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SUB-COMMISSION CONCLUDES SPECIFIC HUMAN RIGHTS ISSUES, TAKES UP ADMINISTRATION OF JUSTICE, RULE OF LAW AND DEMOCRACY
21 August 2006
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Sub-Commission on the Promotion
and Protection of Human Rights
21 August 2006
Discusses Reports on Human Rights With Regard to Small Arms, Terrorism,
State Sovereignty, and on Universal Implementation of Treaties
The Sub-Commission on the Promotion and Protection of Human Rights this afternoon concluded its debate on specific human rights issues and started its consideration of agenda item 3 on Administration of justice, rule of law and democracy. In the context of its debate on specific human rights issues, the Sub-Commission discussed reports on the prevention of human rights violations committed with small arms and light weapons, and on guidelines and principles for human rights protection when combating terrorism. On the item on administration of justice, it considered reports on the universal implementation of human rights treaties and on the difficulty of determining culpability and/or responsibility in cases of sexual violence; and a working paper on human rights and State sovereignty
Special Rapporteur Barbara Frey introduced her report on “The prevention of human rights violations committed with small arms and light weapons”, saying that, in regard to small arms violations, States had negative responsibilities to prevent violations by State officials and affirmative responsibilities to increase public safety and reduce small arms violence by private actors. In order to accomplish the title objective of the study, States had to take effective measures across the entire spectrum of supply and demand for small arms.
Kalliopi Koufa, Sub-Commission Expert, presented the report of the sessional Working Group on guidelines and principles for human rights protection when combating terrorism. The report made three recommendations: first, that the Chairperson-cum-Rapporteur should submit an updated draft framework to the Human Rights Council for its consideration; second, the Office of the High Commissioner for Human Rights should hold a seminar related to international judicial cooperation; and third, the work on guidelines should be continued regardless of the framework for expert advice to be established by the Human Rights Council.
Introducing the report on the universal implementation of international treaties pertaining to human rights, Sub-Commission Expert Emmanuel Decaux said that since 1993, a new dynamism was taking place with regard to international treaties. The nature of international human rights commitments should be elucidated, and the issue of justiciability stressed through the adoption of additional protocols in order to allow individuals to lodge complaints with a view of claiming their rights. In addition, the cultural rights of each country should be respected in the implementation of treaties.
Lalaina Rakotoarisoa, Sub-Commission Expert, introducing the report on the difficulty in establishing guilt and/or responsibility in matters of sexual violence, said that in establishing evidence, the judge should use scientific evidence, should be impartial and neutral in his work and the principle of equality before the law should be respected. The exploitation of women sexually was similar to a situation of slavery. Trafficking in women had an inter-State character and thus required international protection.
Presenting his working paper on Human rights and State sovereignty, Sub-Commission Expert Vladimir Kartashkin said that modern States did not have sovereignty outside their territories. A State could not be absolute in its sovereignty. In the UN Charter, State sovereignty required the respect of human rights, so that each individual enjoy absolute human rights. When a State voluntarily acceded to an international treaty, then its sovereignty would be limited by the fact that it was bound by the terms of those international obligations.
Also taking the floor this afternoon were Sub-Commission Experts Yozo Yokota, Florizelle O'Connor, Abdul Sattar, Paulo Sergio Pinheiro, and Mohamed Habib Cherif.
A representative of the non-governmental organization Pax Romana, also spoke.
The next plenary of the Sub-Commission will be at 10 a.m. on Tuesday, 22 August, when it will take up item 7 on its agenda, namely Implementation of Human Rights Council decision A/HRC/1/Dec/102 and other related issues. At 11 a.m. it is scheduled to go into closed session to continue its discussion of that agenda item.
Statements under agenda item 5: Prevention of discrimination
FRANÇOISE JANE HAMPSON, Sub-Commission Expert, said she wished to intervene on what she saw as a gap in the current system of implementation of human rights standards, which affected two very different but related groups. There were those with permanent conditions, such as blindness and deafness. Second, there were those with certain transient medical conditions, such as mental illness or with certain physical illnesses, such as leprosy. Their problems were not limited to medical treatment. They often suffered discrimination, either direct or indirect, on account of their condition. The position of the mentally ill and the formerly mentally ill were particularly serious. While the forms of discrimination might vary, the fact of discrimination appeared to be widespread.
Ms. Hampson noted that there was plenty of so-called “soft law” about the problem, such as the World Programme of Action Concerning the Disabled Persons; the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care; the International Labour Organization Recommendation concerning Vocational Rehabilitation of the Disabled, etc. The problem did not appear to be one of norms, but one of implementation. It was sometimes suggested that there was no longer a need for standard-setting, and therefore no need for the Sub-Commission. It was certainly the case that, notwithstanding the significant volume of soft law regarding those conditions or illnesses, their situation in practice did not conform to those standards.
Presentation of reports under item 6: Specific human rights issues
Introduction of the report on the prevention of human rights violations committed with small arms and light weapons
BARBARA FREY, Special Rapporteur on the prevention of human rights violations committed with small arms, introducing her report on the prevention of human rights violations committed with small arms and light weapons (A/HRC/Sub.1/27), said there were more people killed with small arms and light weapons in the world each year than by weapons of mass destruction. In regard to small arms violations, States had negative responsibilities to prevent violations by State officials and affirmative responsibilities to increase public safety and reduce small arms violence by private actors. In order to accomplish the objective that was stated in the title of the study, States had to take effective measures across the entire spectrum of supply and demand for small arms. The report provided information and legal analysis to support States in understanding their human rights responsibilities with regard to small arms and light weapons. First, it provided summaries and analyses of State policies and practices regarding small arms, based on the responses of 40 Governments to the questionnaire that was circulated in connection with the study. Second, the report provided further discussion on two legal issues connected with State responsibility for preventing human rights abuses committed with small arms by non-State actors. The two issues were an elaboration of the due diligence standard in relation to abuses by private or non-State actors and the implications of the principle of self-defence upon the State’s small arms policies and practices.
