01. article 2 ~ Hong Kong Launch
The launch of “article 2” in Hong Kong was held on Monday 11 March 2002 at the Hong Kong Christian Institute meeting hall.
02. International Launch of the “article 2 ” (3 April, 2002, United Nations, Geneva)
05 April 2002
ALRC Media Release / ALRC Statement
The International Launching of the Bi-monthly – article 2
The international launch of the article 2 was successfully held on the 3 April 2002 at the United Nations Office in Geneva, Switzerland on the occasion of the 58th Session of the Commission on Human Rights. The event was attended by a number of members of the NGO community, state delegations and the press. The event proceeded with the format of speeches by a panel of speakers and a discussion. The speakers at the launching were: Dr. Bertrand Ramcharan, the Deputy High Commissioner for Human Rights, Mr. Param Cumaraswamy, Special Rapporteur on the Independence of Judges and Lawyers, Mr. Eric Sottas, Director of the World Organization Against Torture (OMCT) and Mr. Basil Fernando, Executive Director of the Asian Legal Resource Centre (ALRC) and the Asian Human Rights Commission (SAHRC). The event was chaired by Mr. Sanjeewa Liyanage, Executive Officer of the ALRC and AHRC. All the speakers congratulated the ALRC for taking the initiative to launch this publication which is on the important theme of implementation of rights.
Dr. Ramcharan pointed out that in the drafiting of the International Covenant on Civil and Political Rights (ICCPR), the implementation of rights played a very important part and that the availability of remedies before courts are important to make rights meaningful. He further said that judicial intervention is central in the promotion of human rights and judges bear responsibility to assist the wholesome growth of the society and to contribute to its stability and respect for rights.
Mr. Param Cumaraswamy said that during the last 50 years the international community has concentrated on formulations of human rights norms and standards and the next 50 years must be focussed on the implementation of these norms and standards in each country. He wne on to say that, it is not only the judiciary that bear responsibility for the implementation of rights but the legislature and the executive as well and sometimes the judiciary is prevented from exercising their function by the executive or the legislature. He also said that addressing of these problems is very necessary if the human rights are to be advanced.
Mr. Eric Sottas pointed out that it is a feature of the global development today to weaken the state. When the state is weakened its law enforcement capacity is also weakened. As a result the rule of law is endangered. This global phenomena need to be seriously addressed. This is particularly so regarding the less developed countries. This degeneration of the rule of law affects the fabric of protection of human rights. Thus the strenthening of the protection mechanisms requires the addressing of the fundamental problems affecting the implementation of human rights and the rule of law.
Mr. Basil Fernando said that the “article 2” is launched to highlight one of the central problems facing the human rights protection which is the failure to implement rights. The issue is about the entire aministration of justice including police, prosecution and the judiciary. The police and the prosecution can act in a way to prevent investigations of human rights violations and thus creating the excuse of absence of evidence to justify failure to prosecute. This is becoming a common feature in many countries in Asia. Thus the ratifications of international human rights conventions and even constitutional recognition of rights may not lead to improvement of rights when the justice system is flawed or sabotaged.
There was a lively discussion during the event following these speeches. The whole text of the speeches and the discussion will be made available soon at the www.article2.org.
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5 April 2002
Asian Legal Resource Centre – ALRC, Hong Kong
International Launch of article 2: Edited text of speeches
On the occasion of the 58th Session of the Commission on Human Rights
1:30 – 3:00pm, 3 April 2002
Palais des Nations, United Nations Office in Geneva, Switzerland
Dr. Bertrand Ramcharan, Deputy High Commissioner for Human Rights
Mr. Param Cumaraswamy, Special Rapporteur on the Independence of Judges and Lawyers
Mr. Eric Sottas, Director, World Organisation Against Torture (OMCT)
Mr. Basil Fernando, Executive Director, ALRC & AHRC
Dr. Bertrand Ramcharan
I wanted to be here and to congratulate you on this initiative that you launch in issuing this publication article 2.
Allow me to say that there is book edited by Professor Lewis Hankings and there is a chapter in this book by Professor Oscar Schachter, in which he looks at the duty to respect and to ensure human rights, including the issue of remedies. There is a good part on the drafting history of the Covenant on Civil and Political Rights, and article 2 on remedies. Allow me to remind you of some of the things he has to say.
