HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF The Westminster Consortium Human Rights And Parliaments: Handbook For Members And Staff March 2011 HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF CONTENTS CONTENTS Acknowledgements 9 Foreword 11 The Westminster Consortium 13 This handbook 15 PART I 1. Introduction 17 Why human rights? 17 Good governance, the rule of law and human rights 18 Sharing responsibility: a democratic dialogue on rights 19 2. Protecting human rights 21 The international human rights legal framework 21 INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 21 RESERVATIONS AND DECLARATIONS: CAN STATES OPT-OUT OF MINIMUM HUMAN RIGHTS STANDARDS? 23 MAKING RIGHTS REAL 25 Supervision, monitoring and implementation of international human rights law 25 THE REPORTING PROCESS 25 ENFORCEMENT BY STATES PARTIES 28 INDIVIDUAL COMPLAINTS: THE RIGHT OF INDIVIDUAL PETITION 30 INDEPENDENT INQUIRIES BY UN TREATY BODIES 34 NATIONAL PROTECTION MECHANISMS 34 CONTENTS HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF OTHER UN STANDARDS 36 THE HUMAN RIGHTS COUNCIL 38 Regional protection of human rights 40 AFRICA 40 THE ARAB REGION 41 EUROPE 41 THE COUNCIL OF EUROPE 41 THE EUROPEAN SOCIAL CHARTER 42 THE EUROPEAN CONVENTION AGAINST TORTURE AND THE COMMIttEE FOR THE PREVENTION OF TORTURE 42 THE COUNCIL OF EUROPE COMMIssIONER FOR HUMAN RIGHts 43 THE CHARTER OF FUNDAMENTAL RIGHts OF THE EUROPEAN UNION 43 Domestic protection of human rights 44 CONSTITUTIONAL BILLS OF RIGHTS 44 LIMITATIONS ON LEGISLATIVE OR EXECUTIVE POWER 46 COMPLIANCE WITH INTERNATIONAL STANDARDS 48 LEGISLATIVE PROTECTION AND REVIEW 49 3. What do human rights mean for States? 49 Who is the State? 49 4. Suggested questions for parliamentarians 52 Table Footnotes Part I 53 PART II 1. What are human rights? 55 Civil and political, economic, social and cultural rights 55 HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF CONTENTS Rights are universal, indivisible and interdependent 57 UNIVERSAL 57 INALIENABLE, INDIVISIBLE AND INTERDEPENDENT 59 Everyone is equal in human rights law 60 Respect, protect and fulfil 61 Absolute, non-derogable, derogable and qualified rights 62 The obligation of progressive realisation 70 Rights and remedies 70 2. Human rights in practice 77 Equality and non-discrimination 77 UNLAWFUL DISCRIMINATION: ‘OTHER STATUS’ 82 JUSTIFIED DISTINCTIONS 84 Action to ensure equality 86 3. The right to life 91 The death penalty 97 Deaths in custody 99 Abortion and the right to life 101 4. The prohibition on torture, inhuman and degrading treatment and punishment 105 Law enforcement personnel 110 Deportation and extradition 111 Treatment of vulnerable persons 113 5. The right to liberty 116 6. The right to a fair hearing 123 Special protection in criminal cases 124 CONTENTS HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF Special courts 125 Administrative decision making 128 7. The right to privacy and respect for private and family life 132 What is the right to privacy? 132 8. The right to freedom of thought, conscience and religion 134 9. Freedom of expression and freedom of association 137 Public protests 144 ‘The right to offend’ 145 Media regulation and freedom of the press 146 Censorship 148 10. Economic, social and cultural rights 149 Food 150 Clothing 152 The right to housing 153 11. The right to education 156 12. The right to work and other labour rights 159 13. The right to health 164 Table Footnotes Part II 169 PART III 1. Parliaments and human rights 173 Parliaments that represent us all 173 Parliamentarians and freedom of expression 176 Parliaments and corruption 176 HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF CONTENTS Parliamentary resources 179 Parliamentarians as human rights defenders 179 Human rights standards and standard setting 182 Legislative scrutiny 183 STATEMENTS OF COMPATIBILITY AND OTHER FEATURES OF LEGISLATIVE SCRUTINY 186 SAMPLE STATEMENT OF COMPATIBILITY 186 Oversight of government 190 EXECUTIVE AND ADMINISTRATIVE ACTIVITY 190 EFFECTIVE PROTECTION OF HUMAN RIGHTS BY EXECUTIVE AND ADMINISTRATIVE BODIES 191 NATIONAL HUMAN RIGHTS INSTITUTIONS 193 A NATIONAL ACTION PLAN FOR HUMAN RIGHTS? 197 BUDGETARY ANALYSIS FOR HUMAN RIGHTS COMPATIBILITY 199 Scrutiny of human rights judgments 201 Monitoring compliance with UN and regional treaties 204 2. Parliamentary tools for human rights protection 206 Individual parliamentarians working on human rights issues 206 PARLIAMENTARY QUESTIONS AND OTHER PROCEDURES 206 MEMBERS’ LEGISLATION 207 CAUCUSES AND PARLIAMENTARY GROUPS 208 THE IPU/CPA 209 Parliamentary committees 209 Dedicated human rights committees 210 Specialist issue-based human rights committees 212 Mainstreaming human rights scrutiny? 