Eighteenth Commonwealth Law Conference, Keynote address by Ms. Navi Pillay, UN High Commissioner for Human Rights

Organised by the Commonwealth Lawyers Association
with the assistance of the Law Society of South Africa

Key Note address by
Ms. Navi Pillay
United Nations High Commissioner for Human Rights

Cape Town, 15 April 2013
Esteemed colleagues,
Dear Friends,

It is a great pleasure to participate in this Eighteenth Commonwealth Law Conference.   I am very grateful to have the opportunity to address legal professionals from such a wide variety of countries who are dedicated to maintaining and promoting the rule of law and human rights throughout the Commonwealth.

The theme of the Conference of “Common Challenges – Common Solutions” could not be more appropriate, and today I will focus my remarks in three areas that respond to this general theme.  First, I would like to talk about the nature of human rights: how should we think about them, conceptually and in practice?    Second, I will address the relationship between the rule of law and human rights and how this affects the administration of justice at the national level.  Lastly, I will give you some examples of how international human rights standards have been invoked before national courts on a number of different subjects, with the hope that this may inspire you to draw on international human rights provisions and their interpretation when you are practicing before your national courts.

So let me begin. 

In any discussion of human rights it is helpful to know precisely what we are talking about.   We are all lawyers here, and so we know that words and terminology are important.    First, human rights are inalienable.    Article 1 of the Universal Declaration of Human Rights states that, “All human beings are born free and equal in dignity and rights.”  Fundamental freedoms and human rights are inalienable in the sense that they cannot be taken away by Government action, or by corporate contract.   These basic freedoms and rights exist, and any attempt to deprive any person of his or her human rights is a serious violation, no matter what pretext is given. 

Human rights are universal.  They are the same everywhere. There is no relative interpretation from one country to another country, and there is no situation in which some human rights are applicable in one set of countries, but not in others. 

Human rights are interdependent.  For example, protection of freedom of expression and of peaceful demonstration will facilitate and reinforce the right to participate in public affairs.   The fulfilment of the right to health and the right to food will help create the conditions for the right to education to be more fully exercised.

Human rights are to be applied on the basis of non-discrimination and equality.   This can be an important stumbling block if a country is multi-ethnic in character and some ethnic groups are consistently marginalised and do not have their human rights fully respected.   Marginalisation and discrimination can also take place on the grounds of gender, religion, language or national origin.   Poverty in particular can be a important source of marginalisation, dividing society into “haves”, and “have nots”.   Poverty can particularly affect access to the courts, unless there is a culture of human rights education in which all people are educated about their rights and learn how to ensure their rights are respected, including how to get legal aid.

Finally, human rights are indivisible.   On this concept of indivisibility, it is important to recall that when the Universal Declaration on Human Rights was adopted in 1946, civil and political rights as well as economic, social and cultural rights were included. 

However, when the negotiations in the General Assembly took place in the 1960s and 1970s for an international treaty on human rights, a far reaching decision was taken -- based in part on the realities of the Cold War -- to have one international treaty on civil and political rights, and another on economic, social and cultural rights.   This subsequently has created a situation in which some States have ratified one of these Covenants, but not both. Other States have ratified both Covenants, but treat civil and political rights as so-called “hard” rights that are straightforward to apply, while viewing economic, social and cultural rights as “soft” or “aspirational” rights that are only goals to be achieved progressively. 

In my view, this division of what I would term “indivisible” rights is not coherent.  For example, the right to life, which is protected under the International Covenant on Civil and Political Rights, is often understood as meaning the State has the obligation to protect the right to life of every person.   Thus it ensures that no one shall be arbitrarily deprived of his or her life.   But I would argue that the right to life can be equally understood as being grounded in economic, social and cultural rights. 

Who would argue, for example, with the proposition that the State has an affirmative duty to prevent or reduce infant mortality?  Or to reduce and eliminate unsafe drinking water and malnutrition, which can shorten life?   Or to protect people from exposure to toxic wastes or preventable diseases that threaten life?    An encouraging number of cases in national courts have recognized that rights associated with health are inherently linked to the right to life, and have emphasized that this protection is just as important as the traditional view of the right to life as a civil and political right. 

Another example of the indivisibility of human rights is the right to security of person, which is also set out in the International Covenant on Civil and Political Rights.   This is classically understood as prohibiting the State from engaging in arbitrary arrest and detention, and as a positive duty of the State to provide security, preventing and apprehending persons involved in crimes of physical aggression.   Yet a human rights centred response to combating crime must also address the underlying causes of crime and the reasons why individuals, and particularly young people, become involved in this type of activity.  