In the report, Ms. Frey concluded among other things, that international human rights jurisprudence required that the minimum effective measures that States should adopt to prevent small arms violence had to go beyond mere criminalization of acts of armed violence; States had further obligations to put in place some form of control mechanism in order to prevent rights violations. She also found that, while the principle of self-defence had an important place in international human rights law as an exemption for criminal responsibility, it did not provide an independent or supervening right to small arms possession, nor did it ameliorate the duty of States to use due diligence to regulate civilian possession.
Report on the prevention of human rights violations committed with small arms and light weapons
A report (A/HRC/Sub.1/58/27), entitled Prevention of human rights violations committed with small arms and light weapons, addresses two international legal principles that are critical to understanding the nature and extent of the State’s obligation to prevent human rights violations committed with small arms: the due diligence responsibilities of States to prevent small arms abuses by private actors and the significance of the principle of self-defence with regard to the State’s human rights obligations to prevent small arms-related violence. Annexes to the report contain a summary and analysis of the responses of United Nations States Members to the questionnaire of the Special Rapporteur.
Presentation of the Report on Guidelines and Principles for Human Rights Protection When Combating Terrorism
KALLIOPI KOUFA, Sub-Commission Expert, introducing the report of the sessional Working Group guidelines and principles for human rights protection when combating terrorism (A/HRC/Sub.1/58/26), said that she was particularly grateful that Ms. Hampson and Mr. Decaux had prepared highly useful papers on key issues raised in last year’s session. Ms. Hampson had prepared a working paper on “International judicial cooperation”, and Mr. Decaux a working paper on “Victims of terrorism”. Ms. Hampson’s working paper had highlighted that recent terrorist activity could be distinguished from earlier forms in that now it was transnational – making international cooperation especially vital. She also highlighted issues related to the transfer of individuals, and stressed that such transfers be conducted within the framework of the law. Mr. Decaux’s working paper had pointed out concerns where normal redress might be difficult – such as an inability to actually obtain meaningful redress from the actual perpetrators, and without funds reachable by a court. In that regard, States might set up national solidarity funds for victims.
Ms. Koufa had also presented a second, expanded working paper that was used in the present report, and which included a brief review of the structure of the updated framework draft principles and guidelines concerning the promotion and protection of human rights when combating terrorism. The report concluded with three recommendations: first, that the Chairperson-cum-Rapporteur should submit an updated draft that took into consideration the papers submitted this year to the Working Group, the discussion therein, as well as the working papers to be submitted within a month from the conclusion of the session, and transmit the draft framework to the Human Rights Council for its consideration; secondly, that the Office of the High Commissioner for Human Rights organise a seminar related to international judicial cooperation, drawing on participants from a variety of different legal traditions; and thirdly, that the work on guidelines should be continued regardless of the framework for expert advice to be established by the Human Rights Council.
Report on Guidelines and Principles for Human Rights Protection When Combating Terrorism
The Report on Guidelines and Principles for Human Rights Protection when Combating Terrorism (A/HRC/Sub.1/58/26) was not immediately available.
Statements on the reports on Human rights violations committed with small arms and light weapons; and on Guidelines and principles for human rights protection when combating terrorism
EMMANUEL DECAUX, Sub-Commission Expert, said that the issue of the prevention of human rights violations committed with the aid of light and small arms was crucial at the international level. Since 2002, the Security Council had studied each year the report to the Secretary-General entitled “light arms”. Reacting to the latest report on the issue, the Council had adopted a chairperson’s statement recalling that the issue of light arms was by definition a multilateral issue, and underlined the necessity to engage international organizations, non-governmental organizations and commercial and financial institutions to contribute to the implementation of the embargo on arms, and to pursue the objectives of preventing trafficking in light arms. The measures taken by the Sub-Commission was a complementary work stressing the prevention of human rights violations due to the use of light arms within the internal context.
In the United Sates and in Brazil, there had been powerful lobbies to impede any measures to prevent the holding of firearms by individuals. The questionnaire that collected 38 responses had been important in enriching the final report of Ms. Frey. Although its scientific exploitation was exemplary, the lack of response by some countries was regrettable. On the legal aspect, it was essential to take into consideration the historical dimension and social phenomenon. In France, since the Revolution, agricultural society was attached to the right to hunt and the possession of guns, while state agents detained other arms. With regard to private persons, there should be a distinction between private persons possessing small arms legally, and private persons collaborating with the State, such as staff of private prisons. A new principle should be introduced in that regard.
YOZO YOKOTA, Sub-Commission Expert, said that the work done by the Special Rapporteur was monumental and full of information. The issue of light arms had not been analysed in depth by any body other than the Sub-Commission. He supported the position of the Special Rapporteur on the responsibility of States in regulating the issue of light and small arms. How to control trafficking in arms by transnational companies and the responsibility of States had been emphasised by the author of the report. The issues of fabricating arms and their distribution had also been dealt with. The report provided ample information for the Sub-Commission to discuss the issue.
FLORIZELLE O’CONNOR, Sub-Commission Expert, said she came from an island State that was unable to adequately control its borders. Her country had one of the highest murder rates in the region, although it was not involved in a civil war. Successive governments had tried to get the participation of the so-to-speak donor country from which most of the guns came illegally into the hands of the citizens of her country, and had been advised that it was the responsibility of the recipient State to monitor the activities of gun dealers, because under the laws of the donor State their gun salesmen were licensed and it would be a violation of the rights they held under those licences to provide another State with information on the sales they had made.
Ms. O’Connor said she accepted the principle of that argument, but she was also aware of the inadequacy of the means of small States to monitor the entry of arms into their countries. One of the forward movements that the Sub-Commission or its successor could take would be to look at the nature of States’ responsibility, in order to identify measures for cooperation between States to be used to protect what was essentially the right to life. That was what this topic was about, citizens’ right to life. She would like to see a classification of light arms, which today in her country ranged from handguns to machineguns that were used in war. In conclusion, this topic could be linked to others, such as the role of transnationals, and the issue of terrorism and the need for States to protect their citizens.
