright.
This text is in the PUBLIC DOMAIN, posted to Wiretap 1 Jul 94.
CHAPTER VII Of Political or Civil Society.
Sec. 87. Man being born, as has been proved, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men; but to judge of, and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it. But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there, and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together. Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society one with another: but those who have no such common appeal, I mean on earth, are still in the state of nature, each being, where there is no other, judge for himself, and executioner; which is, as I have before shewed it, the perfect state of nature. Sec. 88. And thus the common-wealth comes by a power to set down what punishment shall belong to the several transgressions which they think worthy of it, committed amongst the members of that society, (which is the power of making laws) as well as it has the power to punish any injury done unto any of its members, by any one that is
3 not of it, (which is the power of war and peace;) and all this for the preservation of the property of all the members of that society, as far as is possible. But though every man who has entered into civil society, and is become a member of any commonwealth, has thereby quitted his power to punish offences, against the law of nature, in prosecution of his own private judgment, yet with the judgment of offences, which he has given up to the legislative in all cases, where he can appeal to the magistrate, he has given a right to the common-wealth to employ his force, for the execution of the judgments of the common-wealth, whenever he shall be called to it; which indeed are his own judgments, they being made by himself, or his representative. And herein we have the original of the legislative and executive power of civil society, which is to judge by standing laws, how far offences are to be punished, when committed within the common-wealth; and also to determine, by occasional judgments founded on the present circumstances of the fact, how far injuries from without are to be vindicated; and in both these to employ all the force of all the members, when there shall be need. Sec. 89. Where-ever therefore any number of men are so united into one society, as to quit every one his executive power of the law of nature, and to resign it to the public, there and there only is a political, or civil society. And this is done, where-ever any number of men, in the state of nature, enter into society to make one people, one body politic, under one supreme government; or else when any one joins himself to, and incorporates with any government already made: for hereby he authorizes the society, or which is all one, the legislative thereof, to make laws for him, as the public good of the society shall require; to the execution whereof, his own assistance (as to his own decrees) is due. And this puts men out of a state of nature into that of a common-wealth, by setting up a judge on earth, with authority to determine all the controversies, and redress the injuries that may happen to any member of the commonwealth; which judge is the legislative, or magistrates appointed by it. And where-ever there are any number of men, however associated, that have no such decisive power to appeal to, there they are still in the state of nature. Sec. 90. Hence it is evident, that absolute monarchy, which by some men is counted the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil-government at all: for the end of civil society, being to avoid, and remedy those inconveniencies of the state of nature, which necessarily follow from every man's being judge in his own case, by setting up a known authority, to which every one of that society may appeal upon any injury received, or controversy that may arise, and which every one of the* society ought to obey; where-ever any persons are, who have not such an authority to appeal to, for the decision of any difference between them, there those persons are still in the state of nature; and so is every absolute prince, in respect of those who are under his dominion. (*The public power of all society is above every soul contained in the same society; and the principal use of that power is, to give laws unto all that are under it, which laws in such cases we must obey, unless there be reason shewed which may necessarily inforce, that the law of reason, or of God, doth enjoin the contrary, Hook. Eccl. Pol. l. i. sect. 16.) Sec. 91. For he being supposed to have all, both legislative and executive power in himself alone, there is no judge to be found, no appeal lies open to any one, who may fairly, and indifferently, and with authority decide, and from whose decision relief and redress may be expected of any injury or inconviency, that may be suffered from the prince, or by his order: so that such a man, however intitled, Czar, or Grand Seignior, or how you please, is as much in the state of nature, with all under his dominion, as he is with therest of mankind: for where-ever any two men are, who have no standing rule, and common judge to appeal to on earth, for the determination of controversies of right betwixt them, there they are still in the state of* nature, and under all the inconveniencies of it, with only this woful difference to the subject, or rather slave of an absolute prince: that whereas, in the ordinary state of nature, he has a liberty to judge of his right, and according to the best of his power, to maintain it; now, whenever his property is invaded by the will and order of his monarch, he has not only no appeal, as those in society ought to have, but as if he were degraded from the common state of rational creatures, is denied a liberty to judge of, or to defend his right; and so is exposed to all the misery and inconveniencies, that a man can fear from one, who being in the unrestrained state of nature, is yet corrupted with flattery, and armed with power. (*To take away all such mutual grievances, injuries and wrongs, i.e. such as attend men in the state of nature, there was no way but only by growing into composition and agreement amongst themselves, by ordaining some kind of govemment public, and by yielding themselves subject thereunto, that unto whom they granted authority to rule and govem, by them the peace, tranquillity and happy estate of the rest might be procured. Men always knew that where force and injury was offered, they might be defenders of themselves; they knew that however men may seek 4 their own commodity, yet if this were done with injury unto others, it was not to be suffered, but by all men, and all good means to be withstood. Finally, they knew that no man might in reason take upon him to determine his own right, and according to his own determination proceed in maintenance thereof, in as much as every man is towards himself, and them whom he greatly affects, partial; and therefore that strifes and troubles would be endless, except they gave their common consent, all to be ordered by some, whom they should agree upon, without which consent there would be no reason that one man should take upon him to be lord or judge over another, Hooker's Eccl. Pol. l. i. sect. 10.) Sec. 92. For he that thinks absolute power purifies men's blood, and corrects the baseness of human nature, need read but the history of this, or any other age, to be convinced of the contrary. He that would have been insolent and injurious in the woods of America, would not probably be much better in a throne; where perhaps learning and religion shall be found out to justify all that he shall do to his subjects, and the sword presently silence all those that dare question it: for what the protection of absolute monarchy is, what kind of fathers of their countries it makes princes to be and to what a degree of happiness and security it carries civil society, where this sort of government is grown to perfection, he that will look into the late relation of Ceylon, may easily see. Sec. 93. In absolute monarchies indeed, as well as other governments of the world, the subjects have an appeal to the law, and judges to decide any controversies, and restrain any violence that may happen betwixt the subjects themselves, one amongst another. This every one thinks necessary, and believes he deserves to be thought a declared enemy to society and mankind, who should go about to take it away. But whether this be from a true love of mankind and society, and such a charity as we owe all one to another, there is reason to doubt: for this is no more than what every man, who loves his own power, profit, or greatness, may and naturally must do, keep those animals from hurting, or destroying one another, who labour and drudge only for his pleasure and advantage; and so are taken care of, not out of any love the master has for them, but love of himself, and the profit they bring him: for if it be asked, what security, what fence is there, in such a state, against the violence and oppression of this absolute ruler? the very question can scarce be borne. They are ready to tell you, that it deserves death only to ask after safety. Betwixt subject and subject, they will grant, there must be measures, laws and judges, for their mutual peace and security: but as for the ruler, he ought to be absolute, and is above all such circumstances; because he has power to do more hurt and wrong, it is right when he does it. To ask how you may be guarded from harm, or injury, on that side where the strongest hand is to do it, is presently the voice of faction and rebellion: as if when men quitting the state of nature entered into society, they agreed that all of them but one, should be under the restraint of laws, but that he should still retain all the liberty of the state of nature, increased with power, and made licentious by impunity. This is to think, that men are so foolish, that they take care to avoid what mischiefs may be done them by pole-cats, or foxes; but are content, nay, think it safety, to be devoured by lions. Sec. 94. But whatever flatterers may talk to amuse people's understandings, it hinders not men from feeling; and when they perceive, that any man, in what station soever, is out of the bounds of the civil society which they are of, and that they have no appeal on earth against any harm, they may receive from him, they are apt to think themselves in the state of nature, in respect of him whom they find to be so; and to take care, as soon as they can, to have that safety and security in civil society, for which it was first instituted, and for which only they entered into it. And therefore, though perhaps at first , (as shall be shewed more at large hereafter in the following part of this discourse) some one good and excellent man having got a pre -eminency amongst the rest, had this deference paid to his goodness and virtue, as to a kind of natural authority, that the chief rule, with arbitration of their differences, by a tacit consent devolved into his hands, without any other caution, but the assurance they had of his uprightness and wisdom; yet when time, giving authority, and (as some men would persuade us) sacredness of customs, which the negligent, and unforeseeing innocence of the first ages began, had brought in successors of another stamp, the people finding their properties not secure under the government, as then it was, (whereas government has no other end but the preservation of * property) could never be safe nor at rest, nor think themselves in civil society, till the legislature was placed in collective bodies of men, call them senate, parliament, or what you please. By which means every single person became subject, equally with other the meanest men, to those laws, which he himself, as part of the legislative, had established; nor could any one, by his own authority; avoid the force of the law, when once made; nor by any pretence of superiority plead exemption, thereby to license his own, or the miscarriages of any of his dependents.** No man in civil society can be exempted from the laws of it: for if any man may do what he thinks fit, and there be no appeal on earth, for redress or security against any harm he shall do; I ask, whether he be not perfectly still in the state of nature, and so can be no part or member of that civil society; 5 unless any one will say, the state of nature and civil society are one and the same thing, which I have never yet found any one so great a patron of anarchy as to affirm. (*At the first, when some certain kind of regiment was once appointed, it may be that nothing was then farther thought upon for the manner of goveming, but all permitted unto their wisdom and discretion, which were to rule, till by experience they found this for all parts very inconvenient, so as the thing which they had devised for a remedy, did indeed but increase the sore, which it should have cured. They saw, that to live by one man's will, became the cause of all men's misery. This constrained them to come unto laws, wherein all men might see their duty beforehand, and know the penalties of transgressing them. Hooker's Eccl. Pol. l. i. sect. 10.) (**Civil law being the act of the whole body politic, cloth therefore over-rule each several part of the same body. Hooker, ibid.)
6 The Declaration of Independence IN CONGRESS, July 4, 1776. (all emphasis added) The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil power.
7 He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For Quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States: For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent: For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
8 DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN
Approved by the National Assembly of France, August 26, 1789
(all emphasis added)
The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any moment with the objects and purposes of all political institutions and may thus be more respected, and, lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all. Therefore the National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen: Articles: 1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good. 2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression. 3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation. 4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law. 5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law. 6. Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents. 7. No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed, any arbitrary order, shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense. 8. The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offense. 9. As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law. 10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law. 11. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law. 9 12. The security of the rights of man and of the citizen requires public military forces. These forces are, therefore, established for the good of all and not for the personal advantage of those to whom they shall be intrusted. 13. A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all the citizens in proportion to their means. 14. All the citizens have a right to decide, either personally or by their representatives, as to the necessity of the public contribution; to grant this freely; to know to what uses it is put; and to fix the proportion, the mode of assessment and of collection and the duration of the taxes. 15. Society has the right to require of every public agent an account of his administration. 16. A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all. 17. Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.
The above document was largely written by The Marquis de Lafayette, with help from his friend and neighbor, American envoy to France, Thomas Jefferson. There are also versions credited to Alexis Francois Pison de Galland, a member of the National Assembly who approved the Declaration. Lafayette had come to the Colonies at age 19, been commissioned a Major General, and was instrumental in the defeat of the British during the American Revolutionary War. He considered one special man his 'father': George Washington.
10 The Universal Declaration of Human Rights Adopted by the United Nations General Assembly, 10 December 1948 (all emphasis added) country or territory to which a person belongs, whether it be WHEREAS recognition of the inherent dignity and of independent, trust, non-self-governing or under any other the equal and inalienable rights of all members of the limitation of sovereignty. human family is the foundation of freedom, justice and ARTICLE 3. Everyone has the right to life, liberty and peace in the world, security of person. WHEREAS disregard and contempt for human rights ARTICLE 4. No one shall be held in slavery or servitude; have resulted in barbarous acts which have outraged the slavery and the slave trade shall be prohibited in all their conscience of mankind, and the advent of a world in which forms. human beings shall enjoy freedom of speech and belief ARTICLE 5. No one shall be subjected to torture or to and freedom from fear and want has been proclaimed as cruel, inhuman or degrading treatment or punishment. the highest aspiration of the common people, ARTICLE 6. Everyone has the right to recognition WHEREAS it is essential, if man is not to be compelled everywhere as a person before the law. to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be ARTICLE 7. All are equal before the law and are protected by the rule of law, entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any WHEREAS it is essential to promote the development discrimination in violation of this Declaration and against of friendly relations between nations, any incitement to such discrimination. WHEREAS the peoples of the United Nations have in ARTICLE 8. Everyone has the right to an effective the Charter reaffirmed their faith in fundamental human remedy by the competent national tribunals for acts rights, in the dignity and worth of the human person and in violating the fundamental rights granted him by the the equal rights of men and women and have determined constitution or by law. to promote social progress and better standards of life in larger freedom, ARTICLE 9. No one shall be subjected to arbitrary arrest, detention or exile. WHEREAS Member States have pledged themselves to achieve, in co-operation with the United Nations, the ARTICLE 10. Everyone is entitled in full equality to a promotion of universal respect for and observance of fair and public hearing by an independent and impartial human rights and fundamental freedoms, tribunal, in the determination of his rights and obligations and of any criminal charge against him. WHEREAS a common understanding of these rights and freedoms is of the greatest importance for the full ARTICLE 11. (1) Everyone charged with a penal realisation of this pledge, offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had Now, therefore, THE GENERAL ASSEMBLY proclaims all the guarantees necessary for his defence. this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to (2) No one shall be held guilty of any penal offence on the end that every individual and every organ of society, account of any act or omission which did not constitute a keeping this Declaration constantly in mind, shall strive by penal offence, under national or international law, at the teaching and education to promote respect for these rights time when it was committed. Nor shall a heavier penalty and freedoms and by progressive measures, national and be imposed than the one that was applicable at the time international, to secure their universal and effective the penal offence was committed. recognition and observance, both among the peoples of the ARTICLE 12. No one shall be subjected to arbitrary Member States themselves and among the peoples of interference with his privacy, family, home or territories under their jurisdiction. correspondence, nor to attacks upon his honour and ARTICLE 1. All human beings are born free and equal reputation. Everyone has the right to the protection of the in dignity and rights. They are endowed with reason and law against such interference or attacks. conscience and should act towards one another in a spirit ARTICLE 13. (1) Everyone has the right to freedom of of brotherhood. movement and residence within the borders of each State. ARTICLE 2. Everyone is entitled to all the rights and (2) Everyone has the right to leave any country, freedoms set forth in this Declaration, without distinction of including his own, and to return to his country. any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, ARTICLE 14. (1) Everyone has the right to seek and to birth or other status. enjoy in other countries asylum from persecution. Furthermore, no distinction shall be made on the basis of (2) This right may not be invoked in the case of the political, jurisdictional or international status of the prosecutions genuinely arising form non-political crimes or 11 from acts contrary to the purposes and principles of the existence worthy of human dignity, and supplemented, if United Nations. necessary, by other means of social protection. ARTICLE 15. (1) Everyone has the right to a nationality. (4) Everyone has the right to form and to join trade (2) No one shall be arbitrarily deprived of his nationality unions for the protection of his interests. nor denied the right to change his nationality. ARTICLE 24. Everyone has the right to rest and leisure, ARTICLE 16. (1) Men and women of full age, without including reasonable limitation of working hours and any limitation due to race, nationality or religion, have the periodic holidays with pay. right to marry and to found a family. They are entitled to ARTICLE 25. (1) Everyone has the right to a standard equal rights as to marriage, during marriage and at its of living adequate for the health and well-being of himself dissolution. and of his family, including food, clothing, housing and (2) Marriage shall be entered into only with the free and medical care and necessary social services, and the right full consent of the intending spouses. to security in the event of unemployment, sickness, disability, widowhood, old age and other lack of livelihood (3) The family is the natural and fundamental group unit in circumstances beyond his control. of society and is entitled to protection by society and the State. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of ARTICLE 17. (1) Everyone has the right to own wedlock, shall enjoy the same social protection. property alone as well as in association with others. ARTICLE 26. (1) Everyone has the right to education. (2) No one shall be arbitrarily deprived of his property. Education shall be free, at least in the elementary and ARTICLE 18. Everyone has the right to freedom of fundamental stages. Elementary education shall be thought, conscience and religion; this right includes compulsory. Technical and professional education shall be freedom to change his religion or belief, and freedom, made generally available and higher education shall be either alone or in community with others and in public or equally accessible to all on the basis of merit. private, to manifest his religion or belief in teaching, (2) Education shall be directed to the full development practice, worship and observance. of the human personality and to the strengthening of ARTICLE 19. Everyone has the right to freedom of respect for human rights and fundamental freedoms. It opinion and expression; this right includes freedom to hold shall promote understanding, tolerance and friendship opinions without interference and to seek, receive and among all nations, racial or religious groups, and shall impart information and ideas through any media and further the activities of the United Nations for the regardless of frontiers. maintenance of peace. ARTICLE 20. (1) Everyone has the right to freedom of (3) Parents have a prior right to choose the kind of peaceful assembly and association. education that shall be given their children. (2) No one may be compelled to belong to an ARTICLE 27. (1) Everyone has the right to freely association. participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its ARTICLE 21. (1) Everyone has the right to take part benefits. in the government of his country, directly or through chosen representatives. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary (2) Everyone has the right of equal access to public or artistic production of which he is the author. service in his country. ARTICLE 28. Everyone is entitled to a social and (3) The will of the people shall be the basis of the international order in which the rights and freedoms set authority of government; this will shall be expressed in forth in this Declaration can be fully realised. periodic and genuine elections which shall be held by universal and equal suffrage and shall be held by secret ARTICLE 29. (1) Everyone has duties to the vote or by equivalent free voting procedures. community in which alone the free and full development of is personality is possible. ARTICLE 22. Everyone, as a member of society, has the right to social security and is entitled to realisation, (2) In the exercise of his rights and freedoms, everyone through national effort and international co-operation and shall be subject only to such limitations as are determined in accordance with the organisation and resources of each by law solely for the purpose of securing due recognition State, of the economic, social and cultural rights and respect for the rights and freedoms of others and of indispensable for his dignity and the free development of meeting the just requirements of morality, public order and his personality. the general welfare in a democratic society. ARTICLE 23. (1) Everyone has the right to work, to free (3) These rights and freedoms may in no case be choice of employment, to just and favourable conditions of exercised contrary to the purposes and principles of the work and to protection against unemployment. United Nations. (2) Everyone, without any discrimination, has the right ARTICLE 30. Nothing in this Declaration may be to equal pay for equal work. interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed (3) Everyone has the right to just and favourable remuneration ensuring for himself and his family an 12 at the destruction of any of the rights and freedoms set forth herein.
QUESTIONS TO CONSIDER ON THESE READINGS
According to Cicero: What is the nature of law? What then is the role and status of “human legislation”? How can people know what is just?
According to Locke: How were governments established? What is the purpose of government? What are the implications for government of his theories?
What has Jefferson borrowed from the ideas of Locke in the Declaration of Independence? What natural rights does he identify in the Declaration? Are these a logical place to start with the idea of human rights?
What does Lafayette add to Jefferson’s concept of human rights?
How does the Universal Declaration of Human Rights break new ground? What new values does it invoke in support of international human rights?
13 Eleanor Roosevelt: Address to the United Nations General Assembly
On the Adoption of the Universal Declaration of Human Rights
"This Universal Declaration of Human Rights may well become the international Magna Carta of all men everywhere."
delivered 9 December 1948 in Paris, France
Mr. President, fellow delegates:
The long and meticulous study and debate of which this Universal Declaration of Human Rights is the product means that it reflects the composite views of the many men and governments who have contributed to its formulation. Not every man nor every government can have what he wants in a document of this kind. There are of course particular provisions in the Declaration before us with which we are not fully satisfied. I have no doubt this is true of other delegations, and it would still be true if we continued our labors over many years. Taken as a whole the Delegation of the United States believes that this a good document -- even a great document -- and we propose to give it our full support. The position of the United States on the various parts of the Declaration is a matter of record in the Third Committee. I shall not burden the Assembly, and particularly my colleagues of the Third Committee, with a restatement of that position here.
I should like to comment briefly on the amendments proposed by the Soviet delegation. The language of these amendments has been dressed up somewhat, but the substance is the same as the amendments which were offered by the Soviet delegation in committee and rejected after exhaustive discussion. Substantially the same amendments have been previously considered and rejected Human Rights Commission. We in the United States admire those who fight for their convictions, and the Soviet delegation has fought for their convictions. But in the older democracies we have learned that sometimes we bow to the will of the majority. In
1 doing that, we do not give up our convictions. We continue sometimes to persuade, and eventually we may be successful. But we know that we have to work together and we have to progress. So, we believe that when we have made a good fight, and the majority is against us, it is perhaps better tactics to try to cooperate.
I feel bound to say that I think perhaps it is somewhat of an imposition on this Assembly to have these amendments offered again here, and I am confident that they will be rejected without debate.
The first two paragraphs of the amendment to article 3 deal with the question of minorities, which committee 3 decided required further study, and has recommended, in a separate resolution, their reference to the Economic and Social Council and the Human Rights Commission. As set out in the Soviet amendment, this provision clearly states "group," and not individual, rights.
The Soviet amendment to article 20 is obviously a very restrictive statement of the right to freedom of opinion and expression. It sets up standards which would enable any state practically to deny all freedom of opinion and expression without violating the article. It introduces the terms "democratic view," "democratic systems," "democratic state," and "fascism," which we know all too well from debates in this Assembly over the past two years on warmongering and related subjects are liable to the most flagrant abuse and diverse interpretation.
The statement of the Soviet delegate here tonight is a very good case in point on this. The Soviet amendment of article 22 introduces new elements into the article without improving the committed text and again introduces specific reference to discrimination. As was repeatedly pointed out in committee 3, the question of discrimination is comprehensively covered in article 2 of the Declaration, so that is restatement elsewhere is completely unnecessary and also has the effect of weakening the comprehensive principles stated in article 2. The new article proposed by the Soviet delegation is but a restatement of State obligation, which the Soviet delegation attempted to introduce into practically every article in the Declaration. It would convert the Declaration into a document stating obligations on states, thereby changing completely its character as a statement of principles to serve as a common standard of achievement for the members of the United Nations.
The Soviet proposal for deferring consideration of the Declaration to the 4th session of the Assembly requires no comment. And identical text was rejected in committee 3 by a vote of 6 in favor and 26 against. We are all agreed, I am sure, that the Declaration, which as been worked on with such great effort in devotion, and over such a long period of time, must be approved by this Assembly at this session.
Certain provisions of the Declaration are stated in such broad terms as to be acceptable only because of the provisions in article 30 providing for limitation on the exercise of the rights for the purpose of meeting the requirements of morality, public order, and the general welfare. An example of this is the provision that everyone has the right to equal access to the public service in his country. The basic principle of equality and of nondiscrimination as to public employment is sound, but it cannot be accepted without limitation. My government, for example, would consider that this is unquestionably subject to limitation in the interest of public order and the general welfare. It would not consider that the exclusion from public employment of persons
2 holding subversive political beliefs and not loyal to the basic principles and practices of the constitution and laws of the country would in any way infringe upon this right.
Likewise, my Government has made it clear in the course of the development of the Declaration that it does not consider that the economic and social and cultural rights stated in the Declaration imply an obligation on governments to assure the enjoyment of these rights by direct governmental action. This was made quite clear in the Human Rights Commission text of article 23 that served as a so-called "umbrella" article to the articles on economic and social rights. We consider that the principle has not been affected by the fact that this article no longer contains a reference to the articles which follow it. This in no way affects our whole- hearted support for the basic principles of economic, social, and cultural rights set forth in these articles.
In giving our approval to the Declaration today it is of primary importance that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation. It is a Declaration of basic principles of human rights and freedoms, to be stamped with the approval of the General Assembly by formal vote of its members, and to serve as a common standard of achievement for all peoples of all nations.
We stand today at the threshold of a great event both in the life of the United Nations and in the life of mankind. This Universal Declaration of Human Rights may well become the international Magna Carta of all men everywhere. We hope its proclamation by the General Assembly will be an event comparable to the proclamation of the Declaration of the Rights of Man by the French people in 1789, the adoption of the Bill of Rights by the people of the United States, and the adoption of comparable declarations at different times in other countries.
At a time when there are so many issues on which we find it difficult to reach a common basis of agreement, it is a significant fact that 58 states have found such a large measure of agreement in the complex field of human rights. This must be taken as testimony of our common aspiration first voiced in the Charter of the United Nations to lift men everywhere to a higher standard of life and to a greater enjoyment of freedom. Man’s desire for peace lies behind this Declaration. The realization that the fragrant violation of human rights by Nazi and Fascist countries sowed the seeds of the last world war has supplied the impetus for the work which brings us to the moment of achievement here today.
In a recent speech in Canada, Gladstone Murray said:
"The central fact is that man is fundamentally a moral being, that the light we have is imperfect does not matter so long as we are always trying to improve it … we are equal in sharing the moral freedom that distinguishes us as men. Man’s status makes each individual an end in himself. No man is by nature simply the servant of the state or of another man … the ideal and fact of freedom -- and not technology -- are the true distinguishing marks of our civilization."
3 This Declaration is based upon the spiritual fact that man must have freedom in which to develop his full stature and through common effort to raise the level of human dignity. We have much to do to fully achieve and to assure the rights set forth in this Declaration. But having them put before us with the moral backing of 58 nations will be a great step forward.
As we here bring to fruition our labors on this Declaration of Human Rights, we must at the same time rededicate ourselves to the unfinished task which lies before us. We can now move on with new courage and inspiration to the completion of an international covenant on human rights and of measures for the implementation of human rights.
In conclusion, I feel that I cannot do better than to repeat the call to action by Secretary Marshall in his opening statement to this Assembly:
"Let this third regular session of the General Assembly approve by an overwhelming majority the Declaration of Human Rights as a standard of conduct for all; and let us, as Members of the United Nations, conscious of our own short-comings and imperfections, join our effort in good faith to live up to this high standard."
4 From State-Centric Int'l Law Towards a Positive Int'l Law of Human Rights Excerpt from The Protection of Human Rights in Disintegrating States: A New Challenge by Bartram S. Brown 68 CHI-KENT L. REV. 203 (1992)
I. The State-Centric Nature of International Law According to the prevailing positivist conception of international law, that law derives its binding force from the consent of sovereign states. That consent may be expressed explicitly, as it is in treaties, or implicitly through the practices of states which give rise to rules of customary international law.1 This is one important sense in which international law is centered on states, or "state-centric." In addition, international law was traditionally thought to create rights and obligations only for states. According to this view international law was a law by and for states, in which the rights of individuals had no place. An important step beyond state-centrism is implicit in the idea of an international law of human rights, since the rights concerned are those of individuals, or groups of individuals rather than those of states. The very concept of internationally recognized human rights is in derogation of state sovereignty, while traditional "state-centric" approaches to international law insist upon a very broad definition of state sovereignty and a formalistic defense of it from any external intrusion. This traditional concept of international law is inherently inadequate to the task of protecting the human rights and fundamental freedoms which the UN system is pledged to promote.
II. A Dynamic View of International Law International law must be capable of changing and adapting to the realities of the international system, just as it has adapted to such changes in the past. During the Middle Ages the prevailing conception of international law was that it reflected the application of the Law of Nature (natural law) to the conduct of states. When Europe's Holy Roman Empire collapsed, a new international system developed in its place, and it was supported by a new conception of international law. The 1648
1 See Article 38 of the Statute of the International Court of Justice which defines the law which that court is to apply in deciding disputes between states. This authoritative statement of the sources of international law refers to three principal sources, i.e. "a. international conventions .. establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law" and "c. the general principles of law recognized by civilized nations." Each of these involves building law upon the recognition or acceptance of states or nations, i.e. upon their consent. Judicial decisions and the teachings of publicists are referred to in Article 38(d) as "subsidiary means for the determination of rules of law."
1 Peace of Westphalia formalized the transition from a nominally unified Empire to a system of sovereign Nation-States.2 New theories of international law developed by Grotius,3 among others, adapted the prevailing concepts of natural law to the changed conditions by divorcing it from Catholic theology and supplementing it with notions of positive international law. By the 19th century most states in regions formerly part of the Empire no longer accepted the theologically based notion that they were subject to obligations stemming from natural law. The idea of a positive international law based on the consent of states emerged as the only generally acceptable theory of international legal obligation. More recently, this process of evolution and development has taken international law in the direction of a renewed interest in positive expressions of natural law concepts. It is in the field of international human rights that it is most difficult to insist upon a purely positivistic model of international law. The idea of universal human rights has its origins in the concept of natural law, but the international law of human rights has developed well beyond its philosophical origins. The horrors of the Nazi holocaust brought home to many the need for a positive international law of human rights. When concerned people and governments abroad protested the treatment of Jews and other oppressed groups in Germany, Hitler rejected these protestations by characterizing the issue as a matter within the domestic jurisdiction and national sovereignty of the German state. Although the genocidal "final solution" was morally abhorrent and unmistakably wrong, its illegality under positive international law was less clear. The inadequacy of the existing positive international law became apparent, and this provided the impetus for changes to come. Since the Second World War there has been a major thrust toward the enactment of a positive international law of human rights. By articulating human rights norms in treaties and other international normative instruments, States and international organizations have done more than simply create a few more rules of positive international law. They have begun to transform the nature of the international system.
III. The United Nations Charter and Human Rights The United Nations Charter represented a major advance in the codification of the international political order, and it did much to develop the international legal order as well. Promoting and encouraging respect for human rights and fundamental freedoms for all is explicitly mentioned as one of that organization's purposes,4 and thus human rights were for the first time definitively declared to be a matter of international concern. At the same time, the Charter is not very specific about the human rights and freedoms to be promoted.
2 See Leo Gross, "The Peace of Westphalia, 1648-1948", 53 AJIL 1 (1959). 3 See, Hugo Grotius, De jure belli ac pacis, libri tres. (On the Law of War and Peace) Trans. by Francis W. Kelsey [with others] New York : Oceana, 1964. (Classics of international law.) Grotius lived from 1583-1645. This work was first published in 1646. 4 See the Preamble of the United Nations Charter, and Article 1(3).
2 Another problem is that the Charter also expresses principles which can be invoked against international action to protect human rights. It reaffirms the "sovereign equality" of UN member states,5 and the UN's lack of authority to intervene in the domestic jurisdiction of its members.6 The latter two provisions serve to reinforce the argument that state sovereignty should preclude any intrusive international action for the protection of human rights. Some of these deficiencies were remedied when the Universal Declaration of Human Rights7 was adopted by the UN General Assembly in 1948, and the post- Charter evolution of international human rights norms and procedures began. The Universal Declaration proclaims itself "as a common standard of achievement for all peoples and all nations"8 in the field of human rights, and it is, in fact, the most frequently cited standard of international human rights. But as a resolution of the UN General Assembly it is formally non-binding, and this raises the question of its effect upon the development of international human rights law. Georges Abi-Saab has noted that the normative effect of UN General Assembly resolutions depends upon three factors, i.e. the degree of consensus behind the resolution, the degree of concreteness of the normative language in the resolution, and the extent to which mechanisms of implementation have been provided for.9 The Universal Declaration was adopted by the General Assembly with no negative votes (although there were 8 abstentions); thus, the consensus behind that resolution was very strong. Today, more than 40 years after the adoption of the Declaration, the international consensus on the question of human rights remains strong, and as far as concreteness is concerned, the Universal Declaration represents a vast improvement over the general human rights language found in the UN Charter. Like the UN Charter before it, the Universal Declaration contains no specific authorization for UN action in the field of human rights. But over the years, as international human rights norms have gained strength, certain UN mechanisms for the application of these norms have developed well beyond anything explicitly authorized by the Charter. Only in Article 68 does the Charter mention an organ or mechanism for the promotion or protection of human rights. While that article provides for the creation of a UN Commission for the promotion of Human Rights, operating under the United Nations Economic and Social Council (ECOSOC), it does not invest that commission with any specific powers.10
5 Charter Article 2, paragraph 1, states that "The Organization is based on the principle of sovereign equality of all its Members." 6 Charter Article 2, paragraph 7 states that "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state, or shall require the Members to submit such matters to settlement under the present Charter..." 7 General Assembly Res. 217 A(III), December 10, 1948, U.N. Doc. A/810, at 71 (1948). 8 Id., preamble. 9 See, Georges Abi-Saab, "Introduction", Les Resolutions dans la Formation du Droit International du Dévelopment, Geneva, Institut Universitaire de Hautes Etudes Internationales, 1971, (Etudes et Travaux de l'IUHEI No. 13) pp. 9-10. 10 Article 68 of the Charter states that "The Economic and Social Council shall set up commissions in the economic and social fields and for the promotion of human rights, and such other commissions as
3 It is in the context of the deficiencies of the Charter that we must evaluate the so called "1503 procedure" of the United Nations Human Rights Commission, which represents only a minimal intrusion upon state sovereignty. It does not involve any coercive method of enforcement, but instead it relies upon the use of publicity to "shame" states into improving their human rights records. In 1947 ECOSOC decided that it had "no power" to take any action in regard to any complaints regarding human rights" 11 Thus it could not take any action on any of the many complaints it began receiving as soon as the UN was created. In 1959 it confirmed this lack of power in another resolution,12 and at the same time consolidated UN procedures for cataloging these communications and reporting on them. As UN Human Rights procedures have developed since that time, they have stressed a confidential approach to the consideration of complaints about human rights. ECOSOC Resolution 150313 establishes a confidential procedure by which the UN Human Rights Commission and its subsidiary organs can consider communications, together with replies of Governments, if any, which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. This resolution does not grant the Human Rights Commission any authority to take direct action for the enforcement of human rights. What the Commission can do, after carefully examining a reported situation, is to make recommendations to ECOSOC about the need for further investigation. Under the 1503 procedure all actions taken by the UN remain confidential until such time as the Commission may decide to make recommendations to ECOSOC.14 The 1503 procedure is very limited. It is slow, and it applies only to situations where there have been large scale or systematic denials of fundamental human rights. The confidential, non-public nature of the procedure is often criticized as well. But the confidential nature of the procedure allows for the judicious use of the "shaming" power. States under review for human rights violations generally prefer to avoid public disclosure of this fact. This provides an incentive for them to cooperate with the Commission in the hope of avoiding the adverse publicity which results from a failure to resolve matters with the Commission behind the scenes. The 1503 procedure is supplemented by a public procedure under Resolution 1235.15 This procedure serves as an important basis for debate and public discussion during the annual meetings of the Commission and Sub-Commission on Human Rights. This procedure sometimes leads to resolutions being adopted by the Commission or Sub-Commission, expressing concern about human rights violations in particular countries. Special rapporteurs, special representatives, experts and other
may be required for the performance of its functions." No specific authority is granted to any of these commissions under the Charter. 11 ESOSOC Resolution 75 (V) (August 5, 1947). 12 ECOSOC Resolution 728F (XXVIII) (July 20, 1959). 13 ECOSOC Resolution 1503 (XLVIII) (May 27, 1970). 14 Id. Article 8. 15 ECOSOC Resolution 1235 (XLII) (June 6, 1967)
4 envoys are also sometimes sent to countries pursuant to the 1235 procedure. The effectiveness of this procedure depends upon the power of “public shaming” to influence the human rights practices of states. UN procedures for addressing systematic violations of human rights involve only a minimal (and minimally effective) intrusion upon the sovereignty of its Member States.16 In fact, these procedures rely upon the existence of a national authority politically responsible for the local human rights situation. How then can the UN act to protect human rights in cases where state authority is in a state of disintegration?
Author Note: The UN Human Rights Commission has been replaced, as of summer 2006, with a new Human Rights Council. It remains to be seen whether this will represent any real improvement upon the now-defunct UN Commission for Human Rights.
16 This discussion of action under Resolutions 1503 and 1235 refers only to UN procedures of general applicability. There are a number of other UN procedures which are applicable to states which have consented to be bound by UN negotiated human rights treaties such as the Convention Against Torture and the International Covenant on Civil and Political Rights.
5 Human Rights Treaties Basic Obligations
ICCPR
ARTICLE 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) to ensure that any person claiming such a remedy shall have his rights thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. ARTICLE 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. DEROGATION CLAUSE for extreme public emergencies ARTICLE 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-Gerneral of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
1 Convention Against Torture
Article I 1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture. non-refoulement Article 3 1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Article 4 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. Article 16 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment. 2
Convention on the Rights of the Child
Article 1 For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
Article 2 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 4 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.
Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
3 CEDAW
Article 1. For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 2. States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women. Article 3. States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Article 4. 1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards, these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.
4 (Excerpt from) Fact Sheet No.16 (Rev.1), The Committee on Economic, Social and Cultural Rights
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
VIENNA DECLARATION AND PROGRAMME OF ACTION (Part 1, para. 5), adopted by the World Conference on Human Rights, Vienna, 25 June 1993 (A/CONF. 157/24 (Part 1), chap. III).
…
The two Covenants are international legal instruments. Thus, when Member and non- Member States of the United Nations ratify a Covenant and become a "State party" to it, they are willfully accepting a series of legal obligations to uphold the rights and provisions established under the text in question.
When a State ratifies one of the Covenants, it accepts a solemn responsibility to apply each of the obligations embodied therein and to ensure the compatibility of their national laws with their international duties, in a spirit of good faith. Through the ratification of human rights treaties, therefore, States become accountable to the international community, to other States which have ratified the same texts, and to their own citizens and others resident in their territories.
…
Under international human rights law (as well as in terms of its application at the national level), civil and political rights have, in many respects, received more attention, legal codification and judicial interpretation, and have been instilled in public consciousness to a far greater degree, than economic, social and cultural rights. It is therefore sometimes wrongly presumed that only civil and political rights (right to a fair trial, right to equality of treatment, right to life, right to vote, right to be free from discrimination, etc.) can be subject to violation, measures of redress and international legal scrutiny. Economic, social and cultural rights are often viewed as effectively "second-class rights"-unenforceable, non- justiciable, only to be fulfilled "progressively" over time.
Such perspectives, however, overlook a postulate of the global human rights system formulated as long ago as 1948 with the adoption of the Universal Declaration of Human Rights, namely, that the indivisibility and interdependence of civil and political rights and economic, social and cultural rights are fundamental tenets of international human rights law. This point of view has been repeatedly reaffirmed, most recently at the World Conference on Human Rights in 1993.(2) Economic, social and cultural rights are fully recognized by the international community and throughout international human rights law. Although these rights have received less attention than civil and political rights, far more serious consideration than ever before is currently being devoted to them. The question is not whether these rights are basic human rights, but rather what entitlements they imply and the legal nature of the obligations of States to realize them.
Economic, social and cultural rights are designed to ensure the protection of people as full persons, based on a perspective in which people can enjoy rights, freedoms and social justice simultaneously. In a world where, according to the United Nations Development Programme (UNDP), "a fifth of the developing world's population goes hungry every night, a quarter lacks access to even a basic necessity like safe drinking-water, and a third lives in a state of abject poverty-at such a margin of human existence that words simply fail to describe it(3) the importance of renewed attention and commitment to the full realization of economic, social and cultural rights is self-evident.
Despite significant progress since the establishment of the United Nations in addressing problems of human deprivation, well over one billion people live in circumstances of extreme poverty, homelessness, hunger and malnutrition, unemployment, illiteracy and chronic ill health. More than 1.5 billion people lack access to clean drinking-water and sanitation, some 500 million children don't have access to even primary education; and more than one billion adults cannot read and write. This massive scale of marginalization, in spite of continued global economic growth and development, raises serious questions, not only of development, but also of basic human rights.
Of all global human rights standards, the International Covenant on Economic, Social and Cultural Rights provides the most important international legal framework for protecting these basic human rights.
3. International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (see annex I) was adopted and opened for signature, ratification and accession by General Assembly resolution 2200 A (XXI) of 16 December 1966, following almost 20 years of drafting debates. It finally gained the force of law a decade later, entering into force on 3 January 1976.
The Covenant contains some of the most significant international legal provisions establishing economic, social and cultural rights, including rights relating to work in just and favourable conditions, to social protection, to an adequate standard of living, to the highest attainable standards of physical and mental health, to education and to enjoyment of the benefits of cultural freedom and scientific progress.
As at 12 April 1996, 133 States had ratified the Covenant (see annex II) thereby voluntarily undertaking to implement its norms and provisions.