212 CONTENTS HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF The right tools for the job? 214 ACCESS TO INDEPENDENT, IMPARTIAL LEGAL ADVICE 214 ACCESS TO OTHER SPECIALIST SUPPORT AS NECESSARY 214 3. Supporting parliamentarians to protect human rights 217 Identifying human rights issues 217 INDICATORS FOR HUMAN RIGHTS COMPLIANCE 219 Providing parliamentarians with effective support on human rights issues 221 WORKING EFFECTIVELY WITH GOVERNMENT, CIVIL SOCIETY AND INTERNATIONAL ORGANISATIONS 226 ENHANCING TRANSPARENCY AND PUBLIC ENGAGEMENT 226 EFFECTIVE FOLLOW-UP BY PARLIAMENTS: AN ONGOING DIALOGUE ON HUMAN RIGHTS ISSUES? 230 Annex Glossary of acronyms 231 Domestic resources 234 International law resources 250 Regional human rights law resources 254 Comparative practice 263 Parliaments and human rights 266 HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF ACKNOWLEDGEMENTS Acknowledgements The International Bar Association’s Human Rights Institute (IBAHRI) wishes to give special thanks to Angela Patrick, Assistant Legal Adviser, Joint Committee on Human Rights (JCHR) who took primary responsibility for developing and writing this Handbook, and to JCHR staff who commented on the draft. The Handbook stems from several workshops the IBAHRI has organised in partnership with The Westminster Consortium for Parliaments and Democracy (TWC). The IBAHRI would like to thank George Kunnath (Programme Manager, TWC) for the significant role he has played in mentoring these programmes. The workshops and Handbook would not have been possible without the dedicated support of TWC Country Managers and local partners who provided comments on the draft. Thanks go to Walid Abdurahim (Faculty of Law, Lebanese University), Paul Comoane and Armando Cuemba (Centre for Human Rights, Eduardo Mondlane University, Mozambique), Giiorgi Gotsiridze (Georgian Young Lawyers Association), Thea Kentchadze (Georgia), Oksana Klymovych (Centre for European Integration, Ukraine), Jill Kyatuheire (Uganda), Farida Mamad (Centre for Human Rights, Eduardo Mondlane University, Mozambique), Felizaberto Mulhovo (Mozambique) Sheila Muwanga (Foundation for Human Rights Initiative), Livingstone Sewanyana (Foundation for Human Rights Initiative, Uganda), Halyna Shevchuk (Ukraine) and Hovig Wannes (Lebanon). Jenny Marsh, former IBAHRI Programme Lawyer, played an invaluable role in developing the workshops and handbook. IBAHRI interns, Faye Bovingdon, Sophia Harris, Martina Magnarelli, Kayla Martin, Yasser Vanderman, Elizeta Velado, Camilla Whitehouse and Olivia Wybraneic, are also thanked for their assistance. The generous financial support received from the Department for International Development’s Governance and Transparency Fund for this publication is gratefully acknowledged. Angela Patrick is a qualified barrister and is one of two human rights lawyers working with the JCHR. She has advised on a range of human rights issues and has held academic posts as visiting fellow of the Institute of Advanced Legal Studies in London and at University College, London. She holds a First Class LLB from Durham University and a First Class LLM from Cambridge University. Any comments or commentary on the work of the Committee are those of the author, Angela Patrick, and should not be attributed to the JCHR, its members or the House of Commons. Material contained in this report may be freely quoted or reprinted, provided credit is given to the International Bar Association. MArch 2011 9 ACKNOWLEDGEMENTS HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF The IBAHRI works to promote, protect and enforce human rights under a just rule of law. The IBAHRI operates under the belief in the fundamental right of the world’s citizens to have disputes heard and determined by an independent judiciary, and for judges and lawyers to be able to practise freely and without interference. In order to advance human rights and the rule of law across the globe the IBAHRI undertakes a variety of projects to build capacity, lobby for change and highlight issues of international concern to the public, the media and the legal community. Further details about the Institute’s work can be found at: www.ibanet.org/IBAHRI.aspx 10 MArch 2011 HUMAN RIGHTS AND PARLIAMENTS: HANDBOOK FOR MEMBERS AND STAFF FOREWORD Foreword Every democracy worthy of the name ensures government under the rule of law, by an independent judiciary and through the effective protection of the rights and freedoms recognised as universal by the United Nations in 1948 and given specific content in the UN International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, as well as in later conventions. A functioning democracy will ensure that there is access to justice and to effective remedies for violations