FRANCOISE JANE HAMSPON, Sub-Commission Expert, said the report was a very important one, more important than she had ever seen in the past, and it was vital for the work of the Sub-Commission. The issue of training in a military context should be seen from the perspective of the need of each State. The actual training operational doctrines were drastically different from those of the past. The content of training should be within the context of States’ domestic law. The Sub-Commission should adopt principles on small and light arms now. She asked the Special Rapporteur to review the principles contained within the report in light of Experts’ comments. The principles should also be sent to other international agencies that would use them, such as Interpol.
ABDUL SATTAR, Sub-Commission Expert, said that the study had now reached its predetermined conclusion. He had no suggestions or comments to add. For that reason, he had signed a recommendation for a draft decision to be submitted to the Human Rights Council for further action. He had taken the floor to ask Ms. Frey to intervene on behalf of two issues confronting States with certain problems; first, the problem faced by some countries, including Pakistan, where there was an inherited custom by which individuals, particularly males, insisted they had a birthright to carry small arms. They had protected that right so fiercely that even the Colonial power that had ruled that country for decades had not banned the right of citizens to carry arms. What recommendations did Ms. Frey have for such States, he asked.
Mr. Sattar’s second question involved the responsibility of the providers of small arms. In the 1980’s, when the people of Afghanistan were engaged in a struggle for their country, a large number of sympathizing States had found it in their interest to flood that country with arms. Even large weapons, including missiles, had been provided. What about the responsibility of those providers, he asked. In the case of Afghanistan, for example, the arms had flooded back to Pakistan, which latter country was now left with the problem.
BARBARA FREY, Special Rapporteur on the prevention of human rights violations committed with small arms, in concluding remarks after the discussion of her report, said she was thankful for the positive reaction of the Experts. The human rights perspective of the violation of rights by wielders of small arms was important. The topic still remained a critical one. Since guns were affecting the lives of everybody, the business responsibilities of transnational enterprises involved in their cross-border sale should be given higher importance. Any government training should comply with the standards required in the use of guns. The transfer issue was raised in the report with regard to individual companies and the manner to lodge complaints. Some prosecutors had difficulties in prosecuting arms dealers. The problem of small island countries in controlling arms trafficking flowing into their territories was also a problem. There were countries, like Yemen for example, where guns were abundant; but the rate of criminality including the use of guns was far less.
Presentation of reports under item 3: Administration of justice, rule of law and democracy
Presentation of the report on the universal implementation of international treaties pertaining to human rights
EMMANUEL DECAUX, Sub-Commission Expert and Special Rapporteur on the Universal Implementation of International Human Rights Treaties, introducing the report on the universal implementation of international treaties pertaining to human rights (A/HRC/Sub.1/58/5), said the mandate given to him by the Sub-Commission was coming to an end. He had presented a series of reports on the issue during the last five years. For technical reasons, he was unable to include responses obtained through questionnaires. The figures in the report showed the evolution of trends in the ratification of treaties, and the degree of commitments by States. Since 1993, a new dynamism was taking place with regard to international treaties. In 2006, few countries had ratified the two UN Covenants. Some countries had expressed their readiness to ratify those treaties by preparing the ground and reforming their domestic legislation. The official tables provided by the UN should be user-friendly and included a checklist of ratifications.
Report on the universal implementation of international human rights instruments
The report (E/CN.4/Sub.2/2006/5) entitled "Universal implementation of international human rights instruments" looks at the various commitments undertaken by States and at the further efforts needed in order to realize the goal of universal ratification of human rights instruments, set out by States in 1993. On the occasion of the recent establishment of the Human Rights Council, a number of candidate States undertook a series of human rights commitments, in particular with regard to ratification, coming closer to the goal of universal ratification. Another area of focus was the legal challenges faced with regard to the nature and extent of international human rights law. The final report also looks at the question of the universal implementation of international human rights instruments, in particular in the light of the insights obtained from the questionnaire of the Special Rapporteur. It deals in turn with the fundamental question of the enforceability of international instruments in domestic law, distinguishing between dualist and unified systems, and the question of the effective implementation of commitments, which necessitates the existence of legal and other remedies, but also a real political will on the part of the public authorities as well as all organs of society.
Presentation of the report on the difficulty in establishing guilt or responsibility in matters of sexual violence
LALAINA RAKOTOARISOA, Sub-Commission Expert, introducing the report on the difficulty to establish guilt or responsibility in matters of sexual violence (A/HRC/Sub.1/58/CRP.9), said that in establishing evidence, the judge should use scientific evidence, and should be impartial and neutral in his or her work. The principle of equality before the law should be respected, and the judge should do away with subjectivity. The evidence presented by the parties should be examined even they presented proofs that were lacking clarity or were ambiguous. The victim’s testimony should be established in accordance with internationally-established rules. The right to defend and the right to a fair trial should be respected taking into account international norms.
In all cases forced prostitution, forced marriages, and forced pregnancy were clearly sexual violence. The sexual exploitation of women was similar to a situation of slavery. Trafficking in women had an inter-State character and thus required international protection. Sexual tourism was also a form of violation of the human rights of individuals. Courts should take into consideration the psychological impact on the victims. The role of the medical professions was also emphasized in establishing evidence. The courts should take up the efficiency and the validity of evidence.
Report on the difficulty in establishing guilt or responsibility in matters of sexual violence
A report on the difficulty in establishing guilt or responsibility in matters of sexual violence (A/HRC/Sub.1/58/CRP.9), suggests that the means to establish proofs should be harmonized with regard to sexual violence, which are different because of the different judicial systems, the investigative procedures and the different procedures of each country. All the entities of the UN working on the administration of justice and on the rights of women and children should work towards rendering the procedure effective and action-oriented.