Compliance by States parties with their obligations under the Covenant and the level of implementation of the rights and duties in question is monitored by the Committee on Economic, Social and Cultural Rights.
The Committee works on the basis of many sources of information, including reports submitted by States parties and information from United Nations specialized agencies- International Labour Organisation, United Nations Educational, Scientific and Cultural
2 Organisation, World Health Organization, Food and Agriculture Organization of the United Nations-from the Office of the United Nations High Commissioner for Refugees, and from the United Nations Centre for Human Settlements (Habitat) and others. It also receives information from non-governmental and community-based organizations working in States which have ratified the Covenant, from international human rights and other non- governmental organizations, from other United Nations treaty bodies, and from generally available literature.
4. Substantive provisions of the International Covenant on Economic, Social and Cultural Rights
Self-determination
Article 1 of the Covenant is worded in precisely the same terminology as article 1 of its sister text, the International Covenant on Civil and Political Rights. The self-determination provisions in common article 1 are particularly important because the realization of this right is a fundamental prerequisite for the effective guarantee and observance of individual human rights and is pivotal in securing and strengthening human rights protection measures.
The right to self-determination is a cornerstone of the international legal system, and has been a premier concern of the international community since the creation of the United Nations in 1945, particularly in regard to issues such as independence, non-interference and democracy. This right has both external and internal dimensions and has been the subject of some controversy in recent years, as it is increasingly asserted by groups within countries, as distinct from ex-colonies and occupied countries.
As far as the rights contained in the Covenant are concerned, the right of peoples freely to pursue their economic, social and cultural development includes freedom to carry on economic, social and cultural activities.
Obligations of States parties
Article 2
1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means , including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin property, birth or other status.
3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.
3 Article 2 is one of the most important articles of the Covenant because it outlines the nature of States parties' legal obligations under the Covenant and determines how they must approach the implementation of the substantive rights contained in articles 6 to 15.
Any analysis of obligations relating to economic, social and cultural rights cannot be isolated from the obligations inherent in securing the individual entitlements of the beneficiaries of the right(s) in question. Most frequently, obligations are divided into "layers" reflecting duties to (a) respect, (b) protect, (c) promote, and (d) fulfill each of the rights contained in the Covenant. Each of these legal responsibilities can take on more specific obligations of "conduct" (e.g. action or inaction) and obligations of "result" (e.g. ends).
"undertakes to take steps . . . by all appropriate means, including particularly the adoption of legislative measures"
This provision from article 2, paragraph 1, requires all States parties to begin immediately to take measures towards the full enjoyment by everyone of all the rights in the Covenant. The adoption of legislation will, in many cases, be indispensable if economic, social and cultural rights are to be made real, but laws alone are not a sufficient response at the national level. Administrative, judicial, policy, economic, social and educational measures and many other steps will be required by Governments in order to ensure these rights to all.
Under article 2, paragraph 1, States parties are legally obliged to undertake legislative action in some instances, particularly when existing laws are clearly incompatible with the obligations assumed under the Covenant. This would be the case when, for instance, a law in a given country was patently discriminatory or had the express effect of preventing the enjoyment of any of the rights in the Covenant, or when legislation allowed the violation of rights, especially in terms of negative duties of States. Laws allowing Governments forcibly to remove people from their homes, evicting them without due process of law, would have to be amended in order to bring domestic legislation into conformity with the Covenant.
"to [achieve] progressively the full realization of the rights"
The "progressive obligation" component of the Covenant is often mistakenly taken to imply that only once a State reaches a certain level of economic development must the rights established under the Covenant be realized. This is not the intent of this clause. Rather, the duty in question obliges all States parties, notwithstanding their level of national wealth, to move immediately and as quickly as possible towards the realization of economic, social and cultural rights. This clause should never be interpreted as allowing States to defer indefinitely efforts to ensure the enjoyment of the rights laid down in the Covenant.
Whereas certain rights, by their nature, may be more apt to be implemented in terms of the "progressive obligation" rule, many obligations under the Covenant are clearly required to be implemented immediately. This would apply especially to non-discrimination provisions and to the obligation of States parties to refrain from actively violating economic, social and cultural rights or withdrawing legal and other protection relating to those rights.
The Committee on Economic, Social and Cultural Rights has asserted that this duty exists independently of an increase in available resources and thus recognizes that all existing resources must be devoted in the most effective way possible to the realization of the rights enshrined in the Covenant.
4 "to the maximum of its available resources"
Like the "progressive realization" provision, this standard is also used to justify the non- enjoyment of rights. However, as recognized in the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights,(4) this requirement obliges States parties to ensure minimum subsistence rights for everyone, regardless of the level of economic development in a given country.
The term "available resources" applies both to domestic resources and to any international economic or technical assistance or cooperation available to a State party. In the use of available resources, due priority should be given to the realization of rights recognized in the Covenant, considering the need to assure to everyone the satisfaction of subsistence requirements, as well as the provision of essential services.
"without discrimination"
Article 2, paragraph 2, requires States parties to ensure the provision of judicial review and other recourse procedures should discrimination occur. Importantly, the grounds of discrimination mentioned in this provision are not exhaustive and thus certain other forms of unfair discrimination negatively affecting the enjoyment of the rights enunciated in the Covenant (for instance, on the basis of sexual orientation) must be prevented.
According to the Limburg Principles, special measures taken for the sole purpose of securing adequate advancement of certain groups or individuals requiring protection in order to ensure their equal enjoyment of economic, social and cultural rights are not considered discrimination, provided that such measures do not lead to the maintenance of separate rights for different groups and are not continued after their objectives have been achieved. This applies, for example, to affirmative-action program.
This provision not only obliges Governments to desist from discriminatory behaviour and to alter laws and practices which allow discrimination, it also applies to the duty of States parties to prohibit private persons and bodies (third parties) from practising discrimination in any field of public life.
Equal rights for men and women
Women often suffer substantial and disproportionate difficulties in securing human rights, including economic, social and cultural rights. Article 3 guarantees that men and women possess precisely the same legal entitlement to the rights set forth in the Covenant and that, if necessary, special measures will be employed by States parties to ensure that this position of equality is attained.
The Covenant provides a framework for instigating progressive and immediate measures such that women may enjoy on an equal footing rights which have often been denied them. For instance, the housing rights provisions in article 11, paragraph 1, of the Covenant must apply to men and women equally, and thus women must be accorded equal rights to housing inheritance-something which is still not the case in many countries. Together, article 3 and article 2, paragraph 2, thus provide significant legal protection against all forms of discrimination in the pursuit of economic, social and cultural rights.
Limitations
5 Article 4
The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
Article 5
1. Nothing, in the present Covenant may be interpreted as implying for any State group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.
2. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
Articles 4 and 5 were not intended by the drafters of the Covenant to be overly permissive of the imposition of limitations by the state on the rights provided for. Rather, these provisions are formulated in such a manner as to be protective of the rights of individuals. They are also not designed to introduce limitations on rights affecting the subsistence or survival of the individual or the integrity of the person.
If a State party finds it necessary to invoke the provisions of these articles, it may do so only if this is provided for by law and only if the measures in question are consistent with the Covenant. Such measures cannot be applied in an arbitrary, unreasonable or discriminatory way. Moreover, individuals should have legal safeguards and effective remedies against illegal or abusive imposition of limitations on economic, social and cultural rights.
The term "democratic society" (art. 4) further restricts the imposition of limitations under the Covenant and thus the burden rests on the State to prove that any limitations do not impair the democratic functioning of society.
None of the provisions in the law relating to any limitation may be interpreted in such a way as to nullify any of the rights or freedoms recognized in the Covenant. The main purpose of article 5, paragraph 2, is to ensure that no provision of the Covenant is interpreted so as to prejudice provisions of domestic law or any other legal instrument already in force, or which may come into force, under which more favourable treatment would be accorded to persons protected.
The right to work
Freely chosen work remains an essential part of being human. For many people, whether employed in the formal or informal sectors, work represents the primary source of income on which subsistence, survival and life depend. The right to work is fundamental to the enjoyment of certain subsistence and livelihood rights such as food, clothing, housing, etc. Moreover, one's working status may easily affect the enjoyment of other rights relating to
6 health and education. The right to work is increasingly important as Governments the world over continue to withdraw from the provision of basic services, leaving these to market forces and non-governmental actors.
The right to work is fundamental to ensuring the dignity and self-respect of the beneficiaries of the rights contained in the Covenant. Article 6 obliges States parties to refrain from instigating or allowing forced labour. The Committee on Economic, Social and Cultural Rights has examined this article in terms of the implementation of policies and measures aimed at securing work for all who are available to work. This right encompasses, therefore, both the right to enter into employment and the right not to be unjustly deprived of work. Although unemployment persists in all States parties, these States must apply the basic principles set out in article 2 for ensuring the full realization of the right to work.
The right to just and favourable conditions of work
Article 7 establishes a right to a minimum remuneration for employment, stipulating fair wages sufficient to guarantee a decent living, as well as working conditions that are just and favourable. Wages must be equitable and just in order to be considered fair.
This article relates closely to a large number of conventions adopted by the International Labour Organisation, including the Minimum Wage Fixing Convention (No. 131, 1970) and the Equal Remuneration Convention (No. 100, 1951).
People must be afforded minimum conditions of occupational health and safety, and States parties are responsible for adopting policies and laws to that end. A coherent national policy in this regard is incumbent on all States parties.
The standards laid down in article 7 also relate to the duties of States parties to reduce the working week in a progressive manner and to ensure that workers enjoy adequate rest and holidays. For all aspects of this article, States parties must establish a baseline or minimum standard below which the working conditions of no worker should be allowed to fall; they must also develop enforcement measures guaranteeing these rights.
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The right to social security and social insurance
A large number of States do not maintain adequate social security or social insurance provisions under domestic laws protecting people in circumstances such as old age, disability, ill health or other situations not allowing them to earn a decent living. At the same time, many countries which do provide such protection are beginning to transfer responsibility for these matters from the state to the private sector. These issues raise serious concerns regarding enjoyment of the rights contained in the Covenant.
The Committee on Economic, Social and Cultural Rights specifically asks States parties whether they maintain social security schemes in the following areas: medical care, cash sickness benefits, maternity benefits, old-age benefits, invalidity benefits, survivors' benefits, employment injury benefits, unemployment benefits and family benefits.
7 The Committee has devoted particular attention to enjoyment of the rights provided for in article 9 by women, older persons (General Comment No. 6 (1995)),(6) and persons with disabilities (General Comment No. 5 (1994)).(7)
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The right to an adequate standard of living
Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing- and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international cooperation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.
Article 11 incorporates a broad range of concerns relating to the lives and livelihoods of residents of States parties, in particular food, clothing and housing. The Committee on Economic, Social and Cultural Rights has devoted extensive attention to this article, particularly as it relates to the human right to adequate housing. To date, the right to adequate housing is the only right in the Covenant which has had an entire general comment devoted to it (General Comment No. 4 (1991)).(8)
General Comment No. 4 reveals the extensive nature of the protection included under article 11 and elaborates legal interpretations of the right to adequate housing which go far beyond restricted visions of this right as simply a right to shelter. In it, the Committee, which has given more attention to the right to housing than to any other right under the Covenant, states:
. . . the right to housing, should not be interpreted in a narrower restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one's head . . . Rather it should be seen as the right to live somewhere in security, peace and dignity . . . . (Para. 7.)
8 The Committee has defined the term "adequate housing" to comprise security of tenure, availability of services, affordability, habitability, accessibility, location and cultural adequacy.
Article 11 does not imply a stagnant state of affairs, but also includes a right "to the continuous improvement of living conditions" (para. 1) and the possibilities associated with international cooperation in the event of States parties being unable to guarantee the rights in question. This is particularly relevant in times of food crises or famine.
The Committee has decided on several occasions that certain States parties had violated provisions of article 11, particularly as a result of the practice of forced evictions. This is indicative of the seriousness which the Committee accords article 11.
The right to the highest attainable standard of physical and mental health
Recognition of the right to health obviously does not mean that beneficiaries of this right have a right to be healthy. Rather, the Covenant stresses the obligation of States parties to ensure for their citizens "the highest attainable standard of . . . health".
Article 12 therefore places emphasis on equal access to health care and minimum guarantees of health care in the event of sickness.
The Committee on Economic, Social and Cultural Rights has spent increasing energy on clarifying and monitoring health rights, having held a general discussion on the topic and adopted a general comment on the rights of persons with disabilities (General Comment No. 5 (1994)). The rights of people with HIV/AIDS have also received increasing attention from the Committee in recent years.
The right to education
Articles 13 and 14 recognize that education is a fundamental precondition for the enjoyment and assertion of human rights and that education strengthens human rights and basic democratic principles. The international community has long recognized these basic truths and has proclaimed the decade 1995-2004 the United Nations Decade for Human Rights Education.(9) The Committee on Economic, Social and Cultural Rights held a general discussion on this topic in 1994.
These two articles guarantee all children a right to free and compulsory primary education, wherever they may live. They also enshrine the right to equal access to education and equal enjoyment of education facilities; the freedom to choose education and to establish educational institutions; the protection of pupils against inhuman disciplinary measures; and academic freedom.
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6. Monitoring the implementation of the Covenant: the Committee on Economic, Social and Cultural Rights
Creation and composition of the Committee
9 Unlike the five other human rights treaty bodies, the Committee on Economic, Social and Cultural Rights was not established by its corresponding instrument. Rather, the Economic and Social Council (ECOSOC) created the Committee, following the less than ideal performance of two previous bodies entrusted with monitoring the Covenant.
The Committee was established in 1985, met for the first time in 1987 and has to date held 14 sessions. Meeting initially on an annual basis, the Committee currently convenes twice a year, holding two three-week sessions, generally in May and November/December. It holds all its meetings at the United Nations Office at Geneva.
The Committee is comprised of 18 members who are experts with recognized competence in the field of human rights. Members of the Committee are independent and serve in their personal capacity, not as representatives of Governments. At present, the Committee is made up of 13 men and five women. The Committee itself selects its chairperson, three vice-chairpersons and rapporteur.
Members of the Committee are elected by ECOSOC for four year terms, and are eligible for re-election if renominated. The Committee is thus a subsidiary organ of ECOSOC and derives its formal authority from that body. Elections take place in a secret ballot from a list of nominees proposed by States parties to the Covenant. States which have not ratified the Covenant cannot, therefore, nominate their own nationals for positions on the Committee. The principles of equitable geographical distribution and the representation of different social and legal systems guide the selection process. The Committee is serviced by the United Nations Centre for Human Rights.
What does the Committee do?
The primary function of the Committee is to monitor the implementation of the Covenant by States parties. It strives to develop a constructive dialogue with States parties and seeks to determine through a variety of means whether or not the norms contained in the Covenant are being adequately applied in States parties and how the implementation and enforcement of the Covenant could be improved so that all people who are entitled to the rights enshrined in the Covenant can actually enjoy them in full.
Drawing on the legal and practical expertise of its members, the Committee can also assist Governments in fulfilling their obligations under the Covenant by issuing specific legislative, policy and other suggestions and recommendations such that economic, social and cultural rights are more effectively secured.
How do States parties report to the Committee?
Under articles 16 and 17 of the Covenant, States parties undertake to submit periodic reports to the Committee-within two years of the entry into force of the Covenant for a particular State party, and thereafter once every five years-outlining the legislative, judicial, policy and other measures which they have taken to ensure the enjoyment of the rights contained in the Covenant. States parties are also requested to provide detailed data on the degree to which the rights are implemented and areas where particular difficulties have been faced in this respect.
10 The Committee has assisted the reporting process by providing States parties with a detailed 22-page set of reporting guidelines specifying the types of information the Committee requires in order to monitor compliance with the Covenant effectively.
The reporting requirement is much more than simply a formalistic commitment. Although the reporting process is imbued with a number of difficulties, not the least of which are the non-submission of reports by a large number of States parties and problems relating to resource constraints of States, this mechanism has a number of important functions. Among these are the initial review function, the monitoring function, the policy formulation function, the public scrutiny function, the evaluation function, the function of acknowledging problems and the information-exchange function.(16)
The Committee has emphasized that reporting obligations under the Covenant fulfil seven key objectives. In its General Comment No. 1 (1989), the Committee stated these objectives as follows:
1. to ensure that a State party undertakes a comprehensive review of national legislation, administrative rules and procedures, and practices in order to assure the fullest possible conformity with the Covenant;
2. to ensure that the State party regularly monitors the actual situation with respect to each of the enumerated rights in order to assess the extent to which the various rights are being enjoyed by all individuals within the country;
3. to provide a basis for government elaboration of clearly stated and carefully targeted policies for implementing the Covenant;
4. to facilitate public scrutiny of government policies with respect to the Covenant's implementation, and to encourage the involvement of the various sectors of society in the formulation, implementation and review of relevant policies;
5. to provide a basis on which both the State party and the Committee can effectively evaluate progress towards the realization of the obligations contained in the Covenant;
6. to enable the State party to develop a better understanding of problems and shortcomings impeding the realization of economic, social and cultural rights;
7. to facilitate the exchange of information among States parties and to help develop a fuller appreciation of both common problems and possible solutions in the realization of each of the rights contained in the Covenant.(17)
The Committee typically considers some five or six reports of States parties during any given session. If a State party which has submitted a report that is scheduled for the Committee's consideration at a given session seeks to defer the presentation of the report at the last minute, the Committee does not grant such a request, and proceeds with its consideration, even in the absence of a State party representative.
The Committee has also had to grapple with problems relating to the non-submission of reports and reports which are considerably overdue. In response to such situations, the Committee has notified States parties whose reports are long overdue of its intention to consider these reports at specified future sessions. If no report is forthcoming, the
11 Committee then proceeds to consider the status of economic, social and cultural rights in the States concerned in the light of all available information.
Submission of reports and the pre-sessional working group
When States parties submit their reports, a standard procedure of consideration is followed by the Committee. Once received, processed and translated by the Secretariat, States parties' reports are initially reviewed by the Committee's five-person pre-sessional working group, which meets six months prior to a report being considered by the full Committee. The pre-sessional working group gives a preliminary consideration to the report, appoints one member to give particular consideration to each report, and develops written lists of questions based on disparities found in the reports which are submitted to the States parties concerned. The States parties are then required to reply in writing to these questions prior to their appearance before the Committee.
Presentation of reports
Representatives of reporting States are strongly encouraged to be present at meetings when the Committee considers their reports. Such delegations are virtually always present during this process, which is generally carried out over a two-day period. Delegations first provide introductory comments and responses to the pre-sessional working group's written questions. This is followed by the provision of information by the United Nations specialized agencies relevant to the report under consideration. Committee members then put questions and observations to the State party appearing before it. A further period of time is then allowed for representatives of States parties to respond, generally not on the same day, to the questions and views put to them, as precisely as possible. If the questions cannot be adequately dealt with, the Committee often requests a State party to provide it with additional information for its consideration at forthcoming sessions.
Concluding observations: the Committee decides
Upon completion by the Committee of its analysis of reports and the appearance by States parties, the Committee concludes its consideration of States parties' reports by issuing "concluding observations", which constitute the decision of the Committee regarding the status of the Covenant in a given State party. Concluding observations are divided into five sections: (a) introduction; (b) positive aspects; (c) factors and difficulties impeding the implementation of the Covenant; (d) principal subjects of concern; (e) suggestions and recommendations. Concluding observations are adopted in private session, and are released to the public on the final day of each session.
On a number of occasions, the Committee has concluded that violations of the Covenant had taken place, and subsequently urged States parties to desist from any further infringements of the rights in question.
All human rights are subject to violation, and economic, social and cultural rights are no exception. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights(18) list the following circumstances amounting to violations of the Covenant by a State party (principle 72): (a) it fails to take a step which the Covenant requires it to take; (b) it fails to remove promptly obstacles which it is obligated to remove to permit the immediate fulfilment of a right; (c) it fails to implement without delay a right which the Covenant requires it to provide immediately; (d) it wilfully fails to meet a generally accepted international minimum standard of achievement, which is
12 within its powers to meet; (e) it applies a limitation to a right recognized in the Covenant in a manner not in accordance with the Covenant; (f) it deliberately retards or halts the progressive realization of a right, unless it is acting within a limitation permitted by the Covenant or it does so because of a lack of available resources; (g) it fails to submit reports as required under the Covenant.
While the Committee's concluding observations, in particular suggestions and recommendations, may not carry legally binding status, they are indicative of the opinion of the only expert body entrusted with and capable of making such pronouncements. Consequently, for States parties to ignore or not act on such views would be to show bad faith in implementing their Covenant-based obligations. In a number of instances, changes in policy, practice and law have been registered at least partly in response to the Committee's concluding observations.
In addition to concluding observations, letters from the chairperson are occasionally addressed to States parties informing them of the Committee's concerns.
The Committee also adopts draft decisions for eventual adoption by ECOSOC, when such approval is required. This is generally the case when the Committee requests a State party to issue it with an invitation to visit the country and provide the Government with technical and other assistance which it may require in order to implement more fully and enforce the norms of the Covenant. The Committee has to date twice requested invitations to visit the territories of States parties (Dominican Republic and Panama). Only in one of these instances (Panama), however, did the State issue the requisite invitation, and a mission took place in April 1995.
Generating interpretative clarity
(a) General comments
The Committee decided in 1988 to begin preparing "general comments" on the rights and provisions contained in the Covenant with a view to assisting States parties in fulfilling their reporting obligations and to provide greater interpretative clarity as to the intent, meaning and content of the Covenant. The Committee further views the adoption of general comments as a means of promoting the implementation of the Covenant, by drawing the attention of States parties to insufficiencies disclosed by a large number of States parties' reports, and by inducing renewed attention to particular provisions of the Covenant on the part of States parties, United Nations agencies and others with a view to achieving progressively the full realization of the rights established under the Covenant.
General comments are a crucial means of generating jurisprudence, providing a method by which members of the Committee may come to an agreement by consensus regarding the interpretation of norms embodied in the Covenant.
As of April 1996, the Committee has adopted six general comments. These are:
-General Comment No. 1 (1989) on reporting by States parties;
-General Comment No. 2 (1990) on international technical assistance measures (art. 22);
13 -General Comment No. 3 (1990) on the nature of States parties' obligations (art. 2, para. 1, of the Covenant);
-General Comment No. 4 (1991) on the right to adequate housing (art. 11, para. 1, of the Covenant);
-General Comment No. 5 (1994) on persons with disabilities;
-General Comment No. 6 (1995) on the economic, social and cultural rights of older persons.
It is likely that the Committee will consider the adoption of additional general comments in the near future on issues such as the right to health; the domestic application of the Covenant; forced evictions and the Covenant; the non-discrimination clauses of the Covenant (art. 2, para. 2); the right to food; and others.
(b) General discussions
At each of its sessions, the Committee holds a "day of general discussion" on particular provisions of the Covenant, particular human rights or other themes of direct relevance to the Committee in order to develop its understanding of the issues concerned. The Committee has sought to draw on a wide range of expertise during these discussions and has, therefore, engaged in dialogue with United Nations special rapporteurs, experts from relevant non-governmental organizations and representatives of United Nations specialized agencies.
General discussions to date have been held on the right to food (1989); the right to housing (1990); economic and social indicators (1991); the right to take part in cultural life (1992); the rights of the ageing and elderly (1993); the right to health (1993); the role of social safety nets as a means of protecting economic, social and cultural rights, with particular reference to situations involving major structural adjustment and/or transition to a free market economy (1994); human rights education (1994); the interpretation and practical application of the obligations incumbent on States parties (1995); and a draft optional protocol to the Covenant (1995).
7. Civil society and the work of the Committee
The World Conference on Human Rights affirms that extreme poverty and social exclusion constitute a violation of human dignity and that urgent steps are necessary to achieve better knowledge of extreme poverty and its causes, including those related to theproblem of development, in order to promote the human rights of the poorest, and to put an end to extreme poverty and social exclusion and to promote the enjoyment of the fruits of social progress. It is essentialfor States to foster participation by the poorest people in the decision-making process b) the community in whichthey live, the promotion of human rights and efforts to combat extreme poverty.
VIENNA DECLARATION AND PROGRAMME OF ACTION(19) (Part 1, para. 25)
The Committee has long recognized the important contribution which can be made by civil society in the provision of information concerning the status of the Covenant within States parties. The Committee was the first treaty body to provide non-governmental organizations
14 (NGOs) with the opportunity to submit written statements and make oral submissions dealing with issues relating to the enjoyment or non-enjoyment of the rights contained in the Covenant in specific countries.
On the first day of each session of the Committee, the afternoon meeting is set aside to give international and national NGOs and community-based organizations (CBOs) an opportunity to express their views about how the Covenant is or is not implemented by States parties. The Committee will receive oral testimony from NGOs as long as the information focuses specifically on the provisions of the Covenant, is of direct relevance to matters under consideration by the Committee, is reliable and is not abusive. In recent years, NGOs and CBOs have taken increased advantage of this procedure and provided the Committee with written, audio and video materials alleging the non-enjoyment of economic, social and cultural rights in States parties.
The Committee has indicated that the purposes of the NGO procedure are to enable it to inform itself as fully as possible, to examine the accuracy and pertinence of information which would most probably be available to it anyway, and to put the process of receiving NGO information on a more transparent basis.
NGOs and CBOs wishing to provide reliable and new information to the Committee may write to the secretariat of the Committee several months prior to the beginning of a particular session, with a specific request to intervene during the NGO procedure. Groups with written materials may also send these to the secretariat, and may attend Committee sessions. NGOs in consultative status with the United Nations or other groups which have relations with such NGOs also may attend Committee sessions. NGOs with consultative status may, in accordance with the relevant ECOSOC resolutions, submit written submissions to the Committee at any time. Committee sessions are generally held in public, with the exception of meetings at which it prepares its concluding observations, which are held privately.
The active participation of NGOs in the work of the Committee has also proven fundamental in ensuring the wide distribution of information about the Covenant and the Committee at the national and local levels. In many instances, these organizations have generated substantial media attention in their countries following the adoption of concluding observations regarding the States in question.
Notes omitted.
United Nations, Geneva July 1991
15
Human rights and extreme poverty
Commission on Human Rights resolution 1999/26
Assembly resolution 53/146 of 9 December 1998 on human The Commission on Human Rights, rights and extreme poverty, in which it recalls that the mandate of the independent expert will be, inter alia, to continue to take into account the efforts of the poorest people themselves and Recalling that, in accordance with the Universal Declaration of the conditions in which they can convey their experiences, Human Rights, the International Covenants on Human Rights Welcoming the Declaration of the Microcredit Summit, held recognize that the ideal of free human beings enjoying in Washington, D.C., in 1997, which launched a global freedom from fear and want can be achieved only if campaign to reach 100 million of the world's poorest families, conditions are created whereby everyone may enjoy his especially women, with credit for self-employment by the year economic, social and cultural rights, as well as his civil and 2005; political rights, Stressing that, in the Copenhagen Declaration on Social Recalling in particular that article 25 of the Universal Development and the Programme of Action of the World Declaration of Human Rights stipulates that everyone has Summit for Social Development, Governments committed the right to a standard of living adequate for the health and themselves to endeavouring to ensure that all men and women, well-being of himself and of his family, including food, especially those living in poverty, could exercise the rights, clothing, housing and medical care and necessary social utilize the resources and share the responsibilities that would services, and the right to security in the event of enable them to lead satisfying lives and to contribute to the unemployment, sickness, disability, widowhood, old age or wellbeing of their families, their communities and humankind other lack of livelihood in circumstances beyond his control, and committed themselves to the goal of eradicating poverty Recalling also that the eradication of widespread poverty, throughout the world through national actions and international including its most persistent forms, and the full enjoyment of cooperation, as an ethical, social, political and economic economic, social and cultural rights and civil and political imperative of humankind, rights remain interrelated goals, Recalling the report of the Secretary-General on women's real Deeply concerned that, 51 years after the adoption of the enjoyment of their human rights, in particular those relating to Universal Declaration of Human Rights, extreme poverty the elimination of poverty, economic development and continues to spread in all countries of the world, regardless of economic resources (E/CN.4/1998/22E/CN.6/1998/11), their economic, social and cultural situation, and that its extent Noting with satisfaction the progress report submitted by the and manifestations, such as hunger, disease, lack of adequate independent expert in accordance with Commission resolution shelter, illiteracy and hopelessness are particularly severe in 1998/25 (E/CN.4/1999/48), developing countries, 1. Reaffirms that: Bearing in mind the relevant provisions of the Vienna Declaration and Programme of Action adopted by the (a) Extreme poverty and exclusion from society constitute a World Conference on Human Rights (A/CONF.157/23), violation of human dignity and that urgent national and international action is therefore required to eliminate them; Recalling in particular that the World Conference on Human Rights reaffirms that least developed countries committed to the (b) The right to life includes within it existence in human process of democratization and economic reforms, many of dignity with the minimum necessities of life; which are in Africa, should be supported by the international community in order to succeed in their transition to democracy (c) It is essential for States to foster participation by the poorest and economic development, people in the decision-making process in the societies in which they live, in the realization of human rights and in efforts to Recalling its resolution 1998/25 of 17 April 1998, in which it combat extreme poverty and for people living in poverty and was decided, inter alia, to appoint for a period of two years, an vulnerable groups to be empowered to organize themselves and independent expert on the question of human rights and to participate in all aspects of political, economic and social extreme poverty, life, particularly the planning and implementation of policies that affect them, thus enabling them to become genuine partners Noting that the report of the United Nations High in development; Commissioner for Human Rights on the follow-up of the World Conference on Human Rights (E/CN.4/1999/9) considers that (d) The existence of widespread absolute poverty inhibits the consequence of this decision will be not only to improve the the full and effective enjoyment of human rights and information needed in the decision-making process of United renders democracy and popular participation fragile; Nations organs and institutions, but also to focus the attention (e) For peace and stability to endure, national action and of the international community on this fundamental question, international action and cooperation are required to promote a Recalling General Assembly resolution 50/107 of 20 December better life for all in larger freedom, a critical element of which 1995, in which the Assembly proclaimed the United Nations is the eradication of poverty; Decade for the Eradication of Poverty (19972006), as well as 2. Recalls that: (a) The Copenhagen Declaration on Social Development and overcome, and the duty to guarantee full enjoyment of human Programme of Action of the World Summit on Social rights; Development provide the substantive framework for eradicating (b) States and intergovernmental and non-governmental poverty by setting specific targets, drawing up plans and organizations to continue to take into account, in the implementing programmes; activities to be undertaken within the framework of the United (b) To ensure the protection of the rights of all individuals, non- Nations Decade for the Eradication of Poverty, the links discrimination towards the poorest and the full exercise of all between human rights and extreme poverty, as well as human rights and fundamental freedoms, a better understanding efforts to empower people living in poverty to participate in is needed of what is endured by people living in poverty, decision-making processes on policies that affect them; including women and children, and thought must be given to (c) The United Nations to strengthen poverty eradication as the subject, drawing on the experience and ideas of the poorest a priority throughout the United Nations system; themselves and of those committed to working alongside them; 6. Invites: (c) In its resolution 1997/11 of 3 April 1997, it requested the United Nations High Commissioner for Human Rights to give (a) The treaty bodies monitoring the application of human high priority to the question of human rights and extreme rights instruments, especially the Committee on Economic, poverty, to ensure better cooperation between the institutions Social and Cultural Rights, the Committee on the Rights of the and bodies involved, regularly to inform the General Assembly Child, the Committee on the Elimination of Discrimination of the evolution of the question and submit specific information against Women and the Committee on the Elimination of Racial on this question at events such as the evaluation of the World Discrimination, to take into account, when considering the Conference on Human Rights planned for 1998, the special reports of States parties, the question of extreme poverty and session of the General Assembly devoted to conclusions of the human rights; World Summit for Social Development, scheduled for 2000, (b) The independent expert to continue her reflection, in and the evaluation, at the halfway point in 2002 and the end- accordance with her mandate, with a view, in particular: point in 2007, of the first United Nations Decade for the (i) To report on her activities to the Commission on Human Eradication of Poverty; Rights at its fifty-sixth session, underlining in particular the 3. Welcomes the observations contained in the report submitted best practices observed during her visits and making this report by the independent expert on extreme poverty available to the Commission for Social Development and the (E/CN.4/1999/48), according to which the lack of political Commission on the Status of Women, as appropriate, for their commitment, not financial resources, is the real obstacle to sessions during the same year; the eradication of poverty; (ii) To contribute to the General Assembly's evaluation in 2000 4. Notes with interest: of the World Summit for Social Development by making her (a) That, in her report of 11 September 1998 to the General final report and conclusions available to the preparatory Assembly on the midterm evaluation of the Vienna Declaration committee for the special session of the General Assembly and Programme of Action (A/53/372, annex), the United devoted to that evaluation, taking into account, as requested by Nations High Commissioner for Human Rights proposes that the General Assembly, the efforts of the poorest people the Second and Third Committees of the General Assembly themselves and the conditions in which they can convey their should work jointly to implement the right to development by experiences; focusing on the elimination of poverty, with particular emphasis 7. Requests the United Nations High Commissioner for Human placed on basic security, which is necessary to enable Rights to consider the possibility of holding a workshop with individuals and families to enjoy fundamental rights and the independent expert and the experts from the Sub- assume basic responsibilities; Commission on Prevention of Discrimination and Protection of (b) That, on 16 October 1998, on the occasion of the Minorities in 1999 with a view to consultations also involving International Day for the Eradication of Poverty, the first step the relevant functional commissions of the Economic and towards joint work by the Second and Third Committees of the Social Council on the main elements of a possible draft General Assembly was taken in the form of the panel presided declaration on human rights and extreme poverty; by the Chairmen of the two Committees on "Poverty, human 8. Decides to consider this question at its fifty-sixth session rights and development", the theme chosen by the General under Assembly for 1998 in the context of the United Nations Decade the same agenda item. for the Eradication of Poverty; 55th meeting 5. Calls upon: 26 April 1999 (a) The General Assembly, specialized agencies, United [Adopted without a vote. See chap. X.] Nations bodies and intergovernmental organizations to take into account the contradiction between the existence of situations of extreme poverty and exclusion from society, which must be
2
Copyright 2004 The Washington Post The Washington Post
July 4, 2004 Sunday Final Edition
SECTION: Book World; T04
A Dream Deferred;
THE SECOND BILL OF RIGHTS: FDR'S UNFINISHED REVOLUTION AND WHY WE NEED IT MORE THAN EVER, By Cass R. Sunstein. Basic. 294 pp. $25
Reviewed by Jamin B. Raskin
In his spirited and perfectly conceived new book, University of Chicago Law Professor Cass Sunstein celebrates what he calls "the speech of the century," Franklin Delano Roosevelt's 1944 State of the Union Address. The address remains unique for having been delivered from the White House as a fireside chat. As Allied forces routed the Axis powers, FDR chose "security" as his theme but shifted attention from military security to the New Deal agenda of "economic security, social security, moral security." Denouncing corporate war profiteers (in the middle of this most just of all wars) for their selfishness, FDR argued for steeper progressive taxation and rene- gotiation of war contracts. Then he turned to his central claim: A "decent standard of living for all" was necessary to save the world from constant war and fear. People abroad who are hungry and unemployed "are the stuff out of which dictatorships are made," and social injustice at home leaves too many "ill-fed, ill-clothed, ill-housed, and insecure." We cannot have security without justice: "Freedom from fear," said FDR, "is eternally linked with freedom from want." Roosevelt sought economic opportunity and security for a nation buffeted by unemployment, depression and war. Like the legal realists who helped build the regulatory state, FDR saw arguments about "laissez-faire" and "the market" as not only self-serving but specious. Property rights themselves exist only because of law, just as corpora- tions are creatures and active beneficiaries of the state. As FDR put it (in words that would make fine graffiti on K Street): "The same man who tells us that he does not want to see the government interfere in business . . . is the first to go to Washington." Roosevelt argued that our political rights alone could not ensure full democratic citizenship. A "second Bill of Rights" was needed to guarantee each citizen a job with sufficient earnings for food, clothing and rec- reation; trade without monopolies; decent housing; adequate medical care; protection against old age, sick- ness, accident and unemployment; and good education. Why did FDR's visionary address influence political developments abroad so much more than at home? The U.N.'s 1948 Universal Declaration of Human Rights, guided by Eleanor Roosevelt, featured FDR's full pack- age. The European Social Charter and many new national constitutions reflect the same sensibility. Yet while Europeans now enjoy free health care and education through college (not to mention a lot more vacation time), we offer meager social protection, go about our business while millions of children live in grinding poverty and assume that constitutions are for political rights only. Sunstein has a curious theory for why FDR's plan did not become part of our Constitution or even a "constitu- tive commitment" -- i.e., a sacrosanct legislative program like Social Security. It is not because we have an old Constitution, he says, or because of American "exceptionalism" rooted in individualism. After all, the Constitution can be amended and reinterpreted, Sunstein argues, and FDR carefully framed his program as protection for indi- viduals in the modern economy. Rather, Sunstein's explanation is this: The second Bill of Rights was almost adopted by the Supreme Court in a series of 1960s-era decisions. The Warren Court gave indigent criminal defendants the right to appointed lawyers and free transcripts, struck down state poll taxes and gave welfare recipients due-process rights against sudden terminations and state policies disfavoring new residents. This wave could have "eas- ily" led the Court to recognize economic and social rights, according to Sunstein. But then a "crucial" event
changed everything: "the election of President Nixon in 1968." Nixon named four conservative justices who considered wealth and poverty natural facts and not problems of constitutional dimension. The flaw in this account is that the Warren Court decisions that Sunstein justly cheers were still galaxies away from the affirmative economic rights that FDR championed. Criminal procedure decisions like Gideon v. Wainwright, which guaranteed appointed counsel to poor criminal defendants, simply imply minimal due-process rights for people facing state prosecution. The welfare cases never came close to defining a right to income or work. Not even the most soaring dicta of the Warren Court would have ever required Congress to provide jobs, housing or health care. Sunstein does not seriously test the possibility that racism defeated Roosevelt's dream or that federalism and other structural features of American government are slowing things down. His thesis implies that, to revive FDR's project, it would suffice to elect a president who would name more liberals to the Supreme Court. That strategy may save abortion rights, for example, but it will never get national health insurance for tens of millions of uninsured Americans. Even if we imagine a Court filled with justices like today's most liberal members -- John Paul Stevens (President Ford's pick) or David Souter (President George H.W. Bush's choice) -- it is fanciful thinking to suppose that the Court would ever find FDR's wish list simply lurking somewhere in the equal protection clause. In any event, you do not have to be Robert Bork to believe that this is not how basic constitutional change does -- or should -- occur in a democracy. Sunstein's opposition to a politics of constitutional amendment looks inexplicably timid in the shadow of such changes elsewhere on Earth. Indeed, his most stirring passages describe the new South African Constitution and its explicit requirement that the state take "reasonable" measures to protect health and housing rights "within its avail- able resources." Sunstein shows that the South African Supreme Court has required a government much poorer than ours to take limited but significant affirmative steps to house displaced homeless people and get medical care to the HIV-positive. Yet for America, Sunstein shies away from the constitutional populism that has been a far more important source of basic human rights than individual justices pulling rabbits out of hats. His vague call for a new "constitu- tive commitment" to economic security ignores how fragile and ephemeral such commitments can be. Ask the labor movement, which thought it had such a deal with the Wagner Act and its federally guaranteed right to organize, both of which have been badly eroded by courts, politics and economics. Changes that endure the push and pull of partisan politics require constitutional grounding. Sunstein argues convincingly that FDR's 1944 State of the Union address should be placed in our hearts next to Lincoln's poetic Gettysburg Address. But the chief reason FDR's speech has been largely forgotten while Lincoln's is still on the tip of our tongues is that Lincoln's cogent reconstruction of the purposes of America was fast embodied in our Constitution. The Reconstruction amendments abolished slavery, made eve- ryone born here citizens, gave us equal protection and due-process guarantees against the states, and banned race discrimination in voting. Though these rights still had to be fought for (and many died in the process), they gave us a coherent framework for the struggle. As Martin Luther King Jr. said right before his death, "All we say to Amer- ica is, 'Be true to what you said on paper.' " (Imagine where we would be if equal protection were just a "constitu- tive commitment.") FDR's vision of a second Bill of Rights was never committed to parchment and still waits to become a flesh-and-blood public agenda. Its day may come. In the meantime, you can find its spirit in Sunstein's well- designed little book, best read perhaps down at the stirring FDR Memorial, where the great man's message is still blowing in the wind. *
Jamin B. Raskin is a professor of constitutional law at American University and currently a visiting professor at Sciences-Po in Paris. He is the author, most recently, of "Overruling Democracy."
