Human rights implementation through stronger institutions

Eric Sottas, Director, World Organisation Against Torture

First of all I would like to thank the organizers for this invitation and to congratulate them for this dramatic step, because I think the problem of implementation is today one of the most difficult we have to address. I remember some years ago I was in Colombia speaking with some people who were some survivors of massacres in that country. They told me that they were very tired of training programmes, information etc., and what they needed was real protection and implementation of rights when violations were taking place.

The big advantage to speak after Bertrand Ramcharan and Param Cumaraswamy is that I don’t need to spend time to enter into the question of the independence of judiciary. It has been dealt with very comprehensively. I will address another question that is complementary, which is the necessity to have stronger states and stronger international institutions. By stronger states I don’t mean authoritarian states, but states able to really implement the rule of law. One of the problems we are facing at this moment is not only at the level of civil and political rights but at the level of all rights. As an organization fighting against torture [World Organisation Against Torture—OMCT] we have from the beginning tried to have a comprehensive approach that torture is not a problem per se but a result of different types of violations. Torture as it is mentioned in this excellent introduction—occurring more in the developing countries—is not a question of a culture of violence like we sometimes have here. It is also not a question of difference of attitudes. It is linked more to socio-economic problems. Under such circumstances I don’t think that programmes for peace culture such as we have here will help a lot. People are not peaceful or violent because of the culture but the conditions in which they live.

From the beginning in the 1980s OMCT decided to study least-developed countries, to see what kind of linkages exist between their economic difficulties and the torture, disappearances and massacres taking place more often in these countries. One of the findings of our research was that in fact torture has developed in states where social tensions are exacerbated due to unfair distribution of national revenue. In other words, it is not poverty in itself that generates violence, but the wealth gap that exists in the same societies. If these disparities are felt more, and when the basic needs for food and health are not satisfied, resulting frustration often leads to indiscriminate violence. The elite often appears to be incapable of adopting sufficient measures, as they do not dare to endanger the privileges that legitimize their power, resulting in more severe repression.

I think what is important here is to know that unfair wealth distribution and the non-satisfaction of basic needs are probably the two elements that expand violence in society. Unfair distribution, I would say, is the same all over the world. If you compare how revenue is distributed in a developed country like Switzerland, you will see that the gap is tremendous. But the basic needs of the population are secured. In some other countries it is the opposite. If you take the case of Tanzania, some basic needs are not covered but the distribution is more equal, and the tension is reduced. But the combination of both things—unfair revenue distribution and non-satisfaction of basic needs—is one explanation for the tension, repression and torture. This situation is basically the violation of economic rights. Unfortunately, even if these rights are recognised, even these rights are included in instruments, they are never implemented because they are considered problematic rights. I think it is a wide debate and the question to consider rights that have to be implemented by the judiciary should not only focus on civil and political rights.

The second point I would like to underline is the interaction between rights. Like I said before, torture takes place more where the economic and social situation is deteriorating. So I think it is one of the things we have to keep in mind. But if we want that type of situation to be reversed or if we want to build up against this vicious circle—so that respect of economic rights will not only lead to the respect of civil rights but also to a society where the socio-economic performance would increase—we have to consider necessary regulations that can be implemented. All of us know that this is exactly the opposite of what has been happening in the last two decades. The tendency has been to reduce the power of the state: while calling for less powerful states at the same time people have been speaking about the rule of law. But how do you enforce the rule of law between unequal partners if the state is not strong enough? And this is the same at the international level. We have the tendency to reduce power and the financial resources for inter-governmental organizations at the moment, when we need them more.

This Commission (UNCHR) is currently facing a crucial problem: the confrontation between Israel and Palestine is coming closer to war, which will affect the whole region. We can see that the Commission, the Security Council, the High Commissioner [for Human Rights] and Secretary General are calling for respect of the decisions taken and respect of the conventions. Israel is ignoring these conventions and resolutions and they are trying to impose their own law, which is the law of the strongest. Unfortunately, they are backed by a big power, and in fact the one big power. So at this moment it is not only the problem of Israel and Palestine at stake, it is the survival of an international system that is able to regulate. I think the problem we are facing is that we have norms that are very sophisticated and never implemented—or hardly implemented—in most of the countries, or between countries. If we don’t have an international system able to impose solutions that have been adopted and given force to different decisions, how can we expect governments to implement this international law? How can we just rely on the judiciary if they don’t think that they are backed by these institutions? So I really think that this is one of the questions this Commission should address. My concern is that there have been similar situations like this before, but this is a more dangerous moment.

I repeat that it is a very important point that you have put on the table. Implementation of rights, particularly in a globalised system, is not only a question of the judiciary in a country but also the international regulating system that we have to take into consideration.

Comments arising out of questions from the floor

A very brief comment about the machinery we have to develop to protect human rights. For me, good governance is not a human rights concept; it is a political concept. Human rights concepts are clearly established by the international system, through rules binding for all the states—if they have ratified or not is another question. In the process of developing some machinery or mechanisms like the Baltic Agreements, etc., all these systems are not making reference to good governance but making clear reference to the treaties and binding elements of international law as fundamental norms for a treaty between two states. In other words, when a treaty is ratified in this system states have an obligation to respect human rights and in case they are not respected, it is considered a breach. I think here we have a lot of work to do. We have to develop a system where we are putting economic agreement and respect of human rights at the same level. I think if we are not making an effort at this level the judiciary in a country can be under pressure from the executive and also from the abroad. We need to have a comprehensive human rights policy in which we are active partners to create mechanisms that are implemented. The importance of this is that there is a tendency towards the opposite. The idea is that we go from soft law to hard law. But we are witnessing hard law becoming soft law. It is the flexibility needed to adapt to the new situation. And I think for the population it has a double effect: first the laws are no longer protecting people, and secondly confidence in the system is completely undermined.

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