While the text of the covenant does not specify the nature of such domestic remedies, we may assume that undoing, repairing, and compensating for violation constitute appropriate remedies (as well as ways of giving effect to the rights in accordance with paragraph 2). If a violation is found, it must be ended and undone (if possible), and its fruits not used or repaired.
I just want to cite some of the ideas that were in the minds of the drafters, mainly, first of all the importance of the remedies. Secondly he says that
The drafting of subparagraph (b) raised two issues: (1) whether judicial remedies should be mandatory and (2) whether the guarantee of effective remedies could be adequately met by recourse to administrative and legislative authorities. Within the drafting committees strong sentiment was expressed in favour of judicial remedies.
I will come back to this topic in a little while. Then he points out
There are other implications of the obligation in Article 2(3) to ensure an effective remedy and to provide for the determination of individual rights by judicial or other competent authority. If the courts are necessarily bound by legislative enactments and may never set them aside whatever their incompatibility with the Covenant, can it be said that a truly effective remedy exists for the violation of the rights of an individual?
He goes on to reveal the notion of remedies, going back to the time of the English Revolution of 1688. He concludes by saying “that the significance (of article 2) lies precisely in the unequivocal obligation to provide an effective remedy to ‘any person’ whose rights are recognized.” I thought that I would revisit this because the notion of the Covenant on Civil and Political Rights is that states should take the norms in the Covenant home, to establish national protection systems that should embrace constitutional compliance, legislative compliance, the possibility of going before the courts to protect one’s rights, educating about human rights, monitoring communities that are in need of protection and finally, paying particular attention to institutions that can help to protect the individuals or the group such as ombudsperson. So this notion of the norms that are elaborated internationally and then taken home nationally goes with the notion of a national protection system. And the significance of article 2 and the right to a remedy is precisely this. If you can’t go before the courts and get vindication of your rights then what are you left with? Then the notion of national protection system will be an artificial notion.
I will not talk about any country but my own, Guyana. I just wrote a book on the highest court of my country, which came out in the last two months or so. My country became independent in 1966 and it abolished appeals to the Privy Council in 1969. I did this research for reasons that I will not go into here, but I was particularly interested in the following issues. Could one say that the courts were performing a role to stitch together a multi-ethnic society? Could one say that the international norms had penetrated the courts? And if there are situations in which individuals felt that they were in need of protection, and then they went to the courts, did they get that protection? I have to tell you that the answers to all three of these questions, in our instance, were in the negative. And so basing myself in my own country I came to the view that if the courts are not performing their role, then, the protection of human rights in a country is seriously deficient.
Let me take you back a little bit in time, to the mid-70s when the United Nations was investigating violations of human rights in Chile. I worked on the early investigations and as the situation was sliding the question arose, were the courts helped to provide the remedy of habeas corpus? Were the courts helped to stem the slide towards gross violation of human rights? And quite frankly the courts were not. If we go back to the early report of the working group of the United Nations on human rights in Chile you will see in those chapters under the judiciary–and the first chapter I wrote myself–there is this notion that the courts’ failure to protect [human rights] would result in a slide towards the abyss that they were eventually to experience in that country.
When I was doing the research for this book [on courts in Guyana], I came across a book written on the famous chief justice of Tanzania. The book is written as a biography and I think the chief justice’s name is Dr. Nial Ali. There you see a country struggling with nation building. Then you see the heroic efforts of Chief Justice Nial Ali trying to uphold the role of the judiciary in that country. I actually think, ladies and gentlemen, in the United Nations we must pay particularly more attention in the future to the role of the courts in the protection of human rights.
Inter-Rights and the Commonwealth Secretariat organised a series of six or eight judicial colloquiums. They brought together judges from different parts of the world to look precisely at the issue of how it is that one can impart information and exchange experiences among judges on their role in the protection of human rights. And the last of these series was organised in the capital of my country, Georgetown, and I happened to be there. They came up with the Georgetown conclusions on the role of the judiciary in the protection of human rights. And there you see the following proposition: judges should be aware of international human rights law; judges should provide relief where needed; judges should understand, particularly in developing countries, that they have a role in helping to hold the country together. Colloquiums were held in Bangalore, Cambridge, Georgetown and other parts of the world, and judges themselves were expressing and attaching importance to the judicial protection of human rights.
Since you gentlemen who are organising this are coming from Asian backgrounds I would invite your attention to the meeting of Asian chief justices and the report of this workshop published as a background document of the Vienna Conference. There you see the importance that they attach to the role of judges in the protection of human rights.