Presentation of the working paper on Human rights and state sovereignty
VLADIMIR KARTASHKIN, Sub-Commission Expert, presenting his working paper on Human Rights and State sovereignty (E/CN.4/Sub.2/2006/7), said that the problem of sovereignty concerned virtually all areas of contemporary international law. Today there were States and non-States that tended to violate the sovereignty of other States. His paper was structured into five chapters dealing with the problem of sovereignty and human rights issues. Modern States did not have sovereignty outside their territories. They were limited to the domestic structure of the State, dealing with its international actions. For that reason, a State could not be absolute in its sovereignty, as it had to, according to the UN Charter, respect human rights, so that each individual could enjoy absolute human rights.
When a State voluntarily acceded to an international treaty, then its sovereignty would be limited by the fact that it would be bound by the terms of those international obligations. The use of force by some States for humanitarian purposes might motivate interference in the affairs of other States. The responsibility to protect human rights could be justified by decisions emanating from the Security Council regarding intervention. State sovereignty and the use of force against States behaving illegally and other issues had been dealt with in the report. A universal understanding of sovereignty of a State and human rights should be given a large thought.
Working paper on Human rights and state sovereignty
The working paper (E/CN.4/Sub.2/2006/7) entitled "Human rights and State sovereignty" focuses on a number of questions relating to the topic under study and also considers them in the light of new developments on the international scene. That was dictated by the fact that at the end of the twentieth and the beginning of the twenty-first centuries, fundamental changes were taking place in international relations and international law which also affected questions of relevance to the topic under study. A globalizing world has led to a rethinking of many principles and norms of international law, which are constantly changing in response to new realities. The author has sought to reflect these changes in the present working paper. Owing to the limited scope of the working paper, the author was unable to consider many aspects of the topic in depth. Moreover, some of them were outside the terms of reference. Questions relating to human rights and State sovereignty are not only legal in nature, but concern political and other interests of States. Their detailed study requires considerable time and does not fit in the limited space of the working paper.
Statements on the report on the universal implementation of international treaties pertaining to human rights; on the report on the difficulty in establishing guilt or responsibility in matters of sexual violence; and on the working paper on human rights and state sovereignty
PAULO SERGIO PINHEIRO, Sub-Commission Expert, said that he was pleased with the report of Mr. Decaux on universal implementation of human rights treaties, as, amidst a climate of scepticism, he had continued to show optimistic realism. He had given the Sub-Commission several indications that were hopeful. Amidst the promises, there had been several commitments undertaken on the part of States. Secondly, Mr. Decaux had charted a course for the Sub-Commission, demonstrating that there was a need for this steering mechanism to supplement the monitoring and implementation of human rights treaties, as well as to carry out training mechanisms. That chart, if it became permanent, could help them to steer the way through the waters towards universal ratification. Thirdly, the report highlighted the need to develop a dialogue among States, and all relevant actors, on reservations.
R.J. RAJKUMAR, of Pax Romana, said NGOs had contributed substantial work to the report of Mr. Decaux. The pledges and commitments implied in the ratification of treaties should be stressed. The Office of the High Commissioner for Human Rights had dealt with the issue of reservations. Pressure should be built up by NGOs at the domestic level on courts so that they could use the provisions of the universal treaties.
EMMANUEL DECAUX, Sub-Commission Expert, in closing remarks to the discussion of his report, said that it would be up to the new body to take the matter further. On reservations, the International Law Commission had examined the eleventh report of Professor Alain Pellet. A seminar with the participation of high-level experts of the various human rights treaty bodies was being prepared on the subject, and he very much hoped that the Sub-Commission or its successor could be part of those discussions. Regarding judges, the work of the Sub-Commission was quite complementary, for example, concerning effective remedies.
If his study was able to be a bridge between what had been agreed in Vienna in 1993 and a new dynamic movement forward, then it would have been useful. Treaties were not just something for law professors; Mr. Decaux said they were important tools that translated the will of the international community and States to have permanent standards and to guide the vigilance of international society, in particular non-governmental organizations.
MOHAMED HABIB CHERIF, Sub-Commission Expert, said that he would like to draw attention to the principle of presumption of innocence, a fundamental principle in criminal law, with regards to the present issue, which he felt was particularly important. In addition, scientific advances, such as DNA proof, were a sign of hope for victims.
GUDMUNDUR ALFREDSSON, Sub-Commission Expert, said that he felt that in a short paper, Mr. Kartashkin had done a good job and covered a lot of ground. He also agreed with the main finding, that international human rights treaties placed limits on the sovereignty of states. There was no absolute sovereignty any more.
Mr. Alfredsson had three questions regarding the characteristics of sovereignty. First, the report said that sovereignty was vested in the State and in the people. He felt that one came first, and the other supported it. In another section, it was observed that the size and power of States could affect sovereign equality. What did that mean in the context of human rights, he asked, also inquiring whether large states could do things that small States could not. That might be true in reality, but as a matter of law it was worrying. Thirdly, regarding separate action, Mr. Kartashkin had made reference to the fact that, provided that joint action did not succeed, separate action would allow unilateral use of force. That was worrisome, as it created one more basis for use of force other than the Security Council. Finally, in the examples he wondered why all the bad interventions were by Western countries and good interventions were from other parts of the world. He wondered if that was a good reading, or if some other interpretation could be made.