THE FOUR FREEDOMS SPEECH (Final paragraphs)
delivered by Franklin Delano Roosevelt, on January 6, 1941
as part of the Annual Message to the Congress
In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms.
The first is freedom of speech and expression -- everywhere in the world.
The second is freedom of every person to worship God in his own way -- everywhere in the world.
The third is freedom from want -- which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants -- everywhere in the world.
The fourth is freedom from fear -- which, translated into world terms, means a world- wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor-- anywhere in the world.
That is no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation. That kind of world is the very antithesis of the so-called new order of tyranny which the dictators seek to create with the crash of a bomb.
To that new order we oppose the greater conception -- the moral order. A good society is able to face schemes of world domination and foreign revolutions alike without fear.
Since the beginning of our American history, we have been engaged in change -- in a perpetual peaceful revolution -- a revolution which goes on steadily, quietly adjusting itself to changing conditions -- without the concentration camp or the quick-lime in the ditch. The world order which we seek is the cooperation of free countries, working together in a friendly, civilized society.
This nation has placed its destiny in the hands and heads and hearts of its millions of free men and women; and its faith in freedom under the guidance of God. Freedom means the supremacy of human rights everywhere. Our support goes to those who struggle to gain those rights or keep them. Our strength is our unity of purpose.
To that high concept there can be no end save victory.
From Congressional Record, 1941, Vol. 87, Pt. I. The right to development Commission on Human Rights resolution 1999/79
The Commission on Human Rights, Guided by the Charter of the United Nations, expressing in particular the determination to promote social progress and better standards of life in larger freedom as well as to employ international mechanisms for the promotion of the economic and social advancement of all peoples, Recalling that the Declaration on the Right to Development adopted by the General Assembly in its resolution 41/128 of 4 December 1986 confirmed that the right to development is an inalienable human right and that equality of opportunity for development is a prerogative both of nations and of individuals, who make up nations, Noting that the World Conference on Human Rights reaffirmed the right to development as a universal and inalienable right and an integral part of all fundamental human rights, Recognizing that the Declaration on the Right to Development constitutes an integral link between the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action (A/CONF.157/23) through its elaboration of a holistic vision integrating economic, social and cultural rights with civil and political rights, Expressing its concern, on the occasion of the fiftieth anniversary of the Universal Declaration of Human Rights, that the unacceptable situation of absolute poverty, hunger, disease, lack of adequate shelter, illiteracy and hopelessness remains the lot of over 1 billion people, Emphasizing that the promotion, protection and realization of the right to development are an integral part of the promotion and protection of all human rights, Noting that the human person is the central subject of development and that development policy should therefore make the human being the main participant and beneficiary of development, Stressing the importance of creating an economic, political, social, cultural and legal environment that will enable people to achieve social development, Affirming the need to apply a gender perspective in the implementation of the right to development, inter alia by ensuring that women play an active role in the development process, Emphasizing that the empowerment of women and their full participation on a basis of equality in all spheres of society is fundamental for development, Underlining the fact that realization of the right to development requires effective development policies at the national level, as well as equitable economic relations and a favourable economic environment at the international level, Welcoming in this regard the adoption by the General Assembly of the Agenda for Development, annexed to its resolution 51/240 of 20 June 1997, which declares that development is one of the main priorities of the United Nations and which aims at invigorating a renewed and strengthened partnership for development, based on the imperatives of mutual benefits and genuine interdependence, Noting with concern that the Declaration on the Right to Development is insufficiently disseminated and should be taken into account, as appropriate, in bilateral and multilateral cooperation programmes, national development strategies and policies, and activities of international organizations, Recalling the need for coordination and cooperation throughout the United Nations system for a more effective promotion and realization of the right to development, Underlining the important role of the United Nations High Commissioner for Human Rights in the promotion and protection of the right to development, as mandated in paragraph 4 (c) of General Assembly resolution 48/141 of 20 December 1993, Recalling its resolution 1998/72 of 22 April 1998 and noting General Assembly resolution 53/155 of 9 December 1998, Taking note with interest of the report of the Intergovernmental Group of Experts (E/CN.4/1998/29), including the proposed strategy contained therein, and welcoming in particular the recommendation that a follow-up mechanism be established to ensure promotion and implementation of the Declaration on the Right to Development, 1. Reaffirms the importance of the right to development for every human person and all peoples in all countries, in particular the developing countries, as an integral part of their fundamental human rights as well as the potential contribution its realization could make to the full enjoyment of human rights and fundamental freedoms; 2. Recognizes that the fiftieth anniversary of the Universal Declaration of Human Rights provides an important opportunity to place all human rights - and, in this context, the right to development in particular - at the top of the global agenda; 3. Reiterates that: (a) The essence of the right to development is the principle that the human person is the central subject of development and that the right to life includes within it existence in human dignity with the minimum necessities of life; (b) The existence of widespread absolute poverty inhibits the full and effective enjoyment of human rights and renders democracy and popular participation fragile; (c) For peace and stability to endure, national action and international action and cooperation are required to promote a better life for all in larger freedom, a critical element of which is the eradication of poverty; 4. Reaffirms that democracy, development and respect for human rights and fundamental freedoms, including the right to development, are interdependent and mutually reinforcing, and in this context affirms that: (a) Development experiences of countries reflect differences with regard to both progress and setbacks, and that the development spectrum has a wide range, not only between countries but also within countries; (b) A number of developing countries have experienced rapid economic growth in the recent past and have become dynamic partners in the international economy; (c) At the same time, the gap between developed and developing countries remains unacceptably wide and developing countries continue to face difficulties in participating in the globalization process, and many risk being marginalized and effectively excluded from its benefits; (d) Democracy, which is spreading everywhere, has raised development expectations everywhere, that their non-fulfilment risks rekindling non-democratic forces, and that structural reforms that do not take social realities into account could destabilize democratization processes; (e) Effective popular participation is an essential component of successful and lasting development; (f) Democracy, respect for all human rights and fundamental freedoms, including the right to development, transparent and accountable governance and administration in all sectors of society, and effective participation by civil society are an essential part of the necessary foundations for the realization of social- and people-centered sustainable development; (g) The participation of developing countries in the international economic decision-making process needs to be broadened and strengthened; 5. Urges all States to eliminate all obstacles to development at all levels, by pursuing the promotion and protection of economic, social, cultural, civil and political rights and by implementing comprehensive development programmes at the national level, integrating these rights into development activities, and by promoting effective international cooperation;
2 6. Reaffirms that all human rights are universal, indivisible, interdependent and interrelated and that the universality, objectivity, impartiality and non-selectivity of the consideration of human rights issues must be ensured; 7. Affirms that international cooperation is acknowledged more than ever as a necessity deriving from recognized mutual interest, and therefore that such cooperation should be strengthened in order to support the efforts of developing countries to solve their social and economic problems and to fulfil their obligations to promote and protect all human rights; 8. Welcomes the intention of the Secretary-General to give high priority to the right to development and urges all States to promote further the right to development as a vital element in a balanced human rights programme; 9. Also welcomes the high priority assigned by the United Nations High Commissioner for Human Rights to activities relating to the right to development, and urges the Office of the High Commissioner to continue implementing Commission resolution 1998/72; 10. Further welcomes the decision by the Economic and Social Council to authorize the establishment by the Commission on Human Rights of a follow-up mechanism, consisting of an open-ended working group and an independent expert with a mandate to present to the working group at each of its sessions a study on the current state of progress in the implementation of the right to development, as provided in Commission resolution 1998/72; 11. Invites the High Commissioner for Human Rights to present a report to the Commission each year for the duration of the mechanism, to provide interim reports to the working group and to make those reports available to the independent expert, in each case covering: (a) The activities of her Office relating to the implementation of the right to development as contained in her mandate; (b) The implementation of resolutions of the Commission on Human Rights and the General Assembly with regard to the right to development; (c) Inter-agency coordination within the United Nations system for the implementation of relevant resolutions of the Commission in that regard; 12. Requests the Secretary-General to submit to the General Assembly at its fifty-fourth session and to the Commission on Human Rights at its fifty-sixth session a comprehensive report on the implementation of the various provisions of the present resolution; 13. Urges the United Nations system to continue to support the implementation of the recent resolutions of the Commission on Human Rights regarding the right to development; 14. Calls upon the Secretary-General to ensure that the working group and the independent expert receive all necessary assistance, in particular the staff and resources required to fulfil their mandates; 15. Decides to call upon the open-ended working group to take note of the deliberations on the right to development during the fifty-fifth session of the Commission on Human Rights.
59th meeting 28 April 1999 [Adopted without a vote. See chap. VII.]
3 Letter from China: U.S.-China relationship isn't the most vital one
International Herald Tribune
WEDNESDAY, MAY 3, 2006 Page 2
by
Howard W. French
SHANGHAI What's the most important international relationship? An easy case could be made for China's ties with the United States, but that would be the wrong guess, at least now. The recent visit to Washington by President Hu Jintao of China lent proof to an increasingly glaring fact: This immensely important relationship is vastly underperforming its potential.
With critical issues begging for heavy lifting everywhere you look, from energy and the environment to nuclear proliferation, human rights or East Asian security, Washington and Beijing settled for a sterile photo-op.
Given the state of the world's problems, this is truly unfortunate, but there seems little hope for near-term change. Under President George W. Bush, Washington has squandered so much of its power, influence and treasure that there is little energy or inclination left for true engagement with the emerging Chinese colossus. What happens under a future administration is anyone's guess.
China's leadership is equally uninspired, albeit for different reasons. Giving new meaning to the label conservative, Hu and his team are shaping up as the ultimate risk evaders.
Seemingly fed by a belief that the winds are blowing its way, that the world will come to it, and that it is only a matter of time before China attains a commanding position on the global stage, Beijing sees little point in soiling its hands trying to manage the world's problems. What better, then, than to let the United States exhaust itself, and moreover to exhaust the good will of others, as it pushily goes about trying to defuse ticking time bombs here and there that few others can be bothered with?
Beijing prefers to burnish its image as the unthreatening, noninterfering, all-respecting, new and improved superpower: a see-no-evil nation whose bland and benign visage is meant to lull the world until such time as China has finished rebuilding and is ready to engage the world on its own terms.
So why, the reader may be forgiven for wondering, is the right answer China's relationship with Africa? It's because China has the largest population and the most resource-hungry economy, and because Africa has the richest portfolio of raw materials and the largest collection of poor and badly governed countries.
The combination of foreign need for raw materials and the continent's weak societies has left a legacy of devastation in Africa that dates at least as far back as the rubber trade run by the Belgian Congo, under which millions of Africans were killed under a system of terror-driven forced labor.
The abysmal record of the West in Africa, from colonial times through the Cold War, poorly acknowledged even today, makes it hard for it to find a perch to issue a credible moral warning to China.
And yet as Beijing rushes to rebuild relations with Africa, which have stagnated since the Mao era, the world cannot afford to allow hard truths to go unsaid, especially given the kind of diplomatic language that China favors.
"China needs to grow, and in order to grow it needs energy sources, minerals and raw materials, particularly from Africa," said Patricia Feeney, executive director of the private British group Rights and Accountability in Development.
China is becoming the dominant player in a number of countries that have been particularly marginalized in recent years by the West. You can see its influence and presence spreading in ways that are different from what existed in the '70s, when it supported the anti-colonial struggle. It still has some credit for that among African countries. But if it doesn't adapt to the aspirations of the African peoples themselves, which are not necessarily the same as those of African governments, it is going to run into trouble, as it already is in Sudan.
"In our dealings with African countries we respect the political model chosen by the African people," Hu declared during his recent stop in Kenya, a young and fragile democracy riddled with corruption and governance problems.
Hu was there to sign offshore oil exploration agreements for Chinese companies, and the best he could muster was a bland statement like this: "We use the policy of noninterference in the affairs of other countries."
Superficially, such a stance may seem to suit China's narrow self-interests just fine. But on a continent where the pillaging of resources by governing elites is taking place on a monumental scale, while the most basic needs of citizens go unmet, see- no-evil amounts to evil.
Nor is it good enough to say, as some in the Chinese news media already are, that the pillaging isn't being done - certainly not in any direct sense - by the Chinese, as it was done by European colonizers in the past.
Pillaging takes many imaginative forms, nowhere more so than in Africa, where the foreign hand in the African glove has been a time- honored mode at least since the time of Mobutu Sese Seko in Zaire. This pattern was on full display recently during a
2 competition between Indian and Chinese companies over Nigerian oil. The Indian company pulled out, citing concerns that its African counterpart was a dubious shell company manipulated by corrupt politicians. Showing no such qualms, the Chinese company went ahead.
Today, Hu's language doesn't cut it, and in Africa, the world cannot afford to watch China repeat the mistakes of the past. If current patterns hold, Africa's forests will be depleted and its oil resources tapped out, leaving behind a environmental and human disaster of unprecedented proportions.
The continent's population is growing at a staggering rate, and before long could equal China's own. The difference is that Africans, ill-served by their elites and by the outside world, will be predominantly illiterate and plagued with diseases, setting the stage for mass migration and general chaos.
China has much to teach Africa, having lifted more people out of poverty in a shorter period of time than had ever been accomplished anywhere. The rub is that the old Chinese diplomatic bugbear of internal affairs has everything to do with Africa's problems, and pretending otherwise, while narrowing serving only self-interests, will only make things worse.
3 Copyright 2006 The New York Times Company The New York Times
April 10, 2006 Monday Late Edition - Final
Section A; Column 1; Foreign Desk; Pg. 3
A Highly Charged Rape Trial Tests South Africa's Ideals
By MICHAEL WINES
JOHANNESBURG, April 9
For Jacob G. Zuma, a charismatic figure of South Africa's liberation struggle, the last year has been a series of shocks: fired as deputy president, ousted as the front-runner to succeed President Thabo Mbeki, indicted on bribery charges, and, most recently, put on trial on charges of raping the daughter of a family friend. Now Mr. Zuma has begun to fight back. And it is his critics' turn to be shocked. Taking the stand for the first time this week in the rape trial, Mr. Zuma cast himself as the embodiment of a traditional Zulu male, with all the privileges that patriarchal Zulu traditions bestow on men. Mr. Zuma, who turns 64 this week, said his accuser, a 31- year-old anti-AIDS advocate, had signaled a desire to have sex with him by wearing a knee-length skirt to his house and sitting with legs crossed, revealing her thigh. Indeed, he said, he was actually obligated to have sex. His accuser was aroused, he said, and ''in the Zulu culture, you cannot just leave a woman if she is ready.'' To deny her sex, he said, would have been tantamount to rape. Such arguments have stirred a storm here, not because he insists that his accuser wanted sex -- he-said, she-said arguments are not unheard of in rape trials worldwide -- but because he has clothed them in what he depicts as African mores about sex and male primacy. In South Africa, by far the most Western of African nations, the accord between centuries-old cultures and newer, more European notions of science and law has been both uneasy and unspoken. Mr. Zuma has laid it bare, effectively arguing that he is being persecuted for his cultural beliefs. Many experts call it a political Hail Mary, a desperation throw aimed at salvaging the public career of a man accused of corruption and sex crimes. But nobody really knows what emotions lie seething behind South Africa's facade of political unity and equal rights. Few are totally prepared to write Mr. Zuma off. ''This is one of the great mysteries of the new South Africa,'' Steven Friedman, a veteran analyst at the Center for Policy Studies in Johannesburg, said in an interview this
4 week. Revulsion at apartheid's brutality led the nation's founders to write one of the world's most enlightened constitutions, making equal rights a pillar of society, he said. But public support for that ideal has yet to undergo a test by fire of the sort Mr. Zuma could pose, at least in theory. ''I don't think one can simply be blase and say that these appeals don't have any appeal to anyone in this society,'' he said of Mr. Zuma's arguments. ''I think they do.'' Much is at stake here. Before the latest scandals, Mr. Zuma, a gifted politician, was perhaps the most popular figure in the African National Congress after Mr. Mbeki. More than that, he had come to embody the alternative to Mr. Mbeki's pro-business policies, which have set off a South African economic boom but deeply alienated the Communist and trade union elements that are a vital part of the African National Congress's governing coalition. The left had hitched its hopes to Mr. Zuma. Embroiled in scandal, he has found himself appealing first to his conservative base in KwaZulu-Natal Province, on South Africa's east coast, and worrying later about the egalitarian bent of his allies on the left, some of whom have grown publicly uncomfortable with supporting him. That he is making a political appeal as well as a legal one seems indisputable. During this week's trial, he pointedly testified entirely in Zulu, although he speaks fluent English, the usual courtroom language. His remarks had to be translated for the English- speaking prosecutors. Outside the downtown Johannesburg courtroom, his supporters, who had previously burned an effigy of his accuser, wore T-shirts emblazoned with the slogan ''100 percent Zuluboy.'' Many were women. That said, Mr. Zuma's claims to a Zulu heritage are authentic. His father, a chief, was a confidante of a Zulu king. Press reports say that he has two wives, and he is sometimes reported to be engaged to a Swaziland princess. Mr. Zuma also was married to South Africa's foreign minister, Nkosazana Dlamini-Zuma; the two divorced in 1998. His appeal in modern South Africa is rooted in his work in the African National Congress's underground battle against apartheid. Mr. Zuma spent 10 years imprisoned on Robben Island in the 1960's and 1970's, convicted of conspiring to overthrow the white- ruled government, then rose in the 1980's to head the A.N.C.'s intelligence operations. After apartheid crumbled in the early 1990's, Mr. Zuma, by then a high-ranking official in the party, seemed destined to lead the nation. But his standing plummeted last year, when he was forced out as deputy president in a bribery scandal involving contracts to build naval vessels that were awarded to a French company. The rape charge, filed after an encounter between Mr. Zuma and the anti-AIDS campaigner last November, appeared to have sealed his political fate. The true story of that encounter remains murky. The woman, who is H.I.V. positive, says she was sleeping overnight in a guest room in Mr. Zuma's flat when he came to the room, offered her a massage, then raped her when she declined. She has said she did not resist because she was too shocked to respond.
5 Police reports indicate that Mr. Zuma initially said the encounter occurred in the guest room. But he has since testified that the woman came to his bedroom, climbed into his bed and asked for a massage, and that he concluded that she wanted sex, although he knew that she was H.I.V. positive and that neither had a condom. Mr. Zuma said he was convinced that his chance of contracting H.I.V. was small and that he took a shower after sex to minimize the risk. That has stunned AIDS experts here, who note that as deputy president, Mr. Zuma was perhaps the leading government official responsible for women's rights and the effort against AIDS. Some South Africans are dismayed by Mr. Zuma's insistence that his testimony reflects traditional values. ''People do not want this kind of thing,'' Nomboniso Gasa, a political analyst who spent the 1980's in the African National Congress's underground and later worked on gender-equality issues for the party, stated in an e-mail interview. ''They find it repulsive. He has broken every socio-cultural rule.'' Yet Ms. Gasa, who is writing a book about South African history, said Mr. Zuma was likely to retain broad support in parts of South African society, if only because much of the population remains deeply patriarchal, whatever the Constitution and laws state. Whether it will rescue him from political extinction and not just a potential rape conviction is another question. The ranks of the African National Congress are replete with prominent women, led by Mr. Mbeki's deputy president. The notion that Mr. Zuma's defense will resonate with them, said one analyst of KwaZulu Natal politics, is ''complete nonsense.'' ''It's one of the great enigmas of South African politics today,'' said that analyst, who spoke on condition of anonymity because his employer, a nonpartisan private company, would not allow him to be interviewed for attribution. ''How African is the A.N.C., in the traditional sense? They've never come to terms with this.''
Note: On May 7, 2006 Mr. Zuma was acquitted by Judge Willem van der Merwe who stated: ``I find that consensual sex took place between the complainant and the accused,''
6 Copyright 2005 News World Communications, Inc. The Washington Times
August 8, 2005 Monday OPED; Pg. A19
Mugabe's shameful apologists
By Nat Hentoff, THE WASHINGTON TIMES
The African Union has been useless. Many more black citizens of Zimbabwe - who have suffered for years under the dictatorial rule of Robert Mugabe - are now without hope of liberation. On July 22, London's Daily Telegraph reported: "Armed riot police and youth militia of Zimbabwe's ruling Zanu PF Party are rounding up homeless people who have sought refuge in church compounds." They are among the more than 700,000 victims of Mr. Mugabe's "Operation Restore Order," that as the July 24 International Herald Tribune reports has bulldozed "shacks, workshops and market stalls across Zimbabwe's urban center." (Many of the now- homeless adults in such neighborhoods voted against Mr. Mugabe in the last government- rigged election.) Miloon Kothari, special rapporteur on adequate housing at the U.N. Commission on Human Rights, told the June 11 New York Times that suicides are rising as the desperate displaced people "just have nowhere to go." A stinging 200-page U.N. report by Kajumulo Tibaijuka, an expert in rural economics from Tanzania, emphasizes that the Mugabe government's "indifference to human suffering" has been caused by "a disastrous venture based on a set of colonial-era laws and policies that were [under white rule] used as a tool of segregation and social exclusion." (But strangely, she does not target Mr. Mugabe directly as the cause of this suffering.) Recently, on a liberal New York radio station, WBAI, I was describing how Mr. Mugabe has caused an unemployment rate of 70 percent, ruinous inflation, the pervasive decline of Zimbabwe's once bountiful harvests and the savage punishment of dissenters inflicted by his merciless youth militia. A caller to the radio station identified himself as an American black pastor and a human-rights activist around the world. He admonished me for not giving Mr. Mugabe credit for rescuing Zimbabwe from having been "a white-ruled plantation." I told him the country still is a plantation - ruled by a black master. Also scandalous in these crimes against the people of Zimbabwe is the silence of the African Union, formed five years ago to prove that the continent can take care of its own problems and protect economic, political and human rights. A July 7 front-page story in the Financial Times began: "Kofi Annan yesterday urged African leaders to break their silence over actions by governments, such as Zimbabwe's,
7 that were undermining the continent's credibility in the eyes of the world." The U.N. secretary-general emphasized: "What is lacking on the continent is [a willingness] to comment on wrong policies in a neighboring country." But in the same article, Olusegun Obasanjo, president of Nigeria and presently the chairman of the African Union, defiantly said he would "not be a part" of any public condemnation of Mr. Mugabe. Moreover, as The New York Times reported on July 6: "Tanzania, Namibia and Zambia are among those [African nations] that have praised Mr. Mugabe's economic policies in recent months," or even more appallingly, "have stopped protesters from criticizing them." Also insistently silent on the rampant ferocity of the Mugabe regime is Thabo Mbeki, president of South Africa, who has long claimed he is pursuing "quiet diplomacy" in his dealings with Mr. Mugabe. His "diplomacy" is so quiet that its alleged results have not reached these black citizens in Harare described in the June 11 issue of The Economist, after the government obliterated their neighborhood: "A barefoot widow and her two children stand in the ruins of their shack, their meager belongings gathered under plastic sheets ... they now sleep in the open with nothing to protect them from Harare's bitter cold. With tears in her eyes and a broken voice, she shows a lease and receipts for rents she has paid. "I have nowhere to go," she laments." (Mr. Mugabe says the demolitions have ended, but the government has said that before. In any case, he is again responsible for ruthless crimes against his own people.) They have also been abandoned by the justly venerated Nelson Mandela, who has marred his autumnal years by refusing to say a word in criticism of Mr. Mugabe. I asked an African, a longtime human-rights worker concerning the continent, why Mr. Mandela will not speak, when his condemnation of this horrifying injustice would, should he offer it, reverberate around the world. The human-rights worker replied that Mr. Mandela still sees Mr. Mugabe "as a liberator of his nation in the long, bitter struggle on the continent in which so many, including Mandela, suffered so much. He will not condemn this man." Jean-Claude Shanda Tonme of Cameroon, a consultant on international law, wrote in the July 15 New York Times: "What is at issue is an Africa where dictators kill, steal and usurp power yet are treated like heroes at meetings of the African Union." What will debt relief for (some of) these rulers do for the widow and her two children in Harare who have no place to go? Their condition cannot be reported in Zimbabwe's two largest, independent and best-selling newspapers, the Daily News and the Sunday Daily News. Now silent, their licenses to publish remain denied by Mr. Mugabe. Once again, the African Union, like the United Nations, has been useless. * Nat Hentoff's column for The Washington Times appears Mondays.
8 Copyright 2006 IPS - Inter Press Service/Global Information Network IPS - Inter Press Service
February 23, 2006 Thursday
SOUTH AFRICA: LESBIANS LIVE IN FEAR OF VIOLENCE, EXTREME PREJUDICE
By Moyiga Nduru
JOHANNESBURG, February 23 2006
As a community relations officer for the Johannesburg-based Forum for the Empowerment of Women, Zanele Muholi has become all too familiar with the prejudice against lesbians in South Africa. Over recent years, says Muholi, she has spoken "to more than 50 victims of rape and hate speech" and recorded five major cases of violence against lesbians. The latest incident occurred in Cape Town earlier this month. It involved a 19-year- old woman, Zoliswa Nkonyana, who was stabbed and stoned to death by a mob of young people in a predominantly black residential area of the coastal city Khayelitsha. This was not the first time that a gay woman had been attacked in the area. In 2003, another woman was seriously injured in the same place, notes Muholi. In Soweto, the largest black residential to be established in Johannesburg under apartheid, attitudes towards lesbians are similarly hostile. "It's scary. Whenever people see lesbians holding hands or kissing in the street, they react by unleashing a torrent of verbal abuse which amounts to hate speech. Some of them would want to hit you physically," a woman who lives in Soweto told IPS in a telephone interview from the neighborhood. She declined to reveal her identity for fear of being attacked. "We live in fear. Anything can happen to us, anytime," the woman said. Muholi believes "ignorance, arrogance and disrespect" lie at the heart of prejudice against gay women. Matters are worsened, she adds, by a culture of impunity: "They (attackers) know that they will get away with it (violence against lesbians)." Rape is seen as an act that can alter the sexual orientation of gay women. Apart from scarring them psychologically, however, sexual assault can also serve as a death sentence: "Some end up catching sexually transmitted diseases like AIDS or becoming pregnant," says Muholi. According to the Joint United Nations Program on HIV/AIDS, about one in five adults in South Africa has contracted HIV. But while lesbians face prejudice in the streets of Khayelitsha, Soweto and elsewhere, their rights are being entrenched in South Africa's legal system.
9 Last year, the constitutional court ruled in favor of same-sex marriage in the country. Members of parliament have been given until the end of this year to amend the law accordingly. In 2002, the court also ruled that gay couples had the right to adopt children, reportedly making South Africa the first African state to legalize such adoptions. South Africa's constitution outlaws discrimination on the basis of sexual orientation. The constitutional court's 2005 decision was roundly condemned by religious groups. "The legalizing of same-sex marriages is doomed to have a morally deleterious effect on the institution of the family, traditionally defined as the permanent union between husband and wife," the Catholic Church said in a statement issued Dec. 7, 2005. Njongonkulu Ndungane, the Anglican archbishop of Cape Town, voiced similar sentiments. "We do not regard partnership between two persons of the same sex as a marriage in the eyes of God," he said. However, Ndungane acknowledged that many might disagree with the Anglican Church's stand. "We recognize that we live in a country which is home to many beliefs, cultures and practices," he noted. "It would be arrogant and presumptuous of us to attempt to force our values and viewpoints on people who think differently from us." Elsewhere in the Southern African region, gays and lesbians are also confronted with prejudice -- as evidenced by Zimbabwean President Robert Mugabe's statement, made several years ago, that they were "worse than dogs and pigs." Canaan Banana, Zimbabwe's first post-independence head of state, was convicted for sodomy in 1998, and jailed for a year. The court proceedings revealed that he had abused other men while in office. Former Namibian president Sam Nujoma has also spoken out against homosexuality. Back at the Forum for the Empowerment of Women, Muholi expresses the hope that - - this time -- Nkonyana's killers will be brought to book. "I hope those guys will be arrested and tried. I feel sorry for Nkonyana's friend who ran away during the assault. She needs trauma counseling," she says.
10 Copyright 2006 AllAfrica, Inc. Africa News January 27, 2006 Friday
Rwanda; Can the AU Deliver Africa from Her Woes?
BYLINE: The New Times
One of the African presidents attending an AU summit is seated in an air-conditioned conference room, furnished with Orient and Occident imported furniture and putting up in a 5 star hotel of international repute. His turn to address the summit comes, he majestically walks to the podium, says very impressive democratic statements, quotes legendary statesmen, promises plots on the moon, and only falls short of pledging an 'air-ticket' or 'visa' to heaven. After his speech, he triumphantly walks back to his seat amid deafening ululations and thunderous ovations. A 'Hero', he is declared. Back home? Do you know how many of his folks are dying every minute? How many swim in the bottomless sea of poverty? What of those whose rights have been abused? And so, recently, the summit elected Congo Brazzaville to head the AU after Sudan withdrew. By consensus, it was agreed that the present human rights record of the Sudan could injure the AU's reputation. Bashir accepted to withdraw following the allegation; does this mean that he indirectly accepted that his human rights reputation was soiled? And by any standard was Congo, with its troubled history the best alternative to the Sudan? The fervent resistance of heads of African states to bar the Sudan was basically based on the Darfur massacres. Congo's atrocities, though very recent, are being overshadowed by Darfur which should not have spelt serenity in Congo and to General Sassou Nguesso either! Nguesso, a two time President of Congo, is a typical representation of African dictators. In 1979, he became a president after the ousting of Gen. Jacques Joachim Yyomby Opango. He ruled the country to 1992 when he was defeated by Pascal Lissouba, but maintained a private militia known as the 'Cobras' in his northern domain. He used his militias to oust the elected government in the October 1997. In 2002, he barred members of the opposition from participating in the elections. So where is Nguesso's democratic insight? A typical African today wants to see tangible results from the AU. He wants to see unprecedented opportunities to begin to address the reasons why Africa has been such a troubled continent since most of its states achieved independence over forty years ago. Not the gloomy reports churned out of Africa--famine, war, hunger, human rights abuse and the like.
11 This should be the time to take a stride from being a paper tiger, having gone through the ratifications, to make the major organs work. The Peace and Security Council and the Pan African Parliament must be seen to be doing something. Peacekeeping should not end with where genocide and other crimes against humanity are imminent, but should go beyond to curtail civil wars and cross-border incursions. Doing that will not tantamount to compromising states' sovereignty, but will be a road to ensuring that what is sanctioned is actually implemented. Failing to do so will always be self-betrayal. The Pan African Parliament must also stop being a talking shop and assemble itself into a solid legislative body, capable of imposing sanctions, expelling a defiant member state from the Union, and monitor the implementation of resolutions. The problem with this is that most of those elected to the mega-parliament are picked from the national assemblies, most of whom are supporters of the sitting president. It therefore becomes easy for them to forge a 'marriage of convenience' against all the oppositions in Africa. This then calls for a moral commitment to their countries and Africa in general. That parliament should be a reserve of statesmen not for politicians. Where does one benefit from when there are chronic wars, famine, human rights abuse and fascism in his country? In the short run, he may benefit from self aggrandisement, but will that permeate to his sons and grandchildren? In most cases no! There can never be a legendary bravery in destroying life or property, for offense or defense. The Protocol to the African Charter on Human and People's Rights establishing an African Court on Human Rights was ratified in 2004, but what has it done to issues such as those in Darfur, Ivory Coast, Sierra Leone, northern Uganda and elsewhere in Africa? AU has been in place now since 2002. Its father OAU did little to rid Africa of the fascists and totalitarians who shredded the continent to threadbare. To deviate from that path of 'talk and more talk', enforcement of AU executive decisions must be made. Commitments made by heads of states to peace, respect for democracy, human rights and the rule of law, must be translated to their meaningful end, because without doing that, then what next will become of Africa?
12 Copyright 2006 Financial Times Information All Rights Reserved Global News Wire - Asia Africa Intelligence Wire Copyright 2006 Zimbabwe Standardl Distributed by Allafrica Global Media Zimbabwe Standard - AAGM
January 22, 2006 Sunday
AFRICA IS TAKING HERSELF SERIOUSLY
BYLINE: Tinashe Chimedza
ANYONE who has routinely been frustrated by the lack of institutions in Africa that are independent, willing to be credible and stand on the side of progress and the rule of law, will view the recent action by the African Commission on Human and People's Rights (ACPHR) condemning the government as evidence that there is hope. The adoption of a resolution, by the 38th Ordinary Session of the commission in Banjul, The Gambia, that sat from 21 November to 5 December 2005, to condemn the human rights abuses in Zimbabwe is a sign that there is light somewhere. The commission did two important things: firstly, it condemned the human rights abuses in Zimbabwe, called on the government to restore the rule of law and specifically to protect the vulnerable. Secondly, the commission ruled, on four separate occasions, that the four cases brought before the commission by the Zimbabwe Lawyers for Human Rights (ZLHR) are admissible, meaning the commission can now proceed to deal with substantive issues of those communications. The ZLHR noted immediately that the decisions of the commission are an indictment of the judiciary as well as an unequivocal and significant indicator that the judiciary and the justice delivery system in Zimbabwe no longer guarantees enjoyment of universally recognised human rights and fundamental freedoms. The ZLHR further stated, and surely so, that the decisions give "credence to the allegations that there exists a practice of state-sponsored impunity in Zimbabwe". This is an important signal that many of us have been struggling for, which is that African Union (AU) institutions must take the issues of good governance and the rule of law seriously. The indictment of the Zimbabwe government is a reflection of a paradigm shift permeating some AU institutions which is that good governance, the rule of law and responsive governing can not be shelved as Africa writhes from the periphery of the global economy. The commission was very clear and precise in its condemnation, stating that it is "concerned by the continuing human rights violations and the deterioration of the human rights situation in Zimbabwe, the lack of respect for the rule of law and the growing culture of impunity" and that it "condemns the human rights violations currently being perpetrated in Zimbabwe".
13 The Zimbabwean government's response was nothing but pathetic, it was a mere re- reading of the government's worn out script about British imperialist conspiracies. Such a reaction was expected but it displayed that since the departure of Jonathan Moyo the government has had no new intellectual spinning to add to its discredited conspiracy obsessions. While one can not rush to conclude that the AU Heads of State will adopt the resolutions of the commission surely the actions of the commission must be supported by Africa's pro-democracy movement. Even if the AU were to reject the resolutions, as has been the pattern, the very fact that the commission as an institution of the AU has taken an independent step means that there is hope. We must also remember that the commission had a fact finding mission to Zimbabwe from the 24 - 28 June 2002, mandated at the 29th Ordinary Session of the African Commission held in, Tripoli, Libya. The mission in 2002 reported that "there was enough evidence placed before us to suggest that, at the very least during the period under Review (2000), human rights violations occurred in Zimbabwe and that Government cannot wash its hands from responsibility for all these happenings". As is practice now, the critical and scathing report was dismissed by the government, burying its head in the sand. The commission even went ahead to suggest specific recommendations: national dialogue and reconciliation; the creation of an environment conducive to democracy and human rights; independent national institutions; the independence of the judiciary; a professional police service; repealing restrictive media laws, AIPPA, POSA and so on and lastly that the government had a backlog in its reporting obligations. The government did not tell us in 2002, but we now know as we did then, that the fact-finding mission was staffed with men and women of undisputed reputation. Take Professor Barney Pityana for example, he is a rigorous academic, the Principal of Africa's biggest university, the University of South Africa. Pityana's politics is the political history of liberating Africa, of fighting colonialism and apartheid, from the militancy of Steve Biko to the maturity of the congress movement, his reputation as a fighter and peace maker is not doubted. When Pityana involved himself with the fact-finding mission of the commission and freely willed to put his name on the reports and its recommendations, it meant he and many others had been able to get to the core of the Zimbabwe crisis - governance. Pityana as Chairperson of the South African Human Rights Commission also pressured the South African government over the situation in Zimbabwe. On 20 February 2001 he, on behalf the South African Human Rights Commission, wrote to the South African Minister of Foreign Affairs, Hon Dr NC Dlamini Zuma, stating: "We have observed, however, that far from the situation improving (the Zimbabwe situation), it is in effect escalating and may soon get out of control. The consequences of a sustained social and political instability in our immediate northern neighbour not least in trade and
14 economic relations as well as in refugee inflows into South Africa are obvious. The early warning signs are there for the discerning and concerned observer." The letter went on further to state the state of affairs in Zimbabwe, observing that, "more ominously, is the official campaign against the judiciary, the harassment and victimization of judges, the demands by the Minister of Justice Legal and Parliamentary Affairs, Patrick Chinamasa, that they resign and the apparently forced resignation of Chief Justice Anthony Gubbay, a much respected juristic in Africa and across the world. Other judges have been given notice that they should resign". Anyone who follows the process of getting a human rights case heard before the commission knows that it is not an easy process. It is thorough and impeccable. On the other hand the government would have us believe that the commission's work is dictated by the whims of "imperialists" but the people must be informed that the truth shows otherwise. The commission specifically requires that a party approaching the commission for remedies has to have exhausted local remedies at their disposal in their country, that is, there has to be a practical test as to why the parties approaching the commission can no longer utilise the judiciary system. We all know that there is ample evidence of the government frog-marching the judiciary, disregarding court orders and the executive consistently attacking members of the bench and appointing family friends to the Supreme Court. As the commission's charter states in article 55, for a communication to be considered by the commission at least seven members of the 11-member panel have to separately consent that there is a case here, this is referred to as the "seizure stage". After this the communication is then brought before the full panel where it has to be weighted, according to article 56 of the charter, for admissibility against all, not one but all, of the seven conditions it sets. The commission is therefore effectively insulated from being burdened with preposterous, if not derisory petitions. People of repute and rigorous intellectual training and practice review and scour the pages of these communications. There is no obsession with Zimbabwe at the commission, as a matter of fact the commission has been very forthcoming by first sending a delegation to Zimbabwe in 2002 that investigated and made specific recommendations but the government spurned the report. The commission is becoming an impeccable institution guided by known and entrenched procedures and rules that make the institution immune from abuse. The only institutional weakness at the commission is that it seems to be deliberately underfunded so as to attempt to dilute its work. The African Union member states are dragging their feet over the operationalisation of the African Court on Human and Peoples' Rights and have even gone as far as adopting a resolution to merge it with the African Court of Justice of the African Union. We must be ready to support the credibility and repute of an institution whose men and women are refusing to sing the script that is given to them by African presidents. Distributed by AllAfrica Global Media. (allafrica.com)
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HEADLINE: UN rights body off to a bad start
BYLINE: Olivia Ward, Toronto Star
BODY: Tomorrow is Human Rights Day, a day when contentious issues are aired as accusers and accused face off with al- legations and denials of terrible deeds. But this year, one of the most inflammatory issues is an institution created to monitor human rights: the United Na- tions' new Human Rights Council. With a membership of 47 countries elected from the UN's 192-member General Assembly, the council was meant to be a beacon of UN reform. It replaced a discredited earlier body, the Human Rights Commission, often described as "the foxes guarding the henhouse." But as 2006 comes to an end, the council's report card is dangerously close to a failing grade, as critics from all sides of the political spectrum attack its obvious faults. Some are already calling for its demise. "Unless it can begin to address some of the most serious abuses occurring around the world, the (council) is headed into irrelevancy," pronounced Jennifer Windsor, executive director of the right-leaning Freedom House think-tank. And, argued the liberal International Humanist and Ethical Union, "however selective and political the old human rights commission may have been, it rarely sank to the level of farce just witnessed at the human rights council." Many of the complaints are well-founded. The old 53-member commission had an undemanding election process in which states were chosen as members by regional groups with the backing of 28 countries or less. Critics complained that some of the most egregious violators of human rights manipulated regional blocs to gain seats in order to protect themselves from criticism. The council had a more rigorous election process, requiring the endorsement of at least 98 countries in a secret bal- lot, which was meant to discourage some of the worst human rights abusers from running. Candidates also had to agree to a review of their own human rights records. But once up and running, the council gave little cause for encouragement. During its recent session, the majority of its 44 resolutions failed to come to grips with the most appalling abuses on the planet. Three were condemnations of Israel - a throwback to the highly politicized days of the commission, when countries that routinely violated human rights pointed fingers at the Jewish state while evading criticism themselves. Meanwhile, a tough Canadian-backed resolution on the slaughter in Darfur was defeated and a disappointingly weaker one passed. In addition, a group of African countries, backed by Russia, Cuba and some Asian and Muslim states, moved to bar independent UN human rights missions from investigating alleged violations - except in the case of Israel.