Poverty, lack of access to adequate food and medical care, lack of educational opportunities, high rates of unemployment, and discrimination against minority groups can contribute to a sense of hopelessness and desperation, making seemingly lucrative illegal activities a significant temptation when the State has not acknowledged the basic economic and social rights of its citizens in practice. 

The International Covenant of Economic, Social and Cultural Rights provides a roadmap for States to ensure an adequate standard of living to those who might otherwise be tempted to join organized criminal gangs.    My point here is that the security of person needs to be addressed both from a point of view of law enforcement, and from the point of view of crime prevention, by addressing the reasons why individuals, and young persons in particular, are often attracted to criminal activity.

Meanwhile, some States give higher priority to economic rights, in particular, than to civil and political rights.   They focus on the right to economic development, rather than development in its broader sense.   The argument, at least as I understand it, is that for rapid economic growth to occur, a country needs what is euphemistically called “stability”, which in practice means long periods of one-person rule, with repression of dissent and the opposition. 

I am profoundly disturbed by such models of development by States that appear to accept violations of civil and political rights as the so-called “price to pay” for rapid economic development.   I might note here that such models may have been largely adopted in a number of States that experienced the Arab Spring protests.  Alongside their admittedly sustained economic growth, several of these States were run by authoritarian leaders, and engaged in political repression of opposition groups, restrictions on labour rights, arbitrary arrest and detention, and stifling of freedom of expression, assembly and association.   Censorship, cronyism and the lack of an independent judiciary were also hallmarks.   The focus on economic growth alone often ignored whether the gains of economic growth were distributed evenly. Growth thus accentuated social tensions and misery. 

While I strongly support the right to development, it has to embrace not only its important economic component, but also civil and political rights.   True “development” includes freedom of expression, the right to protest, freedom of association, and the right to uninhibited participation in public debate, in politics and in government. Human rights defenders and journalists must not only be protected but given adequate facilitates.   And the right to participate must also empower those who are marginalized, including women; ethnic, religious and linguistic minorities; the disabled; and indigenous peoples.  

So when we talk about the indivisibility of human rights, we cannot separate political and civil rights and economic, social and cultural rights.   Experience has taught us that a predominate focus on political and civil rights without taking into account economic, social and cultural rights may penalize a significant part of the population, just as a model that focuses on economic growth at the expense of the protection of civil and political rights may equally lead to political upheaval. 

Having outlined the nature of human rights -- and in particular that  human rights are inalienable, universal, interdependent, indivisible and based on the principles of non-discrimination and equality -- I would now like to turn to a different, although related subject, which is the relationship between the rule of law and human rights, and how this affects the administration of justice.

THE RULE OF LAW MUST BE GROUNDED IN HUMAN RIGHTS

Allow me to explore for a moment the notion of the rule of law. As the 34th President of the United States, Dwight Eisenhower once said, “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”   States in such cases may be ruled by the whims and caprices of a single leader, or descend into the chaos of gang rule.   Society becomes polarized and structured by cronyism. The result is profound injustice and suffering. 

The Universal Declaration of Human Rights, adopted in 1948, mentions the  rule of law in its Preamble, but it was only in 2004 that a report of the Secretary-General to the Security Council defined the term.   The rule of law is identified as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with human rights standards.”

This definition clearly grasps that the rule of law must be anchored in a set of fundamental and universally respected set of values, which are human rights.   Any approach to the rule of law that does not refer to human rights can enable a State to legitimize a wide range of human rights violations.   If I may draw on my own experience, when I grew up in apartheid South Africa, the State was based on the rule of law, but was not anchored in human rights.   The result was a State based on fear, repression and discrimination. 

Similarly, segregation in the United States prior to the 1950s was based on law and enforced by the courts, and  some countries such as Australia formerly had an immigration policy based on law that restricted the immigration of non-whites.   Much of the repression of the Nazi regime was based on laws adopted during that period.   So the rule of law does not mean simply that the laws governing society should be passed by a democratically elected parliament and interpreted by independent and impartial courts.   It also means that laws that are not in conformity with human rights and fundamental freedoms should be declared invalid and struck down.

I would now like to turn to how these concepts -- human rights and the rule of law -- apply to what many of your do in your day-to-day professional lives.  In particular, I want to explore how human rights and the rule of law affect the administration of justice at the national level.   Here I will focus on three topics in particular: international human rights standards and pre-trial detention; torture or other ill treatment of those in detention; and the independence of judges and lawyers.   As a cross-cutting issue, I would also like to share with you new developments concerning the right to legal aid.