CHEN SHIQIU, Sub-Commission Expert, said the paper presented by Mr. Katashkin was important. The issue of sovereignty was not only an issue of international law but was also a political one. If a State acceded to an international treaty, that State might give up some of its sovereign powers. However, in cases where reservations were made at the time of ratification, the State reserved its sovereignty. In that case there was no limit on the State’s sovereignty. In a contemporary international order, the UN Charter could maintain international peace and order. The maintenance of peace by the UN was not an intervention by a single country; it was a collective affair by Member States of the United Nations. Resolutions of the Security Council in matters of intervention were also negotiated measures as was the case of UN intervention in East Timor.
and Protection of Human Rights
21 August 2006
Discusses Reports on Human Rights With Regard to Small Arms, Terrorism,
State Sovereignty, and on Universal Implementation of Treaties
The Sub-Commission on the Promotion and Protection of Human Rights this afternoon concluded its debate on specific human rights issues and started its consideration of agenda item 3 on Administration of justice, rule of law and democracy. In the context of its debate on specific human rights issues, the Sub-Commission discussed reports on the prevention of human rights violations committed with small arms and light weapons, and on guidelines and principles for human rights protection when combating terrorism. On the item on administration of justice, it considered reports on the universal implementation of human rights treaties and on the difficulty of determining culpability and/or responsibility in cases of sexual violence; and a working paper on human rights and State sovereignty
Special Rapporteur Barbara Frey introduced her report on “The prevention of human rights violations committed with small arms and light weapons”, saying that, in regard to small arms violations, States had negative responsibilities to prevent violations by State officials and affirmative responsibilities to increase public safety and reduce small arms violence by private actors. In order to accomplish the title objective of the study, States had to take effective measures across the entire spectrum of supply and demand for small arms.
Kalliopi Koufa, Sub-Commission Expert, presented the report of the sessional Working Group on guidelines and principles for human rights protection when combating terrorism. The report made three recommendations: first, that the Chairperson-cum-Rapporteur should submit an updated draft framework to the Human Rights Council for its consideration; second, the Office of the High Commissioner for Human Rights should hold a seminar related to international judicial cooperation; and third, the work on guidelines should be continued regardless of the framework for expert advice to be established by the Human Rights Council.
Introducing the report on the universal implementation of international treaties pertaining to human rights, Sub-Commission Expert Emmanuel Decaux said that since 1993, a new dynamism was taking place with regard to international treaties. The nature of international human rights commitments should be elucidated, and the issue of justiciability stressed through the adoption of additional protocols in order to allow individuals to lodge complaints with a view of claiming their rights. In addition, the cultural rights of each country should be respected in the implementation of treaties.
Lalaina Rakotoarisoa, Sub-Commission Expert, introducing the report on the difficulty in establishing guilt and/or responsibility in matters of sexual violence, said that in establishing evidence, the judge should use scientific evidence, should be impartial and neutral in his work and the principle of equality before the law should be respected. The exploitation of women sexually was similar to a situation of slavery. Trafficking in women had an inter-State character and thus required international protection.
Presenting his working paper on Human rights and State sovereignty, Sub-Commission Expert Vladimir Kartashkin said that modern States did not have sovereignty outside their territories. A State could not be absolute in its sovereignty. In the UN Charter, State sovereignty required the respect of human rights, so that each individual enjoy absolute human rights. When a State voluntarily acceded to an international treaty, then its sovereignty would be limited by the fact that it was bound by the terms of those international obligations.
Also taking the floor this afternoon were Sub-Commission Experts Yozo Yokota, Florizelle O'Connor, Abdul Sattar, Paulo Sergio Pinheiro, and Mohamed Habib Cherif.
A representative of the non-governmental organization Pax Romana, also spoke.
The next plenary of the Sub-Commission will be at 10 a.m. on Tuesday, 22 August, when it will take up item 7 on its agenda, namely Implementation of Human Rights Council decision A/HRC/1/Dec/102 and other related issues. At 11 a.m. it is scheduled to go into closed session to continue its discussion of that agenda item.
Statements under agenda item 5: Prevention of discrimination
FRANÇOISE JANE HAMPSON, Sub-Commission Expert, said she wished to intervene on what she saw as a gap in the current system of implementation of human rights standards, which affected two very different but related groups. There were those with permanent conditions, such as blindness and deafness. Second, there were those with certain transient medical conditions, such as mental illness or with certain physical illnesses, such as leprosy. Their problems were not limited to medical treatment. They often suffered discrimination, either direct or indirect, on account of their condition. The position of the mentally ill and the formerly mentally ill were particularly serious. While the forms of discrimination might vary, the fact of discrimination appeared to be widespread.
Ms. Hampson noted that there was plenty of so-called “soft law” about the problem, such as the World Programme of Action Concerning the Disabled Persons; the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care; the International Labour Organization Recommendation concerning Vocational Rehabilitation of the Disabled, etc. The problem did not appear to be one of norms, but one of implementation. It was sometimes suggested that there was no longer a need for standard-setting, and therefore no need for the Sub-Commission. It was certainly the case that, notwithstanding the significant volume of soft law regarding those conditions or illnesses, their situation in practice did not conform to those standards.
Presentation of reports under item 6: Specific human rights issues
Introduction of the report on the prevention of human rights violations committed with small arms and light weapons
BARBARA FREY, Special Rapporteur on the prevention of human rights violations committed with small arms, introducing her report on the prevention of human rights violations committed with small arms and light weapons (A/HRC/Sub.1/27), said there were more people killed with small arms and light weapons in the world each year than by weapons of mass destruction. In regard to small arms violations, States had negative responsibilities to prevent violations by State officials and affirmative responsibilities to increase public safety and reduce small arms violence by private actors. In order to accomplish the objective that was stated in the title of the study, States had to take effective measures across the entire spectrum of supply and demand for small arms. The report provided information and legal analysis to support States in understanding their human rights responsibilities with regard to small arms and light weapons. First, it provided summaries and analyses of State policies and practices regarding small arms, based on the responses of 40 Governments to the questionnaire that was circulated in connection with the study. Second, the report provided further discussion on two legal issues connected with State responsibility for preventing human rights abuses committed with small arms by non-State actors. The two issues were an elaboration of the due diligence standard in relation to abuses by private or non-State actors and the implications of the principle of self-defence upon the State’s small arms policies and practices.