7 Articles on the New UN Human Rights Council 1 Page 2 UN rights body off to a bad start The Toronto Star December 9, 2006 Satu
The group voted in favour of a new "code of conduct" that could muzzle envoys probing allegations of abuse in in- dividual countries, or issues such as torture and human trafficking. The council's combination of bias and censorship proved too much even for its original supporters. "In its meetings to date, the council has adopted three resolutions on human rights abuses and violations of humani- tarian law by Israel," charged the respected New York-based Human Rights Watch. "In taking a one-sided approach, the council failed in its duty to protect the rights of all citizens in the region." The group's global advocacy director Peggy Hicks warned, "it's time ... to get down to work. Victims of human rights violations from Darfur to Sri Lanka are looking to the council to take immediate steps for their protection." The council is not the only UN body focusing on human rights, nor does its poor record negate the painstaking work of others in the system. High Commissioner for Human Rights Louise Arbour monitors and reports on violations worldwide, independent of governments. The 18-member UN committee on human rights is also made up of independent experts who monitor the upholding of the UN Covenant on civil and political rights. The secretary-general sends special envoys to report on violations of human rights. And the UN's humanitarian of- ficials, such as undersecretary-general for humanitarian affairs Jan Egeland, routinely speak out against abuses when working in strife-torn regions, as do officials of UN agencies such as UNICEF. With a range of experts already monitoring human rights, some critics question whether a human rights council made up of governments, which have their own political axes to grind, can make any useful contribution to improving rights worldwide. Even Secretary-General Kofi Annan, who had led the campaign for a new body to replace the old rights commis- sion, was frustrated by the council's politically charged debut. "When you focus on the Palestinian issue, without even discussing Darfur and other issues, some wonder what is this council doing? Do they not have a sense of fair play? Why should they ignore other situations and focus on one area?" he asked, calling on the council to patch up the "fault line" between its members. "The rule of law cannot be left to the discretion of governments," he said in a message to the council last month. But some experts believe that in spite of a performance the Chicago Tribune labelled "weak-kneed and washed up," it's too early to declare the council a failure. Some point out that the war between Israel and Hezbollah in Lebanon set the stage for a politically charged session. "The expectations were very high," admits foreign policy specialist Stephen Schlesinger, author of Act of Creation: the Founding of the United Nations. "In its earliest months, it hasn't lived up to its billing. But it needs at least a full year to develop." Schlesinger and others point to the composition of the membership, and the inaction of some democratically minded states, as factors in the council's downslide. But he says that could be remedied as new members are elected and as pro-democratic countries become more vocal in fighting for human rights. "The dominant faction is made up of Asian, African and Islamic countries. On the other side are democratic states like Canada that have taken strong positions on abuses. But there are a number of others, such as the Latin American democracies, who have stayed out of critical vote-casting, and sided with states that don't want to deal with allegations of violations." The United States's decision not to run for the council's first term, waiting to see if it proved its worth, was a serious mistake, Schlesinger says. "It was cutting off the nose to spite the face." He adds: "Having the U.S. outside the council was a virtual signal that it can do as it likes, without worrying about the most influential country on the planet." Council members are elected for varying terms on a regional basis. But the proportions of the regional seats have given more weight to Asia and Africa than to Western democracies that traditionally press hardest on rights issues.
7 Articles on the New UN Human Rights Council 2 Page 3 UN rights body off to a bad start The Toronto Star December 9, 2006 Satu
Although the world's worst human rights abusers - such as Sudan, Zimbabwe and Syria - decided not to run, the membership included a disproportionate number of countries with dubious records that were intent only on opposing Israel while averting criticism of themselves and their allies. However, says Ayca Ariyoruk, a senior associate of the United Nations Association of the U.S.A., "there is still time and hope. It's not perfect, but it is a forum to bring diverse countries together to exchange ideas, not bullets. If the U.S. was on the council, and the Europeans were more active in campaigning for important issues they believe in, things could improve." The fact that all council members are subject to a "universal periodic review" process that scrutinizes their human rights records is also positive, experts say. Review could lead to special sessions of the council on a country's violations of human rights, and censure if the abuses are confirmed. Some rights advocates suggest that the potential embarrassment of the review process is enough to discourage the most flagrant violations. But if the council's failures continue, Schlesinger says, "the embarrassment could be colossal for the UN. This was supposed to be a breakaway move for reform. But giving up on the council would also be a big setback for human rights. This is the one body in which countries have a direct role in criticizing those who don't live up to the UN Char- ter. I believe the jury is still out."
GRAPHIC: Jason DeCrow AP United Nations Secretary-General Kofi Annan, seen participating in a panel discussion on human rights yesterday in New York, has not hidden his frustration at the uninspiring performance of his agency's new Human Rights Council. He has called on its members to patch up the "fault line."
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November 30, 2006 Thursday Chicago Final Edition
SECTION: EDITORIAL ; ZONE C; Pg. 26
LENGTH: 474 words
HEADLINE: Weak-kneed and washed up
BODY: Just wait, the true believers said. Just wait. This new UN Human Rights Council will be far better than the old, dis- credited UN Human Rights Commission. It won't turn its back on the worst human rights abuses on the globe, coddling abusers the way the old council did. It won't be in thrall to notorious regimes like Sudan and Libya. The new rules, the streamlined council, will do the trick. We were deeply skeptical. But we waited. And on Tuesday, the new council unfortunately lived down to our expec- tations. Way down. The council was challenged to speak up forcefully against the wanton slaughter of civilians in the Darfur region of Sudan, which the UN has called the world's worst humanitarian disaster. Would it dare pass a sharply worded resolu- tion, from the European Union and Canada, demanding that the Sudanese government prosecute those responsible for killing and raping civilians in Darfur? Would it slap the blame where it belonged, on the government for unleashing the brutal militiamen known as the janjaweed? Nope. The vote was 22-20 against. Then the council meekly passed a weak-kneed version favored by several Afri- can countries. If you needed more evidence of the council's utter irrelevancy, its spinelessness, then ... well, then, you haven't been paying enough attention. This new and allegedly improved council is turning out to be just as bad as its thoroughly disgraced predecessor, and for many of the same reasons. The council is dominated by countries that have so far sided with China, Cuba and other oppressive regimes. In its first six months, there has been no significant council criticism of any government but Israel. Even UN Secretary General Kofi Annan sounded peeved on Wednesday. He warned the council not to play the same political games as its defunct predecessor. And he pointedly noted the council's obsessive focus on Israel so far. "There are surely other situations, besides the one in the Middle East, which would merit scrutiny by a special session.... I would suggest that Darfur is a glaring case in point," he said in a statement. There is talk that the council will take up Darfur in a special session soon. But that's not official. The crisis deserves undivided attention, and that would be an opportunity for the council to redeem itself. But don't hold your breath. If you'll recall, the U.S. and others backed a far more muscular reform of the human rights monitoring body at the UN, aimed at preventing thugocracies from joining the new council. The U.S. wanted to ensure that nations with horri- ble human-rights records didn't hijack the agenda and deflect scrutiny from where it's needed most. Those efforts failed.
7 Articles on the New UN Human Rights Council 4 Page 5 Weak-kneed and washed up Chicago Tribune November 30, 2006 Thursday
Instead, the world got reform lite and pledges to improve the system once it was in place. As Tuesday's vote appall- ingly demonstrated, nothing has changed. How about starting over?
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November 29, 2006 Wednesday FIRST EDITION
SECTION: EDITORIAL; Pg. A14
LENGTH: 453 words
HEADLINE: FOXES AT THE HEN HOUSE
BODY: LAST SPRING,at the urging of Secretary General Kofi Annan, the old, ineffectual UN Commission on Human Rights was abolished and replaced by a new Human Rights Council. This reformed body was designed to make it harder for notorious abusers of human rights to become members. In this regard, the new council does represent an ad- vance; three-quarters of its members belong to what is called the Community of Democracies. Still, in a report card on the new council's first six months, the independent monitoring group Freedom House decries the council's "inability to address the world's most egregious human rights abuses." If the new Human Rights Council replicates the old commission's refusal to interfere in the internal affairs of UN member-states, victims of abusive regimes will be justified in viewing the United Nations as a club that protects mem- ber governments, not their populations. One aspect of the council's work Freedom House finds promising is the reporting from more than 40 special rap- porteurs. Their reports were "hard hitting and did not shy from condemning specific countries." But until last week they had produced no "country-specific resolutions." The result is tantamount to a situation in which investigators uncover crimes but prosecutors refuse to indict, or even identify, the criminals. Freedom House rightly deplores calls from some states on the council to bar adoption of any resolutions aimed at the human rights violations of specific states. Freedom House also notes, ominously, that the UN General Assembly's Third Committee, whose domain is human rights, recently passed a resolution sponsored by two notoriously repressive states, Belarus and Uzbekistan, that would "discourage all UN human rights bodies from condemning any country on human rights." There is an Alice-in-Wonderland inversion of logic in such efforts by dictatorial regimes to impose their own domestic practices on the rest of the world. The new council will become as much a travesty as its predecessor if it fails to pass strong resolutions on the hor- rific human rights abuses in Darfur, Burma, and North Korea. Instead, the council mimicked the old commission Mon- day when it passed two resolutions condemning Israel and one that calls for a restricting code of conduct to be imposed on the independent special rapporteurs reporting about abuses to the council. If there is a blind spot in the Freedom House report card, it is in the recommendation that the United States play a more active role and run for a seat on the council next year. The Bush administration's record of indulging in torture, kidnapping, and defiance of the Geneva Conventions has left it unfit to act as a credible defender of human rights. 101
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Copyright 2006 Bell Globemedia Publishing Inc. and its licensors All Rights Reserved The Globe and Mail (Canada)
November 28, 2006 Tuesday
SECTION: LETTER TO THE EDITOR; Pg. A24
LENGTH: 153 words
HEADLINE: The UN and Israel
BYLINE: DAVID MATAS, senior honorary counsel, B'nai Brith Canada
DATELINE: Winnipeg
BODY: The editorial Same Old UN Fixation (Nov. 24) is overly kind to the United Nations. It argues that the new UN Human Rights Council is the same as the old Commission on Human Rights with its fixation on Israel. Yet, it is much worse. The old commission, from the inception of the UN in 1948 until it was abolished this year, had five special ses- sions, including two on Israel and one emergency debate on Israel. The new council, since it started in June, has had three special sessions, all on Israel, beating within the course of a few months the anti-Israel record the commission built up over decades. The first session of the council in June had only one country-specific resolution, and it was on Israel. For the old commission, Israel was the world's worst human-rights violator. For the new council, Israel is the only human-rights violator. The United Nations, in establishing the council, has created a monster.
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Copyright 2006 Bell Globemedia Publishing Inc. and its licensors All Rights Reserved The Globe and Mail (Canada)
November 24, 2006 Friday
SECTION: EDITORIAL; Pg. A24
LENGTH: 876 words
HEADLINE: Same old UN fixation
BODY: The United Nations Human Rights Council was crafted to replace the UN's thoroughly discredited Commission on Human Rights. Unfortunately, five months after its inaugural meeting, the reconstituted council looks and acts suspi- ciously like the old body, with a membership that includes such notorious rights abusers as Cuba, China and Saudi Ara- bia and a singular obsession with the alleged misdeeds of one small country, namely Israel. This is not a new phenomenon. Israel has been a favourite whipping boy of the UN for years. Witness the outburst of Louise Arbour, the UN's high commissioner for human rights, who formed an instant opinion of Israeli policies upon her arrival this week in northern Gaza, declaring: "The violation of human rights I think in this territory is massive." It's important for the UN's top human-rights watchdog to see for herself what's happening on the ground, rather than rely on reports from officials, but it's equally important to gather all the facts before making pronouncements. It's one thing to express sympathy for families shattered by tragedies, and quite another to determine on the spot that grievous violations of human rights occurred. At least the former Supreme Court of Canada judge also visited southern Israel and recognized the residents' "sense of vulnerability and despair." Not so the rights council. Since its formation, it has held three special sessions, all of them focused on Israel. Forget about the humanitarian disaster in Darfur, the calamities in places such as Chad and Uganda or the systematic trampling of individual rights in Iran, Myanmar, China, Uzbekistan, Belarus and a host of other countries. This council, like its predecessor, ignores the flagrant breaches of international law committed by Hamas, Hezbollah and other state-sponsored terrorist groups, serving instead as a tool for the criticism of Israel and its policies. How does that happen? To call a special session requires approval by at least a third of the council's 47 members. The Organization of the Islamic Conference has 17 of the members, so they can turn the council toward Israel-bashing pretty much at will. When they combine with other Third World members, they caneasily outmanoeuvre Canada, Brit- ain, Japan and other countries on the council that would rather broaden the body'sfocus. On Tuesday, an investigation triggered by the Islamic lobby condemned Israel for the attacks on Lebanese civilians that occurred during its war with Hezbollah this past summer. The report found a pattern of "excessive, indiscriminate and disproportionate use of force." And what of Hezbollah's egregious use of civilians as cover for its illegal rocket at- tacks against Israel, as well as other rights violations that triggered the war? Barely a word, because the inquiry had no instructions to look at the actions of Hezbollah or any other participant in the conflict, apart from the Israeli military. Last week, the council ended a special session by expressing concern over "the continued violation by the occupy- ing power, Israel, of the human rights of the Palestinian people in the occupied Palestinian territory." The council, dis- playing its obvious bias, was referring to northern Gaza. But it did not mention that Israel had withdrawn from all of Gaza and sent troops back over the border only in response to the rocket attacks on Israeli communities. In July, the council accused Israel of breaching international humanitarian law in the West Bank and Gaza through its efforts to stop
7 Articles on the New UN Human Rights Council 8 Page 9 Same old UN fixation The Globe and Mail (Canada) November 24, 2006 Frida
the indiscriminate attacks on its territory. In September, without waiting for the inquiry findings, it accused Israel of abusing rights during its fighting with Hezbollah. UN Secretary-General Kofi Annan, who had lobbied hard to give the new council real teeth as an impartial rights arbiter, betrayed his frustration this week with its one-sided focus on the Middle East and its paralysis on human-rights catastrophes occurring elsewhere in the world. Members, he noted, "have tended to focus on the Palestinian issue. And of course if you focus on the Palestinian-Israeli issue without even discussing Darfur and other issues, some wonder: What is this council doing?" Indeed. Israeli policies that imperil civilian lives are fair game for human-rights panels, provided they are examined impar- tially and within the context of the country's right under international law to defend itself. But they should not be the only game. Warren Tichenor, the U.S. ambassador to the UN in Geneva, rightly called the council's obsessive focus on Israel a waste of limited resources in pursuit of a subject that does not fall specifically under its UN mandate. Why, he asked, "is the council loath to address important human-rights situations elsewhere such as Sudan?" When he opened the council's first session last June, a more hopeful Mr. Annan called for "a clean break from the past." Instead, the reformed council bears a remarkable similarity to the body it replaced, pandering to the anti-Israeli and anti-Western sentiments of a majority of members, coddling those with lousy human-rights records and deliberately avoiding cases of major rights violations that certain influential members find politically unpalatable to tackle.
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Copyright 2006 The Washington Post
The Washington Post
October 12, 2006 Thursday Final Edition
SECTION: Editorial; A26
LENGTH: 585 words
HEADLINE: Reform Run Amok; The U.N.'s new Human Rights Council makes the old one look good.
BODY: AMAJOR piece of the United Nations reform promised by Secretary General Kofi Annan was a new Human Rights Council. The idea was to replace the Commission on Human Rights, which had been hijacked by rogue states such as Libya and Sudan, with a body that could refocus attention on serious human rights violations around the world -- and in so doing remove what Mr. Annan said was "the shadow" cast by the old organization on "the United Nations system as a whole." When the Human Rights Council was approved by the General Assembly in March, we were among the skeptics who doubted that it would be much of a change, mainly because the membership rules still allowed for the election of human rights violators. As it turned out, we were wrong: The council, which completed its second formal session last week in Geneva, has turned out to be far worse than its predecessor -- not just a "shadow" but a travesty that the United Nations can ill afford. For all its faults, the previous U.N. commission occasionally discussed and condemned the regimes most responsi- ble for human rights crimes, such as those in Belarus and Burma. China used to feel compelled to burnish its record before the annual meeting. The new council, in contrast, has so far taken action on only one country, which has domi- nated the debate at both of its regular meetings and been the sole subject of two extraordinary sessions: Israel. Western human rights groups sought to focus the council's attention on Darfur, where genocide is occurring, and on Uzbekistan, where a dictator refuses to allow the investigation of a massacre by his security forces. Their efforts have been in vain. Instead, the council has treated itself to report after report on the alleged crimes of the Jewish state; in all, there were six official "rapporteurs" on that subject in the latest session alone. One, Jean Ziegler, is supposed to report on "the right to food." But he, too, delivered a diatribe on Israeli "crimes" in Lebanon. This ludicrous diplomatic lynch mob has been directed by the Organization of the Islamic Conference, which ac- counts for 17 governments on the 47-member council and counts on the support of like-minded dictatorships such as Cuba and China. Council rules allow an extraordinary session to be called at the behest of just one-third of the member- ship, making it easy for the Islamic association to orchestrate anti-Israel spectacles. Several Muslim governments that boast of a new commitment to democracy and human rights -- including Jordan and Morocco -- have readily joined in this willful sabotage of those values. Human rights groups that supported the creation of the council, such as Human Rights Watch and Amnesty Inter- national, admit to being appalled by the outcome; they nevertheless argue that the panel should be given time to right
7 Articles on the New UN Human Rights Council 10 Page 11 Reform Run Amok; The U.N.'s new Human Rights Council makes the old itself. That could happen, they say, if the democratic members of the council organize and work with the same cohesion as the "unfree" states. They also suggest that the United States, which refused to join the council, reconsider. Perhaps that strategy would work -- though once again, we're skeptical. If there is no turnaround, the council's performance ought to invite consideration of the measure that was applied to the U.N. cultural organization, UNESCO, when it ran amok in the 1980s: a cutoff of U.S. funding. If this ill-formed body is to become an exclusive forum for anti-Zionist rants, the principal victim will be not Israel but the United Nations.
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Copyright 2006 Guardian Newspapers Limited All Rights Reserved The Guardian (London) - Final Edition
September 20, 2006 Wednesday
SECTION: GUARDIAN INTERNATIONAL PAGES; Pg. 16
LENGTH: 883 words
HEADLINE: Flashpoints Proliferating conflicts facing the general assembly: Critics call it a talking shop; supporters say that may be global body's strength
BYLINE: Ewen MacAskill, Diplomatic editor
BODY: The United Nations general assembly has seldom over the past half century faced so many crises in a single week. Leaders and foreign ministers from 192 countries are confronted with: the potential civil war in Iraq, policing the cease- fire in Lebanon, the Darfur catastrophe, Iran's alleged nuclear programme and, as with past years, the Israeli-Palestinian conflict. At the end of the week it is unlikely if any of these or the many other conflicts and problems being discussed in the chambers, offices and corridors of the UN will be resolved, and renewed questions will be asked about the relevance of the world organisation. The biggest critics remain the US neo-conservatives, reflecting American rightwing suspicion of the UN since its founding. They see the UN as anti-American, anti-Israel, defending totalitarian governments, squandering billions, bu- reaucratic, ineffective. Debilitate One of the critics, Joshua Muravchik, resident scholar at the neo-cons' favourite thinktank, the American Enterprise Institute, and author last year of The Future of the United Nations, said yesterday: "The UN has been an enormous fail- ure. It is true it has done a small number of things usefully, including peacekeeping missions. My question to those who say that it is better to have it than not is that when peacekeeping missions have been organised under the auspices of other bodies (such as Nato), I am not sure if the UN brings any value." Supporters of the UN respond that US ambivalence about the organisation, and often outright hostility, debilitate it. They point to the list of successes since its founding after the second world war and contrast these with the dismal re- cord of its predecessor, the League of Nations, and the rapid rise over the past 10 years in peacekeeping missions. They concede that it is an imperfect organisation, where resolutions are passed and ignored, money wasted and conflicts go unresolved, but argue, as Mr Muravchik anticipated, that the world is still a better place with it than with- out. The UN has a polarising effect, with supporters and opponents dividing as true believers or sceptics. One of the UN supporters, Lord Hannay, the British ambassador to the organisation between 1990 and 1995, while acknowledging that this was how the debate is often conducted, said it was the wrong way to view the organisation. He argues that a more hard-headed approach should be taken, acknowledging the UN's strengths and weaknesses. "Can the world get on without it? The answer is no," said Lord Hannay, who remains engaged with the UN as a member of the high panel set up by the secretary general, Kofi Annan, to look at the organisation's reform. "Is it doing all it can do? The answer is no. The question is how can we make it better and doing the things we want it to do.
7 Articles on the New UN Human Rights Council 12 Page 13 Flashpoints Proliferating conflicts facing the general assembly: Critics
"The lessons of the last few weeks are its indispensability and its ineffectiveness." He saw, as the example of its in- dispensability, the putting together of a ceasefire and peacekeeping force for Lebanon and, of its ineffectiveness, the failure of the UN so far to persuade the Khartoum government to allow a peacekeeping force into Darfur. In the first 35 years of its history the UN was largely constrained by the cold war. Since 1991, when that ended, it has faced an increasing number of conflicts. Within the space of 18 months between 1993 and 1995 it had to deal with Somalia, Bosnia and Rwanda; its performance was abysmal. Its biggest test after that was Iraq in 2003, which demon- strated the inadequacy of the UN in the face of US determination to go to war. And now the many problems of this week. Although few, if any, would predict significant progress on the Israel-Pales tine conflict by Friday, the general as- sembly showed its value as a forum when the Palestinian president, Mahmoud Abbas, yesterday met the Israeli foreign minister, Tzipi Livni, for 90 minutes. There will be many such meetings on other issues in the UN building this week. Mr Muravchik regards this as one of the UN's few strengths. "Some people criticise it for being a talking shop. I think it should be a talk shop. It is useful that all the governments should come together. This is a healthy and valuable function." The problems began, he said, when it came to voting and taking action. His preference for the UN would be as "a glorified Hyde Park Corner". He described Mr Annan, whose 10 years in office end on December 31, as "having such a wonderful presence and (being) very seductive" but having failed. "I think ill of him. The last secretary general I think well of is Dag Ham- merskjold (the Swede who was the second person to hold the post)." The UN security council is in the process of selecting Mr Annan's successor but the list of candidates so far is un- impressive. Protection The general assembly last year agreed to some reforms - accepting a duty to protect people from their own abusive governments, the creation of a human rights council to replace the discredited human rights commission and the crea- tion of a new peace-building commission - but rejected others. Darfur shows the weakness of the UN, acknowledging a duty of protection but unable to implement it. Lord Han- nay said: "The UN has not been able to stop what is happening (the slaughter in Darfur) but it may have been able to slow it down."
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Distr.: General General Assembly 3 April 2006
Sixtieth session Agenda items 46 and 120
Resolution adopted by the General Assembly
[without reference to a Main Committee (A/60/L.48)]
60/251. Human Rights Council
The General Assembly, Reaffirming the purposes and principles contained in the Charter of the United Nations, including developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and achieving international cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and fundamental freedoms for all, Reaffirming also the Universal Declaration of Human Rights1 and the Vienna Declaration and Programme of Action,2 and recalling the International Covenant on Civil and Political Rights,3 the International Covenant on Economic, Social and Cultural Rights3 and other human rights instruments, Reaffirming further that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing, and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis, Reaffirming that, while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms, Emphasizing the responsibilities of all States, in conformity with the Charter, to respect human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language or religion, political or other opinion, national or social origin, property, birth or other status, Acknowledging that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being, and recognizing that development, peace and security and human rights are interlinked and mutually reinforcing,
______1 Resolution 217 A (III). 2 A/CONF.157/24 (Part I), chap. III. 3 See resolution 2200 A (XXI), annex.
05-50266 A/RES/60/251
Affirming the need for all States to continue international efforts to enhance dialogue and broaden understanding among civilizations, cultures and religions, and emphasizing that States, regional organizations, non-governmental organizations, religious bodies and the media have an important role to play in promoting tolerance, respect for and freedom of religion and belief, Recognizing the work undertaken by the Commission on Human Rights and the need to preserve and build on its achievements and to redress its shortcomings, Recognizing also the importance of ensuring universality, objectivity and non-selectivity in the consideration of human rights issues, and the elimination of double standards and politicization, Recognizing further that the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings, Acknowledging that non-governmental organizations play an important role at the national, regional and international levels, in the promotion and protection of human rights, Reaffirming the commitment to strengthen the United Nations human rights machinery, with the aim of ensuring effective enjoyment by all of all human rights, civil, political, economic, social and cultural rights, including the right to development, and to that end, the resolve to create a Human Rights Council, 1. Decides to establish the Human Rights Council, based in Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General Assembly; the Assembly shall review the status of the Council within five years; 2. Decides that the Council shall be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner; 3. Decides also that the Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. It should also promote the effective coordination and the mainstreaming of human rights within the United Nations system; 4. Decides further that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development; 5. Decides that the Council shall, inter alia: (a) Promote human rights education and learning as well as advisory services, technical assistance and capacity-building, to be provided in consultation with and with the consent of Member States concerned; (b) Serve as a forum for dialogue on thematic issues on all human rights; (c) Make recommendations to the General Assembly for the further development of international law in the field of human rights; (d) Promote the full implementation of human rights obligations undertaken by States and follow-up to the goals and commitments related to the promotion and
2 A/RES/60/251 protection of human rights emanating from United Nations conferences and summits; (e) Undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies; the Council shall develop the modalities and necessary time allocation for the universal periodic review mechanism within one year after the holding of its first session; (f) Contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies; (g) Assume the role and responsibilities of the Commission on Human Rights relating to the work of the Office of the United Nations High Commissioner for Human Rights, as decided by the General Assembly in its resolution 48/141 of 20 December 1993; (h) Work in close cooperation in the field of human rights with Governments, regional organizations, national human rights institutions and civil society; (i) Make recommendations with regard to the promotion and protection of human rights; (j) Submit an annual report to the General Assembly; 6. Decides also that the Council shall assume, review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights in order to maintain a system of special procedures, expert advice and a complaint procedure; the Council shall complete this review within one year after the holding of its first session; 7. Decides further that the Council shall consist of forty-seven Member States, which shall be elected directly and individually by secret ballot by the majority of the members of the General Assembly; the membership shall be based on equitable geographical distribution, and seats shall be distributed as follows among regional groups: Group of African States, thirteen; Group of Asian States, thirteen; Group of Eastern European States, six; Group of Latin American and Caribbean States, eight; and Group of Western European and other States, seven; the members of the Council shall serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms; 8. Decides that the membership in the Council shall be open to all States Members of the United Nations; when electing members of the Council, Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto; the General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights; 9. Decides also that members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate with the Council and be reviewed under the universal periodic review mechanism during their term of membership;
3 A/RES/60/251
10. Decides further that the Council shall meet regularly throughout the year and schedule no fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks, and shall be able to hold special sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council; 11. Decides that the Council shall apply the rules of procedure established for committees of the General Assembly, as applicable, unless subsequently otherwise decided by the Assembly or the Council, and also decides that the participation of and consultation with observers, including States that are not members of the Council, the specialized agencies, other intergovernmental organizations and national human rights institutions, as well as non-governmental organizations, shall be based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996 and practices observed by the Commission on Human Rights, while ensuring the most effective contribution of these entities; 12. Decides also that the methods of work of the Council shall be transparent, fair and impartial and shall enable genuine dialogue, be results- oriented, allow for subsequent follow-up discussions to recommendations and their implementation and also allow for substantive interaction with special procedures and mechanisms; 13. Recommends that the Economic and Social Council request the Commission on Human Rights to conclude its work at its sixty-second session, and that it abolish the Commission on 16 June 2006; 14. Decides to elect the new members of the Council; the terms of membership shall be staggered, and such decision shall be taken for the first election by the drawing of lots, taking into consideration equitable geographical distribution; 15. Decides also that elections of the first members of the Council shall take place on 9 May 2006, and that the first meeting of the Council shall be convened on 19 June 2006; 16. Decides further that the Council shall review its work and functioning five years after its establishment and report to the General Assembly.
72nd plenary meeting 15 March 2006
4
Human Rights Committee, General Comment 24 (52), General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994).1
1. As of 1 November 1994, 46 of the 127 States parties to the International Covenant on Civil and Political Rights had, between them, entered 150 reservations of varying significance to their acceptance of the obligations of the Covenant. Some of these reservations exclude the duty to provide and guarantee particular rights in the Covenant. Others are couched in more general terms, often directed to ensuring the continued paramountcy of certain domestic legal provisions. Still others are directed at the competence of the Committee. The number of reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States Parties. Is it important for States Parties to know exactly what obligations they, and other States Parties, have in fact undertaken. And the Committee, in the performance of its duties under either Article 40 of the Covenant or under the Optional Protocols, must know whether a State is bound by a particular obligation or to what extent. This will require a determination as to whether a unilateral statement is a reservation or an interpretative declaration and a determination of its acceptability and effects. 2. For these reasons the Committee has deemed it useful to address in a General Comment the issues of international law and human rights policy that arise. The General Comment identifies the principles of international law that apply to the making of reservations and by reference to which their acceptability is to be tested and their purport to be interpreted. It addresses the role of States Parties in relation to the reservations of others. It further addresses the role of the Committee itself in relation to reservations. And it makes certain recommendations to present States Parties for a reviewing of reservations and to those States that are not yet parties about legal and human rights policy considerations to be borne in mind should they consider ratifying or acceding with particular reservations. 3. It is not always easy to distinguish a reservation from a declaration as to a States's understanding of the interpretation of a provision, or from a statement of policy. Regard will be had to the intention of the State, rather than the form of the instrument. If a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation. 2 Conversely, if a so-called reservation merely offers a State's understanding of a provision but does not exclude or modify that provision in its application to that State, it is, in reality, not a reservation. 4. The possibility of entering reservations may encourage States which consider that they have difficulties in guaranteeing all the rights in the Covenant nonetheless to accept the generality of obligations in that instrument. Reservations may serve a useful function to enable States to adapt specific elements in their laws to the inherent rights of each person as articulated in the Covenant. However, it is desirable in principle that States accept the full range of obligations, because the human rights norms are the legal expression of the essential rights that every person is entitled to as a human being. 5. The Covenant neither prohibits reservations nor mentions any type of permitted reservation. The same is true of the first Optional Protocol. The Second Optional Protocol provides, in article 2, paragraph 1, that "No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime". Paragraphs 2 and 3 provide for certain procedural obligations. 6. The absence of a prohibition on reservations does not mean that any reservation is permitted. The matter of reservations under the Covenant and the first Optional Protocol is governed by international law. Article 19(3) of the Vienna Convention on the Law of Treaties provides relevant guidance. 3 It stipulates that where a reservation is not prohibited by the treaty or falls within the specified permitted categories, a State may make a reservation provided it is not incompatible with the object and purpose of the treaty. Even though, unlike some other human rights treaties, the Covenant does not incorporate a specific reference to the object and purpose test, that test governs the matter of interpretation and acceptability of reservations. 7. In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken. 8. Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant. Although treaties that are mere exchanges of obligations between States allow them to reserve inter se application of rules of general international law, it is otherwise in human rights treaties, which are for the benefit of persons within their jurisdiction. Accordingly, provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of Article 14 may be acceptable, a general reservation to the right to a fair trial would not be. 9. Applying more generally the object and purpose test to the Covenant, the Committee notes that, for example, reservation to article 1 denying peoples the right to determine their own political status and to pursue their economic, social and cultural development, would be incompatible with the object and purpose of the Covenant. Equally, a reservation to the obligation to respect and ensure the
2 rights, and to do so on a non-discriminatory basis (Article 2(1) would not be acceptable. Nor may a State reserve an entitlement not to take the necessary steps at the domestic level to give effect to the rights of the Covenant (Article 2(2)). 10. The Committee has further examined whether categories of reservations may offend the "object and purpose" test. In particular, it falls for consideration as to whether reservations to the non-derogable provisions of the Covenant are compatible with its object and purpose. While there is no hierarchy of importance of rights under the Covenant, the operation of certain rights may not be suspended, even in times of national emergency. This underlines the great importance of non- derogable rights. But not all rights of profound importance, such as articles 9 and 27 of the Covenant, have in fact been made non-derogable. One reason for certain rights being made non-derogable is because their suspension is irrelevant to the legitimate control of the state of national emergency (for example, no imprisonment for debt, in article 11). Another reason is that derogation may indeed be impossible (as, for example, freedom of conscience). At the same time, some provisions are non- derogable exactly because without them there would be no rule of law. A reservation to the provisions of article 4 itself, which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency, would fall in this category. And some non-derogable rights, which in any event cannot be reserved because of their status as peremptory norms, are also of this character - the prohibition of torture and arbitrary deprivation of life are examples. 4 While there is no automatic correlation between reservations to non-derogable provisions, and reservations which offend against the object and purpose of the Covenant, a State has a heavy onus to justify such a reservation. 11. The Covenant consists not just of the specified rights, but of important supportive guarantees. These guarantees provide the necessary framework for securing the rights in the Covenant and are thus essential to its object and purpose. Some operate at the national level and some at the international level. Reservations designed to remove these guarantees are thus not acceptable. Thus, a State could not make a reservation to article 2, paragraph 3, of the Covenant, indicating that it intends to provide no remedies for human rights violations. Guarantees such as these are an integral part of the structure of the Covenant and underpin its efficacy. The Covenant also envisages, for the better attainment of its stated objectives, a monitoring role for the Committee. Reservations that purport to evade that essential element in the design of the Covenant, which is also directed to securing the enjoyment of the rights, are also incompatible with its object and purpose. A State may not reserve the right not to present a report and have it considered by the Committee. The Committee's role under the Covenant, whether under article 40 or under the Optional Protocols, necessarily entails interpreting the provisions of the Covenant and the development of a jurisprudence. Accordingly, a reservation that rejects the Committee's competence to interpret the requirements of any provisions of the Covenant would also be contrary to the object and purpose of that treaty. 12. The intention of the Covenant is that the rights contained therein should be ensured to all those under a State's party's jurisdiction. To this end certain attendant requirements are likely to be necessary. Domestic laws may need to be altered properly to reflect the requirements of the Covenant; and mechanisms at the domestic level will be needed to allow the Covenant rights to be enforceable at the local level. Reservations often reveal a tendency of States not to want to change a particular law. And sometimes that tendency is elevated to a general policy. Of particular concern
3 are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed. 13. The issue arises as to whether reservations are permissible under the first Optional Protocol and, if so, whether any such reservation might be contrary to the object and purpose of the Covenant or of the first Optional Protocol itself. It is clear that the first Optional Protocol is itself an international treaty, distinct from the Covenant but closely related to it. Its object and purpose is to recognise the competence of the Committee to receive and consider communications from individuals who claim to be victims of a violation by a State party of any of the rights in the Covenant. States accept the substantive rights of individuals by reference to the Covenant, and not the first Optional Protocol. The function of the first Optional Protocol is to allow claims in respect of those rights to be tested before the Committee. Accordingly, a reservation to an obligation of a State to respect and ensure a right contained in the Covenant, made under the first Optional Protocol when it has not previously been made in respect of the same rights under the Covenant, does not affect the State's duty to comply with its substantive obligation. A reservation cannot be made to the Covenant through the vehicle of the Optional Protocol but such a reservation would operate to ensure that the State's compliance with that obligation may not be tested by the Committee under the first Optional Protocol. And because the object and purpose of the first Optional Protocol is to allow the rights obligatory for a State under the Covenant to be tested before the Committee, a reservation that seeks to preclude this would be contrary to the object and purpose of the first Optional Protocol, even if not of the Covenant. A reservation to a substantive obligation made for the first time under the first Optional Protocol would seem to reflect an intention by the State concerned to prevent the Committee from expressing its views relating to a particular article of the Covenant in an individual case. 14 The Committee considers that reservations relating to the required procedures under the first Optional Protocol would not be compatible with its object and purpose. The Committee must control its own procedures as specified by the Optional Protocol and its rules of procedure. Reservations have, however, purported to limit the competence of the Committee to acts and events occurring after entry into force for the State concerned of the first Optional Protocol. In the view of the Committee this is not a reservation but, most usually, a statement consistent with its normal competence ratione temporis. At the same time, the Committee has insisted upon its competence, even in the face of such statements or observations, when events or acts occurring before the date of entry into force of the first Optional Protocol have continued to have an effect on the rights of a victim subsequent to that date. Reservations have been entered which effectively add an additional ground of inadmissibility under article 5, paragraph 2, by precluding examination of a communication when the same matter has already been examined by another comparable procedure. Insofar as the most basic obligation has been to secure independent third party review of the human rights of individuals, the Committee has, where the legal right and the subject matter are identical under the Covenant and under another international instrument, viewed
4 such a reservation as not violating the object and purpose of the first Optional Protocol. 15. The primary purpose of the Second Optional Protocol is to extend the scope of the substantive obligations undertaken under the Covenant, as they relate to the right to life, by prohibiting execution and abolishing the death penalty. 5 It has its own provision concerning reservations, which is determinative of what is permitted. Article 2, paragraph 1, provides that only one category of reservation is permitted, namely one that reserves the right to apply the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. Two procedural obligations are incumbent upon State parties wishing to avail themselves of such a reservation. Article 2, paragraph 1, obliges such a State to inform the Secretary General, at the time of ratification or accession, of the relevant provisions of its national legislation during warfare. This is clearly directed towards the objectives of specificity and transparency and in the view of the Committee a purported reservation unaccompanied by such information is without legal effect. Article 2, paragraph 3, requires a State making such a reservation to notify the Secretary General of the beginning or ending of a state of war applicable to its territory. In the view of the Committee, no State may seek to avail itself of its reservation (that is, have execution in time of war regarded as lawful) unless it has complied with the procedural requirement of article 2, paragraph 3. 16. The Committee finds it important to address which body has the legal authority to make determinations as to whether specific reservations are compatible with the object and purpose of the Covenant. As for international treaties in general, the International Court of Justice has indicated in the Reservations to the Genocide Convention Case (1951) that a State which objected to a reservation on the grounds of incompatibility with the object and purpose of a treaty could, through objecting, regard the treaty as not in effect as between itself and the reserving State. Article 20, paragraph 4, of the Vienna Convention on the Law of Treaties 1969 contains provisions most relevant to the present case on acceptance of and objection to reservations. This provides for the possibility of a State to object to a reservation made by another State. Article 21 deals with the legal effects of objections by States to reservations made by other States. Essentially, a reservation precludes the operation, as between the reserving and other States, of the provision reserved; and an objection thereto leads to the reservation being in operation as between the reserving and objecting State only to the extent that it has not been objected to. 17. As indicated above, it is the Vienna Convention on the Law of Treaties that provides the definition of reservations and also the application of the object and purpose test in the absence of other specific provisions. But the Committee believes that its provisions on the role of State objections in relation to reservations are inappropriate to address the problem of reservations to human rights treaties. Such treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights. The principle of inter-State reciprocity has no place, save perhaps in the limited context of reservations to declarations on the Committee's competence under article 41. And because the operation of the classic rules on reservations is so inadequate for the Covenant, States have often not seen any legal interest in or need to object to reservations. The absence of protest by States cannot imply that a reservation is either compatible or incompatible with the object and purpose of the Covenant. Objections
5 have been occasional, made by some States but not others, and on grounds not always specified; when an objection is made, it often does not specify a legal consequence, or sometimes even indicates that the objecting party nonetheless does not regard the Covenant as not in effect as between the parties concerned. In short, the pattern is so unclear that it is not safe to assume that a non-objecting State thinks that a particular reservation is acceptable. In the view of the Committee, because of the special characteristics of the Covenant as a human rights treaty, it is open to question what effect objections have between States inter se. However, an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant. 18. It necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part because, as indicated above, it is an inappropriate task for States parties in relation to human rights treaties, and in part because it is a task that the Committee cannot avoid in the performance of its functions. In order to know the scope of its duty to examine a State's compliance under article 40 or a communication under the first Optional Protocol, the Committee has necessarily to take a view on the compatibility of a reservation with the object and purpose of the Covenant and with general international law. Because of the special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively, by reference to legal principles, and the Committee is particularly well placed to perform this task. The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation. 19. Reservations must be specific and transparent, so that the Committee, those under the jurisdiction of the reserving State and other States parties may be clear as to what obligations of human rights compliance have or have not been undertaken. Reservations may thus not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto. When considering the compatibility of possible reservations with the object and purpose of the Covenant, States should also take into consideration the overall effect of a group of reservations, as well as the effect of each reservation on the integrity of the Covenant, which remains an essential consideration. States should not enter so many reservations that they are in effect accepting a limited number of human rights obligations, and not the Covenant as such. So that reservations do not lead to a perpetual non-attainment of international human rights standards, reservations should not systematically reduce the obligations undertaken only to the presently existing in less demanding standards of domestic law. Nor should interpretative declarations or reservations seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only insofar as they are identical, with existing provisions of domestic law. States should not seek through reservations or interpretative declarations to determine that the meaning of a provision of the Covenant is the same as that given by an organ of any other international treaty body. 20. States should institute procedures to ensure that each and every proposed reservation is compatible with the object and purpose of the Covenant. It is desirable for a State entering a reservation to indicate in precise terms the domestic legislation or practices which it believes to be incompatible with the Covenant obligation
6 reserved; and to explain the time period it requires to render its own laws and practices compatible with the Covenant, or why it is unable to render its own laws and practices compatible with the Covenant. States should also ensure that the necessity for maintaining reservations is periodically reviewed, taking into account any observations and recommendations made by the Committee during examination of their reports. Reservations should be withdrawn at the earliest possible moment. Reports to the Committee should contain information on what action has been taken to review, reconsider or withdrawn reservations.