DETENTION BEFORE TRIAL

Abuse of pre-trial detention by States is one of the most fundamentally important issues for legal professionals.  Unfortunately, although the International Covenant on Civil and Political Rights prohibits unlawful or arbitrary arrest and detention, the maxim “easy to get in, hard to leave” continues to be true of prisons and other places of detention in far too many countries.  Journalists, human rights defenders, NGO representatives, and opposition leaders may often suffer unlawful or arbitrary arrest and detention.

Under international standards, there is a presumption in favour of release pending trial, subject to applicable guarantees for appearance at all stages of the legal proceedings.   However, in far too many cases this presumption is in practice reversed, with release prior to trial being the exception and pre-trial detention being the rule.   I would urge you all to vigorously work in your countries, as well as in other parts of the Commonwealth, to support efforts to apply the standards on unlawful or arbitrary arrest and detention set out in the International Covenant on Civil and Political Rights.    And it is important to recall that the principle of habeas corpus is also protected by international human rights law, and should be invoked whenever you feel your client has been unjustly detained. 

All of us, as individuals, can make a difference.  To illustrate that, I would like to share with you the results of an interesting and comprehensive study undertaken in Rio de Janeiro, Brazil, which found that defendants who had legal representation were twice as likely to be released pending trial than those with no representation. 
When you are representing persons who have been unlawfully or arbitrarily arrested and detained, you should also recall that if national remedies are inadequate, you can also file a petition with the UN’s Working Group on Arbitrary Detention, which has relatively easy procedures to facilitate petitions.

There have been some recent  developments in international human rights law regarding the right to legal aid in criminal proceedings, including pre-trial hearings to determine whether a defendant will be remanded into custody or be released pending trial. The General Assembly in December 2012 adopted new United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.   They state that a person has a right to legal aid at every stage of the legal proceedings, especially before being interviewed by the authorities, if he or she will face charges that may result in a term of imprisonment, however short. 

Although these new Principles and Guidelines are non-binding at the international level, they are already legally binding law in some jurisdictions.   For example, pursuant to a Grand Chamber judgment by the European Court of Human Rights several years ago, this standard is already applicable in the Member States of the Council of Europe.   Members of the Commonwealth should make every effort to adjust their laws to take these new Principles and Guidelines into account.

TORTURE IN DETENTION

Building on the issue of pre-trial detention, I would also ask those of you who are criminal law practitioners to also be vigilant in your representation of clients who may be subject to torture or other forms of ill treatment in prison.   Frequently, arrested persons are held in pre-trial detention and subjected to torture or other forms of ill treatment with a view to obtaining a confession to be used at trial.  Failure to respect human rights standards that prohibit torture and other forms of ill treatment, and which stipulate a positive duty of humane and dignified treatment of persons in detention, creates an environment that facilitates torture and other forms of ill treatment. 

Several articles of the International Covenant on Civil and Political Rights spell out the human rights standards applicable to those who are held in detention or who are imprisoned, as well as the United Nations Standard Minimum Rules for the Treatment of Prisoners and other “soft law” guidelines.   I would like to note that the Standard Minimum Rules, which approved by the Economic and Social Council in 1957, are now in the process of being revised by an intergovernmental process led by the United Nations Office on Drugs and Crime, to which my Office has been making a contribution. 

Legal representatives of persons in detention must vigorously denounce any signs of torture or ill treatment.   Their complaints to the appropriate authorities should aim to foster an official inquiry that will bring the perpetrators to justice.   According to the Convention Against Torture, it is the State’s obligation to investigate allegations of torture, and to bring to justice those who have committed such acts. Please also be aware that the Optional Protocol to the Convention Against Torture allows for the visit of Committee members to places of detention. Moreover, the Special Rapporteur on Torture receives petitions alleging torture and other forms of ill treatment when in custody, and may also engage in country visits.

All of these human rights mechanisms are designed to facilitate dialogue with the State in question, and may, if necessary, publicize internationally cases of torture or ill treatment.  Lawyers from the Commonwealth should acquaint themselves with these international treaties and international mechanisms, and draw upon them when needed.

INDEPENDENCE OF THE JUDICIARY

Another area of concern where you personally may make an important difference is the independence of judges and lawyers.  An independent judiciary is at the heart of human rights protection, and this principle is protected under the International Covenant on Civil and Political Rights.  Without an independent, impartial and competent judiciary, there is no credible institution to protect human rights.  This includes all types of courts, and especially constitutional courts. 

Sadly, I have witnessed time and again how executive power tries to push back against court decisions that it does not agree with, overriding them or deploying plans to change the composition of the court, or to limit its jurisdiction.   I cannot emphasize enough how dangerous a development this is, because it violates the principle of separation of powers, the pluralistic distribution of power in a democratic State, and weakens or cripples the core institution that acts as guarantor of human rights. 