In the report, Ms. Frey concluded among other things, that international human rights jurisprudence required that the minimum effective measures that States should adopt to prevent small arms violence had to go beyond mere criminalization of acts of armed violence; States had further obligations to put in place some form of control mechanism in order to prevent rights violations. She also found that, while the principle of self-defence had an important place in international human rights law as an exemption for criminal responsibility, it did not provide an independent or supervening right to small arms possession, nor did it ameliorate the duty of States to use due diligence to regulate civilian possession.
Report on the prevention of human rights violations committed with small arms and light weapons
A report (A/HRC/Sub.1/58/27), entitled Prevention of human rights violations committed with small arms and light weapons, addresses two international legal principles that are critical to understanding the nature and extent of the State’s obligation to prevent human rights violations committed with small arms: the due diligence responsibilities of States to prevent small arms abuses by private actors and the significance of the principle of self-defence with regard to the State’s human rights obligations to prevent small arms-related violence. Annexes to the report contain a summary and analysis of the responses of United Nations States Members to the questionnaire of the Special Rapporteur.
Presentation of the Report on Guidelines and Principles for Human Rights Protection When Combating Terrorism
KALLIOPI KOUFA, Sub-Commission Expert, introducing the report of the sessional Working Group guidelines and principles for human rights protection when combating terrorism (A/HRC/Sub.1/58/26), said that she was particularly grateful that Ms. Hampson and Mr. Decaux had prepared highly useful papers on key issues raised in last year’s session. Ms. Hampson had prepared a working paper on “International judicial cooperation”, and Mr. Decaux a working paper on “Victims of terrorism”. Ms. Hampson’s working paper had highlighted that recent terrorist activity could be distinguished from earlier forms in that now it was transnational – making international cooperation especially vital. She also highlighted issues related to the transfer of individuals, and stressed that such transfers be conducted within the framework of the law. Mr. Decaux’s working paper had pointed out concerns where normal redress might be difficult – such as an inability to actually obtain meaningful redress from the actual perpetrators, and without funds reachable by a court. In that regard, States might set up national solidarity funds for victims.
Ms. Koufa had also presented a second, expanded working paper that was used in the present report, and which included a brief review of the structure of the updated framework draft principles and guidelines concerning the promotion and protection of human rights when combating terrorism. The report concluded with three recommendations: first, that the Chairperson-cum-Rapporteur should submit an updated draft that took into consideration the papers submitted this year to the Working Group, the discussion therein, as well as the working papers to be submitted within a month from the conclusion of the session, and transmit the draft framework to the Human Rights Council for its consideration; secondly, that the Office of the High Commissioner for Human Rights organise a seminar related to international judicial cooperation, drawing on participants from a variety of different legal traditions; and thirdly, that the work on guidelines should be continued regardless of the framework for expert advice to be established by the Human Rights Council.
Report on Guidelines and Principles for Human Rights Protection When Combating Terrorism
The Report on Guidelines and Principles for Human Rights Protection when Combating Terrorism (A/HRC/Sub.1/58/26) was not immediately available.
Statements on the reports on Human rights violations committed with small arms and light weapons; and on Guidelines and principles for human rights protection when combating terrorism
EMMANUEL DECAUX, Sub-Commission Expert, said that the issue of the prevention of human rights violations committed with the aid of light and small arms was crucial at the international level. Since 2002, the Security Council had studied each year the report to the Secretary-General entitled “light arms”. Reacting to the latest report on the issue, the Council had adopted a chairperson’s statement recalling that the issue of light arms was by definition a multilateral issue, and underlined the necessity to engage international organizations, non-governmental organizations and commercial and financial institutions to contribute to the implementation of the embargo on arms, and to pursue the objectives of preventing trafficking in light arms. The measures taken by the Sub-Commission was a complementary work stressing the prevention of human rights violations due to the use of light arms within the internal context.
In the United Sates and in Brazil, there had been powerful lobbies to impede any measures to prevent the holding of firearms by individuals. The questionnaire that collected 38 responses had been important in enriching the final report of Ms. Frey. Although its scientific exploitation was exemplary, the lack of response by some countries was regrettable. On the legal aspect, it was essential to take into consideration the historical dimension and social phenomenon. In France, since the Revolution, agricultural society was attached to the right to hunt and the possession of guns, while state agents detained other arms. With regard to private persons, there should be a distinction between private persons possessing small arms legally, and private persons collaborating with the State, such as staff of private prisons. A new principle should be introduced in that regard.
YOZO YOKOTA, Sub-Commission Expert, said that the work done by the Special Rapporteur was monumental and full of information. The issue of light arms had not been analysed in depth by any body other than the Sub-Commission. He supported the position of the Special Rapporteur on the responsibility of States in regulating the issue of light and small arms. How to control trafficking in arms by transnational companies and the responsibility of States had been emphasised by the author of the report. The issues of fabricating arms and their distribution had also been dealt with. The report provided ample information for the Sub-Commission to discuss the issue.
FLORIZELLE O’CONNOR, Sub-Commission Expert, said she came from an island State that was unable to adequately control its borders. Her country had one of the highest murder rates in the region, although it was not involved in a civil war. Successive governments had tried to get the participation of the so-to-speak donor country from which most of the guns came illegally into the hands of the citizens of her country, and had been advised that it was the responsibility of the recipient State to monitor the activities of gun dealers, because under the laws of the donor State their gun salesmen were licensed and it would be a violation of the rights they held under those licences to provide another State with information on the sales they had made.
Ms. O’Connor said she accepted the principle of that argument, but she was also aware of the inadequacy of the means of small States to monitor the entry of arms into their countries. One of the forward movements that the Sub-Commission or its successor could take would be to look at the nature of States’ responsibility, in order to identify measures for cooperation between States to be used to protect what was essentially the right to life. That was what this topic was about, citizens’ right to life. She would like to see a classification of light arms, which today in her country ranged from handguns to machineguns that were used in war. In conclusion, this topic could be linked to others, such as the role of transnationals, and the issue of terrorism and the need for States to protect their citizens.