Footnotes 1. Adopted by the Committee at its 1382nd meeting (fifty-second session) on 2 November 1994. 2. Article 2(1) (d), Vienna Convention on the Law of Treaties 1969. 3. Although the Vienna Convention on the Law of Treaties was concluded in 1969 and entered into force in 1980 - i.e. after the entry into force of the Covenant - its terms reflect the general international law on this matter as had already been affirmed by the International Court of Justice in The Reservations to the Genocide Convention Case of 1951. 4. Reservations have been entered to both article 6 and article 7, but not in terms which reserve a right to torture or arbitrary to deprive of life. 5. The competence of the Committee in respect of this extended obligation is provided for under article 5 - which itself is subject to a form of reservation in that the automatic granting of this competence may be reserved through the mechanism of a statement made to the contrary at the moment of ratification or accession.
7 Excerpts from the: African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986: [excerpts] . . .
Preamble The African States members of the Organization of African Unity, parties to the present convention entitled "African Charter on Human and Peoples' Rights", Recalling Decision 115 (XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of a "preliminary draft on an African Charter on Human and Peoples' Rights providing inter alia for the establishment of bodies to promote and protect human and peoples' rights"; Considering the Charter of the Organization of African Unity, which stipulates that "freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples"; Reaffirming the pledge they solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights; Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples' rights; Recognizing on the one hand, that fundamental human rights stem from the attributes of human beings which justifies their national and international protection and on the other hand that the reality and respect of peoples rights should necessarily guarantee human rights; Considering that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone; Convinced that it is henceforth essential to pay a particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights ia a guarantee for the enjoyment of civil and political rights; Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, zionism and to dismantle aggressive foreign military bases and all forms of discrimination, particularly those based on race, ethnic group, color, sex. language, religion or political opinions; Reaffirming their adherence to the principles of human and peoples' rights and freedoms contained in the declarations, conventions and other instrument adopted by the Organization of African Unity, the Movement of Non-Aligned Countries and the United Nations; Firmly convinced of their duty to promote and protect human and people' rights and freedoms taking into account the importance traditionally attached to these rights and freedoms in Africa; Have agreed as follows:
Part I: Rights and Duties
Chapter I -- Human and Peoples' Rights Article 1 The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them. Article 2 Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. Article 3 1. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law. Article 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Article 6 Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
2 Article 7 1. Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender. Article 8 Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms. Article 9 1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law. Article 10 1. Every individual shall have the right to free association provided that he abides by the law. 2. Subject to the obligation of solidarity provided for in 29 no one may be compelled to join an association. Article 11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others. Article 12 1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.
3 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions. 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups. Article 13 1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. 2. Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law. Article 14 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. Article 15 Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work. Article 16 1. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick. Article 17 1. Every individual shall have the right to education. 2. Every individual may freely, take part in the cultural life of his community. 3. The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State. Article 18 1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral. 2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
4 3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. 4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs. Article 19 All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another. Article 20 1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self- determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. 2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. 3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural. Article 21 1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law. 4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity. 5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources. Article 22 1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
5 2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development. Article 23 1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present Charter shall ensure that: (a) any individual enjoying the right of asylum under 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State party to the present Charter; (b) their territories shall not be used as bases for subversive or terrorist activities against the people of any other State party to the present Charter. Article 24 All peoples shall have the right to a general satisfactory environment favorable to their development. Article 25 States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood. Article 26 States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter. Chapter II -- Duties Article 27 1. Every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community. 2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest. Article 28 Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.
6 Article 29 The individual shall also have the duty: 1. to preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need; 2. To serve his national community by placing his physical and intellectual abilities at its service; 3. Not to compromise the security of the State whose national or resident he is; 4. To preserve and strengthen social and national solidarity, particularly when the latter is threatened; 5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law; 6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society; 7. to preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society; 8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity. Part II: Measures of Safeguard
Chapter I -- Establishment and Organization of the African Commission on Human and Peoples' Rights Article 30 An African Commission on Human and Peoples' Rights, hereinafter called "the Commission", shall be established within the Organization of African Unity to promote human and peoples' rights and ensure their protection in Africa. Article 31 1. The Commission shall consist of eleven members chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples' rights; particular consideration being given to persons having legal experience. 2. The members of the Commission shall serve in their personal capacity. . . . Article 41 The Secretary-General of the Organization of African Unity shall appoint the Secretary of the Commission. He shall also provide the staff and services necessary for the effective discharge of the duties of the Commission. The Organization of African Unity shall bear the costs of the staff and services. . . .
7 Chapter II -- Mandate of the Commission Article 45 The functions of the Commission shall be: 1. To promote Human and Peoples' Rights and in particular: (a) to collect documents, undertake studies and researches on African problems in the field of human and peoples' rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights, and should the case arise, give its views or make recommendations to Governments. (b) to formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples' rights and fundamental freedoms upon which African Governments may base their legislations. (c) co-operate with other African and international institutions concerned with the promotion and protection of human and peoples' rights. 2. Ensure the protection of human and peoples' rights under conditions laid down by the present Charter. 3. Interpret all the provisions of the present Charter at the request of a State party, an institution of the OAU or an African Organization recognized by the OAU. 4. Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government. Chapter III -- Procedure of the Commission Article 46 The Commission may resort to any appropriate method of investigation; it may hear from the Secretary General of the Organization of African Unity or any other person capable of enlightening it. Communication From States Article 47 If a State party to the present Charter has good reasons to believe that another State party to this Charter has violated the provisions of the Charter, it may draw, by written communication, the attention of that State to the matter. This communication shall also be addressed to the Secretary General of the OAU and to the Chairman of the Commission. Within three months of the receipt of the communication, the State to which the communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter. This should include as much as possible relevant information relating to the laws and rules of procedure applied and applicable, and the redress already given or course of action available.
8 Article 48 If within three months from the date on which the original communication is received by the State to which it is addressed, the issue is not settled to the satisfaction of the two States involved through bilateral negotiation or by any other peaceful procedure, either State shall have the right to submit the matter to the Commission through the Chairman and shall notify the other States involved. Article 49 Notwithstanding the provisions of 47, if a State party to the present Charter considers that another State party has violated the provisions of the Charter, it may refer the matter directly to the Commission by addressing a communication to the Chairman, to the Secretary General of the Organization of African Unity and the State concerned. Article 50 The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged. Article 51 1. The Commission may ask the States concerned to provide it with all relevant information. 2. When the Commission is considering the matter, States concerned may be represented before it and submit written or oral representation. Article 52 After having obtained from the States concerned and from other sources all the information it deems necessary and after having tried all appropriate means to reach an amicable solution based on the respect of Human and Peoples' Rights, the Commission shall prepare, within a reasonable period of time from the notification referred to in 48, a report stating the facts and its findings. This report shall be sent to the States concerned and communicated to the Assembly of Heads of State and Government. Article 53 While transmitting its report, the Commission may make to the Assembly of Heads of State and Government such recommendations as it deems useful. Article 54 The Commission shall submit to each ordinary Session of the Assembly of Heads of State and Government a report on its activities. Other Communications Article 55 1. Before each Session, the Secretary of the Commission shall make a list of the communications other than those of States parties to the present Charter and transmit
9 them to the members of the Commission, who shall indicate which communications should be considered by the Commission. 2. A communication shall be considered by the Commission if a simple majority of its members so decide. Article 56 Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1. Indicate their authors even if the latter request anonymity, 2. Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4. Are not based exclusively on news discriminated through the mass media, 5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7. Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter. Article 57 Prior to any substantive consideration, all communications shall be brought to the knowledge of the State concerned by the Chairman of the Commission. Article 58 1. When it appears after deliberations of the Commission that one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of human and peoples' rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases. 2. The Assembly of Heads of State and Government may then request the Commission to undertake an in-depth study of these cases and make a factual report, accompanied by its findings and recommendations. 3. A case of emergency duly noticed by the Commission shall be submitted by the latter to the Chairman of the Assembly of Heads of State and Government who may request an in-depth study. Article 59 1. All measures taken within the provisions of the present Chapter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide. . . .
10 2. The report on the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government. Chapter IV -- Applicable Principles Article 60 The Commission shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members. Article 61 The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognized by member states of the Organization of African Unity, African practices consistent with international norms on human and people's rights, customs generally accepted as law, general principles of law recognized by African states as well as legal precedents and doctrine. Article 62 Each state party shall undertake to submit every two years, from the date the present Charter comes into force, a report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognized and guaranteed by the present Charter. . . .
11 Copyright (c) 2002 The American Society of International Law American Journal of International Law
October, 2002 96 A.J.I.L. 937
INTERNATIONAL DECISIONS: Analysis of African Commission for Human Rights Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria). Case No. ACHPR/COMM/A044/1.
African Commission on Human and Peoples' Rights, May 27, 2002
by
Dinah Shelton Notre Dame Law School, Edited By Bernard H. Oxman
... Acting on Communication 155/96--a petition filed by two nongovernmental organizations on behalf of the people of Ogoniland, Nigeria--the African Commission on Human and Peoples' Rights (Commission) found Nigeria to have breached its obligations to respect, protect, promote, and fulfill rights guaranteed by the African Charter on Human and Peoples' Rights (Charter). ... The Communication alleged: that the military government of Nigeria was involved in oil production through NNPC in consortium with SPDC and that the operations produced contamination causing environmental degradation and health problems; that the consortium disposed of toxic wastes in violation of applicable international environmental standards and caused numerous avoidable spills near villages, consequently poisoning much of the region's soil and water; that the government aided these violations by placing the state's legal and military powers at the disposal of the oil companies; and that the government executed Ogoni leaders and, through its security forces, killed innocent civilians and attacked, burned, and destroyed villages, homes, crops, and farm animals. ... The Commission first assessed the claimed violations of the rights to health (Article 16) and to a general satisfactory environment (Article 24). ... The decision not only sees environmental degradation as leading to the violation of other rights, but as a human rights violation in itself because of its impact on the quality of life. ...
HIGHLIGHT: Right to environment--economic, social, and cultural rights--implied rights--state responsibility for conduct of foreign corporations--exhaustion of local remedies
[*937] Acting on Communication 155/96--a petition filed by two nongovernmental organizations on behalf of the people of Ogoniland, Nigeria--the African Commission on Human and Peoples' Rights (Commission) found Nigeria to have breached its obligations to respect, protect, promote, and fulfill rights guaranteed by the African Charter on Human and Peoples' Rights (Charter). n1 In Decision Regarding Communication 155/96,
12 n2 Nigeria was found to have violated the right to enjoy Charter-guaranteed rights and freedoms without discrimination (Article 2), the right to life (Article 4), the right to property (Article 14), the right to health (Article 16), the right to housing (implied in the duty to protect the family, Article 18(1)), the right to food (implicit in Articles 4, 16, and 22), the right of peoples to freely dispose of their wealth and natural resources (Article 21), and the right of peoples to a "general satisfactory environment favorable to their development" (Article 24). Most of the violations stemmed from actions taken by or involving the Nigerian National Petroleum Development Company (NNPC) in a consortium with Shell Petroleum Development Corporation (SPDC). The Communication, filed March 14, 1996, was an actio popularis that the Commission described as useful and as "wisely allowed under the African Charter." n3 The Communication alleged: that the military government of Nigeria was involved in oil production through NNPC in consortium with SPDC and that the operations produced contamination causing environmental degradation and health problems; that the consortium disposed of toxic wastes in violation of applicable international environmental standards and caused numerous avoidable spills near villages, consequently poisoning much of the region's soil and water; that the government aided these violations by placing the state's legal and military powers at the disposal of the oil companies; and that the government executed Ogoni leaders and, through its security forces, killed innocent civilians and attacked, burned, and destroyed villages, homes, crops, and farm animals. The Communication also alleged that the government failed to [*938] monitor the activities of the oil companies, provided no information to local communities, conducted no environmental impact studies, and prevented scientists from undertaking independent assessments. On August 13, 1996, the Commission transmitted a copy of the Communication to the Nigerian government, which failed to respond. The government maintained its silence until the return of civil authority, when it admitted the violations in a note verbale delivered during the Commission's November 2000 session, and asserted that it was taking remedial measures. n4 Despite the lack of official communication in the four-year interim, the Commission conducted a weeklong mission to Nigeria in March 1997 "and witnessed first hand the deplorable situation in Ogoniland including the environmental degradation." n5 The only issue of admissibility concerned the requirement that local remedies be exhausted. The Commission noted that the Communication contained no information on domestic court actions to halt the violations even though Nigeria has incorporated the Charter into its domestic law, thus allowing all Charter rights to be invoked in Nigerian courts. The Commission took judicial notice, however, that the military government had enacted various decrees ousting the jurisdiction of the courts; n6 therefore, no adequate domestic remedies could be said to exist. In addition, the failure of the government to respond to the Communication, despite numerous requests by the Commission, allowed the case to proceed on the presumed truth of the allegations. The Commission found that none of the rationales for requiring exhaustion of local remedies justified finding the case inadmissible: first, if there were no effective domestic remedies, it was pointless to afford domestic courts an opportunity to address violations, thereby "avoiding contradictory judgements of law at the national and international levels"; n7 and second, since
13 international attention to the problems of Ogoniland had given the Nigerian government "ample notice and, over the past several decades, more than sufficient opportunity to give domestic remedies" for human rights violations, it was not premature to call the government to account before an international tribunal. n8 On the merits, the Commission first analyzed what is generally expected of governments under the Charter. It acknowledged four separate, but overlapping, duties with respect to guaranteed rights: to respect, protect, promote, and fulfill them. According to the Commission, "These obligations universally apply to all rights and entail a combination of negative and positive duties." n9 Respect entails refraining from interference with the "enjoyment of all fundamental rights." n10 With regard to socioeconomic rights, in particular, respect means that the
State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs. n11
Protection of rights requires legislation and provision of effective remedies to ensure that rights holders are protected "against other subjects" and "political, economic and social [*939] interferences." n12 Promotion involves such actions as "promoting tolerance, raising awareness, and . . . building infrastructures." n13 Finally, fulfillment of rights and freedoms requires the state to move its "machinery" toward the actual realization of rights--for example, by directly providing, as necessary, "basic needs such as food or resources that can be used for food (direct food aid or social security)." n14 Since states are "generally burdened" with the four above duties in committing themselves to human rights instruments, n15 it was incumbent on the Commission to take these duties into account in assessing the Communication's allegations in relation to the African Charter and "the relevant international and regional human rights instruments and principles." n16 The Commission first assessed the claimed violations of the rights to health (Article 16) and to a general satisfactory environment (Article 24). In coupling the two rights, the Commission--quoting an article by Alexandre Kiss on the "right to environment" n17 -- recognized that a "clean and safe environment . . . is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual." n18 It found that the right to a general satisfactory environment "imposes clear obligations upon a government," requiring the state "to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources." n19 Moreover,
government compliance with the spirit of Articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising
14 environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities. n20
Applying these obligations to the facts of the case, the Commission concluded that although Nigeria had the right to produce oil, it had not protected the Article 16 and Article 24 rights of those in the Ogoni region. The benefits of developing the oil reserves were also in question in the case. The Commission found that, taken together, the lack of involvement of the Ogoni people, the destructive role played by oil development, the repressive tactics of the government, and the lack of material benefits accruing to the local population "may well be said" to constitute a violation of the Ogoni people's Article 21 rights concerning the disposal and use of wealth and natural resources. n21 The Commission traced the origin of this provision to the aftermath of colonial exploitation, which, it said, left Africa's resources and people vulnerable to foreign misappropriation. Article 21 thus requires the government to protect its citizens from damaging [*940] acts by private parties. n22 The Nigerian government failed to protect as required, and fell short of the minimum conduct expected of governments: it "facilitated the destruction of the Ogoniland" by "giving the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis." n23 The Commission read the guarantees of the African Charter broadly to find implicit rights to housing and to food. Reasoning that "when housing is destroyed, property, health, and family life are adversely affected," the Commission deemed the right to housing, or at least the right to be free from the "wanton destruction of shelter," to be the corollary of combining the right to health, the right to property, and the protection accorded to the family. n24 Thus, at a minimum, the state must neither destroy housing nor obstruct efforts by individuals to rebuild lost homes. Further, the state's obligation to respect housing rights requires it to abstain from carrying out, sponsoring, or tolerating any practice, policy, or legal measure that interferes with an individual's ability to use material and other resources available to satisfy individual, family, household, or community housing needs. n25 It requires the state both to prevent nonstate actors, including property developers, from violating any individual's right to housing, and to provide access to legal remedies if such violation occurs. The right to adequate housing also encompasses the right to protection against forced evictions. n26 The Commission found that the government, by destroying Ogoni houses and villages, and by then obstructing and harassing those who attempted to return and rebuild their homes, engaged in "massive violations of the right to shelter." n27 It also found that the government engaged in forced evictions in violation of this right, which is one "enjoyed by the Ogonis as a collective right." n28 In a manner that paralleled its analysis of the right to housing, the Commission deemed the right to food to be implicitly guaranteed by the African Charter--inseparably linked to the dignity of human beings and therefore essential for the enjoyment and fulfillment of other rights, such as health, education, work, and political participation.
15 The "minimum core" of the right to food, held violated by Nigeria in this case, requires that the government not destroy or contaminate food sources, allow private parties to do so, or through terror create significant obstacles to peoples' efforts to feed themselves. n29 Finally, the Commission found that the government and the oil companies violated the Article 4 right to life by engaging in widespread "terrorisations and killings." n30 In addition, [*941] "the pollution and environmental degradation to a level humanly unacceptable has made living in [Ogoniland] a nightmare" n31 not only for specific individuals, but for the whole of the Ogoni community. The Commission concluded its analysis by emphasizing that collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa, that the Commission intended to apply them, and that "there is no right in the African Charter that cannot be made effective." n32 While governments may labor under difficult circumstances in trying to improve the lives of their peoples, they must reconsider their relationships with multinational corporations if these relationships fail to be mindful of the common good and of the rights of individuals and communities. The Commission called on the Nigerian government to stop all attacks on Ogoni communities; to allow independent investigators free access to the territory to conduct an investigation into the human rights violations that occurred; to prosecute those responsible for any such violations; to ensure adequate compensation for victims of violations, including a comprehensive cleanup of lands and rivers damaged by oil operations; to ensure that appropriate environmental and social assessments are prepared for future oil operations and that effective and independent oversight bodies exist for the petroleum industry; and, for communities likely to be affected by oil operations, to provide information on health and environmental risks, and meaningful access to regulatory and decision-making bodies. * * * * The African Charter on Human and Peoples' Rights was the first international human rights treaty to integrate civil, political, economic, social, and cultural rights in a single instrument. It was also the first to include the right to a "general satisfactory environment" among its guarantees. n33 It thus seems appropriate that the African Commission should be the first human rights body to decide a contentious case involving violations of nearly all categories of rights and particularly the right to a general satisfactory environment. The case is a landmark not only in this respect, but also in the Commission's articulation of the duties of governments in Africa to monitor and control the activities of multinational corporations. The Commission took other innovative steps in inferring rights not expressly included in the Charter, and also in further liberalizing the requirement that local remedies be exhausted before a case can be heard by an international tribunal. The Commission took pains to support its analysis and findings through numerous references to the decisions of other global and regional human rights bodies. n34 The result is a sweeping decision on the duties of African states to ensure respect for economic, social, and cultural rights. While it may be cause for regret that it took the Commission five years to reach its decision, the delay enabled the Commission to secure the cooperation of the new Nigerian government, which indicated its willingness to take measures to redress the violations that had occurred. This cooperation
16 might have been less forthcoming had the Commission rushed forward without an on-site visit and subsequent exchanges with the government. [*942] The decision not only sees environmental degradation as leading to the violation of other rights, n35 but as a human rights violation in itself because of its impact on the quality of life. The Commission quotes with approval Alexandre Kiss's 1993 article on the right to environment, stating that he "rightly observes" that "an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health." n36 This suggestion of a broadly justiciable right to environment is reinforced by the Commission's final suggestion that all rights in the Charter may be applied and enforced. The Commission gives the right to environment meaningful content by requiring the state to adopt various techniques of environmental protection, such as environmental impact assessment, public information and participation, access to justice for environmental harm, and monitoring of potentially harmful activities. The result offers a blueprint for merging environmental protection, economic development, and guarantees of human rights. n37 It is noteworthy that the instant petition to the African Commission is not the only avenue that has been pursued in recent years in order to seek redress for human rights violations in the Ogoni region. In addition to this case, in which the government was held liable for the acts of the multinational oil corporations with whom it operates, efforts have been made to hold the corporations liable for some of the violations that have taken place. Invoking the Alien Tort Claim Act, n38 the family of executed Ogoni leader Ken Saro-Wiwa and others filed suit in the United States against Royal Dutch Petroleum Company and Shell Transport and Trading Company, alleging that the companies directed and aided the Nigerian government in committing crimes against humanity and in violating the rights to life and to be free from torture and cruel, inhuman, and degrading treatment. An initial dismissal on the basis of forum non conveniens was reversed on appeal. n39 On remand, the district court largely denied a motion to dismiss the action for failure to state a claim, n40 finding that plaintiffs had alleged sufficient "joint action" between the corporations and the state that, if proven, would result in corporate liability. Hence, both the state and the companies may be held responsible for human rights violations to the degree that they are found to have acted in concert, enhancing the possibility that the victims will be afforded redress. The Commission decision that all rights in the African Charter are enforceable and may be subject to the system's communication procedure advances the African system well ahead of other regional systems--which have moved tentatively toward allowing petitions for economic, social, and cultural rights, and which only partially recognize a right to environment. The United Nations has shown even less willingness to progress in either respect. If the Nigerian government acts to implement the recommendations of the Commission, the decision has the potential to have an impact on human rights law and practice well beyond Africa.
Most notes omitted, some incorporated.
17 Copyright 2006 AllAfrica, Inc. Africa News January 20, 2006 Friday
Khartoum Unsuitable to Elect African Judges
BYLINE: This Day
In an assessment report released on the eve of African Heads of State and Government summit in Khartoum, Sudan, the Coalition of African Jurists, National Human Rights Institutions, and NGOs yesterday declared that the process of electing judges for the proposed African Court on Human and Peoples' Rights is substantially flawed. The Khartoum Summit, which begins on Monday, 23 January, is scheduled to elect 11 judges of the African Human Rights Court. The report concludes that selection of candidates under consideration for election as judges of the African Court was not transparent and failed to comply with the AU guideline. Amadou Ali Kane, Head of Advocacy for the Coalition in Francophone Africa added: With the atrocities in Darfur, Khartoum was always a dodgy venue for this Summit. This report confirms that it is not the appropriate place to elect judges of the African Court. Nigerian human rights lawyer, Maxwell Kadiri, one of the principal authors of the assessment report, commented: The African Human Rights Court is one of the most important institutions ever to be established in this continent. The real issue is whether the pool of candidates we have is good enough for the important work the Court will do. On the current evidence, we don’t think so. The African Human Rights Court was established by a Protocol (Treaty) adopted by African leaders in Ouagadougou, Burkina Faso, in June 1998. The Protocol entered into force on 25 January 2004. In July 2004 the African Union decided to merge the Court with the Court of Justice of the African Union and, pending the merger, to postpone the establishment of the Court. In July 2005, the African Union decided to go ahead with establishment of the Court. The Court will be made up of 11 judges. 21 countries (Algeria, Burkina Faso, Burundi, Cote d’Ivoire, the Comoros, Gabon, the Gambia, Ghana, Kenya, Lesotho, Libya, Mali, Mauritius, Mozambique, Niger, Nigeria, Rwanda, Senegal, South Africa, Togo, and Uganda) have so far ratified the African Court Protocol. Article 11 of the Protocol requires that judges of the African human rights court should be elected in an individual capacity from among jurists of high moral character and of recognized practical, judicial, or academic competence and experience in the field of human and peoples rights and no two judges shall be nationals of the same State. Based on the Protocol, the AU in April 2004 adopted Guidelines and Principles to ensure the election of qualified and impartial judges. These Guidelines are Mandatory. The AU Guidelines on the Nomination of Judges of the African Court require that candidates for judgeship of the African Court: (i) shall be jurists of high moral character and of recognised practical, judicial, or academic competence and experience in the field of human and peoples rights; (ii) should reflect the diversity of the principal legal systems, of the regions, and gender balance between the men and women of Africa; and (iii) shall not hold office or be involved in activities incompatible with the independence and impartiality of a judge and should, therefore, not be a member of government, minister, under- secretary of state, diplomatic representative, director in a ministry, or government legal advisor. (iv) in addition, the procedure for nomination shall be open and transparent and, at the minimum, comparable to that for appointments to the highest judicial office in the nominating countries, andshould encourage participation by professional and civil society groups.
18
19 Copyright 2006 Financial Times Information All Rights Reserved Global News Wire - Asia Africa Intelligence Wire Copyright 2006 Accra Mail Distributed by Allafrica Global Media This Day (Nigeria) - AAGM
January 30, 2006 Monday
HOW THE JUDGES OF THE AFRICAN COURT EMERGED
BYLINE: Chidi Anselm Odinkalu
On Sunday 21 January 2006, the night preceding the beginning of the controversial and quite eventful 6th Summit of the Heads of State and Government of the African Union in Khartoum, Sudan, the Executive Council of the African Union, comprising Foreign Ministers of the 53 member countries of the organization, elected eleven judges to pioneer the Bench of the African Court on Human and Peoples' Rights. Nearly two years after the entry into force of the Protocol establishing the Court and 25 years after the adoption of the African Charter on Human and Peoples' Rights, we now know the identities of the men and women that will define the limits of Africa's willingness to guarantee basic dignities to its people. The elected judges, nine men and two women in all are: Mr. Fatsah Ouguergouz (Algeria) Mr. Jean Emile Somda (Burkina Faso) Mr. Gerard Niyungeko (Burundi) Ms. Sophia Akuffo (Ghana) Mrs. Kelello Justina Masafo-Guni (Lesotho) Mr. Hamdi Faraj Fanoush (Libya) Mr. Modibo Tounty Guindo (Mali) Mr. Jean Mutsinzi (Rwanda) Mr. El Hadji Guisse (Senegal) Mr. Bernard Ngoepe (South Africa) Mr. George Kanyiehamba (Uganda). The AU elected these judges from an initial list of 21 candidates nominated by 16 countries. That list included five women and sixteen men. The Protocol establishing the African Court requires that the judges should be "jurists of high moral character and of recognised practical, judicial, or academic competence and experience in the field of human and peoples' rights." To assist the countries in selecting and compiling their nominations, the AU had in April 2004 put forward a set of Guidelines setting out the standards and processes that the States had to meet. Among other things, these
20 Guidelines emphasised the values of independence of the nominees and the need for a transparent process of nomination. In particular, the Guidelines required that "The candidates should not be a member of government, a minister or under-secretary of a state, a diplomatic representative, a director of a ministry or one of its sub-ordinates, or a legal advisor to a foreign office." In a report released on the eve of the elections assessing the slate of candidates on offer and the process by which they were selected, the Coalition for an Effective African Court on Human and Peoples' Rights, a regional organisation with more than 70 member organisations across Africa concluded that the selection of candidates under consideration for election as judges of the African Court was not transparent and "failed to comply with the AU guidelines." At the time of the election, 22 out of 53 African countries had ratified the Protocol establishing the Court, namely: Algeria, Burkina Faso, Burundi, Cote d'Ivoire, the Comoros, Gabon, the Gambia, Ghana, Kenya, Lesotho, Libya, Mali, Mauritius, Mozambique, Niger, Nigeria, Rwanda, Senegal, South Africa, Togo, and Uganda. Each of these countries was entitled to nominate up to three candidates to be considered for election as judges of the Court. Prior to the elections in Khartoum Gambia and Mauritius announced that they will not be nominating any candidates: Gambia because it did not have many judges of its own and Mauritius because it wanted to focus on its campaign to host the Court. In addition, Gabon, Mozambique, Niger, and Togo also failed to nominate candidates, leaving a slate of 21 candidates nominated by only 16 countries. By the beginning of the elections that Sunday evening in Khartoum, the list had been pared down to sixteen candidates. A female nominee from Kenya was withdrawn because of allegations of judicial malfeasance in her home country. The 16 nominating countries were then invited to put forward one name each. Libya withdrew one of its nominees from the list, leaving only one Libyan nominee who eventually got elected. Similarly, Burundi stepped down a female nominee whom it had put forward for election while Mali withdrew two of the three candidates it had put forward, including another woman. This left 16 candidates from whom the Ministers had to elect 11 judges. The final list of candidates that went forward included only two women, one each from Ghana and Lesotho. Both of them easily got elected in the first round of voting. The Ministers concluded the elections over three rounds of voting. In the first round, the Ministers elected ten of the judges. From the list of six nominees remaining, they had to elect one more to complete the Bench of 11. At this stage, it became a straight fight between the candidates from Burkina Faso and Nigeria. Burkina Faso had nominated Jean Emile Somda, a Ministerial adviser. Nigeria's nominee was Timothy Oyeyipo, who retired from the High Court Bench at the end of 2005 upon attaining the mandatory retirement age of 65 years, the last 21 years of which he served as the Chief Judge of the north-Central State of Kwara. In the ensuing second round of voting, the candidate from Burkina Faso received 26 votes, one short of the absolute majority of 27 needed to win election onto the Court. The Nigerian received a mere 13 votes. This necessitated a third round. Prior to the third round of voting, however, Nigeria withdrew its candidate when it became obvious it could not m uster enough votes to get him beyond the tipping point of 27 votes. In the third round, the Ministers easily ratified the election of Mr. Somda.
21 To ensure continuity of the Court, four of the newly elected judges, as drawn by lot, were elected for two years, another four were elected for four years, while three will serve a full term of six years. Each of them will be eligible for re-election. Odinkalu Directs the Africa Programme of the Open Society Justice Initiative Distributed by AllAfrica Global Media. (allafrica.com)
22 Copyright 2006 AllAfrica, Inc. Africa News
January 25, 2006 Wednesday
PanAfrica; AU Court of Justice to Operate Soon
BYLINE: BuaNews
An African court to deal with gross human rights violations on the continent is ready to start hearing cases, South Africa's foreign affairs minister Nkosazana Dlamini-Zuma told the media here yesterday. She was briefing the media after the closing session of the sixth ordinary session of the African Union Heads of State and Government Summit. The minister explained that although the 53-member body had not finalised where the African Court on Human and People's Rights would be based, they had already elected judges. The court will be expected to hear cases of human rights violations, including genocide. It will also have the power to render an opinion, at the request of a member state on any legal matter relating to any other applicable African human rights instruments. "The court is ready to function," Dr Dlamini-Zuma said and confirmed that a South African judge was elected to the panel of judges for the court. The heads of state have requested member states to submit their comments on the "draft single legal instrument" by writing to the AU Commission. The closing date for submissions is 31 March. The draft single legal instrument is a document containing recommendations on the merger of the African court of human and people's rights and the court of justice of the organisation. The union has further decided the merger document should be submitted to a joint meeting of the People's Rights Commission (PRC) and legal experts from member states for finalisation. The final draft will be submitted and presented for review at the next 7th ordinary session of the Executive Council and Assembly to take place in Bujumbura, Burundi, in July. The 11 judges of the court were elected yesterday. However their election has to be ratified by the Assembly of Heads of State after the final draft has been scrutinized and approved into law. They include South Africa's Judge President of Transvaal Bernard Ngoepe.
23 Their term of office ranges from two to six years.
24
(Excerpt from) The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties By Makau wa Mutua 35 Va. J. Int'l L. 339 Winter, 1995 (Notes omitted)
In the West, the language of rights primarily developed along the trajectory of claims against the state; entitle- ments which imply the right to seek an individual remedy for a wrong. The African language of duty, however, of- fers a different meaning for individual/state-society relations: while people had rights, they also bore duties. The resolution of a claim was not necessarily directed at satisfying or remedying an individual wrong. It was an oppor- tunity for society to contemplate the complex web of individual and community duties and rights to seek a balance between the competing claims of the individual and society. This view is not relativist. It does not advance or advocate the concept of apartheid in human rights or the no- tion that each cultural tradition has generated its own distinctive and irreconcilable concept of human rights. It proceeds from the position that, although cultural relativism in human rights as an anti-imperial device is admirable, it is a misunderstanding inspired by cultural nationalism. What its proponents see as radically distinctive, irreconcil- able traditions also possess ideals which are universal. Most critiques of cultural relativism, on the other hand, are ethnocentric and symptomatic of the moral imperialism of the West. Both extremes only serve to detain the devel- opment of a universal jurisprudence of human rights. In reality, the construction and definition of human rights norms are dynamic and continuous processes. Hu- man rights are not the monopoly or the sole prerogative of any one culture or people, although claims to that end are not in short supply. In one culture, the individual may be venerated as the primary bearer of rights; while, in an- other, individual rights may be more harmonized with the corporate body. Rather than assert the primacy of one over the other, or argue that only one cultural expression and historical experience constitutes human rights, this author views each experience as a contributor to the whole. The process of the construction of universal human rights is analogous to the proverbial description of the elephant by blind men: each, based on his sense of feeling, offers a differing account. However, all the accounts paint a complete picture when put together. As a dynamic process, the creation of a valid conception of human rights must be universal. That is, the cultures and traditions of the world must, in effect, compare notes, negotiate positions, and come to agreement over what constitutes human rights. Even after agreement, the doors must remain open for further inquiry, reformulation, or revision. II. Human Rights in Pre-colonial Africa: Content and Context This segment of the Article will explore the validity of both the argument made often by Africans, and the con- troversy it engenders, that the concept of human rights was not alien to pre-colonial societies and that such notions were the foundation of social and political society. Recent debates, which are primarily interpretive, have focused attention on this divisive theme. They agree on basic behavioral, political, and social characteristics but disagree as to their meaning. There are no easy answers for a number of reasons. In particular, methodological pitfalls exist for any analysis that attempts to address the length and width of sub-Saharan Africa. The sheer size of the continent, and the diversity of African peoples and their societies, defy easy categorization or generalization. Secondly, with regard to human rights, there are very few extant sources of pre-colonial societies. The oral tradition common to most of Africa had its own imprecision even before its interruption by the forces of colonialism. Nevertheless, several broad themes are discernable from the past. It is now generally accepted that the African pre-colonial past was neither idyllic nor free of the abuses of power and authority common to all human societies. However, the despotic and far-reaching control of the individual by the omnipotent state, first perfected in Europe, was unknown. n20 Instead, pre-colonial Africa consisted of two categories of societies: those with centralized au- thority, administrative machinery, and standing judicial institutions, such as the Zulu and the Ashanti, and those with more communal and less intrusive governmental paraphernalia, such as the Akamba and Kikuyu of Kenya.
1 But a feature common to almost all pre-colonial African societies was their ethnic, cultural, and linguistic homoge- neity - a trait that gave them fundamental cohesion. Had these political societies developed the concept of human rights? Proponents of the concept of human rights in pre-colonial African societies are accused by their opponents of confusing human dignity with human rights. This view holds that the "African concept of justice," unlike human rights, "is rooted not in individual claims against the state, but in the physical and psychic security of group membership." While it is probably correct to argue that African societies did not emphasize individual rights in the same way that European societies did, it is not a correct presumption to claim that they did not know the conception of individual rights at all. According to Ronald Cohen, a right is an entitlement: At its most basic level, a human right is a safeguarded prerogative granted because a person is alive. This means that any human being granted personhood has rights by virtue of species membership. And a right is a claim to something (by the right-holder) that can be exercised and enforced under a set of grounds or justifica- tions without interference from others. The subject of the right can be an individual or a group and the object is that which is being laid claim to as a right. (Ronald Cohen, Endless Teardrops: Prolegomena to the Study of Human Rights in Africa, in Human Rights and Governance) Moreover, a brief examination of the norms governing legal, political, and social structures in pre-colonial societies demonstrates that the concept of rights, like that articulated by Cohen, informed the notion of justice and supported a measure of individualism. Two societies which are representative of the two basic organizational paradigms prevalent in pre-colonial Africa illustrate the point. The Akamba of east Africa were symptomatic of the less rigidly organized societies, whereas the Akans of west Africa were characteristic of the more centralized state systems. In Akan thought, the individual had both descriptive and normative characteristics. Both endowed the person with individual rights as well as obligations. Similarly, the Akamba believed that "all members were born equal and were supposed to be treated as such beyond sex and age." n27 The belief prevailed in both societies that, as an inherently valuable being, the individual was naturally endowed with certain basic rights. Akan political society was organized according to the principle of kinships. A lineage of those who were de- scended from the same ancestress formed the basic political unit. Adults in each lineage elected an elder. All line- age heads, in turn, formed the town council which was chaired by a chief who, though chosen according to descent, was in part elected. The chief, however, could not rule by fiat, because decisions of the council were taken by con- sensus. Moreover, council decisions could be criticized publicly by constituents who found them unacceptable. As Wiredu explains, there was no "doubt about the right of the people, including the elders, to dismiss a chief who tried to be oppressive." Among the Akamba, individuals joined the elders council, the most senior rank in Akamba society, after dem- onstrating commitment to the community and responsibility in personal matters. Maintaining a stable household, which included a spouse or spouses and children, was a necessary precondition. The council was a public forum which made decisions by consensus. Although the Akamba resented any social organization with a central author- ity, the council's services included the legislation of public norms and customs. These two examples demonstrate that individuals in pre-colonial society had a right to political participation in determining by whom and through what policies to be ruled. Much of the discussion about whether pre-colonial societies knew of and enforced individual human rights has taken place in the absence of considered studies of, and reference to, judicial processes in those societies. A pre- liminary examination of both the Akan and Akamba societies strongly indicates individual-conscious systems of justice. With respect to the Akamba, a party to a complaint appeared before the council of elders in the company of his jury, a selection of individuals who enjoyed the party's confidence. Unlike Western-style jurors, the Akamba did not hand down a verdict, but advised the party on how to plead and what arguments to put forth to win the case. They had to be steeped in Kamba law, customs, and traditions. The threat of the administration of kithitu, the Kamba oath, which was believed to bring harm to those who lied, encouraged truthfulness. After presentations by parties, the elders would render judgement or give counsel on the appropriate settlement. Each offense carried a punishment: murder was compensated by the payment of over ten head of cattle; rapists were charged goats; as- saults, depending on their seriousness, could cost over ten head of cattle; adultery was punishable by the payment of at least a goat and bull; and an arsonist was required to build his victim a new house or replace the lost property. Individual rights to cultivated land were also recognized and protected. These elaborate punishments present just one indication of the seriousness with which Kamba society took individual rights to personal security, property, marriage, and the dignity and integrity of the family.