As many of you know all too well, in a number of countries, judicial independence has been compromised, and the judiciary is not independent, or is not sufficiently independent.  In some States, the judiciary is effectively under the control of the executive, or powerful economic interests that pay large bribes for favourable decisions.  The result is that justice is no longer viewed as fair and transparent but dishonest and biased, and the population loses faith in the courts and the rule of law. 

This is not inevitable; it is reversible; and lawyers at the national level can make a difference.  There have been examples of judicial reform that have increased or restored the independence of the judiciary.   Some States in which judicial decision-making was once thought hopelessly mired in corruption have made substantial efforts to reduce if not eliminate such corruption.   So I would ask you to stay engaged, and to push for judicial reform when it is necessary to establish or restore judicial independence. 

The independence of lawyers and Bar Associations is also very important and protected by international human rights law.  Efforts by the State to control the conduct of lawyers or to bring Bar Associations under State control should be actively resisted.  Lawyers continue to be penalized in some countries -- including by threats of disbarment, intimidation or imprisonment -- for representing political opposition leaders, NGO leaders and human rights defenders, or for representing individuals or companies that denounce corruption.   I note here that the Human Rights Council has appointed a Special Rapporteur on the independence of judges and lawyers.  She receives complaints, makes country visits and engages in a strong dialogue with the concerned States. Lawyers in Commonwealth countries should be aware of this human rights procedure, and should make full use of it if there is interference with the independence of lawyers, or when national efforts to bring about judicial reform fail.

THE OBLIGATIONS OF ATTORNEYS GENERAL

Although my comments have been directed primarily at what lawyers can do to improve the administration of justice, other legal professionals also have an important role to play, and this includes a State’s Attorney General or the Minister of Justice, depending on how the State is organized.  The State is obliged, under international human rights law, to respect, protect, fulfil and promote human rights and the rule of law, and it is normally the duty of the Attorney General or Minister of Justice to carry out these obligations. 

The State, for example, has a fundamental obligation to request pre-trial detention only when it is strictly necessary.  It must adopt criminal laws against torture and other forms of ill treatment.   And it must promptly investigate complaints of torture and bring perpetrators to justice.   Senior justice officials should also take a leading role in making proposals for judicial reform if there are any questions concerning independence of the judiciary. 

EMPLOYING INTERNATIONAL HUMAN RIGHTS LAW IN NATIONAL COURTS

In concluding, I would urge you to think afresh about the possibility of invoking a wide variety of international human rights provisions, and their interpretation, before your domestic courts.  In some cases you may wish to directly invoke a provision of an international human rights treaty.   In other cases reference to international human rights standards may serve you in interpreting provisions in your national constitutions, given that the constitutions of a considerable number of Commonwealth countries contain a bill of rights or a chapter on human rights.

Some courts have already relied on such arguments.   For example, the Indian Supreme Court in 1995 interpreted the right to life to include the “right to health, medical aid to protect the health and vigour of a worker while in service or post-retirement”.   In addition to relying on provisions of the Indian Constitution, the Court cited the Universal Declaration of Human Rights and the Charter of the United Nations. 

The Constitutional Court of South Africa in 2000 applied the International Covenant on Economic, Social and Cultural Rights in a case involving the right to adequate housing. Although the South African Constitution contains a right to housing, the Court also made reference to article 2 of the Covenant in its decision, as well as to General Comment No. 3 adopted by the Committee on Economic, Social and Cultural Rights.

Some courts have also accepted arguments for environmental protection based on the right to life or the right to health.  In Bangladesh, for example, a court found that the right to life “encompasses within its ambit, the protection and preservation of environmental and ecological balance free from pollution of air and water.”    In a case in Argentina concerning environmental harm to fisheries and wildlife in a lagoon, the court concluded that, “The right to live in a healthy and balanced environment is a fundamental attribute of people.” 

The right to privacy, protected by the International Covenant on Civil and Political Rights as well as by the European Convention on Human Rights, was found to be applicable in a case before the European Court of Human Rights.   The Court found a violation of the right to private life when the plaintiff and her daughter suffered serious health problems from the fumes of a waste treatment plant operating near the apartment building where they lived.

I mention these cases in the hope that they will spark off ideas for your own work, when you return to your offices.   I myself find them to be tremendously inspiring.   They illustrate how creative and innovative legal arguments can be made on the basis of the universal human rights that have been articulated in international human rights treaties.

Thank you.

36 minutes