I want to conclude by thanking you a) for launching this publication; b) for echoing the importance of remedies, particularly judicial remedies and c) for sharing the sense of breakdown in judicial protection in different parts of the world that is a leading cause for the failure to protect human rights. Finally, I hope that in the future together we will be able to stimulate more activities. I never say for one moment ‘train judges’, because I never think that we will have to train judges, but I would say to you that we must attach much more importance to giving them basic information about norms of jurisprudence.
Mr. Param Cumaraswamy
I am indeed honored to be invited to participate in launching this new publication article 2 by the Asian Legal Resource Centre (ALRC). The ALRC must be congratulated for this innovative undertaking. I have been associated with the Centre for many years. It is today one of the leading regional NGOs in Asia analysing human rights issues and exposing human rights violations through its monthly publication Human Rights SOLIDARITY. Thus through such publications human rights consciousness is kept alive in the region. On a personal note, I would like to congratulate Basil Fernando, who is a live wire behind the Centre. His relentless and untiring efforts for the cause of human rights in the Asian region are most remarkable and admirable.
It is true that over the years the international human rights community has been involved in the articulation of the rights throughout the International Bill of Rights. I understand that 148 countries having ratified the ICCPR and 145 the [ICESCR]. However not much has been done for states to implement these rights. Implementation processes have been extremely slow. As the Deputy High Commissioner just mentioned, article 2 provides duties for governments to apply and guarantee all the rights set out in the Covenants. Of course under international law the implementation of human rights is primarily a domestic matter. Hence, the duty of government is to do so. However, events have shown and continue to show that in our daily lives these rights are violated often most blatantly and with impunity–not only by governments but also by non-state actors.
While a lot has been said about the role of the judiciary, by itself the judiciary cannot be the sole guardian of human rights. The legislature and executive have equally important roles in this exercise and the effectiveness of the judiciary depends on the support and respect it gets from these other two arms of the government. In the last year we saw how an independent Supreme Court in Zimbabwe was assaulted by the high-handed power of the executive arm. When the judiciary itself requires protection how can it independently and impartially remedy violations of human rights? Having held this mandate for the last seven years, and having intervened in about 100 countries, I’ve seen how agents of justice systems have been subjected to all forms of threats and harassment, including assassination. Hence, we need outside support as well for the protection and remedying of human rights violations. This is where national human rights institutions can play an important role. However, many of those set up recently are not as effective as they ought to be. They hardly meet the minimum standards of the Paris Principles. Hence, constant vigilance of the civil society through the NGO community becomes vital, as does the raising of awareness and exertion of pressure on states to comply with their treaty obligations. In the final analysis, public opinion is the most effective pressure on governments who violate human rights. We saw this in the way of people power was exerted in two countries in Asia, the Philippines and Indonesia. In Thailand massive public demonstration also brought down a particular government.
In the last 50 years, the international community has been engaged in standard setting and the formulation of norms for the promotion and protection of human rights. There are today, in my opinion, enough standards and enough norms. What I would really like to see in the next 50 years is committed implementation of these standards. It is in this context that I see the relevance of this publication, article 2. It is a welcome initiative and I wish it every success.
Before I close, I want to touch on something the Deputy High Commissioner mentioned. He mentioned about the Bangalore Principles, which are very fine principles that have been reiterated at several subsequent colloquiums. What I would really like is one step further that the Office of the High Commissioner could undertake if resources are available. It will be very useful to have a database where judgments of the apex courts on human rights issues are analysed and immediately disseminated to all judiciaries and all the heads of judiciaries in the world. There have been very interesting judgments from apex courts on human rights issues, but they are not disseminated to many parts of the world in a timely manner.
In this regard I will give you two experiences that I encountered recently. The Supreme Court of Canada has a very good collection of jurisprudence now on judicial independence, and how/if an independent court could really come in aid of human rights violations. Bangladesh has had related issues before its Supreme Court. The chief justice of Bangladesh–who has since retired–met me in Durban and one evening and mentioned to me about the issues before his court. He asked me whether I know of any precedents and I mentioned to him about the decisions of the Supreme Court of Canada. But the Dhaka Supreme Courts did not have the Canadian dominion law reports. What we did was to send a quick email to the Chief Justice of Canada to supply a whole set of judgments on a particular issue to the Bangladesh Supreme Court. Three weeks later the case was heard and two months later the judgment was delivered in the Bangladesh Supreme Court, consistent with the principles set out in the judgments of the Supreme Court of Canada. Both countries shared the common law tradition. Hence you find how effective this kind of networking can be. This is why it will be extremely useful if we can have a database of these judgments collected, collated, edited and immediately disseminated to all the supreme courts.
