The Role of States
The promotion and protection of human rights by individual states has an internal as well as an external dimension. This chapter discusses the domestic and international actions states can carry out to enhance human rights protection. Internationally, states can raise their voices whenever human rights are violated. States are actively involved in the development of human rights standards, institutions and supervisory mechanisms. They are the first to bring violations to the attention of international fora and, furthermore, have the capacity to stimulate positive developments with regard to compliance with human rights standards.
At the national level, it is imperative that states comply with international standards. These standards, however, often provide only the minimum safeguards and it is thus preferable that states provide a higher level of protection, i.e. by making available resources for a higher enjoyment of certain socio-economic rights. It is emphasised that effective domestic protection and the success of international standards ultimately lie in the power of states. The human rights supervisory mechanisms, particularly the European Court, have consistently emphasised this point in establishing that their supervision should be subsidiary to that of the national courts and domestic systems for the protection of human rights.
A. Domestic human rights protection
Effective protection of human rights depends on the compliance of each state with its human rights obligations. Establishing a constitutional model in which all human rights are effectively protected is not an easy task. It requires elaborate legislation, effective control over state institutions such as the law enforcement agencies and continuous efforts on the part of numerous other state organs. The struggle of many countries in Eastern Europe and Africa, which changed from absolutist rule to democracy, to comply with the requirements of democracy and human rights – especially regarding questions of multiparty democracy and effective remedies before national courts – demonstrates the enormous efforts and time that may be needed to ensure effective domestic compliance.
The 1990 Copenhagen document of the CSCE spells out in detail what internal compliance may require, inter alia:
Free elections that will be held at reasonable intervals by secret ballot or by equivalent free voting procedure, under conditions which ensure in practice the free expression of the opinion of the electors in the choice of their representatives;
A form of government that is representative in character, in which the executive is accountable to the elected legislature or the electorate;
The duty of the government and public authorities to comply with the constitution and to act in a manner consistent with law;
A clear separation between the state and political parties; in particular, political parties will not be merged with the state;
The activity of the government and the administration as well as that of the judiciary will be exercised in accordance with the system established by law; respect for that system must be ensured;
Military forces and the police will be under the control of, and accountable to, the civil authorities;
Human rights and fundamental freedoms will be guaranteed by law and in accordance with their obligations under international law;
Legislation, adopted at the end of a public procedure, and regulations will be published, that being the condition for their applicability; these texts shall be accessible to everyone;
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law; the law will prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground;
Everyone will have an effective means of redress against administrative decisions, so as to guarantee respect for fundamental rights and ensure legal integrity;
Administrative decisions against a person must be fully justifiable and must as a rule indicate the usual remedies available; and
The independence of judges and the impartial operation of the public judicial service will be ensured. Principles of fair trial are guaranteed and access to justice, to effective remedies, is secured.
Furthermore, to comply with human rights obligations, a state must establish foundations for the rule of law in which the following institutions must be guaranteed:
A legislative institution, which represents the will of the people, and is chosen by free elections held at reasonable intervals under conditions which ensure in practice the free expression of the opinion of the electors in the choice of their representatives. The legislative body should legislate in compliance with international human rights commitments.
A judiciary that protects the human rights of individuals and groups against arbitrary legislative power and guarantees effective remedies and fair trial.
An executive branch that does not abuse discretionary power and seeks to promote the enjoyment of human rights by all under its jurisdiction.
CODES OF CONDUCT
One important factor in compliance with human rights is to ensure that those in positions of authority do not abuse their power. Several international human rights documents directly address actors other than governments (corporate bodies or individuals), stipulating correct behaviour in relation to those within their sphere of influence. These instruments, so-called ‘codes of conduct’ or ‘codes of ethics’, are written for specific groups of officials or certain professions, directly addressing those individuals who are subject to demands, for example, that they torture people or commit other forms of human rights violations. Codes of ethics are designed to promote compliance with international standards and create an ethos where individuals will refuse to yield to demands to commit human rights violations. Most codes of conduct relevant to human rights concern the police and other law enforcement personnel as well as the military, but the medical and legal professions are also addressed. Some examples of codes of conduct are the following:
The 1979 UN Code of Conduct for Law Enforcement Officials, which sets rules of conduct for police and penitentiary staff, inter alia, in order to prevent torture of prisoners.