2 In Akan society, the principle of innocent-until-proven-guilty was deeply embedded in social consciousness. According to Wiredu, "it was an absolute principle of Akan justice that no human being could be punished without trial." The Akans, like the Akamba, also recognized a wide range of individual rights: murder, assault, and theft were punished as violations of the person. For those who deny the recognition of human rights in pre-colonial societies, it must come as a strange irony that the human rights corpus shares with pre-colonial Africa the importance of personal security rights. The right to life, for example, was so valued that the power over life and death was reserved for a few elders and was exercised "only after elaborate judicial procedure, with appeals from one court to another, and often only in cases of murder and manslaughter." This respect for human life was not an aberration. Fernyhough notes that much of Africa is characterized by a "preoccupation with law, customary and written, and with legal procedure." He adds that the Amhara of Ethiopia, for example, have historically relished litigation and the lengthy cross-examination of wit- nesses. Whether a society was highly centralized or not, "there existed elaborate rules of procedure intended to pro- tect the accused and provide fair trials." The protection of individual rights was of preeminent importance to pre- colonial societies. Many of the Akamba and Akan socio-political norms and structures were common to other pre-colonial ethno- political entities or cultural-nations. This Article refers to these shared basic values as the index of the African cul- tural fingerprint, that is, a set of institutional and normative values governing the relationship between individuals, the society, and nature. To be sure, the fingerprint belongs to Africa although it is also human and, thus, aspects of it reveal universal characteristics. In the search for the definition of the continent, for what sets it apart from Asia and Europe or the Americas, some writers have labelled the cultural and social patterns distinctive to the continent as the "African personality." Leopold Sedar Senghor, for one, called it negritude or "the manner of self-expression of the black character, the black world, black civilization," while Aime Cesaire described it simply as "recognition of the fact of being black, and the acceptance of that fact, of our destiny of black, of our history and our culture." Julius Nyerere named it ujamaa, the Kiswahili term for African socialism. The principles and ideals common to all these conceptions are, according to the author's own observations of various African societies, respect for, and pro- tection of, the individual and individuality within the family and the greater socio-political unit; deference to age because a long life is generally wise and knowledgeable; commitment and responsibility to other individuals, fam- ily, and community; solidarity with fellow human beings, especially in times of need; tolerance for difference in political views and personal ability; reciprocity in labor issues and for generosity; and consultation in matters of governance. As aptly put by Cohen, many African cultures value the group - one should never die alone, live alone, remain outside social net- works unless one is a pariah, insane, or the carrier of a feared contagious disease. Corporate kinship in which individuals are responsible for the behavior of their group members is a widespread tradition. But in addition, the individual person and his or her dignity and autonomy are carefully protected in African traditions, as are individual rights to land, individual competition for public office, and personal success. … This conception, that of the individual as a moral being endowed with rights but also bounded by duties, proac- tively uniting his needs with the needs of others, was the quintessence of the formulation of rights in pre-colonial societies. It radically differs from the liberal conception of the individual as the state's primary antagonist. More- over, it provides those concerned with the universal conception of human rights with a basis for imagining another dialectic: the harmonization of duties and rights. … Many of those who dismiss the relevance of the African conception of man by pejoratively referring to it as a "peasant" and "pre-industrial" notion fail to recognize that all major cultures and traditions - the Chinese, European, African, and the Arab, to mention a few - have a basic character distinctive to them. While it is true that no culture is static, and that normative cultural values are forever evolving, it is naive to think that a worldview can be eroded in a matter of decades, even centuries. Why should the concession be made that the individualist rights perspective is "superior" to more community-oriented notion? As Cobbah has noted, "in the same way that people in other cul- tures are brought up to assert their independence from their community, the average African's worldview is one that places the individual within his community." This African worldview, he writes, "is for all intents and purposes as valid as the European theories of individualism and the social contract." Any concept of human rights with preten- sions of universality cannot avoid mediating between these two seemingly contradictory notions. IV. Prospects and Problems for the Duty/Rights Conception The idea of combining individual rights and duties in a human rights document is not completely without precedent. No less a document than the Universal Declaration of Human Rights (UDHR) blazed the trail in this
3 regard when it provided, in a rare departure from its individualist focus, that "everyone has the duties to the com- munity in which alone the free and full development of his personality is possible." However, the African Charter is the first human rights document to articulate the concept in any meaningful way. It is assumed, with undue haste, by human rights advocates and scholars that the inclusion of duties in the African Charter is nothing but "an invita- tion to the imposition of unlimited restrictions on the enjoyment of rights." This view is simplistic because it is not based on a careful assessment of the difficulties experienced by African countries in their miserable attempts to mimic wholesale Western notions of government and the role of the state. Such critics are transfixed by the allure of models of democracy prevalent in the industrial democracies of the West, models which promise an opportunity for the redemption of a troubled continent. Unfortunately, such a view is shortsighted. Perhaps at no other time in the history of the continent have Afri- cans needed each other more than they do today. Although there is halting progress towards democratization in some African countries, the continent is generally on a fast track to political and economic collapse. Now in the fourth decade of post-colonialism, African states have largely failed to forge viable, free, and prosperous countries. The persistence of this problem highlights the dismal failures of the post-colonial states on several accounts. The new African states have failed to inspire loyalty in the citizenry; to produce a political class with integrity and a national interest; to inculcate in the military, the police, and the security forces their proper roles in society; to build a nation from different linguistic and cultural groups; and to fashion economically viable policies. These realities are driving a dagger into the heart of the continent. There are many causes of the problem, and, while it is beyond the scope of this Article to address them all, it will discuss one: namely, the human rights dimensions of the rela- tionship between the individual, the community, and the state. Colonialism profoundly transformed and mangled the political landscape of the continent through the imposi- tion of the modern state. Each pre-colonial African "nation," and there were thousands of them to be sure, had sev- eral characteristics: one ethnic community inhabited a "common territory; its members shared a tradition, real or fictitious, of common descent; and they were held together by a common language and a common culture." Few African nations were also states in the modern or European sense, although they were certainly political societies. In contrast, the states created by European imperialists, comprising the overwhelming majority of the continent, ordi- narily contained more than one nation: Each one of the new states contains more than one nation. In their border areas, many new states contain parts of nations because of the European-inspired borders cut across existing national territories. The new state contained a population from many cultural groups coerced to live together. It did not reflect a "nation," a people with the consciousness of a common destiny and shared history and culture. The colonialists were concerned with the exploitation of Africa's human and natural resources, and not with the maintenance of the integrity of African societies. For purposes of this expediency, grouping many nations in one territory was the only feasible administrative option. To compound the problem, the new rulers employed divide-and- conquer strategies, pitting nations against each other, further polarizing inter-ethnic tensions and creating a cli- mate of mutual fear, suspicion, and hatred. In many cases, the Europeans would openly favor one group or cluster of nations over others, a practice that only served to intensify tensions. For example, in Rwanda, a coun- try rife with some of the worst inter-communal violence since decolonization, the Belgians heightened Hutu- Tutsi rivalry through preferential treatment toward the Tutsi. Although, before the arrival of the Belgians, the Tutsi minority ruled over the Hutu majority and the Twa in a feudal-client relationship, the colonial state "transformed communal relations and sharpened ethnic tensions by ruling through a narrow Tutsi royalty. The access to resources and power that the Tutsi collaborators enjoyed under the colonial state irreversibly polarized Hutu-Tutsi relations." (Makau wa Mutua, U.N. Must Make Rwanda a Priority, Oakland Tribune, May 25, 1994, at A13) Ironically, colonialism, though a divisive factor, created a sense of brotherhood or unity among different Afri- can nations within the same colonial state, because they saw themselves as common victims of an alien, racist, and oppressive structure. Nevertheless, as the fissures of the modern African state amply demonstrate, the unity born out of anti-colonialism has not sufficed to create an enduring identity of nationhood in the context of the post- colonial state. Since in the pre-colonial era the primary allegiances were centered on lineage and the community, n98 one of the most difficult challenges facing the post-colonial political class was the creation of new nations. This challenge, referred to as "creating a national consciousness ... was misleading," as there was "no nation to become conscious of; the nation had to be created concurrently with a consciousness." This difficult social and political transformation from self-governing ethno-cultural units to the multi-lingual, multi-cultural modern state - the disconnection between the two Africas: one pre-colonial, the other post-colonial - lies at the root of the current crisis. The post-colonial state has not altered the imposed European forms of social and political organization even though there is mounting evidence that they have failed to work in Africa. Part of the
4 problem lies in the domination of the continent's political and social processes by Eurocentric norms and values. As correctly put by Hansen: African leaders have adopted and continued to use political forms and precedents that grew from, and were or- ganically related to, the European experience. Formal declarations of independence from direct European rule do not mean actual independence from European conceptual dominance. African leaders and peoples have gone through tremendous political changes in the past hundred years. These profound changes have included the transformation of African societies and polities. They are still composed of indigenous African units, such as the lineage, village, tribe, and chieftainship, but they have been transformed around European units, such as the colony, district, political party, and state. This serious and uniquely African crisis lacks the benefit of any historical guide or formula for its resolution. While acknowledging that it is impossible to recapture and re-institute pre-colonial forms of social and political organization, this Article nonetheless asserts that Africa must partially look inward, to its pre-colonial past, for pos- sible solutions. Certain ideals in pre-colonial African philosophy, particularly the conception of humanity, and the interface of rights and duties in a communal context as provided for in the African Charter, should form part of that process of reconstruction. The European domination of Africa has wrought social changes which have disabled old institutions by complicating social and political processes. Pre-colonial and post-colonial societies now differ fun- damentally. In particular, there are differences of scale; states now have large and varied populations. Moreover, states possess enormous instruments of control and coercion, and their tasks are now without number. While this is true, Africa cannot move forward by completely abandoning its past. The duty/rights conception of the African Charter could provide a new basis for individual identification with compatriots, the community, and the state. It could forge and instill a national consciousness and act as the glue to reunite individuals and different nations within the modern state, and at the same time set the proper limits of con- duct by state officials. The motivation and purpose behind the concept of duty in pre-colonial societies was to strengthen community ties and social cohesiveness, creating a shared fate and common destiny. This is the con- sciousness that the impersonal modern state has been unable to foster. It has failed to shift loyalties from the line- age and the community to the modern state, with its mixture of different nations. The series of explicit duties spelled out in articles 27 through 29 of the African Charter could be read as in- tended to recreate the bonds of the pre-colonial era among individuals and between individuals and the state. They represent a rejection of the individual "who is utterly free and utterly irresponsible and opposed to society". In a proper reflection of the nuanced nature of societal obligations in the pre-colonial era, the African Charter explicitly provides for two types of duties: direct and indirect. A direct duty is contained, for example, in article 29(4) of the Charter which requires the individual to "preserve and strengthen social and national solidarity, particularly when the latter is threatened." There is nothing inherently sinister about this provision; it merely repeats a duty formerly imposed on members of pre-colonial communities. If anything, there exists a heightened need today, more than at any other time in recent history, to fortify communal relations and defend national solidarity. The threat of the col- lapse of the post-colonial state, as has been the case in Liberia, Somalia, and Rwanda, is only too real. Political el- ites as well as the common citizenry, each in equal measure, bear the primary responsibility for avoiding societal collapse and its devastating consequences. The African Charter provides an example of an indirect duty in article 27(2), which states that "the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest." This duty is in fact a limitation on the enjoyment of certain individual rights. It merely rec- ognizes the practical reality that in African societies, as elsewhere in the world, individual rights are not absolute. Individuals are asked to reflect on how the exercise of their rights in certain circumstances might adversely affect other individuals or the community. The duty is based on the presumption that the full development of the individ- ual is only possible where individuals care about how their actions would impact on others. By rejecting the egotis- tical individual whose only concern is fulfilling self, article 27(2) raises the level of care owed to neighbors and the community. Duties are also grouped according to whether they are owed to individuals or to larger units such as the family, society, or the state. Parents, for example, are owed a duty of respect and maintenance by their children. Crippling economic problems do not allow African states to contemplate some of the programs of the welfare state. The care of the aged and needy falls squarely on family and community members. This requirement - a necessity today - has its roots in the past: it was unthinkable to abandon a parent or relative in need. The family guilty of such an omis- sion would be held in disgrace and contempt pending the intervention of lineage or clan members. Such problems explain why the family is considered sacred and why it would be simply impracticable and suicidal for Africans to adopt wholesale the individualist conception of rights. Duty to the family is emphasized elsewhere in the Charter
5 because of its crucial and indispensable economic utility. Economic difficulties and the dislocations created by the transformation of rural life by the cash economy make the homestead a place of refuge. Some duties are owed by the individual to the state. These are not distinctive to African states; many of them are standard obligations that any modern state places on its citizens. In the African context, however, these obliga- tions have a basis in the past, and many seem relevant because of the fragility and the domination of Africa by ex- ternal agents. Such duties are rights that the community or the state, defined as all persons within it, holds against the individual. They include the duties to "preserve and strengthen social and national solidarity;" not to "compro- mise the security of the State;" to serve the "national community by placing his physical and intellectual abilities at its service;" to "pay taxes imposed by law in the interest of the society;" and to "preserve and strengthen the na- tional independence and the territorial integrity of his country and to contribute to its defence in accordance with the law." The duties that require the individual to strengthen and defend national independence, security, and the territo- rial integrity of the state are inspired by the continent's history of domination and occupation by outside powers over the centuries. The duties represent an extension of the principle of self-determination, used in the external sense, as a shield against foreign occupation. Even in countries where this history is lacking, the right of the state to be defended by its citizens can trump certain individual rights, such as the draft of younger people for a war effort. Likewise, the duty to place one's intellectual abilities at the service of the state is a legitimate state interest, for the "brain drain" has robbed Africa of massive intellect. In recognition of the need for the strength of diversity, rather than its power to divide, the Charter asks individuals to promote African unity, an especially critical role given arbi- trary balkanization by the colonial powers and the ethnic animosities fostered within and between the imposed states. In addition to the duties placed on the state to secure for the people within its borders economic, social, and cultural rights, the Charter also requires the state to protect the family, which it terms "the natural unit and basis of society" and the "custodian of morals and traditional values." There is an enormous potential for advocates of equality rights to be concerned that these provisions could be used to support the patriarchy and other repressive practices of pre-colonial social ordering. It is now generally accepted that one of the strikes against the pre-colonial regime was its strict separation of gender roles and, in many cases, the limitation on, or exclusion of, women from political participation. The discriminatory treatment of women on the basis of gender in marriage, property owner- ship, and inheritance, and the disproportionately heavy labor and reproduction burdens were violations of their rights. However, these are not the practices that the Charter condones when it requires states to assist families as the "custodians of morals and traditional values." Such an interpretation would be a cynical misreading of the Charter. The reference is to those traditional values which enhanced the dignity of the individual and emphasized the dig- nity of motherhood and the importance of the female as the central link in the reproductive chain; women were highly valued as equals in the process of the regeneration of life. The Charter guarantees, unambiguously and with- out equivocation, the equal rights of women in its gender equality provision by requiring states to "eliminate every discrimination against women" and to protect women's rights in international human rights instruments. Read in conjunction with other provisions, the Charter leaves no room for discriminatory treatment against women. The articulation of the duty conception in the Charter has been subjected to severe criticism. Some of the criti- cism, however, has confused the African conception of duty with the socialist or Marxist understanding. Such con- fusion is unfortunate. In socialist ideology, states - not individuals - are subjects of international law. Thus the state assumes obligations under international law, through the International Covenant on Civil and Political Rights (ICCPR) for example, to provide human rights. Under socialism, the state secures economic, cultural, and social benefits for the individual. Hence, the state, as the guardian of public interest, retains primacy in the event of con- flict with the individual. Human rights, therefore, are conditioned on the interest of the state and the goals of communist development. There is an organic unity between rights and duties to the state. In this collectivist con- ception, duties are only owed to the state. In contrast, in the pre-colonial era, and in the African Charter, duties are primarily owed to the family - nuclear and extended - and to the community, not to the state. In effect, the primacy attached to the family in the Charter places the family above the state, which is not the case under communism. In pre-colonial Africa, unlike the former Soviet Union or Eastern Europe, duties owed to the family or community were rarely misused or manipulated to derogate from human rights obligations. The most damaging criticism of the language of duties in Africa sees them as "little more than the formulation, entrenchment, and legitimation of state rights and privileges against individuals and peoples." However, critics who question the value of including duties in the Charter point only to the theoretical danger that states might capi- talize on the duty concept to violate other guaranteed rights. The fear is frequently expressed that emphasis on duties may lead to the "trumping" of individual rights if the two are in opposition. It is argued that:
6 If the state has a collective right and obligation to develop the society, economy, and polity (Article 29), then as an instrument it can be used to defend coercive state actions against both individuals and constituent groups to achieve state policies rationalized as social and economic improvement. While the human rights records of African states are distressingly appalling, facts do not indicate that the zeal to promote certain economic and political programs is the root cause of human rights abuses. The regime of Daniel arap Moi in Kenya, for example, has not engaged in the widespread suppression of civil and political rights because of adherence to policies it deems in the national interest; instead, abuses have been triggered by an insecure and narrow political class which will stop at nothing, including political murder, to retain power. Similarly, Mobutu Sese Seko of Zaire has run the country into the ground because he cannot contemplate relinquishing power. Alien- ated and corrupt elites, quite often devoid of a national consciousness, plunder the state and brutalize society to maintain their personal privileges and retain power. The use of the state to implement particular state policies is almost never the reason, although such a rationale is frequently used as the pretext. Okoth-Ogendo persuasively argues that the attack on the duty conception is not meritorious because the "state is the villain against which human rights law is the effective weapon" and towards which "individuals should not be called upon to discharge any du- ties." Valid criticism would question the "precise boundaries, content, and conditions of compliance" contemplated by the Charter. It should be the duty of the African Commission in its jurisprudence to clarify which, if any, of these duties are moral or legal obligations, and what the scope of their application ought to be. The Commission could lead the way in suggesting how some of the duties - on the individual as well as the state - might be imple- mented. The concept of national service, for example, could utilize traditional notions in addressing famine, public works, and community self-help projects. The care of parents and the needy could be formalized in family/state burden-sharing. The Commission should also indicate how, and in what forum, the state would respond to the breach of individual duties. It might suggest the establishment of community arbitration centers to work out certain types of disputes. As suggested by Umozurike, a former chairman to the Commission, state responsibility for these duties implies a "minimum obligation to inculcate the underlying principles and ideals in their subjects." The duty/rights formulation is also inextricably tied to the concept, articulated in the African Charter, of peo- ples' rights. Although a long discussion about the concept itself and the controversy it has attracted will not be made here, this Article will outline its necessity to the duty conception. Like the duty concept, the idea of peoples' rights is embodied in the African philosophy which sees men and women primarily as social beings embraced in the body of the community. It was pointed out during the drafting of the African Charter that individual rights could only be justified in the context of the rights of the community; consequently the drafters made room in the Charter for peo- ples' rights. The concept was not new in a human rights document. For example, Common Article 1 of the two basic inter- national human rights covenants makes peoples the subject of rights, a departure from Western notions that human rights only attach to individuals. There is recognition of the fact that individual rights cannot be realized unless groups hold collective rights. As clearly noted by Sohn: One of the main characteristics of humanity is that human beings are social creatures. Consequently, most indi- viduals belong to various units, groups, and communities; they are simultaneously members of such units as a family, religious community, social club, trade union, professional association, racial group, people, nation, and state. It is not surprising, therefore, that international law not only recognizes inalienable rights of individuals, but also recognizes certain collective rights that are exercised jointly by individuals grouped into larger com- munities, including peoples and nations. These rights are still human rights; the effective exercise of collective rights is a precondition to the exercise of other rights, political or economic or both. If a community is not free, most of its members are also deprived of many important rights. The African Charter distinguishes human rights from peoples' or collective rights, but sees them in coopera- tion, not competition or conflict. The Charter's preambular paragraph notes this relationship and recognizes "on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection and on the other hand, that the reality and respect for peoples rights should necessarily guarantee human rights." This unambiguous statement, notes van Boven, is conclusive proof of the Charter's view: human rights are inalienable and intrinsic to man individuals and are not in conflict with peoples' rights, which they complement. n149 The exercise of sovereignty rights by a "people" or "peoples" as contemplated by the Charter is a necessary precondition for the enjoyment of individual rights. This dialectic between individual and peoples' rights is one of the bases for the Charter's imposition of duties on individuals. Solidarity between the individual and the greater society safeguards collective rights, without which individual rights would be unattainable. V. Conclusions Today Africa is at a cross-roads. Since colonization, when Europe restructured its political map, Africa has lunged from one crisis to another. Whether it was famine consuming millions, Idi Amin dispatching political opponents
7 and innocents with impunity, senseless coups by soldiers who could barely read, the recent Rwandese carnage or ethnic tensions turned deadly, or corrupt political elites, the list of abominations is simply unbearable. The failure of the post-colonial state is so pervasive that it has become the rule, not the exception. Needless to say, there are nu- merous causes for this crisis, perhaps the most important of which is the disfiguration of the continent's political identity by the imposition of European forms and values of government and society. Narrow political elites who barely comprehend the Western notions they eagerly mimic - and who have lost the anchor in their past - remain in power, but without a rudder. This crisis of cultural identity is Africa's most serious enemy. But with the end of colonization and the cold war - the two driving reasons for past European and American interest in Africa - Africans should re-examine the assumptions underlying the role and purpose of the state and its organization. This Article is not intended to dismiss concerns about the potential for the misuse of the duty/rights conception by political elites to achieve narrow, personal ends. However, any notions are subject to abuse by power-hungry elites. There is no basis for concluding that the duty/rights conception is unique in this respect. While it is true that the pre-colonial context in which the conception originally worked was small in scale and relatively uncomplicated, the argument made here is not about magnitudes. Instead, the ideals that can be distilled from the past are the cen- tral thrust of this argument. Is it possible to introduce in the modern African state grassroots democracy, deepening it in neighborhood communities and villages in the tradition of the pre-colonial council of elders? Can the family reclaim its status as the basic organizational political unit in this re-democratization process? Is it possible to create a state of laws - where elected officials are bound by checks and balances - as in the days of the old where chiefs were held accountable, at times through destooling? Can the state and the family devise a "social security" system in which the burden of caring for the aged and the needy can be shared? Is it possible to require individuals to take responsibility for their actions in matters relating to sexuality, community security, and self-help projects in the construction of community schools and health centers, utilizing concepts such as harambee, the Kenyan slogan for pulling together? Child care and rearing, including lighter forms of discipline such as a reprimand, for example, have always been community affairs in Africa. Could community-based programs be devised and encouraged to promote the "village-raising" of children? These are the typical questions that the new formulation of human rights must ask in the context of recreating the African state to legitimize human rights on the continent. This Article represents a preliminary attempt to begin rethinking Africa's pre-colonial articulation of human rights and propose how some of the ideals imbedded in the past could be woven into conceptions of man, society, and the state in a way that would make the human rights corpus more relevant to Africa today. Senghor stressed the need for an Afro-centric document which would "assimilate without being assimilated," but also cautioned against a charter for the "African Man" only: he emphasized that "mankind is one and indivisible and the basic needs of man are similar everywhere." Part of the reason for the failure of the post-colonial state to respect human rights lies in the seemingly alien character of that corpus. The African Charter's duty/rights conception is an excellent point of departure in the reconstruction of a new ethos and the restoration of confidence in the continent's cultural identity. It reintroduces values that Africa needs most at this time: commitment, solidarity, respect, and responsibility. More- over, it also represents a recognition of another reality. Individual rights are collective in their dimension. "Their recognition, their mode of exercise and their means of protection" is a collective process requiring the intervention of other individuals, groups, and communities. The past, as the Africans of the old used to say, is part of the living. It ought to be used to construct a better tomorrow.
8 SOERING v UNITED KINGDOM (Series A, No 161; Application No 14038/88) EUROPEAN COURT OF HUMAN RIGHTS (1989) 11 EHRR 439 7 JULY 1989
PANEL: The President, Judge Ryssdal; Judges Cremona, Thor Vilhjalmsson, Golcuklu, Matscher, Pettiti, Walsh, Sir Vincent Evans, Macdonald, Russo, Bernhardt, Spielmann, De Meyer, Carrillo Salcedo, Valticos, Martens, Palm, Foighel CATCHWORDS: Penalty as inhuman and degrading treatment HEADNOTE/SUMMARY The applicant, a West German national, alleged that the decision by the Secretary of State for the Home Department to extradite him to the United States of America to face trial in Virginia on a charge of capital murder would, if implemented, give rise to a breach by the United Kingdom of Article 3. If he were sentenced to death he would be exposed to the so-called 'death row phenomenon'. He also complained of a breach of Article 13, in that he had no effective remedy in the United Kingdom in respect of his complaint under Article 3, and of Article 6. The Commission found a breach of Article 13 but no breach of either Article 3 or Article 6. The case was referred to the Court by the Commission and the Governments of the United Kingdom and of the Federal Republic of Germany. Held, by the Court, unanimously (a) that, in the event of the Secretary of State's decision to extradite the applicant to the United States of America being implemented, there would be a violation of Article 3. (b) that in the same event, there would be no violation of Article 6(3)(c); (c) that it had no jurisdiction to entertain the complaints under Article 6 concerning the extradition proceedings; (d) that there had been no violation of Article 13; (e) that the applicant should be awarded compensation in respect of his legal costs and expenses. (f) that the remainder of the claim for just satisfaction was rejected. 1. Inhuman and Degrading Treatment: extradition, death penalty, death row phenomenon. (a) Although extradition is specifically envisaged in Article 5(1)(f), it may have consequences adversely affecting the enjoyment of a Convention right and may consequently engage the responsibility of a Contracting State. (b) Article 1 sets a territorial limit on the reach of the Convention, which does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other states. However, the provisions of the Convention must be interpreted and applied so as to make its safeguards practical and effective. (c) The absolute prohibition on torture and on inhuman and degrading treatment or punishment under Articles 3 and 15 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also found in other international instruments and is generally recognised as an internationally accepted standard. It would hardly be compatible with the underlying values of the Convention, were a Contracting Party knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment, however heinous the crime allegedly committed. Extradition in such circumstances would be plainly contrary to the spirit and intent of Article 3. (d) The serious and irreparable nature of the alleged suffering risked warranted a departure from the rule, usually followed by the Convention institutions, not to pronounce on the existence of potential violations of the Convention. (e) In the circumstances of the case it was found that the applicant, if returned to Virginia, ran a real risk of a death sentence and hence of exposure to the death row phenomenon. (f) Capital punishment is permitted under certain conditions by Article 2(1). The Convention is a living instrument which must be interpreted in the light of present-day conditions. Some Contracting States retain the death penalty for some peacetime offences. However, death sentences are no longer carried out, while Protocol No 6, which provides for the abolition of the death penalty in time of peace, has been opened for signature without any objection and has been ratified by 13 Contracting States to the Convention. As observed by Amnesty International in their written comments, there exists virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with regional standards. (g) Subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contacting States to abrogate the exception provided for under Article 2(1) and hence remove a textual limit on the scope for evolutive interpretation of Article 3. The Contracting States have, however, opted for the normal method of amending the text of the Convention by an optional instrument, Protocol No 7. In these conditions Article 3 cannot be interpreted as generally prohibiting the death penalty. (h) However, the manner in which the death penalty is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3. (i) However well-intentioned and even potentially beneficial is the provision of a complex of post-sentence procedures, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death. (k) As a general principle the youth of the person concerned is a circumstance which is liable, with others, to put into question the compatibility with Article 3 of measures connected with a death sentence. Mental health has the same effect. (l) In the circumstances of the case the applicant could expect to spend on death row six to eight years in a stringent custodial regime. At the time of the killings he was 18 years old and of a mental state which impaired his responsibility for his acts. The United Kingdom Government could have removed the danger of a fugitive criminal going unpunished as well as the anguish of intense and protracted suffering on death row by extraditing or deporting the applicant to face trial in the Federal Republic of Germany. In the light of all the above the Secretary of State's decision to extradite the applicant to the United States would, if implemented, give rise to a breach of Article 3. 2. Criminal Proceedings: extradition. (a) An issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. The facts of the case did not disclose such a risk. (b) The Court lacked jurisdiction to entertain the applicant's complaints regarding the fairness of the extradition proceedings as such. 3. Remedies: judicial review, extradition. The English courts could review the 'reasonableness' of an extradition decision in the light of factors relied on by the applicant before the Convention institutions in the context of Article 3. The applicant had a remedy under Article 13 which he had failed to pursue. The English courts' lack of jurisdiction to grant interim injunctions against the Crown does not detract from the effectiveness of judicial review in extradition cases. 4. Just Satisfaction: enforcement of judgment, costs and expenses. The Court's finding regarding Article 3 of itself amounted to adequate just satisfaction. The Court was not empowered to make accessory directions as to the enforcement of its judgments. The applicant was awarded full compensation for his costs and expenses.
2 DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS . . . 11. The applicant, Mr. Jens Soering, was born on 1 August 1966 and is a German national. He is currently detained in prison in England pending extradition to the United States of America to face charges of murder in the Commonwealth of Virginia. 12. The homicides in question were committed in Bedford County, Virginia, in March 1985. The victims, William Reginald Haysom (aged 72) and Nancy Astor Haysom (aged 53), were the parents of the applicant's girlfriend, Elizabeth Haysom, who is a Canadian national. Death in each case was the result of multiple and massive stab and slash wounds to the neck, throat and body. At the time the applicant and Elizabeth Haysom, aged 18 and 20 respectively, were students at the University of Virginia. They disappeared together from Virginia in October 1985, but were arrested in England in April 1986 in connection with cheque fraud. 13. The applicant was interviewed in England between 5 and 8 June 1986 by a police investigator from the Sheriff's Department of Bedford County. In a sworn affidavit dated 24 July 1986 the investigator recorded the applicant as having admitted the killings in his presence and in that of two United Kingdom police officers. The applicant had stated that he was in love with Miss Haysom but that her parents were opposed to the relationship. He and Miss Haysom had therefore planned to kill them. They rented a car in Charlottesville and traveled to Washington where they set up an alibi. The applicant then went to the parents' house, discussed the relationship with them and, when they told him they would do anything to prevent it, a row developed during which he killed them with a knife. On 13 June 1986 a grand jury of the Circuit Court of Bedford County indicted him on charges of murdering the Haysom parents. The charges alleged capital murder of both of them and the separate non-capital murders of each. 14. On 11 August 1986 the Government of the United States of America requested the applicant's and Miss Haysom's extradition under the terms of the Extradition Treaty of 1972 between the United States and the United Kingdom. On 12 September a Magistrate at Bow Street Magistrates' Court was required by the Secretary of State for Home Affairs to issue a warrant for the applicant's arrest under the provisions of section 8 of the Extradition Act 1870. The applicant was subsequently arrested on 30 December at HM Prison Chelmsford after serving a prison sentence for cheque fraud. 15. On 29 October 1986 the British Embassy in Washington addressed a request to the United States' authorities in the following terms: 'Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to seek an assurance, in accordance with the terms of . . . the Extradition Treaty, that, in the event of Mr. Soering being surrendered and being convicted of the crimes for which he has been indicted . . . , the death penalty, if imposed, will not be carried out. Should it not be possible on constitutional grounds for the United States Government to give such an assurance, the United Kingdom authorities ask that the United States Government undertake to recommend to the appropriate authorities that the death penalty should not be imposed or, if imposed, should not be executed.' 16. On 30 December 1986 the applicant was interviewed in prison by a German prosecutor (Staatsanwalt) from Bonn. In a sworn witness statement the prosecutor recorded the applicant as having said, inter alia, that 'he had never had the intention of killing Mr. and Mrs. Haysom and . . . he could only remember having inflicted wounds at the neck on Mr. and Mrs. Haysom which must have had something to do with their dying later'; and that in the immediately preceding days 'there had been no talk whatsoever [between him and Elizabeth Haysom] about killing Elizabeth's parents.' The prosecutor also referred to documents which had been put at his disposal, for example the statements made by the applicant to the American police investigator, the autopsy reports and two psychiatric reports on the applicant. On 11 February 1987 the local court in Bonn issued a warrant for the applicant's arrest in respect of the alleged murders. On 11 March the Government of the Federal Republic of Germany requested his extradition to the Federal Republic under the Extradition Treaty of 1872 between the Federal Republic and the United Kingdom. The Secretary of State was then advised by the Director of Public Prosecutions that, although the
3 German request contained proof that German courts had jurisdiction to try the applicant, the evidence submitted, since it consisted solely of the admissions made by the applicant to the Bonn prosecutor in the absence of a caution, did not amount to a prima facie case against him and that a magistrate would not be able under the Extradition Act 1870 to commit him to await extradition to Germany on the strength of admissions obtained in such circumstances. 17. In a letter dated 20 April 1987 to the Director of the Office of International Affairs, Criminal Division, United States Department of Justice, the Attorney for Bedford County, Virginia (Mr. James W Updike Jr) stated that, on the assumption that the applicant could not be tried in Germany on the basis of admissions alone, there was no means of compelling witnesses from the United States to appear in a criminal court in Germany. On 23 April the United States, by diplomatic note, requested the applicant's extradition to the United States in preference to the Federal Republic of Germany. 18. On 8 May 1987 Elizabeth Haysom was surrendered for extradition to the United States. After pleading guilty on 22 August as an accessory to the murder of her parents, she was sentenced on 6 October to 90 years' imprisonment (45 years on each count of murder). 19. On 20 May 1987 the Government of the United Kingdom informed the Federal Republic of Germany that the United States had earlier 'submitted a request, supported by prima facie evidence, for the extradition of Mr. Soering.' The United Kingdom Government notified the Federal Republic that it had 'concluded that, having regard to all the circumstances of the case, the court should continue to consider in the normal way the United States' request.' It further indicated that it had sought an assurance from the United States' authorities on the question of the death penalty and that 'in the event that the court commits Mr. Soering, his surrender to the United States' authorities would be subject to the receipt of satisfactory assurances on this matter.' 20. On 1 June 1987 Mr. Updike swore an affidavit in his capacity as Attorney for Bedford County, in which he certified as follows: 'I hereby certify that should Jens Soering be convicted of the offence of capital murder as charged in Bedford County, Virginia . . . a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out.' This assurance was transmitted to the United Kingdom Government under cover of a diplomatic note on 8 June. It was repeated in the same terms in a further affidavit from Mr. Updike sworn on 16 February 1988 and forwarded to the United Kingdom by diplomatic note on 17 may 1988. In the same note the Federal Government of the United States undertook to ensure that the commitment of the appropriate authorities of the Commonwealth of Virginia to make representations on behalf of the United Kingdom would be honoured. During the course of the present proceedings the Virginia authorities have informed the United Kingdom Government that Mr. Updike was not planning to provide any further assurances and intended to seek the death penalty in Mr. Soering's case because the evidence, in his determination, supported such action. . . .
II. Relevant domestic law and practice in the United Kingdom A. Criminal law 27. In England murder is defined as the unlawful killing of a human being with malice aforethought. The penalty is life imprisonment. The death penalty cannot be imposed for murder. (Murder (Abolition of the Death Penalty) Act 1965, § 1.) Section 2 of the Homicide Act 1957 provides that where a person kills another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts in doing the killing. A person who but for the section would be liable to be convicted of murder shall be liable to be convicted of manslaughter. 28. English courts do not exercise criminal jurisdiction in respect of acts of foreigners abroad except in certain cases immaterial to the present proceedings. Consequently, neither the applicant, as a German
4 citizen, nor Elizabeth Haysom, a Canadian citizen, was or is amenable to criminal trial in the United Kingdom.
. . .
DECISION:I. Alleged breach of Article 3 80. The applicant alleged that the decision by the Secretary of State for the Home Department to surrender him to the authorities of the United States of America would, if implemented, give rise to a breach by the United Kingdom of Article 3 of the Convention, which provides: 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.' A. Applicability of Article 3 in cases of extradition 81. The alleged breach derives from the applicant's exposure to the so-called 'death row phenomenon.' This phenomenon may be described as consisting in a combination of circumstances to which the applicant would be exposed if, after having been extradited to Virginia to face a capital murder charge, he were sentenced to death. 82. In its report (at paragraph 94) the Commission reaffirmed 'its case law that a person's deportation or extradition may give rise to an issue under Article 3 of the Convention where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to that Article.' The Government of the Federal Republic of Germany supported the approach of the Commission, pointing to a similar approach in the case law of the German courts. The applicant likewise submitted that Article 3 not only prohibits the Contracting States from causing inhuman or degrading treatment or punishment to occur within their jurisdiction but also embodies an associated obligation not to put a person in a position where he will or may suffer such treatment or punishment at the hands of other States. For the applicant, at least as far as Article 3 is concerned, an individual may not be surrendered out of the protective zone of the Convention without the certainty that the safeguards which he would enjoy are as effective as the Convention standard. 83. The United kingdom Government, on the other hand, contended that Article 3 should not be interpreted so as to impose responsibility on a Contracting State for acts which occur outside its jurisdiction. In particular, in its submission, extradition does not involve the responsibility of the extraditing State for inhuman or degrading treatment or punishment which the extradited person may suffer outside the State's jurisdiction. To begin with, it maintained, it would be straining the language of Article 3 intolerably to hold that by surrendering a fugitive criminal the extraditing State has 'subjected' him to any treatment or punishment that he will receive following conviction and sentence in the receiving State. Further arguments advanced against the approach of the Commission were that it interferes with international treaty rights; it leads to a conflict with the norms of international judicial process, in that it in effect involves adjudication on the internal affairs of Foreign States not Parties to the Convention or to the proceedings before the Convention institutions; it entails grave difficulties of evaluation and proof in requiring the examination of alien systems of law and of conditions in foreign States; the practice of national courts and the international community cannot reasonably be invoked to support it; it causes a serious risk of harm in the contracting State which is obliged to harbour the protected person, and leaves criminals untried, at large and unpunished. In the alternative, the United Kingdom Government submitted that the application of Article 3 in extradition cases should be limited to those occasions in which the treatment or punishment abroad is certain, imminent and serious. In its view, the fact that by definition the matters complained of are only anticipated, together with the common and legitimate interest of all States in bringing fugitive criminals to justice, requires a very high degree of risk, proved beyond reasonable doubt, that ill-treatment will actually occur. 84. The Court will approach the matter on the basis of the following considerations. 85. As results from Article 5(1)(f), which permits 'the lawful . . . detention of a person against whom action is being taken with a view to . . . extradition,' no right not to be extradited is as such protected by the Convention.