I was in East Timor recently and saw the way the judges are trying to implement international human rights law, but they don’t have adequate resources. They don’t have a library, they don’t have assistants, they don’t have enough lawyers–these are the difficulties judiciaries in emerging countries are experiencing, and we can be more effective by giving them this kind of assistance. I had a similar experience in South Africa, where there was a case going before a South African court on the problem of provocation. The lawyers handling the matter asked me whether there was a precedent. I said yes, the Caribbean courts had one recently. Immediately they were very interested in this particular judgment. Immediately the citations were sent to South Africa and I think they are waiting for the judgement of that particular case. This is a kind of networking we can do. And with that note, I once again wish this publication all success.
Mr. Eric Sottas
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 Bertram 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 programs 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 distribution and the non-satisfaction of basic needs are probably the two elements that expand violence in society. Unfair distribution, I would say, is same in 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. Nigel Rodley himself in his last report underlined the fact that in developed countries the number of people who are suffering from bad conditions of detention in continental Europe are from the poorer strata of the society. 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 to 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 Human Rights 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 that we are facing the problem we continue to 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.
Mr. Basil Fernando
I had the privilege of being a Senior Officer in the United National Transitional Authority for Cambodia (UNTAC) from its inception, and also with the Human Rights Centre that we started immediately thereafter. In this we see the problem we are trying to discuss here. Whether there was any capacity to interfere in the administration of justice under the UNTAC mandate became a debatable issue because there was no clear indication. It was more or less decided that UNTAC did not have a mandate. Today, seven years later, I have a very close connection with Cambodia; I go there almost every 3 months. Today you go to a country after such a massive intervention that has a Penal Code with only 40 offenses, with a set of judges who do not have education up to Grade 10, where there is no police system. Now how is democracy going to function? We were there to establish a foundation–of course miracles cannot be done– of a liberal democracy. But up to date, this is the situation. So how can we demand a fair trial when there is no system of courts that is in any sense credible? Now that is the sort of fundamental issue we are facing in many countries.
Now let me take as an example a country which was considered at one time a liberal democracy, my own country, Sri Lanka. We had, due to whatever the reasons, over 30,000 disappearances within a period of over four years. Actually, this figure of 30,000 is the number of cases fact-finding commissions inquired into; 16,000 more were never inquired into. But the issue really is this: even where there was certain willingness to act on this, no prosecution or anything took place. Why? There have been no investigations. The UN Working Group on enforced and involuntary disappearances gave 11 recommendations that people in Sri Lanka have now carved into a stone for a roadside monument to the missing. That is just to remind passers-by that there were such recommendations. But none of those were met. It was not purely because of lack of political will, but also systematic fault. Without investigations how can there ever be criminal prosecutions? So there is, linked with the whole matter of judiciary, subtle displacement of the judiciary by shutting the doors in the police and in the prosecution system. You shut the door there, and it [the case] would never get into the courts. Now this is a fundamental problem in many part [of Asia] and it is being subtly done. While ratification is going on, and while externally there is a lot of compliance with these instruments, internally there is no mechanism to investigate violations.
For me article 2 is a great idea. If a state sign up to these rights, you provide an adequate remedy. An adequate remedy, a judicial remedy, is to take place through the police, through the prosecutions and then through the judiciary. The judiciary sometimes consists of qualified people and people of higher moral authority who often would fight back if their integrity is challenged. But it is easy to manipulate the police and it is easy to create a vacuum by not having a proper prosecution system. These do not get examined by any international body, not only to criticise but to provide assistance in various ways to get these institutions in place. Even where a law is made for the protection of some rights, this is no guarantee. Take the case of the Dalits in India: laws have been made and there have been attempts to guarantee constitutional rights but you have officers in the police force from upper castes who attempt to change this so prosecutions don’t take place. As a result 240 million people still do not get human treatment.