FRANCOISE JANE HAMSPON, Sub-Commission Expert, said the report was a very important one, more important than she had ever seen in the past, and it was vital for the work of the Sub-Commission. The issue of training in a military context should be seen from the perspective of the need of each State. The actual training operational doctrines were drastically different from those of the past. The content of training should be within the context of States’ domestic law. The Sub-Commission should adopt principles on small and light arms now. She asked the Special Rapporteur to review the principles contained within the report in light of Experts’ comments. The principles should also be sent to other international agencies that would use them, such as Interpol.
ABDUL SATTAR, Sub-Commission Expert, said that the study had now reached its predetermined conclusion. He had no suggestions or comments to add. For that reason, he had signed a recommendation for a draft decision to be submitted to the Human Rights Council for further action. He had taken the floor to ask Ms. Frey to intervene on behalf of two issues confronting States with certain problems; first, the problem faced by some countries, including Pakistan, where there was an inherited custom by which individuals, particularly males, insisted they had a birthright to carry small arms. They had protected that right so fiercely that even the Colonial power that had ruled that country for decades had not banned the right of citizens to carry arms. What recommendations did Ms. Frey have for such States, he asked.
Mr. Sattar’s second question involved the responsibility of the providers of small arms. In the 1980’s, when the people of Afghanistan were engaged in a struggle for their country, a large number of sympathizing States had found it in their interest to flood that country with arms. Even large weapons, including missiles, had been provided. What about the responsibility of those providers, he asked. In the case of Afghanistan, for example, the arms had flooded back to Pakistan, which latter country was now left with the problem.
BARBARA FREY, Special Rapporteur on the prevention of human rights violations committed with small arms, in concluding remarks after the discussion of her report, said she was thankful for the positive reaction of the Experts. The human rights perspective of the violation of rights by wielders of small arms was important. The topic still remained a critical one. Since guns were affecting the lives of everybody, the business responsibilities of transnational enterprises involved in their cross-border sale should be given higher importance. Any government training should comply with the standards required in the use of guns. The transfer issue was raised in the report with regard to individual companies and the manner to lodge complaints. Some prosecutors had difficulties in prosecuting arms dealers. The problem of small island countries in controlling arms trafficking flowing into their territories was also a problem. There were countries, like Yemen for example, where guns were abundant; but the rate of criminality including the use of guns was far less.
Presentation of reports under item 3: Administration of justice, rule of law and democracy
Presentation of the report on the universal implementation of international treaties pertaining to human rights
EMMANUEL DECAUX, Sub-Commission Expert and Special Rapporteur on the Universal Implementation of International Human Rights Treaties, introducing the report on the universal implementation of international treaties pertaining to human rights (A/HRC/Sub.1/58/5), said the mandate given to him by the Sub-Commission was coming to an end. He had presented a series of reports on the issue during the last five years. For technical reasons, he was unable to include responses obtained through questionnaires. The figures in the report showed the evolution of trends in the ratification of treaties, and the degree of commitments by States. Since 1993, a new dynamism was taking place with regard to international treaties. In 2006, few countries had ratified the two UN Covenants. Some countries had expressed their readiness to ratify those treaties by preparing the ground and reforming their domestic legislation. The official tables provided by the UN should be user-friendly and included a checklist of ratifications.
Report on the universal implementation of international human rights instruments
The report (E/CN.4/Sub.2/2006/5) entitled "Universal implementation of international human rights instruments" looks at the various commitments undertaken by States and at the further efforts needed in order to realize the goal of universal ratification of human rights instruments, set out by States in 1993. On the occasion of the recent establishment of the Human Rights Council, a number of candidate States undertook a series of human rights commitments, in particular with regard to ratification, coming closer to the goal of universal ratification. Another area of focus was the legal challenges faced with regard to the nature and extent of international human rights law. The final report also looks at the question of the universal implementation of international human rights instruments, in particular in the light of the insights obtained from the questionnaire of the Special Rapporteur. It deals in turn with the fundamental question of the enforceability of international instruments in domestic law, distinguishing between dualist and unified systems, and the question of the effective implementation of commitments, which necessitates the existence of legal and other remedies, but also a real political will on the part of the public authorities as well as all organs of society.
Presentation of the report on the difficulty in establishing guilt or responsibility in matters of sexual violence
LALAINA RAKOTOARISOA, Sub-Commission Expert, introducing the report on the difficulty to establish guilt or responsibility in matters of sexual violence (A/HRC/Sub.1/58/CRP.9), said that in establishing evidence, the judge should use scientific evidence, and should be impartial and neutral in his or her work. The principle of equality before the law should be respected, and the judge should do away with subjectivity. The evidence presented by the parties should be examined even they presented proofs that were lacking clarity or were ambiguous. The victim’s testimony should be established in accordance with internationally-established rules. The right to defend and the right to a fair trial should be respected taking into account international norms.
In all cases forced prostitution, forced marriages, and forced pregnancy were clearly sexual violence. The sexual exploitation of women was similar to a situation of slavery. Trafficking in women had an inter-State character and thus required international protection. Sexual tourism was also a form of violation of the human rights of individuals. Courts should take into consideration the psychological impact on the victims. The role of the medical professions was also emphasized in establishing evidence. The courts should take up the efficiency and the validity of evidence.
Report on the difficulty in establishing guilt or responsibility in matters of sexual violence
A report on the difficulty in establishing guilt or responsibility in matters of sexual violence (A/HRC/Sub.1/58/CRP.9), suggests that the means to establish proofs should be harmonized with regard to sexual violence, which are different because of the different judicial systems, the investigative procedures and the different procedures of each country. All the entities of the UN working on the administration of justice and on the rights of women and children should work towards rendering the procedure effective and action-oriented.