5 Nevertheless, in so far as a measure of extradition has consequences adversely affecting the enjoyment of a Convention right, it may, assuming that the consequences are not too remote, attract the obligations of a contracting State under the relevant Convention guarantee. (See, mutatis mutandis, ABDULAZIZ, CABALES AND BALKANDALI V UNITED KINGDOM (1985) 7 EHRR 471, paras 59-60 -- in relation to rights in the field of immigration.) What is at issue in the present case is whether Article 3 can be applicable when the adverse consequences of extradition are, or may be, suffered outside the jurisdiction of the extraditing State as a result of treatment or punishment administered in the receiving State. 86. Article 1 of the Convention, which provides that 'the High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I,' sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to 'securing' ('reconnaitre' in the French text) the listed rights and freedoms to persons within its own 'jurisdiction.' Further, the Convention does not govern the actions of States not parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular. In the instant case it is common ground that the United Kingdom has no power over the practices and arrangements of the Virginia authorities which are the subject of the applicant's complaints. It is also true that in other international instruments cited by the United Kingdom Government -- for example the 1951 United Nations Convention relating to the Status of Refugees (Art 33), the 1957 European Convention on Extradition (Art 11) and the 1984 United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Art 3) -- the problems of removing a person to another jurisdiction where unwanted consequences may follow are addressed expressly and specifically. These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 for all and any foreseeable consequences of extradition suffered outside their jurisdiction. 87. In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms. (See IRELAND V UNITED KINGDOM 2 EHRR 25, para 239.) Thus, the object and purpose of the convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. (See, inter alia ARTICO V ITALY 3 EHRR 1, para 33.) In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with 'the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society.' (See KJELDSEN, BUSK MADSEN AND PEDERSEN V DENMARK 1 EHRR 711, para 53.) 88. Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. (See Article 15(2) ECHR) This absolute prohibition on torture and on inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard. The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3. That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that 'no State Party shall . . . extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture.' The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention. It would hardly be compatible with the underlying values of the Convention, that 'common heritage of political traditions, ideals, freedom and the rule of law' to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger
6 of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court's view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article. 89. What amounts to 'inhuman or degrading treatment or punishment' depends on all the circumstances of the case. Furthermore, inherent in the whole of the convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases. 90. It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article. 91. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has a direct consequence the exposure of an individual to proscribed ill-treatment. B. Application of Article 3 in the particular circumstances of the present case 92. The extradition procedure against the applicant in the United Kingdom has been completed, the Secretary of State having signed a warrant ordering his surrender to the United States' authorities, this decision, albeit as yet not implemented, directly affects him. It therefore has to be determined on the above principles whether the foreseeable consequences of Mr. Soering's return to the United States are such as to attract the application of Article 3. This inquiry must concentrate firstly on whether Mr. Soering runs a real risk of being sentenced to death in Virginia, since the source of the alleged inhuman and degrading treatment or punishment, namely the 'death row phenomenon,' lies in the imposition of the death penalty. Only in the event of an affirmative answer to this question need the court examine whether exposure to the 'death row phenomenon' in the circumstances of the applicant's case would involve treatment or punishment incompatible with Article 3. 1. Whether the applicant runs a real risk of a death sentence and hence of exposure to the 'death row phenomenon' 93. The United Kingdom Government, contrary to the Government of the Federal Republic of Germany, the Commission and the applicant, did not accept that the risk of a death sentence attains a sufficient level of likelihood to bring Article 3 into play. Their reasons were fourfold. Firstly, as illustrated by his interview with the German prosecutor where he appeared to deny any intention to kill, the applicant has not acknowledged his guilt of capital murder as such. Secondly, only a prima facie case has so far been made out against him. In particular, in the United Kingdom Government's view the psychiatric evidence is equivocal as to whether Mr. Soering was suffering from a disease of the mind sufficient to amount to a defence of insanity under Virginia law. Thirdly, even if Mr. Soering is convicted of capital murder, it cannot be assumed that in the general exercise of their discretion the jury will recommend, the judge will confirm and the Supreme Court of Virginia will uphold the imposition of the death penalty. The United Kingdom Government referred to the presence of important mitigating
7 factors, such as the applicant's age and mental condition at the time of commission of the offence and his lack of previous criminal activity, which would have to be taken into account by the jury and then by the judge in the separate sentencing proceedings. Fourthly, the assurance received from the United States must at the very least significantly reduce the risk of a capital sentence either being imposed or carried out. At the public hearing the Attorney General nevertheless made clear his Government's understanding that if Mr. Soering were extradited to the United States there was 'some risk,' which was 'more than merely negligible,' that the death penalty would be imposed. 94. As the applicant himself pointed out, he has made to American and British police officers and to two psychiatrists admissions of his participation in the killings of the Haysom parents, although he appeared to retract those admissions somewhat when questioned by the German prosecutor. It is not for the European court to usurp the function of the Virginia courts by ruling that a defence of insanity would or would not be available on the psychiatric evidence as it stands. The United Kingdom Government is justified in its assertion that no assumption can be made that Mr. Soering would certainly or even probably be convicted of capital murder as charged. Nevertheless, as the Attorney General conceded on its behalf at the public hearing, there is 'a significant risk' that the applicant would be so convicted. 95. Under Virginia law, before a death sentence can be returned the prosecution must prove beyond reasonable doubt the existence of at least one of the two statutory aggravating circumstances, namely future dangerousness or vileness. In this connection, the horrible and brutal circumstances of the killings would presumably tell against the applicant, regarding being had to the case law on the grounds for establishing the 'vileness' of the crime. Admittedly, taken on their own the mitigating factors do reduce the likelihood of the death sentence being imposed. No less than four of the five facts in mitigation expressly mentioned in the Code of Virginia could arguably apply to Mr. Soering's case. These are a defendant's lack of any previous criminal history, the fact that the offence was committed while a defendant was under extreme mental or emotional disturbance, the fact that at the time of commission of the offence the capacity of a defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was significantly diminished, and the defendant's age. 96. These various elements arguing for or against the imposition of a death sentence have to be viewed in the light of the attitude of the prosecuting authorities. 97. The Commonwealth's Attorney for Bedford County, Mr. Updike, who is responsible for conducting the prosecution against the applicant, has certified that 'should Jens Soering be convicted of the offence of capital murder as charged . . . a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out'. The Court notes, like Lloyd LJ in the Divisional Court, that this undertaking is far from reflecting the wording of Article IV of the 1972 Extradition Treaty between the United Kingdom and the United States, which speaks of 'assurances satisfactory to the requested Party that the death penalty will not be carried out'. However, the offence charged, being a State and not a Federal offence, comes within the jurisdiction of the Commonwealth of Virginia; it appears as a consequence that no direction could or can be given to the Commonwealth's Attorney by any State or Federal authority to promise more; the Virginia courts as judicial bodies cannot bind themselves in advance as to what decisions they may arrive at on the evidence; and the Governor of Virginia does not, as a matter of policy, promise that he will later exercise his executive power to commute a death penalty. This being so, Mr. Updike's undertaking may well have been the best 'assurance' that the United Kingdom could have obtained from the United States Federal Government in the particular circumstances. According to the statement made to Parliament in 1987 by a Home Office Minister, acceptance of undertakings in such terms 'means that the United Kingdom authorities render up a fugitive or are prepared to send a citizen to face an American court on the clear understanding that the death penalty will not be carried out . . . It would be a fundamental blow to the extradition arrangements between our two countries if the death penalty were carried out on an individual who had been returned under those circumstances'. Nonetheless, the effectiveness of such an undertaking has not yet been put to the test.
8 98. The applicant contended that representations concerning the wishes of a foreign government would not be admissible as a matter of law under the Virginia Code or, if admissible, of any influence on the sentencing judge. Whatever the position under Virginia law and practice, and notwithstanding the diplomatic context of the extradition relations between the United Kingdom and the United States, objectively it cannot be said that the undertaking to inform the judge at the sentencing stage of the wishes of the United Kingdom eliminates the risk of the death penalty being imposed. In the independent exercise of his discretion the Commonwealth's Attorney has himself decided to seek and to persist in seeking the death penalty because the evidence, in his determination, supports such action. If the national authority with responsibility for prosecuting the offence takes such a firm stance, it is hardly open to the Court to hold that there are no substantial grounds for believing that the applicant faces a real risk of being sentenced to death and hence experiencing the 'death row phenomenon'. 99. The Court's conclusion is therefore that the likelihood of the feared exposure of the applicant to the 'death row phenomenon' has been shown to be such as to bring Article 3 into play. 2. Whether in the circumstances the risk of exposure to the 'death row phenomenon' would make extradition a breach of Article 3 (a) General considerations 100. As is established in the court's case law, ill-treatment, including punishment, must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method if its execution, it duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim. (See IRELAND V UNITED KINGDOM 2 EHRR 25, para 162; and TYRER V UNITED KINGDOM 2 EHRR 1, paras 29 and 80.) Treatment has been held by the Court to be both 'inhuman' because it was premeditated, was applied for hours at a stretch and 'caused, if not actual bodily injury, at least intense physical and mental suffering.' and also 'degrading' because it was 'such as to arouse in [its] victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance'. (See IRELAND V UNITED KINGDOM, para 167.) In order for a punishment or treatment associated with it to be 'inhuman' or 'degrading,' the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate punishment. (See TYRER V UNITED KINGDOM, loc cit.) In this connection, account is to be taken not only of the physical pain experienced but also, where there is a considerable delay before execution of the punishment, of the sentenced person's mental anguish of anticipating the violence he is to have inflicted on him. 101. Capital punishment is permitted under certain conditions by Article 2(1) of the convention, which reads: 'Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.' In view of this wording, the applicant did not suggest that the death penalty per se violated Article 3. He, like the two Government Parties, agreed with the Commission that the extradition of a person to a country where he risks the death penalty does not in itself raise an issue under either Article 2 or Article 3. On the other hand. Amnesty International in their written comments argued that the evolving standards in Western Europe regarding the existence and use of the death penalty required that the death penalty should now be considered as an inhuman and degrading punishment within the meaning of Article 3. 102. Certainly, 'the Convention is a living instrument which . . . must be interpreted in the light of present-day conditions'; and, in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3, 'the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field. (See TYRER V UNITED KINGDOM 2 EHRR 1, para 31.) De facto the death penalty no longer exists in time of peace in the contracting States to the Convention. In the few Contracting States which retain the death penalty in law for some peacetime offences, death sentences, if ever imposed, are nowadays not carried out. This 'virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with
9 regional standards of justice,' to use the words of Amnesty International, is reflected in Protocol No 6 to the Convention, which provides for the abolition of the death penalty in time of peace. Protocol No 6 was opened for signature in April 1983, which in the practice of the Council of Europe indicates the absence of objection on the part of any of the Member States of the Organisation; it came into force in March 1985 and to date has been ratified by 13 Contracting States to the Convention, not however including the United Kingdom. Whether these marked changes have the effect of bringing the death penalty per se within the prohibition of ill- treatment under Article 3 must be determined on the principles governing the interpretation of the Convention. 103. The Convention is to be read as a whole and Article 3 should therefore be construed in harmony with the provisions of Article 2. (See, mutatis mutandis, KLASS V GERMANY 2 EHRR 214, 214, para 68.) On this basis Article 3 evidently cannot have been intended by the drafters of the Convention to include a general prohibition of the death penalty since that would nullify the clear wording of Article 2(1). Subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2(1) and hence to remove a textual limit on the scope for evolutive interpretation of Article 3. However, Protocol No 6, as a subsequent written agreement, shows that the intention of the Contracting Parties as recently as 1983 was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and, what is more, to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. In these conditions, notwithstanding the special character of the Convention, Article 3 cannot be interpreted as generally prohibiting the death penalty. 104. That does not mean however that circumstances relating to a death sentence can never give rise to an issue under Article 3. The manner in which it is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person with the proscription under Article 3. Present-day attitudes in the contracting States to capital punishment are relevant for the assessment whether the acceptable threshold of suffering or degradation has been exceeded. (b) The particular circumstances 105. The applicant submitted that the circumstances to which he would be exposed as a consequence of the implementation of the Secretary of State's decision to return him to the United States, namely the 'death row phenomenon,' cumulatively constitute such serious treatment that his extradition would be contrary to Article 3. He cited in particular the delays in the appeal and review procedures following a death sentence, during which time he would be subject to increasing tension and psychological trauma; the fact, so he said, that the judge or jury in determining sentence is not obliged to take into account the defendant's age and mental state at the time of the offence; the extreme conditions of his future detention in 'death row' in Mecklenburg Correctional Center, where he expects to be the victim of violence and sexual abuse because of his age, colour and nationality; and the constant spectre of the execution itself, including the ritual of execution. He also relied on the possibility of extradition or deportation, which he would not oppose, to the Federal Republic of Germany as accentuating the disproportionality of the Secretary of State's decision. The Government of the Federal Republic of Germany took the view that, taking all the circumstances together, the treatment awaiting the applicant in Virginia would go so far beyond treatment inevitably connected with the imposition and execution of a death penalty as to be 'inhuman' within the meaning of Article 3. On the other hand, the conclusion expressed by the Commission was that the degree of severity contemplated by Article 3 would not be attained. The United Kingdom Government shared this opinion. In particular, it disputed many of the applicant's factual allegations as to the conditions on death row in Mecklenburg and his expected fate there. (i) Length of detention prior to execution 106. The period that a condemned prisoner can expect to spend on death row in Virginia before being executed is on average six to eight years. This length of time awaiting death, is, as the commission and the United Kingdom Government noted, in a sense largely of the prisoner's own making in that he takes
10 advantage of all avenues of appeal which are offered to him by Virginia law. The automatic appeal to the Supreme Court of Virginia normally takes no more than six months. The remaining time is accounted for by collateral attacks mounted by the prisoner himself in habeas corpus proceedings before both the State and Federal courts and in applications to the Supreme Court of the United States for certiorari review, the prisoner at each stage being able to seek a stay of execution. The remedies available under Virginia law serve the purpose of ensuring that the ultimate sanction of death is not unlawfully or arbitrarily imposed. Nevertheless, just as some lapse of time between sentence and execution is inevitable if appeal safeguards are to be provided to the condemned person, so it is equally part of human nature that the person will cling to life by exploiting those safeguards to the full. However well-intentioned and even potentially beneficial is the provision of the complex of post-sentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death. (ii) Conditions on death row 107. As to conditions in Mecklenburg Correctional Center, where the applicant could expect to be held if sentenced to death, the court bases itself on the facts which were uncontested by the United Kingdom Government, without finding it necessary to determine the reliability of the additional evidence adduced by the applicant, notably as to the risk of homosexual abuse and physical attack undergone by prisoners on death row. The stringency of the custodial regime in Mecklenburg, as well as the services (medical, legal and social) and the controls (legislative, judicial and administrative) provided for inmates, are described in some detail above. In this connection, the United Kingdom Government drew attention to the necessary requirement of extra security for the safe custody of prisoners condemned to death for murder. Whilst it might thus well be justifiable in principle, the severity of a special regime such as that operated on death row in Micklenburg is compounded by the fact of inmates being subject to it for a protracted period lasting on average six to eight years. (iii) The applicant's age and mental state 108. At the time of the killings, the applicant was only 18 years old and there is some psychiatric evidence, which was not contested as such, that he 'was suffering from [such] an abnormality of mind . . . as substantially impaired his mental responsibility for his acts'. Unlike Article 2 of the Convention, Article 6 of the 1966 International Covenant on Civil and Political Rights and Article 4 of the 1969 American Convention on Human Rights expressly prohibit the death penalty from being imposed on persons aged less than 18 at the time of commission of the offence. Whether or not such a prohibition be inherent in the brief and general language of Article 2 of the European Convention, its explicit enunciation in other, later international instruments, the former of which has been ratified by a large number of States parties to the European Convention, at the very least indicates that as a general principle the youth of the person concerned is a circumstance which is liable, with others, to put in question the compatibility with Article 3 of measures connected with a death sentence. It is in line with the Court's case law to treat disturbed mental health as having the same effect for the application of Article 3. 109. Virginia law, as the United Kingdom Government and the Commission emphasised, certainly does not ignore these two factors. Under the Virginia Code account has to be taken of mental disturbance in a defendant, either as an absolute bar to conviction it if is judged to be sufficient to amount to insanity or, like age, as a fact in mitigation at the sentencing stage. Additionally, indigent capital murder defendants are entitled to the appointment of a qualified mental health expert to assist in the preparation of their submissions at the separate sentencing proceedings. These provisions in the Virginia Code undoubtedly serve, as the American courts have stated, to prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the sentencer's discretion. They do not however remove the relevance of age and mental condition in relation to the acceptability, under Article 3, of the 'death row phenomenon' for a given individual once condemned to death. Although it is not for this Court to prejudge issues of criminal responsibility and appropriate sentence, the applicant's youth at the time of the offence and his then mental state, on the psychiatric evidence as it stands, are therefore to be taken into consideration as contributory factors tending, in his case, to bring the treatment on death row within the terms of Article 3.
11 (iv) Possibility of extradition to the Federal Republic of Germany 110. For the United Kingdom Government and the majority of the Commission, the possibility of extraditing or deporting the applicant to face trial in the Federal Republic of Germany, where the death penalty has been abolished under the Constitution, is not material for the present purposes. Any other approach, the United Kingdom Government submitted, would lead to a 'dual standard' affording the protection of the Convention to extraditable persons fortunate enough to have such an alternative destination available but refusing it to others not so fortunate. This argument is not without weight. Furthermore the Court cannot overlook either the horrible nature of the murders with which Mr. Soering is charged or the legitimate and beneficial role of extradition arrangements in combating crime. The purpose for which his removal to the United States was sought, in accordance with the Extradition Treaty between the United Kingdom and the United States, is undoubtedly a legitimate one. However, sending Mr. Soering to be tried in his own country would remove the danger of a fugitive criminal going unpunished as well as the risk of intense and protracted suffering on death row. It is therefore a circumstances of relevance for the overall assessment under Article 3 in that it goes to the search for the requisite fair balance of interests and to the proportionality of the contested extradition decision in the particular case. (c) Conclusion 111. For any prisoner condemned to death, some element of delay, between imposition and execution of the sentence and the experience of severe stress in conditions necessary for strict incarceration are inevitable. The democratic character of the Virginia legal system in general and the positive features of Virginia trial, sentencing and appeal procedures in particular are beyond doubt. The Court agrees with the Commission that the machinery of justice to which the applicant would be subject in the United States is in itself neither arbitrary nor unreasonable, but, rather, respects the rule of law and affords not inconsiderable procedural safeguards to the defendant in a capital trial. Facilities are available on death row for the assistance of inmates, notably through provision of psychological and psychiatric services. However, in the Court's view, having regard to the very long period of time spent on death row in such extreme conditions, with the ever-present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant's extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3. A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration. Accordingly, the Secretary of State's decision to extradite the applicant to the United States would, if implemented, give rise to a breach of Article 3. This finding in no way puts in question the good faith of the United Kingdom Government, which has from the outset of the present proceedings demonstrated it's desire to abide by its Convention obligations, firstly by staying the applicant's surrender to the United States authorities in accord with the interim measures indicated by the Convention institutions and secondly by itself referring the case to the court for a judicial ruling.
. . .
IV. Application of Article 50 125. Under the terms of Article 50, 'If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the . . . Convention, and if the internal law of the said party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.' Mr. Soering stated that, since the object of his application was to secure the enjoyment of his rights guaranteed by the Convention, just satisfaction of his claims would be achieved by effective enforcement of the Court's ruling. He
12 invited the Court to assist the State parties to the case and himself by giving directions in relation to the operation of its judgment. In addition, he claimed the costs and expenses of his representation in the proceedings arising from the request to the United Kingdom Government by the authorities of the United States of America for his extradition. He quantified these costs and expenses at L1,500 and L21,000 for lawyers' fees in respect of the domestic and Strasbourg proceedings respectively, L2,067 and 4,885.60 FF for his lawyers' travel and accommodation expenses when appearing before the Convention institutions, and L2,185.80 and 145 FF for sundry out-of-pocket expenses, making an overall total of L26,752.80 and 5,030.60 FF. 126. No breach of Article 3 has as yet occurred. Nevertheless, the Court having found that the Secretary of State's decision to extradite to the United States of America would, if implemented, give rise to a breach of Article 3, Article 50 must be taken as applying to the facts of the present case. 127. The Court considers that its finding regarding Article 3 of itself amounts to adequate just satisfaction for the purposes of Article 50. The Court is not empowered under the Convention to make accessory directions of the kind requested by the applicant. (See, mutatis mutandis, DUDGEON V UNITED KINGDOM (1983) 5 EHRR 573, para 15.) By virtue of Article 54, the responsibility for supervising execution of the Court's judgment rests with the Committee of Ministers of the Council of Europe. 128. The United Kingdom Government did not in principle contest the claim for reimbursement of costs and expenses, but suggested that, in the event that the Court should find one or more of the applicant's complaints of violation of the Convention to be unfounded, it would be appropriate for the Court, deciding on an equitable basis as required by Article 50, to reduce the amount awarded accordingly. (See LE COMPTE, VAN LEUVEN AND DE MEYERE V BELGIUM (1983) 5 EHRR 183.) The applicant's essential concern, and the bulk of the argument on all sides, focused on the complaint under Article 3, and on that issue the applicant has been successful. The Court therefore considers that in equity the applicant should recover his costs and expenses in full.
Edits to this document © Bartram S. Brown 2004
13 WILLIAM ANDREWS V. UNITED STATES Case 11.139, Report Nº 57/96, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 570 (1997). REPORT Nº 57/96 CASE 11.139 WILLIAM ANDREWS UNITED STATES (*) December 6, 1996
I. ALLEGATIONS IN PETITION DATED JULY 28, 1992
1. On July 27, 1992, the Commission received a fax communication informing it of the pending execution of Mr. William Andrews by the State of Utah on July 29, 1992, for three counts of Murder, and briefly outlined the petitioners' allegations.
2. On July 28, 1992 the Commission received a petition filed by Steven W. Hawkins of the LDF Capital Punishment Project; Richard J. Wilson, Director, International Human Rights Clinic, Washington College of Law, American University; and Bartram S. Brown of Chicago-Kent College of Law, on behalf of William Andrews which alleged that he was an African-American male born in Jonesboro, Louisiana, was now a prisoner on death row in Draper Correctional Institution, Draper, Utah, and was scheduled to be executed at or about 12:01 a.m on July 30, 1992. The petition alleged that in 1974, Mr. Andrews was convicted of three counts of first degree murder and two counts of aggravated robbery in the State of Utah, and that he was subsequently sentenced to death on all three counts by the same jury which convicted him.
3. The petitioners further alleged that both the victims and the jurors were Caucasian, and the sole black member of the jury pool was stricken peremptorily by the prosecution during jury selection. Mr. Andrews had left the premises prior to the offenses, and that his co-defendant, fatally shot the victims. His co-defendant, also African-American was executed by the State of Utah in 1987.
4. It is further alleged that a napkin (note) was found among the jurors during a recess of the trial, which stated "Hang the Nigger's" and that Mr. Andrews' attorney requested a mistrial and a right to question jurors concerning the note, but this request was denied by the trial judge. Instead the trial judge admonished the jurors to "ignore communications from foolish people". That the denial of the right to question the jury about the note and the mistrial coupled with the known racist Mormon Church doctrine was ground for a mistrial and at minimum, a further inquiry into the authorship, and source of the note, exposure of the note to members of the jury or their response to it.
5. Mr. Andrews filed several appeals and habeas corpus petitions before the State and Federal courts in Utah, including the United States Supreme Court, and the Utah Supreme Court, raising a number of issues which included the matters raised in this petition, and collateral attacks, and sought clemency from the Board of Pardons. All his appeals, and habeas corpus petitions were denied, the final denial was on July 29, 1992.
6. The petitioners requested precautionary measures, and requested an immediate stay of the execution proceedings against Mr. Andrews due to the urgency of this matter, the immediacy of the execution and to avoid irreparable damage. The petitioners stated further that the case was admissible, as a result of a final appeal, and that the United States Government violated Articles of the Organization of American States Charter and the American Declaration of the Rights and Duties of Man.
7. On March 5, 1993, the petitioners submitted an amended petition alleging violations of the American Declaration of the Rights and Duties of Man and requested relief from the Commission.
II. ARTICLES ALLEGEDLY VIOLATED
8. Articles 3 (k) and 44 (a) of the Organization of American States' Charter. Articles I, (right to life, liberty and personal security) II, (right to equality before the law without distinction as to race), and XXVI (right to an impartial hearing, and not to receive cruel, infamous or unusual punishment) of the American Declaration of the Rights and Duties of Man.
III. THE PETITIONERS REQUEST THAT:
The Inter-American Commission on Human Rights
9. Find that in the trial, sentencing and execution of William Andrews, the United States violated Articles I, II, and XXVI of the American Declaration of the Rights and Duties of Man.
10. Find that confinement on death row for a period exceeding eighteen years, as well as the subjection to the issuance of at least eight death warrants, constitutes "cruel, infamous or unusual punishment" under Article XXVI of the American Declaration of the Rights and Duties of Man.
11. Make whatever additional recommendations it considers appropriate in order to bring about a more effective observance of fundamental human rights relevant to this case.
IV. PROCEEDINGS BEFORE THE COMMISSION
A. Receipt of documentary materials
12. Upon receipt of the petition of July 28, 1992, and amended petition of March 5, 1993, and up to the presentment of the petition, the Commission has complied with the procedural requirements of its Regulations, studied, considered, and examined all information submitted by the parties.
13. During this period it communicated with the petitioners and the United States Government by notes and the telephone. It sent the pertinent parts of the petition, amended petition and additional information to the United States Government with requests that it supply information which it deemed appropriate to the allegations of the complaint, and which addressed the issue of exhaustion of domestic legal remedies. The Commission qualified these requests by stating that "the request for information did not constitute a decision as to the admissibility of the communication."
2 14. Among the notes sent to the Government of the United States were two notes, dated July 28, 1992 addressed to the United States Government, and one addressed to the Governor of Utah dated July 27, 1992, which informed them of the pending execution of Mr. Andrews who was scheduled to be executed in the State of Utah at 12.10 a.m. on Thursday, July 30, 1992, for three counts of murder. The Commission requested a stay of the proceedings pending a full inquiry into the factual allegations of racial discrimination, and lack of an impartial hearing made by Mr. Andrews, and concluded that these issues should be addressed prior to the imposition of the penalty of death, which is irrevocable in its finality.
15. The Commission received several notes from the United States' Government including replies to the petition, which stated that the petitioners did not have standing to file the petition which was not filed in a timely fashion, and that it failed to establish any violation of the American Convention, that the American Declaration of the Rights on Duties of Man was not legally binding, and that the case was inadmissible pursuant to Article 41 of the Commission's Regulations.1 The United States Government attached the relevant trial and appellate transcripts of the proceedings in the United States Courts.
16. In addition to the petition which reflected that Mr. Andrews was executed on July 30, 1992, the Commission received several notes from the petitioners, including responses to the United States Government's reply to the petition. In addition the Commission received an exhibit depicting a note "Hang the Nigger's" and what appears to be a drawing with a black figure hanging from a rope.2
17. On Thursday February 10, 1994, a hearing was held at the petitioners request. At that hearing the petitioners presented arguments in support of the admission of their petition and the merits of their case. The representative of the Government observed the hearing, but did not participate in the same.
B. Legal Submissions of the Petitioners
18. The petitioners argued that the case was admissible. Mr. Andrews pursued and exhausted all the remedies available under domestic law in this case. After his sentencing by the State of Utah he appealed to the Utah Supreme Court and to the United States Supreme Court by writ of certiorari. They argued that following denial of the initial writ, he pursued a variety of state and federal court interventions, including writs of habeas corpus in the federal courts and additional petitions to the United States Supreme Court, and his final appeal was rejected on March 30, 1992. The petitioners argued that the courts in the United States did not grant Mr. Andrews an evidentiary hearing to remedy the defect in his trial and sentencing. The petitioners stated that the subject of this petition was not pending in any other international proceeding for settlement, and that the facts of this case, clearly established a violation of Articles I, II, and XXVI of the American Declaration of the Rights and Duties of Man.
19. The petitioners also argued that the United States is bound by the Charter of the Organization of American States, the American Declaration of the Rights and Duties of Man, and that these in addition to the Statute and Regulations of the IACHR 3 acquired binding force for OAS
3 members 4. Furthermore, they argued that the Statute entrusted the IACHR with the competence to promote the observance of and respect for those rights set forth in the American Declaration of the Rights and Duties of Man to States such as the United States which are OAS members but not parties to the American Convention on Human Rights.
20. The petitioners argued that the OAS Charter and the American Declaration were violated by the racially discriminatory manner in which the death penalty was imposed in Mr. Andrews' case. The tainted procedure by which Mr. Andrews was found guilty and sentenced to death in this case violated Articles 3 (k) and 44 (a) of the Charter of the OAS. It also violated Mr. Andrews' rights to equality before the law without distinction as to race (Article II) and to an impartial hearing (Article XXVI) under the American Declaration of the Rights and Duties of Man.
21. The petitioners further argued that both the International Court of Justice and the European Commission of Human Rights have found that racial distinctions require that international tribunals examine "more seriously" the purported justifications for differences in treatment based on race.5 Systematic racial discrimination has been recognized as a peremptory norm of the customary international law of human rights.6 Moreover, the importance of freedom from racial discrimination is affirmed under Article 27(1) of the American Convention on Human Rights, which prohibits racial discrimination even in time of war or national emergence.
22. The petitioners argued that the U.S., as a signatory to several instruments regarding protection of human rights in the Conference on Security and Co-Operation in Europe, agreed that "special measures" must sometimes be taken to assure that the rights of national minorities are protected.
23. The petitioners argued that in the past, this Commission has found that another petitioner did not satisfy a burden to produce sufficient evidence of racial discrimination in a capital trial or death sentence in the United States, the facts presented here and below demonstrate a clear satisfaction of any burden of production which can be said to lie with the petitioner, and should result in a shifting of the burden of proof to the United States to demonstrate the absence of racial prejudice in Mr. Andrews'death sentence.7
24. The petitioners also argued that the procedures in the trial and in the review of the death sentence imposed in William Andrew's case, when considered in the context of the racist doctrine of the Mormon Church at the time of Mr. Andrews'trial in Utah, a State which is overwhelming Mormon and white, demonstrate invidious racial discrimination in violation of the OAS Charter and the American Declaration. Mr. Andrews was denied his right to racial equality when his lawyer was denied both a request for a mistral and a right to question jurors concerning a note that was found among them saying, "Hang the Nigger's [sic]."8 The very fact that such a note was found with the jury, coupled with the known racist Mormon Church doctrine at the time, was grounds for a mistrial or, at minimum, a further inquiry into the authorship, source of the note, exposure of the note to members of the jury or their response to it. Yet, the trial judge-- who himself was a Mormon--refused to grant the request, and cut off any questioning of the jury about the note.
4 25. The petitioners argued that no reviewing court in the United States ever required the production of evidence or the holding of an evidentiary hearing on the issue of the influence of racial prejudice in the trial of William Andrews. These errors require redress as a violation of the law of international human rights. At Mr. Andrews' trial in 1974, the blatantly racist note was brought to the trial judge's attention by a bailiff. The bailiff told the judge that he had been given the note, which was written on a napkin, by a member of the jury over the lunch period. The bailiff was sworn and questioned, but could provide little information beyond hearsay. The bailiff told the judge that a juror had told him that he "found" the note in the jury lunchroom. The bailiff also stated that in his opinion one of the jurors could have written the note.
26. Moreover, the petitioners argued that despite the bailiff's own opinion, the trial judge blindly accepted the explanation of a juror who was never called to the stand to testify. The judge never attempted to determine if the juror's claim that the note was "found" was truthful or not by placing that person on the stand to testify. The judge never saw the juror's demeanor in order to adequately gauge his credibility. The judge's only response to this outrageous incident was to tell the jury to "ignore communications from foolish people."
27. The petitioners also argued that racism alone explains why William Andrews was executed in the State of Utah on July 30, 1992. The denial of his basic human right to be accorded the same level of dignity as that of a person of any other race is clearly the result of racist Mormon Church doctrine. The State of Utah is overwhelmingly Mormon and white. Although no inquiry into the racial views of the jurors was permitted at the time of the revelation of the note described above, it was unquestionably true that some or all of the members of the jury were Mormons, and that the tenets of their faith guided their determination to sentence Mr. Andrews to death.
28. The petitioners argued that members of the jury were unable to show William Andrews mercy or to render him compassion because their religion taught them that no person of the Negro race was worthy of their sympathy and had been already condemned to Hell by God. Tragically, to have shown Mr. Andrews mercy would have been sacrilegious to those Mormons who comprised the jury. They were duty-bound to sentence him to death by the Apartheid-type teachings of their religious faith. The racist Church doctrine has its origins in Brigham Young, a Prophet of the Mormon Church, who instructed the congregation in 1852 that Black skin was a mark of God's curse upon black people: "I tell you, these people that are commonly called negroes are the children of the old Cain. I know they are, I know that they cannot bear rule in the Priesthood for the curse upon them . . . ."
29. The petitioners argued that, a century later, racist teaching had not changed, but was actually even more virulent. A former First President of the Mormon Church, the Church's spiritual leader, expressly told the congregation in 1949 that Black people were "damned to death by God:" "Why are so many of the inhabitants of the earth cursed with a skin of blackness? It comes in consequence of their fathers rejecting the power of the holy priesthood, and the law of God. They will go down to death." Even with the advent of the Civil Rights Movement in the United States, the Mormon Church still clung in 1969 to its racist ideology, believing that God had demanded that Blacks be treated as inferior beings. The First President told the congregation: "The seeming discrimination by the Church toward the Negro is not something that originated
5 with man; but goes back to the beginning with God." This formal statement was made less than five years before Mr. Andrews was sentenced to death in Utah.
30. The petitioners argued that less than three years before Mr. Andrews was put on trial for his life, a poll conducted in Utah showed that over 70 percent of all Mormons vehemently believed that God had cursed black people to a life in Hell. Instead of appreciating criticism of their pre- Civil War view of Blacks, a third of the Mormons polled believed that there was a "black conspiracy" to destroy the Church.
31. The petitioners argued that in 1974, at the time when William Andrews was tried for a capital offense, Mormon Church doctrine still compelled that the jury show him no mercy because God had shown no mercy on Mr. Andrews' race. It was only in June of 1978, four years after the jury sentenced Mr. Andrews to death, that the First President of the Mormon Church announced that he had experienced a "revelation" and that from that day forward blacks could enter the Kingdom of Heaven. For Mr. Andrews, the "revelation" had come too late. He tried many times unsuccessfully to have Utah and federal courts address the obvious effect of the Church doctrine on his sentence of death, all to no avail.
32. The petitioners argued that the U.S. cannot demonstrate that it did not violate its obligation of racial equality as articulated in the OAS Charter and the American Declaration on the Rights and Duties of Man (hereinafter "American Declaration"), as well as in more recent international human rights instruments to which it has become a party. The U.S. Government has internationally recognized obligations to racial equality before the law, binding on it in the Inter- American system in which it participates, pursuant to Article II of the American Declaration, as well as Articles 3 (k) and 44 (a) of the OAS Charter, which provide, in relevant part: Article 3 "The American States reaffirm the following principles: . . . (k) The American States proclaim the fundamental rights of the individual without distinction as to race . . ." Article 44. "The Member States . . . agree to dedicate every effort to the application of the following principles and mechanisms: a) All human beings, without distinction as to race, . . . have a right to . . . liberty, dignity, [and] equality of opportunity . . ."
33. The petitioners argued that the "fundamental rights of the individual" referred to in Article 3(k) unquestionably refer to the specific provisions of the American Declaration and its antecedent, the Universal Declaration of Human Rights. The latter instrument specifically protects the right to life (Article 3), the right to equality before the law (Article 7) and the right to due process of law in the face of criminal charges (Article 10). These rights are more specifically developed in the American Declaration. It is particularly noteworthy that the United States recently ratified the International Covenant on Civil and Political Rights. There were no reservations by the United States to Articles 2 and 26, which cover equal treatment under the law.9 Those rights are non-derogable, pursuant to the provisions of Article 4 (1) of the Covenant. Given its recent affirmation to the right to racial equality before the law, the United States cannot now argue that it has no burden to show adherence to racial equality in the case before the Commission.
34. The petitioners argued that finally, the U.S. has been an active participant in the Conference on Security and Co-Operation in Europe (CSCE). As a full participant in the deliberations of the
6 Conference, the U.S. became a signatory of the Report of the CSCE Meeting of Experts on National Minorities, held in Geneva, Switzerland in 1991. The report states that the participating States "consider that respect for human rights and fundamental freedoms must be accorded on a non-discriminatory basis throughout society."10 That report, in turn, refers to the concluding document of the Copenhagen conference, in which the states parties, including the United States, agreed to the following: "Persons belonging to national minorities have the right to exercise fully and effectively their human rights and fundamental freedoms without any discrimination and in full equality before the law. The participating States will adopt, where necessary, special measures for the purpose of ensuring to persons belonging to national minorities full equality with the other citizens in the exercise and enjoyment of human rights and fundamental freedoms."11
35. The petitioners argued that taken as a whole, the U.S. has an internationally recognized obligation to guarantee racial equality before the law. Moreover, when, as here, overwhelming evidence of governmental complicity in racial discrimination is shown, the burden shifts to that government to prove the absence of discrimination in guaranteeing racial equality. The United States cannot discharge that burden here. The Commission should therefore find that the United States has violated its obligations to racial equality as found in the OAS Charter and the American Declaration. William Andrews was denied his right to life and to due process of law by the decision of the U.S. Government to execute him without an impartial hearing on the issue of racial discrimination at his trial. Despite his many claims to fundamental fairness and his ultimate efforts to seek the intervention of this Commission to review his case, William Andrews was executed on July 30, 1992. Mr. Andrews was improperly deprived of his life in violation of Article I of the American declaration. Article I, as it relates to the imposition of the death penalty in criminal proceedings, must be read in conjunction with Article XXVI, paragraph 2, which guarantees due process in such proceedings.
36. The petitioners argued that in this case, the American Declaration's protection of the right to life must be read in the broadest possible fashion. Unquestionably, the right of the State to involuntarily extinguish a life must be circumscribed by the protection of due process and fundamental fairness. While it is true that the American Convention on Human Rights contains, in its Article 4 provisions relating to the right to life, a number of clauses which suggest that the death penalty is appropriate if properly administered, those provisions carefully circumscribe the imposition of capital punishment, most prominently, in Article 4.3, prohibiting States which have abolished the penalty from reestablishing it. As noted by the Court in its Advisory Opinion on Restrictions to the Death Penalty in the Convention, "Article [4] as a whole reveals a clear tendency to restrict the scope of this penalty both as far as its imposition and its application are concerned . . . ." Moreover, the U.S., by refusing to ratify the Convention, cannot now claim any benefit from its provisions which might support a position advanced by the Government.
37. The petitioners argued that Mr. Andrews' right to an impartial hearing was violated in his trial, and more importantly, in his sentencing. In complete disregard of universal notions of an impartial trial, no state or federal court ever granted Mr. Andrews the right to inquire into the origins of the racist note. The Supreme Court of the United States would not grant review of Mr. Andrews' case. Justices Marshall and Brennan were the lone dissenters, calling the note "a vulgar incident of lynch-mob racism reminiscent of Reconstruction days." Andrews v. Shulsen, 485
7 U.S. 919, 920 (1988) (dissent from denial of certiorari). Justice Marshall described the denial of basic due process by pointing out that Mr. Andrews merely sought an evidentiary hearing to determine the origins of the note, and that "the Constitution [of the United States], not to mention common decency, require[d] no less than this modest procedure."Id. Justice Marshall gave examples of obvious questions about the note that have never been answered: "Was it one or more of [Mr. Andrews'] jurors who drew a black man hanging on a gallows and attached the inscription, "Hang the Niggers"? How many other jurors saw the incendiary drawing before it was turned over to the bailiff? Might it have had any effect on the deliberations?" Id. These questions remain unanswered to this day.
38. The petitioners argued that because no court granted Mr. Andrews the right to question the jurors about the note, the worst scenario cannot be ruled out: the entire jury was involved in the drawing of the note and joked about it before finally giving it to the bailiff; the judge then joined in their conspiracy by telling them to "ignore communications by foolish people." It cannot be ruled out that a "lynch-mob atmosphere" existed within the jury which sentenced Mr. Andrews to death since he has never been accorded a hearing. The failure of the U.S. Government to afford a hearing on the issue of racial discrimination, and its subsequent execution of William Andrews, constitute a violation of Articles I and XXVI of the American Declaration.