These are not exceptional cases. There is an ideological belief that the efficiency of the executive is what matters and this gets supported. Singapore is not a poor country. Judges in Singapore are higher paid than others. So it is myth that only the payment of judges would make them implement the law. In Singapore, the lower ranks of the judiciary come from the civil service, and they go back to the civil service. There is no permanent cadre of judges building up. So for the higher courts you select people, sometimes very honourable people, but there is no tradition of the independence of the judiciary built up. As a result the very discourse has changed, the discourse on the basis of separation of powers, and on that basis the whole foundation of the ICCPR is itself under challenge. That is why this is not just about a publication. This publication only highlights a problem in order to get a more serious discussion so that when we come to the Commission on Human Rights here, and other bodies, we will begin more examination of remedies.
We owe to ourselves as a human rights community to examine where we ourselves have failed. What were our limitations? Why can’t make progress? In Cambodia 2 billion dollars were spent for UNTAC. I was in charge of human rights investigations, and I could take a helicopter anytime and go to a place where something had happened. We arrested four people during that time under our mandate. But all four people were eventually released. We did not have any machinery to deal with anything. Actually we were criticised of violating basic human rights principles as we were keeping people under arrest without being able to provide a trial.
So we learned these lessons, and they were highlighted recently in the present discussion on the Khmer Rouge tribunal. In my view, the UN made a correct decision in not going ahead with that, because in a country where you cannot guarantee an ordinary citizen an inquiry into murder how are you going to have genocide inquired into? Within one year of our work during UNTAC, “sathi manu”–human rights–became a household word in a country where there was genocide. But today when we try to take classes people ask “Where are those rights? If something happens to me, and it happens to many, where do I go? Where does it end?” I think the human rights community owe an obligation of conscience, as was mentioned yesterday by the High Commissioner [for Human Rights], to take the need for adequate remedies very seriously, and if we do we can make progress. Not all governments are deliberately depriving people of rights. There is willingness to cooperate when the cooperation is comprehensive, when the cooperation is intelligent and when the cooperation involves many aspects needing discussion.
If such an approach proceeds, I think the development of human rights norms and standards that were achieved in the last 50 years–a phenomenal and great achievement–can be transferred to a practical level. In the next 50 years we must devote ourselves to this.
Comments arising out of questions from the floor
Dr. Bertrand Ramcharan
I often tell myself that the story of human rights is a story of concentric circles. There is a commitment to human rights in the United Nations Charter and in the Universal Declaration. And the centre of these concentric circles I would call the principle of commitment. I think it is fair to say that countries far and wide share this commitment to human rights. And outside this centre of commitment there is this first circle which I would say is the circle of achievements. We have made some progress when it comes to the norms, when it comes to the acceptance of basic norms and when it comes to developing a culture of rights globally. Outside of it we have this second circle which I would call circle of immediate opportunities. These are the things that we might be able to achieve in the coming period. And beyond that there is a much larger circle, the circle of the ground still to be achieved. The UN and the international community are there to bring the states of the world and the international human rights movement together, but they will never replace protection within countries. That’s why I place before you this notion of a protection system within each country. At the end of the day I would like to say by placing this imagery of expanding circles before you is to say that there is a little circle of some achievements and there are much larger circles outside that we still have to cover to have effective protection. So it is the challenge of each generation to push the first circle outwards.
Mr. Param Cumaraswamy
On the domestic application of international human rights norms, that is the essence of the Bangalore Principles that the Deputy High Commissioner mentioned earlier. But unfortunately, those principles have been formulated based on the common law tradition. May I also add that judges today in many parts of the world are also going through what we call continuous legal education, because once they are appointed as judges it does not mean that they stop learning. They continue to learn and they attend courses as well. If we talk about training programmes on domestic implementation of international human rights norms, we really need to get judges from all countries involved and sensitised with regard to what other judges are doing. The Bangalore Principles goes to the extent that even if a country has not ratified the particular convention there are way for the courts to creatively implement international law on human rights.
Mr. Eric Sottas
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 idea 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.
Mr. Basil Fernando
Just a brief comment on the questions of urgency and remedies. Unless remedies are worked out into details, urgency will always remain and it will not be answered. As for the question of torture and also disappearances, people have lived through such things and waited for years without any solution because, as the Deputy High Commissioner said, if the fundamental principle is commitment, it also comes from the society. It is the enormous debate that went on for about 200 years in Europe that created some of the basic principles of human rights. In the 18th century there was already a debate on torture. Before that Europe accepted torture as a principle. Unless society intelligently discusses–going from macro human rights to micro human rights–this urgency will not be answered. And we will suffer quite a lot while we know about very urgent situations but are unable to do anything, like millions of people around the world.