Presentation of the working paper on Human rights and state sovereignty
VLADIMIR KARTASHKIN, Sub-Commission Expert, presenting his working paper on Human Rights and State sovereignty (E/CN.4/Sub.2/2006/7), said that the problem of sovereignty concerned virtually all areas of contemporary international law. Today there were States and non-States that tended to violate the sovereignty of other States. His paper was structured into five chapters dealing with the problem of sovereignty and human rights issues. Modern States did not have sovereignty outside their territories. They were limited to the domestic structure of the State, dealing with its international actions. For that reason, a State could not be absolute in its sovereignty, as it had to, according to the UN Charter, respect human rights, so that each individual could enjoy absolute human rights.
When a State voluntarily acceded to an international treaty, then its sovereignty would be limited by the fact that it would be bound by the terms of those international obligations. The use of force by some States for humanitarian purposes might motivate interference in the affairs of other States. The responsibility to protect human rights could be justified by decisions emanating from the Security Council regarding intervention. State sovereignty and the use of force against States behaving illegally and other issues had been dealt with in the report. A universal understanding of sovereignty of a State and human rights should be given a large thought.
Working paper on Human rights and state sovereignty
The working paper (E/CN.4/Sub.2/2006/7) entitled "Human rights and State sovereignty" focuses on a number of questions relating to the topic under study and also considers them in the light of new developments on the international scene. That was dictated by the fact that at the end of the twentieth and the beginning of the twenty-first centuries, fundamental changes were taking place in international relations and international law which also affected questions of relevance to the topic under study. A globalizing world has led to a rethinking of many principles and norms of international law, which are constantly changing in response to new realities. The author has sought to reflect these changes in the present working paper. Owing to the limited scope of the working paper, the author was unable to consider many aspects of the topic in depth. Moreover, some of them were outside the terms of reference. Questions relating to human rights and State sovereignty are not only legal in nature, but concern political and other interests of States. Their detailed study requires considerable time and does not fit in the limited space of the working paper.
Statements on the report on the universal implementation of international treaties pertaining to human rights; on the report on the difficulty in establishing guilt or responsibility in matters of sexual violence; and on the working paper on human rights and state sovereignty
PAULO SERGIO PINHEIRO, Sub-Commission Expert, said that he was pleased with the report of Mr. Decaux on universal implementation of human rights treaties, as, amidst a climate of scepticism, he had continued to show optimistic realism. He had given the Sub-Commission several indications that were hopeful. Amidst the promises, there had been several commitments undertaken on the part of States. Secondly, Mr. Decaux had charted a course for the Sub-Commission, demonstrating that there was a need for this steering mechanism to supplement the monitoring and implementation of human rights treaties, as well as to carry out training mechanisms. That chart, if it became permanent, could help them to steer the way through the waters towards universal ratification. Thirdly, the report highlighted the need to develop a dialogue among States, and all relevant actors, on reservations.
R.J. RAJKUMAR, of Pax Romana, said NGOs had contributed substantial work to the report of Mr. Decaux. The pledges and commitments implied in the ratification of treaties should be stressed. The Office of the High Commissioner for Human Rights had dealt with the issue of reservations. Pressure should be built up by NGOs at the domestic level on courts so that they could use the provisions of the universal treaties.
EMMANUEL DECAUX, Sub-Commission Expert, in closing remarks to the discussion of his report, said that it would be up to the new body to take the matter further. On reservations, the International Law Commission had examined the eleventh report of Professor Alain Pellet. A seminar with the participation of high-level experts of the various human rights treaty bodies was being prepared on the subject, and he very much hoped that the Sub-Commission or its successor could be part of those discussions. Regarding judges, the work of the Sub-Commission was quite complementary, for example, concerning effective remedies.
If his study was able to be a bridge between what had been agreed in Vienna in 1993 and a new dynamic movement forward, then it would have been useful. Treaties were not just something for law professors; Mr. Decaux said they were important tools that translated the will of the international community and States to have permanent standards and to guide the vigilance of international society, in particular non-governmental organizations.
MOHAMED HABIB CHERIF, Sub-Commission Expert, said that he would like to draw attention to the principle of presumption of innocence, a fundamental principle in criminal law, with regards to the present issue, which he felt was particularly important. In addition, scientific advances, such as DNA proof, were a sign of hope for victims.
GUDMUNDUR ALFREDSSON, Sub-Commission Expert, said that he felt that in a short paper, Mr. Kartashkin had done a good job and covered a lot of ground. He also agreed with the main finding, that international human rights treaties placed limits on the sovereignty of states. There was no absolute sovereignty any more.
Mr. Alfredsson had three questions regarding the characteristics of sovereignty. First, the report said that sovereignty was vested in the State and in the people. He felt that one came first, and the other supported it. In another section, it was observed that the size and power of States could affect sovereign equality. What did that mean in the context of human rights, he asked, also inquiring whether large states could do things that small States could not. That might be true in reality, but as a matter of law it was worrying. Thirdly, regarding separate action, Mr. Kartashkin had made reference to the fact that, provided that joint action did not succeed, separate action would allow unilateral use of force. That was worrisome, as it created one more basis for use of force other than the Security Council. Finally, in the examples he wondered why all the bad interventions were by Western countries and good interventions were from other parts of the world. He wondered if that was a good reading, or if some other interpretation could be made.
CHEN SHIQIU, Sub-Commission Expert, said the paper presented by Mr. Katashkin was important. The issue of sovereignty was not only an issue of international law but was also a political one. If a State acceded to an international treaty, that State might give up some of its sovereign powers. However, in cases where reservations were made at the time of ratification, the State reserved its sovereignty. In that case there was no limit on the State’s sovereignty. In a contemporary international order, the UN Charter could maintain international peace and order. The maintenance of peace by the UN was not an intervention by a single country; it was a collective affair by Member States of the United Nations. Resolutions of the Security Council in matters of intervention were also negotiated measures as was the case of UN intervention in East Timor.
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