39. The petitioners argued that disparity in the application of the death penalty within the State of Utah, based on race alone, constitutes a further violation of Articles I and II of the American Declaration. The evidence against Mr. Andrews at trial revealed that he and Pierre Selby had gone to a radio store to rob it, and had come upon people still in the store. The evidence showed that Mr. Andrews assisted Mr. Selby in tying the victims up in the basement. Mr. Selby saw some liquid drain cleaner nearby and requested that Mr. Andrews pour some into a cup, which he did. To Mr. Andrews' horror, Mr. Selby began forcing the victims to drink the drain cleaner. Mr. Andrews is reported by one survivor to have said that this point, "I'm afraid. I can't do it." Mr. Andrews then ran from the store and Mr. Selby, unbeknownst to Mr. Andrews, shot the victims.
. . .
f. Do the Allegations Raised in Petition Constitute a Violation of a Right Recognized in the American Declaration of the Rights and Duties of Man? 110. The Commission found that the alleged facts raised in the petition raised questions of a human right violation of those rights within the meaning of Article 41(b) of the Commission's Regulations.
The Commission concluded that:
i. The petition was admissible.
ii. The merits of this petition will be considered at its 89th period of Sessions. iii. The parties should submit arguments, if any, on the merits of this petition within 30 days.
I. Subsequent Submissions by the Parties on the Merits of the Case
8 a. Petitioners' Argument on the Merits
111. The Petitioners reiterated their arguments in support of the petition that Mr. Andrews' execution violated Articles I and II of the Declaration which guarantees the right to equality before the law. The petitioners argued that the U.S. Government's treatment of Mr. Andrews' claims of racial discrimination is an affront to the legally binding force of the American Declaration, the OAS Charter, and international human rights law. The Untied States Government's attempt to avoid its duty to protect Mr. Andrews from racial discrimination by seeking to shift the burden of proving racial discrimination to petitioner violates international human rights law and is morally repugnant. 50
112. The Petitioners reiterated their argument that the delay in the execution of William Andrews for over eighteen years constituted cruel, infamous, or unusual punishment in violation of Article XXVI of the American Declaration. The petitioner stated that the death row phenomenon has been criticized by international law jurists as being tortuous treatment and punishment on grounds that a condemned person suffers undue psychological torture awaiting the execution of a death sentence, and cited Soering v. United Kingdom;51Vateeswaran v. State of Tamil Nadu;52 and Catholic Comm'n for Justice & Peace In Zimbabwe v. Attorney General.53 b. The United States Government's Argument on Merits
113. The Government of the United States submitted arguments on the merits and requested that the Commission reconsider the admissibility of the petition which was not timely filed. The Government argued that the American Convention, other Conventions, customary international law and Jus Cogens were beyond the Commission's competence vis a vis the United States. It argued that Articles 3(k) and 44 (a) of the OAS Charter were not violated. It argued that Article I of the American Declaration which states that: "Every human being has the right to life, liberty and the security of his person" was not violated because the Article does not preclude a government from restricting the liberty of one who is awaiting trial for committing a crime or who has been sentenced to confinement for committing a crime, nor does it preclude a government from executing a criminal convicted and sentenced to death where execution is a punishment proportionate to the offense.54
114. The Government argued that Article II of the Declaration was not violated. The Article states that: "All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor." It argued that William Andrews was not prosecuted, convicted, or executed because of his race/ethnicity. He was prosecuted, convicted, and executed because, during the course of an armed robbery, he helped to torture and attempted to murder five innocent people--and killed three of them.
115. The Government argued that Article XXVI was not violated. The Article states that: "Every person is presumed to be innocent until proved guilty. Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment." The Government argued that William Andrews was given a choice of trial by jury
9 or by judge. He chose to be tried by a jury of his peers, who were instructed that he was presumed innocent until proven guilty. Each juror swore or affirmed that he or she would be impartial and there is no evidence that they were not. Andrews was tried publicly by courts long- established in accordance with pre-existing law. He was fairly convicted and sentenced to death. Neither the death penalty nor the incarceration between his sentencing and execution constituted cruel, infamous or unusual punishment.
116. The Government also argued that Andrews acted inconsistently with Articles XXIX and XXXIII of the American Declaration. Article XXIX states that: "It is the duty of the individual so to conduct himself in relation to others that each and every one may fully form and develop his personality." Article XXXIII provides that: "It is the duty of everya person to obey the law and other legitimate commands of the authorities of his country and those of the country in which he may be." The Government argued that individual states (and in some circumstances, the United States) have the sovereign right and responsibility to protect the weak from those who would victimize them, and that was the purpose of the criminal justice system.
117. The Government reiterated its argument that the American Declaration has no binding legal force, and argued that constitutional checks guaranteed the integrity of the criminal justice system and were to be found in the first eight amendments to the United States Constitution. It argued that the burden of proof always remains on the accuser who has the burden of proving that discrimination occurred. While the burden of producing evidence may shift to the accused government to prove lack of discriminatory animus, it does not shift until and unless a prima facie case is made that discrimination exists. It argued that the Commission understands this because in the Celestine case, the Commission held that the burden of production was on the petitioner to prove a prima facie case. Only then does the burden shift. In the Case of Willie L. Celestine supra, para. 45 at 72, the Commission said: "in its opinion, the petitioner has not provided sufficient evidence that the statistical studies presented make a prima facie case to prove the allegations of racial/ethnic discrimination and partiality in the imposition of the death penalty such as to shift the burden of proof (sic) to the United States Government."
118. The Government argued further that there was no credible evidence that any of the twelve jurors, let alone all of them were racist, or that any one connected to the case was racist. The sole African-American juror was peremptorily challenged by the State only after the defense challenged him for cause which was denied by the trial court judge. The prosecution obliged the defendants by peremptorily challenging him for them. The evidence reflected that the jury was impartial, and that the napkin incident did not reflect that the jury was racist. While the person who left the napkin was no doubt racist, there is no evidence that his or her racist appeal to the jury incited the juror who saw it to be racist, it was promptly handed over to the bailiff and the judge reflected awareness of the impropriety of the message. No one, including counsel for Andrews and counsel for the co-defendants asked the judge to voir dire the jury after the incident occurred, nor was it necessary after the napkin incident.
119. The Government stated that the admonition to the jury was appropriate. The judge told them: "Occasionally some foolish person will try to communicate with you. Please disregard the communications from foolish persons and ignore the same." See Andrews v. Shulsen 600 F.Supp. 408 (D. Utah 1984) (Andrews IV). It argued that treatment of the third co-defendant
10 reflected that the jury was not racist. Keith Roberts, the third co-defendant, was also charged with murder. He was not convicted of murder, let alone sentenced to death. Yet he was African American, and his counsel was African American. The attorneys for the other two co-defendants were not African American. Had the jury truly been racist, it would have found Keith Roberts guilty of murder and sentenced him to death, regardless of his scope of involvement.
120. The Government argued further that there was substantial evidence of Andrews' guilt at trial. To find "racial" ethnic discrimination in this case, the Commission would have to find that there was no other possible basis for the jury's decision to convict Andrews. It stated that there was substantial and appropriate appellate review of Andrews' claims, and that the allegation of racism was being used as an indirect means to attempt to abolish the death penalty.
121. The Government stated that "death row syndrome" was being used as an indirect means to attempt to abolish the death penalty and to undermine the rights of criminal defendants. The delay of execution was caused by the convicted criminal not by the Government. Initial review of convictions and sentences was generally automatic in death penalty case, but no one was required to file appeals. Rather the criminal convicts generally filed direct and collateral appeals for the express purpose of delaying, if not avoiding, execution. It argued that delay of execution does not cause extreme suffering, and that Andrews did not suffer during the 18 year period he was on death row. These 18 years cannot be presumed to have been worse than immediate execution, and Andrews' 18 years on death row was not "cruel, infamous, or unusual." Delay of execution ensured that his convictions and sentences were compatible with constitutional protections. It argued that delay of execution allows for rehabilitation of the convicted criminal and the possibility of commutation of the sentence.
122. The Government concluded by stating that the Commission should find that neither the death penalty itself nor the delay between sentencing and execution violated the OAS Charter or the American Declaration, and that neither the criminal justice system nor the death penalty sentencing procedures served to discriminate against him on the basis of race/ethnicity in violation of the OAS Charter or of the American Declaration. c. Petitioners' Response to Government's Argument on Merits
123. The petitioners reiterated most of their original arguments outlined above, that at the time of Mr. Andrews' trial, Mormon Church doctrine included the belief that African Americans were "dammed to death by God." That the trial was pervaded by racial controversy and fear. Public sentiment in the Weber County area was such that there were rumors of mob action, and jurors were afraid to serve, and the Prosecutor appealed to racial fears in his opening statement.55
124. The petitioners argued that the Commission has competence to look to the American Convention and other treaties in interpreting the United States' obligations under the American Declaration. The Petitioners argued that it had established a prima facie case of racial discrimination in the application of the death penalty such that the burden shifted to the United States Government. That the United States' reliance on its domestic standard which required proof of intent to establish discrimination is inapposite; moreover even if the United States could rely on its standard it is still in violation of the American Declaration.
11
125. The Petitioners argued that the United States Government failed to provide Mr. Andrews the opportunity to establish racial discrimination due to the fact that the courts: 1) failed to investigate the authorship of the note and; 2) denied him his right to an evidentiary hearing. They argued that the United States referred to the Court's finding that the "napkin incident" amounted to harmless error and therefore Mr. Andrews was not entitled to an investigation into the possibility that "race" could have played a significant role in determining the outcome of a judicial proceeding, and countered that it was the duty of the United States court system to allow the claimant to establish the possibility of jury prejudice by, at a minimum, permitting an investigation. The petitioner's argument was that:
Juror misconduct concerning outside influences must be fully investigated to determine if any misconduct actually occurred and whether or not it was prejudicial. (emphasis added) United States v. Brantley, 733 F. 2d 1429, 1439 (11th Cir. 1984), cert, denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 l.ED. 2d. 383 (1985). Failure to hold a hearing in these cases constitutes an abuse of discretion and is thus reversible error. United States v. Chiantese, 582 F.2d 974, 979 (5th. Cir. 1978, cert. denied 441 U.S. 92, 99 S.Ct. 2030, 60 L. Ed. 2d., 395 (1979).56
126. The petitioners argued further that even under the domestic standard, Mr. Andrews was never granted the opportunity to establish "racial intent" because the United States courts never investigated into the authorship of the note and denied him an evidentiary hearing to establish such prejudice. Therefore, under domestic law, Mr. Andrews was denied his right for a fair and impartial trial, and because the United States standard is less protective than the international standard.
127. The petitioners also argued that the international standard for determining racial discrimination was a "purpose or effects" test. The International Convention on the Elimination of all forms of Racial Discrimination has defined discrimination to mean:
any distinction, exclusion, restriction or preference based on race, colour, descent or national ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms.. (emphasis added)57 128. The international standard for determining prejudice or bias, set forth by the Race Convention, allows a claimant to establish racial discrimination by demonstrating either purpose or effects. Therefore, proof of intent of the actor is not the only way to establish racial discrimination. The seminal case in the international forum on the law on bias is Piersack v. Belgium, 5 EHRR 169 (1982). In Piersack, the issue of bias was based upon the fact that the trial judge was the same individual who was involved with the decision to initially prosecute the petitioner. The European Court of Human Rights held that there existed bias in the judicial proceeding and thus this constituted a violation of Article 6 of the European Convention which guarantees the right to a fair and impartial trial. Id. The Court articulated a standard for determining the existence of bias in a judicial proceeding. The test is as follows:
Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can...be tested in various ways. A distinction can be drawn in this context between a subjective
12 approach, that is endeavoring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. at para. 30.58 129. In April of 1995, this test was expanded by the European Commission of Human Rights in the case of Gregory v. United Kingdom.59 The European Commission in Gregory applied the "effects" standard and created a test for determining racial bias in a judicial proceeding. In Gregory, the defendant, who was black, was tried for robbery in the Crown Court at Manchester. According to the facts, the jury retired to deliberate at 10:46 a.m. and returned at 12:28 p.m. when a handwritten note was presented to the judge. The note stated: "JURY SHOWING RACIAL OVERTONES 1 MEMBER TO BE EXCUSED."60 The judge did not respond to this note and the black defendant was convicted. On Appeal, the defendant contended that:
discrimination took place against him on the grounds of his race... in that the trial judge allowed the jury to continue its deliberations when it was clear that one or more jurors were prejudiced against the defendant and failed to make an inquiry as to how many members were prejudiced and as to the reasons for their prejudice.61 In this case the options available to the trial judge were as follows: 1) "to make an inquiry into the authorship of the note as to its meaning (and according to the defendant, the trial judge had the ability in domestic law to make the inquires of jurors or; 2) to discharge the jury in total."62 The trial judge did nothing to respond to the potential of racial bias in this proceeding.
130. The European Commission of Human Rights found that, "[t]he defendant essentially makes the case that it was clear from the jury note that there was, at the very least, a strong objective indication of racial bias within the jury."63 The Commission looked at the international test of bias which states:
[i]f the possibility of bias on the part of the juror comes to the attention of the trial judge in the course of a trial, the trial judge should consider whether there is actual bias or not (a subjective test). If this has not been established, that trial judge or appeal court must then consider whether there is a "real danger of bias affecting the mind of the relevant juror or jurors" (objective test).64 131. The European Commission held that the case raised serious issues of fact and law on the potential of racial bias in a judicial proceeding, and deemed the case admissible, and expanded the Piersack test to include a real danger effects test. The test is interpreted to mean that there is a real danger that the action in question has discriminatory effects upon the defendant, and is quantified in terms of "possibility rather than probability."65 Therefore, if there is a real danger that the action in question could possibly have the effect of prejudicing the defendant, then the defendant was not afforded a fair and impartial trial.
132. The petitioners argued that the United States found no racial discrimination but the Commission by applying international law should find racial discrimination in the application of the death penalty. The Inter-American Commission, in the case of Willie L. Celestine,66 decided that statistical studies alone, without more, do not establish a prima facie case of racial discrimination in the application of the death penalty. The petitioners argued that William Andrews' case represents more than statistical evidence to establish that a prima facie case of racial discrimination exits. The William Andrews' case contains a specific racial incident which
13 the United States legal system chose to ignore during William Andrews' trial. It is this specific incident, and the manner in which the United States legal system dealt with the issue of potential bias infecting the trial and sentencing of William Andrews that establishes a prima facie case of racial discrimination in the application of the death penalty.
133. The petitioners reiterated their arguments on the issue of cruel, infamous, or unusual punishment and asked the Commission to grant them the relief requested, and stated that it was the same jury who found Mr. Andrews guilty and convicted him of murder that sentenced him to death. d. Government's Reply to Petitioners' Argument on Merits
134. The Government reiterated its argument that Mr. Andrews received a fair and impartial hearing. The American Declaration and the OAS Charter did not require the United States to have vacated Mr. Andrews' conviction on appeal based on the trial judge's decision not to voir dire the jury or declare a mistrial as a result of a lone juror's discovery of an anonymous, racist note. It argued that the petitioner acknowledged that the complainant bears the burden of proof to establish a case of racial discrimination in the application of the death penalty and that the Petitioner had not met its burden of proof, and had failed to come forward with any concrete evidence that any of the jurors in the trial of Mr. Andrews were either racist or influenced by the note.67
135. The Government argued that in the petitioners' flawed attempt to establish a prima facie and irrebuttable case of racial bias, the petitioner relied almost entirely on a single case of the European Commission of Human Rights. The case cited by the petitioner, Gregory v. United Kingdom,68 presented dramatically dissimilar questions of law and fact. Even if the cases were similar, the petitioner's argument would still prove deficient. The European Commission's decision in Gregory addressed only the admissibility of the claim or racial bias, not the merits of the case. The decision does not support the proposition that a racist note proves racial bias in a trial. The Gregory decision, in sum, has no bearing on whether an anonymous, racist note found by a juror creates an irrebuttable presumption of bias when the judge reasonably determined after investigation that the note was written by a non-juror and racial bias had not entered the trial.
136. The Government concluded that the Commission should dismiss the case on its merits for failing to prove a violation of the American Declaration or the OAS Charter. e. Other Submissions
137. Subsequent to the hearing on February 22, 1996, the petitioners provided the Commission with exhibits which included the following: A copy of the transcript of the afternoon Session of the Court proceeding questioning the bailiff as to the origin and place where the napkin with the words "hang the nigger's" was found; LDS Church Historical Department, 1971 census pg. 206 and formal statistical documentation of the Religion of Davis County in the State of Utah where the William Andrews case was tried; Jury Instructions in the William Andrews trial; the Utah Criminal Code of Criminal Procedure, 1953, Amendments to the Utah Criminal Code and the
14 1975 Replacement Volume of the Utah Code.69 The petitioners also forwarded to the Commission a copy of the case of Remli v. France for its consideration.70
138. The Commission received a 31 page Amicus Commisae brief from the President of Rights International, Francisco Forrest Martin; the Center for International Human Rights Law, Inc., Prof. David Baldus (Univ. of Iowa School of Law), Prof. Robert Rosen (Univ. of Miami School of Law), Prof. Burt Lockwood (Univ. of Cincinnati College of Law); which contained two main arguments.71 First, that disclosure of specific evidence of possible juror racial bias or taint requires the trial judge to examine each juror individually in order to ensure tribunal impartiality as well as to fulfill the State-Party's affirmative duty to eliminate racial discrimination. This requires the State under both international and domestic law to avoid not only bias in fact but also the appearance of bias. International law employs an "objective test" and the domestic law of countries using juries in criminal cases also requires states to avoid the appearance of bias in their tribunals.72
139. Second, under international law prohibiting the appearance of tribunal bias, statistical racial disparities in death penalty cases establish an Article XXVI violation of the American Declaration. Statistical racial disparities establish appearance of bias in seeking, sentencing, and imposition of the death penalty. Although statistical racial disparities alone many not be legally sufficient to shift the burden of proof in showing actual bias in a particular case, such disparities violate the Government's affirmative duty to eliminate appearance of tribunal racial bias under Article XXVI. The Government's measures to eliminate racial discrimination in the administration of the death penalty are ineffective requiring a moratorium on the death penalty in the United States.73 J. Hearing on Merits of Petition
140. A hearing was held on the merits of the petition on February 22, 1996. Both the petitioners and the Government of the United States participated in this hearing. The petitioners argued their case before the Commission and called Professor Stephen B. Bright, a nationally known expert in the field of capital punishment as an expert witness.74 Representatives of the United States Government were present at the hearing.75 The Government was assisted by Mr. David Yocom. 76
141. The petitioners argued the merits of the case. Its expert witness testified on the racial disparity and discrimination in the application of the death penalty in the United States.
142. The United States Government outlined the facts of the case and stated that Mr. Andrews had a fair trial, an evidentiary hearing was held, and was attended by Mr. Andrews' attorney, however, the trial judge did not voir dire the jury as to the origins of the note. The bailiff to whom the note was given, was questioned in the presence of defense attorneys, and Mr. Andrews attorney's motion for a mistrial was denied by the trial judge,77 and the trial continued with the same members of the jury.
V. ISSUES TO BE DECIDED ON THE MERITS OF PETITION
15 143. Did the action of the United States in trying, convicting, sentencing, and executing William Andrews on July 30, 1992 constitute violations of the American Declaration of the Rights and Duties of Man, in particular, Article I, the right to life, liberty and personal security, Article II, the right to equality before the law and Article XXVI, the right to an impartial hearing, and not to receive cruel, infamous or unusual punishment?.
VI. ANALYSIS
144. The petitioners allege violations of the following Articles of the American Declaration which provide:
a. Article I - Every human being has the right to life, liberty and the security of his person. b. Article II - All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor." c. Article XXVI - Every accused person is presumed to be innocent until proved guilty. Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment. 145. At the Commission's 88th period of Sessions it concluded that the alleged facts raised in the petition constituted questions of a human right violation within the meaning of Article 41(b) of the Commission's Regulations.
146. The Commission finds that the petitioners have established a prima facie case of human rights violations of the American Declaration and have met their burden of proof. The petitioners' main contentions are that 1) William Andrews' right to life was violated; 2) he was not treated equally at trial because of his race; 3) he did not receive an impartial hearing and he was subjected to cruel, infamous or unusual punishment. The issue of impartiality will be dealt with first; second, the issue of equality; third, the issue of the right to life; and finally, the issue of cruel, infamous or unusual punishment.
A. Did Mr. Andrews Have a Fair and Impartial Hearing?
147. Article XXVI of the American Declaration, paragraph 2 provides: "Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment." This Article refers to four rights: i) every accused person is presumed to be innocent until proved guilty, ii) every person accused of an offense has the right to be given an impartial and public hearing, iii) and to be tried by courts previously established in accordance with pre-existing laws, iv) and not to receive cruel, infamous or unusual punishment. 148. The issues in this case come within the ambit of the second and fourth rights. However, the Commission will address the second right "every person accused of an offense has the right to be given an impartial and public hearing," first, and will address the fourth right under the relevant heading later in this Report. Upon examining all arguments, documentary and testimonial evidence including exhibits submitted to it, the Commission notes that: Mr. Andrews was tried, convicted, sentenced, and executed by the State of Utah on three counts of first degree murder,
16 and two counts of aggravated robbery, which occurred after he participated in the robbery of a radio store. He was tried in the State of Utah where the teaching of the Mormon church doctrine prevailing at the time of his trial, was that all black people were damned to death by God and were inferior beings. This doctrine was changed after the trial and conviction of the victim, Mr. Andrews. a) Petitioners' Evidence
149. The Commission has noted the petitioners' argument and their evidence: exhibits reflecting a copy of the "napkin" depicting the racial notation; a copy of the transcript of the afternoon Session of the Court Proceeding questioning the bailiff as to the origin of the napkin; LDS Church Historical Department, 1971 census page 206, which shows that the jury venire was drawn from Davis County, in the State of Utah where the petitioner was tried, 73.9 % of that community was of the Mormon religion; the Code of Criminal Procedure, 1953, Amendments to the Utah Criminal Code, 1978 Replacement Volume of the Utah Code of Criminal Procedure; Jury Instructions in the William Andrews' trial; and the domestic and international case law cited. b) Proceedings in the Trial Court/Napkin i. The Bailiff's Testimony
150. The Commission, upon examining the trial transcript of the proceedings referring to the "notation on the napkin," noted, that a hearing was held in the afternoon session of the trial proceedings, on the renewal of a motion to sequester the jury and a motion for a mistrial by the co-defendants attorney, including William Andrews' attorney in the absence of the jury, after the jurors returned from lunch. The trial transcript of the testimony of the bailiff, Thomas R. Linox, to whom the napkin was given by a member of the juror reveals the following: On the day in question, November 4, 1974, he was in the company of the jurors in Lee's restaurant where they went for lunch on that day, shortly after they had been seated a Mr. Weaver, one of the jurors said, "bailiff I have some evidence for you...", and gave him a napkin. The bailiff said that "myself as well as some of the other people thought it was one of Mr. Weaver's jokes, he is quite a hilarious gentleman. So I went up there very honestly at first thinking I was just humoring a joke and that is when he produced that napkin with the writing that you see on it.78 He had not seen the napkin prior to the time that he had handed it to him, and stated that the napkin was with Mr. Weaver's regular place setting, the blank portion of the napkin showing to anyone who would have cared to walk along the table. It had the appearance of any other napkin until, according to him, he turned it over to open it up and that is when he saw the writing that the judge had before him. The bailiff read the words on the napkin "hang the niggers," and described the drawing on the napkin as "a character of a gallows and a stick figure hanging therefrom."
151. The bailiff was asked the following questions: "Was this, Pierre's exhibit No.4, discussed or shown to other prospective jurors?"79 He replied: "I do believe the people immediately to the left and the right of Mr. Weaver would have had to
17 have seen it. I couldn't say with any degree of certainty." The bailiff was then asked: "After the napkin was handed to you, what, if any conversations existed between jurors and yourself or Mr. Weaver and other jurors, in your presence?" He responded: "Nothing pertinent to that. They felt it was that important that I should have it to show the court and nothing more was discussed. There was no comments one way or another about it. There was some concern shown on the part of some of the jurors who asked me directly, 'do you think this will affect our present situation as far as where we are eating or what the court may do about this.' I said, I have no idea. That is a matter for the court to decide."80 152. Upon further examination the bailiff was asked by Mr. Davis: "Mr. Linox, do you think perhaps one of the jurors themselves could have drawn that? Are you able to make such a conclusion that it was possible or not? That is what I want to know?" He responded, "Mr. Davis, I say it is possible, that small amount, that much time could have lapsed." 81 ii. The Trial Court's Action
153. The Court asked the bailiff the following question:
"Did I tell you to say anything to Mr. Weaver?" The bailiff stated that: "You did" and stated that "I admonished Mr. Weaver not to mention the incident any further, to let the issue die." The judge then asked the bailiff, "have you been able to do that?" the bailiff responded, "I have." The judge then asked the bailiff, "did he say anything to you?" the bailiff responded, "he said he would." 82 154. There is language in the trial transcript which shows concern expressed by a defense attorney. He requested of the Court that, "the jury be sequestered, that they be put under guard that would guard against influencing this jury which is accumulative now, with the talk in the hallway, now this action."83 The trial court denied the motions to sequester the jury and for a new trial and stated that "the only thing that this kind of foolishness can do is cause the trial to start all over again. It is that foolish, but I will deny your motions at this time."84 c) Appellate Review of Mr. Andrews' Case 155. Mr. Andrews has had several reviews of his case by the United States' Courts to no avail. The Supreme Court of Utah held that the following admonishment by the trial court to the jury when they returned to trial was sufficient to cure any prejudice which might have occurred: "...Occasionally some foolish person will try to communicate with you. Please disregard the communications from foolish persons and ignore the same ....Just ignore communications from foolish people." 85
156. The United States Supreme Court denied Mr. Andrew's motion for certiorari. However, two of the Justices, Marshall and Brennan in the Supreme Court dissented. The note was referred to as "a vulgar incident of lynch-mob racism reminiscent of Reconstruction days."86 Justice Marshal referred to the denial of due process by stating that Mr. Andrews merely sought an evidentiary hearing to determine the origins of the note, and that "the Constitution [of the United States], not to mention common decency, require[d] no less than this modest procedure."87 Justice Marshall stated:
18 Was it one or more of [Mr. Andrews'] jurors who drew a black man hanging on a gallows and attached the inscription, "Hang the niggers"? How many other jurors saw the incendiary drawing before it was turned over to the bailiff? Might it have had any effect on the deliberations? 88
d) United States Domestic Law
157. The Fifth Amendment of the Constitution of the United States of America 1787 provides: "No person shall be held to answer for a capital, or otherwise infamous crime ... nor deprived of life, ... without due process of law...." The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." The Commission notes the principles enunciated by the Courts in the United States. The United States Supreme Court held in the Rosales-Lopez v. United States, that a "reasonable possibility" of juror bias is sufficient to find reversible error for a federal court's refusal to ask venire-persons about possible racial bias."89 Jury misconduct concerning outside influences must be fully investigated to determine if any misconduct actually occurred and whether or not it was prejudicial.90 Failure to hold a hearing in these cases constitutes an abuse of discretion and is thus reversible error.91
158. The Code of Criminal Procedure for the State of Utah requires the Court to admonish the jury at each adjournment... that it is their duty not to converse among themselves nor with any one else on any subject connected with the trial, and not to form or express any opinion thereon until the case is finally submitted to them.92 Under the Code jurors can be challenged in the State of Utah on "peremptory" grounds, and for "cause" (for bias-opinion) and can be examined as to such bias-opinion93 by the Court. Such challenges are made prior to the commencement of a trial. e) The International Standard on Impartiality
159. The international standard on the issue of "judge and juror impartiality" employs an objective test based on "reasonableness, and the appearance of impartiality." The United Nations Committee to Eliminate Racial Discrimination has held that a reasonable suspicion of bias is sufficient for juror disqualification, and stated that: "it is incumbent upon national judicial authorities to investigate the issue and to disqualify the juror if there is a suspicion that the juror might be biased."94 The Commission notes that in the European System of Human Rights an objective test was enunciated in the cases of Piersack v. Belgium,95 and Gregory v. United Kingdom. 96
160. In the case of Remli v. France the European Court of Human Rights referred to the principles laid down in its case-law concerning the independence and impartiality of tribunals, which applied to jurors as they did to professional and lay judges and found that there had been a violation of Article 6(1) of the European Convention For the Protection of Human Rights and Fundamental Freedoms.97 That Article provides that: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing...by an independent and impartial tribunal established by law...."98
19 161. The European Court considered that Article 6(1) of the Convention imposed an obligation on every national court to check whether, as constituted, it was "an impartial tribunal" within the meaning of that provision where, as in the instant case, that was disputed on a ground that did not immediately appear to be manifestly devoid of merit. In Remli's case the Rhone Assize Court had not made any such check, thereby depriving Mr. Remli of the possibility of remedying, if it had proved necessary, a situation contrary to the requirements of the Convention. 99
162. The Commission has noted the United States Government's argument that the admonishment by the trial court to the jury to disregard communications from foolish people was appropriate. It has also noted its argument that the jury was not racist because Mr. Andrews' co- defendant, Keith Roberts, who was African American, and whose counsel was African American and also charged with murder, was not convicted of murder, nor sentenced to death; and the attorneys for the other two co-defendants were not African American. The Commission finds that these factors are not dispositive of whether the United States violated the Articles of the American Declaration as pertaining to Mr. William Andrews' right to an "impartial hearing." The Commission has also noted that Mr. Andrews' other co-defendant who was African American was convicted and sentenced to death by the State of Utah, and executed in 1987.
163. The United States Government's evidence produced at the hearing on the merits of the case before the Commission through the testimony of its own witness Mr. Yocum, Assistant Attorney General of Utah substantiates the petitioners' case. Mr. Yocum testified that the jury members were not questioned by the trial judge about the note. The trial judge held a hearing, but only the bailiff was questioned. The judge denied the motion for a mistrial and proceeded to trial with the same members of the jury.
164. Conclusion: The Commission finds that the United States has not disputed that a napkin was found by one of the jurors, and given to the bailiff (who took the jurors to lunch in a restaurant) with words written in black stating "hang the nigger's" and a figure drawn in black hanging therefrom. Nor has it disputed that the napkin was brought to the attention of the trial judge who questioned the bailiff as to its origin.
165. The Commission finds that in assessing the totality of the facts in an objective and reasonable manner the evidence indicates that Mr. Andrews did not receive an impartial hearing because there was a reasonable appearance of "racial bias" by some members of the jury, and the omission of the trial court to voir dire the jury tainted his trial and resulted in him being convicted, sentenced to death and executed. The record before the Commission reflects ample evidence of "racial basis."
166. First, Mr. Andrews was a black male, and was tried by an all white jury some of whom were members of the Mormon Church and adhered to its teachings that black people were inferior beings.100 The transcript reveals that the bailiff testified that when the juror told him he had some evidence for him, both the bailiff and some of the other jurors thought that it was one of the juror's jokes which they were humoring and there was discussion among the jurors concerning the "napkin."101
20 167. Second, was the conduct and manner, in which the note was handed to the bailiff by the juror. (See trial transcript, the bailiff thought he was humoring a joke.) The note depicts racial words "hang the nigger's," written on the napkin that was given to the Court. (See the opinions of Justices Brennan and Marshall.) The trial transcript states "Hang the Niggers," and the drawing on the napkin was described by the bailiff as "a gallows and a stick figure hanging therefrom."102 The transcript refers to express language by the bailiff, that the jurors who were immediate to the left and the right of Mr. Weaver, (the juror who found the napkin) would have had to have seen it. The jurors asked the bailiff, if it would affect their present situation and what the court may do about it.103 The bailiff himself stated under oath that it was possible that one of the jurors could have drawn that note because "that small amount, that much time could have elapsed".104
168. Third, the admonishment by the trial court to the jury was inadequate. The trial judge at the very least if he did not want to grant a mistrial, should have conducted an evidentiary hearing of the jury members to ascertain whether some of them had seen the note and they had been influenced by it. The trial judge instead, warned them against foolish people, and questioned the bailiff and left such an important and fundamental issue for the bailiff, whom he instructed to admonish the juror who found the note. The trial judge appeared to be more concerned to continue the trial with the same members of the jury without questioning them, as to whether they had seen the note, and denied both motions to sequester the jury and for a mistrial.
169. Fourth, in addition to the note being found, there is language in the trial transcript which indicates the concern expressed by the defense attorneys, that two things had occurred during the trial, "the talk in the hallway, and the note," which would influence the jury members in their deliberations and in making their decisions, and which language had become accumulative.
170. It should be noted that while it is not the function of the Inter-American Commission on Human Rights to act as a quasi-judicial fourth instance court and to review the holdings of the domestic courts of the OAS member states,105 it is mandated by its Statute and its Regulations to examine petitions alleging violations of human rights under the American Declaration against member States who are not parties to the American Convention.106
172. Therefore, the Commission finds the United States in violation of Article XXVI, paragraph 2, of the American Declaration, because Mr. Andrews had the right to receive an impartial hearing as provided by the Article, and he did not receive an impartial trial in United States Courts. In capital punishment cases, the States Parties have an obligation to observe rigorously all the guarantees for an impartial trial. 107
B. Did Mr. Andrews Receive Equal Treatment Without Distinction as to Race?
173. Article II provides: "All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor." This Article has been defined as "the right of everyone to equal protection of the law without discrimination."108 This right to equality before the law means not that the substantive
21 provisions of the law will be the same for everyone, but that the application of the law should be equal for all without discrimination.109 The provision was intended to ensure equality, not identity of treatment, and would not preclude reasonable differentiations between individuals or groups of individuals." 110
174. The Commission finds that on the basis of the above definitions and interpretations, Mr. Andrews had a right to an impartial hearing as required by Article XXVI of the American Declaration. He also had a right to be treated equally at law without discrimination. The facts reveal that he was not treated equally at law without discrimination, and he did not receive an impartial hearing at trial because of evidence of "racial bias" during his trial. Therefore, the Commission finds that the United States violated Mr. Andrews' right to equality at law pursuant to Article II of the American Declaration.
C. Was Mr. Andrews' Right to Life Violated?
175. With regard to the petitioner's claim that the United States violated Article I of the American Declaration, Article I provides: "Every human being has the right to life, liberty and the security of his person." Article I is silent on the issue of the death penalty. However, when the definitive draft of the "Project of Declaration of the International Rights and Duties of Man, formulated by the Inter-American Juridical Committee," was presented for consideration by the Ninth International Conference of American States in 1948, the original Article I, provided:
Every person has the right to life. This right extends to the right to life from the moment of conception; to the right to life of incurables, imbeciles and the insane. Capital punishment may only be applied in cases in which it has been prescribed by pre-existing law for crimes of exceptional gravity.111 176. The explanation given for the amendment of the last part of Article I was stated by the Committee as follows:
The Committee is not taking sides in favor of the death penalty but rather admitting the fact that there is a diversity of legislation in this respect, recognizes the authority of each State to regulate this question. The Committee must note that several constitutions of America based on generous humanitarian conceptions, forbid the legislator to impose the said penalty.112 177. Thus, the construction of Article I of the Right to Life of the American Declaration does not define nor sanction capital punishment by a member State of the OAS. However, it provides that a member State can impose capital punishment if it is prescribed by pre-existing law for crimes of exceptional gravity. Therefore, inherent in the construction of Article I, is a requirement that before the death penalty can be imposed and before the death sentence can be executed, the accused person must be given all the guarantees established by pre-existing laws, which includes guarantees contained in its Constitution, and its international obligations, including those rights and freedoms enshrined in the American Declaration. These guarantees include, the right to life, and not to be arbitrarily deprived of one's life, the right to due process of law, the right to an impartial and public hearing, the right not to receive cruel, infamous, or unusual punishment, and the right to equality at law. Evidence produced to the Commission was sufficient to prove that Mr. Andrews did not receive an impartial trial because the trial court failed to grant Mr. Andrews
22 an evidentiary hearing for the reasons discussed above. The Commission therefore finds, that Mr. Andrews' right to life was violated because he was tried by an impartial and incompetent court which did not provide him with equal treatment at law. Therefore, the Commission finds for the reasons discussed above that Mr. Andrews' right to life was violated by the United States pursuant to Article I of the American Declaration.
D. Did Mr. Andrews Receive Cruel, Infamous or Unusual Punishment?
178. With regard to the question whether Mr. Andrews received cruel, infamous, or unusual punishment, the Commission finds that in this case the death penalty was not rendered by an impartial and competent court for the reasons discussed above. It was rendered by the same jury who found Mr. Andrews guilty. Mr. Andrews did not receive equal treatment at law, and his right to life was violated. He spent eighteen years on death row, and was not allowed to leave his cell for more than a few hours a week. During that time he received notice of at least eight execution dates and was executed by the State of Utah in July of 1992 on the basis of the jury's decision which was tainted because of evidence of "racial biasness" on their part. Therefore, for the reasons discussed above, the Commission finds that the United States violated Mr. Andrews' right not to receive cruel, infamous or unusual punishment pursuant to Article XXVI of the American Declaration.
179. The argument of the United States Government with regard to William Andrews' duty under Articles XXIX, and XXXIII of the American Declaration is noted. The Commission cannot however, examine William Andrews' actions because he is not a member State of the Organization of American States. The Commission can only examine and make findings under the American Declaration of the Rights and Duties of Man and the American Convention and other Treaties in the inter-American system against States who are members of the Organization of American States and who are States Parties to the Declaration and Treaties.
180. Reference has been made to the Celestine and the Roach and Pinkerton cases by the parties in their argument. The Celestine case dealt with the issue of generalized racism in Louisiana and the exclusion of jurors who indicated that they would automatically vote against imposition of the death penalty at the sentencing stage of the trial without regard to the evidence presented. This resulted in Celestine being sentenced by a death-qualified jury. Celestine relied on statistical studies to substantiate his case. The Commission found that Celestine had not provided sufficient evidence that the statistical studies presented made out a prima facie case to prove the allegations of racial discrimination and partiality, in the imposition of the death penalty such as to shift the burden of proof to the United States.
181. The Roach and Pinkerton cases dealt with the issue of the disparity in the application of the death penalty to juveniles in the United States, vis a vis among states. The punishment was not based on the nature of the crime committed but on the location where it was committed and the Commission found violations of the Articles I the right to life, and II, the right to equality before the law of the American Declaration.
182. In this case, reference is made to a specific issue of "racial bias" during the trial of William Andrews and evidence, which substantiated the petitioners' case, was provided to the
23 Commission. The Commission limits its findings of violations to this case, based on the evidence it received.
183. Conclusion: Based on the reasons and findings discussed above, the Commission finds that the United States has violated Mr. William Andrews' rights pursuant to Articles I, (the right to life) II, (the right to equality before the law) XXVI (the right to an impartial hearing, and the right not to receive cruel, infamous, or unusual punishment) of the American Declaration of the Rights and Duties of Man.
THEREFORE THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS FINDS THAT:
184. The United States violated William Andrews right life pursuant to Article I of the American Declaration.
185. The United States violated William Andrews right to equality at law pursuant to Article II of the American Declaration.
186. The United States violated William Andrews right to an impartial hearing pursuant to Article XXVI of the American Declaration.
187. The United States violated William Andrews right not to receive cruel, infamous, or unusual punishment pursuant to Article XXVI of the American Declaration.
THE COMMISSION RECOMMENDS THAT:
188. The United States must provide adequate compensation to Mr. William Andrews' next of kin for the violations referred to in paragraphs 184 to 187 above.
VII. PUBLICATION:
189. On January 22, 1997, the Commission wrote to the Government of the United States of America and enclosed a copy of this Report, and requested that it "inform the Commission as to the measures that have been adopted to comply with the recommendations made to resolve the situation denounced within two months."
190. On March 14, 1997, the United States of America replied by letter to the Commission's request, and informed it inter alia that Mr. Andrews received an impartial trial free of racial bias, and stated that for the reasons stated in its letter and its prior detailed submissions, that it "cannot agree with the Commission's findings, or carry out its recommendations."
191. The Commission, considering that the United States of America has not complied with its recommendations, decides to ratify its conclusions and recommendations contained in this Report; and also decides that this Report be published in accordance with Article 54(5) of its Regulations in its Annual Report to the General Assembly.
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