The 1982 UN Principles of Medical Ethics (Principles of Medical Ethics, relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), which seek to prevent medical personnel from engaging in any form of torture or other form of inhuman or degrading treatment.
The 1979 Council of Europe Declaration on the Police, which aims at preventing abuse of (police) power and clearly defining police authority.
The 1985 UN Basic Principles on the Independence of the Judiciary, which establish the conditions under which justice is secured.
The 1996 UN International Code of Conduct for Public Officials.
Other codes address, for instance, lawyers, judges and prosecutors. These are groups that, although not necessarily in the service of the state, act in the public sphere where their actions may affect the human rights of others.
1. NATIONAL HUMAN RIGHTS INSTITUTIONS
National institutions provide the checks and balances that ensure the optimal functioning of the rule of law in modern society. In this regard, special attention should be paid to the establishment of national institutions for the protection of human rights. National institutions in the field of human rights are bodies, authorities or organisations performing general and specific functions in the protection and promotion of human rights. They are different from NGOs in that constitutions or governments have often given them legal competence to protect and promote human rights. Given the plurality of democratic society, no standard structure or mandate typifies such a national institution, but usually a collegiate structure (e.g., national commissions on human rights) or a personalised structure is adopted (mediators or ombudsmen). Apart from advisory capacity in the area of human rights policies, some of these institutions have quasi-judicial powers regarding violations of personal freedoms. Many modern democracies have established the positions of ombudsmen.
The mandates of national human rights institutions are wide-ranging and varied. They may include: the preparation of advisory reports; drawing the government’s attention to situations of human rights violations; the promotion of awareness and national legislation in conformity with international human rights standards; the formulation of education programmes in the field of human rights; control of standards in the fields of e.g. health or education; and examination of individual petitions. The definition of spheres of competence as regards, e.g., access to documents, possibilities of examination and possibilities of initiative is closely linked to their mandates. Ombudsman-type institutions are a good example: their powers of investigation are sometimes far-reaching, including access to confidential data; their reports are public; and their role is especially important as regards cases which normally do not reach the courts. National institutions can also play an ad hoc or permanent role promoting reconciliation or affirmative action to remedy domestic situations in which groups of persons have been denied enjoyment of their human rights.
Most important, and often neglected, is the absolute need for guarantees for the independence and pluralism of national human rights institutions. The International Meeting on National Institutions, held in Paris in October 1991 under UN auspices, adopted the ‘Principles relating to the status of national institutions’ (the ‘Paris Principles’). The UNGA welcomed the Principles in its resolution 48/134 of 20 December 1993. The Principles deal with the competence and responsibilities of national institutions, their methods of operation and their composition and guarantees of independence and plurality. Independence may take several forms:
Independence through legal status: by giving the institution an effective mandate clearly spelled out in a constitutional or legislative text specifying composition and sphere of competence.
Independence through composition: by ensuring that composition and appointment of members is established in a procedure which guarantees pluralist representation from civilian society.
Independence through operation: e.g., by ensuring that the institution can freely consider any question within its competence by guaranteeing the institution direct access to the public and by enabling consultations with other bodies.
Unless their independence is sufficiently guaranteed, the contribution of national institutions to a pluralistic democratic society can only be of limited value. Without independence an institution might even be counterproductive to the extent that it may serve as window dressing for governments not sufficiently committed to human rights. In reviewing possible financial or other kinds of support to institutions, independence is of crucial importance.
SOUTH AFRICA - TRUTH AND RECONCILIATION COMMISSION
Examples of national bodies in the field of human rights are the so-called ‘truth commissions’ that generally deal with large-scale human rights violations that have been committed nationally. The South African experience may serve as an example:
In 1995, the South African Truth and Reconciliation Commission (TRC) was set up by the new democratic government to address human rights violations committed ‘in the course of the conflicts of the past’. The Commission’s purposes were to file a report detailing human rights violations under apartheid, to make recommendations for material and symbolic reparations to the victims, and to restore ‘the human and civil dignity of victims by granting them an opportunity to relate their own accounts of the violations’. The Commission also had the power to grant amnesty to individual perpetrators under certain conditions. Its mandate did not, however, include general apartheid policies that had been violating the human rights of the great majority of South Africans for decades, such as the denial of voting rights, or the forced removal of people from their homes.
In its so-called interim report, in five volumes published in 1998, and its final report published in 2003, the TRC concluded that gross human rights abuses had been committed by both sides in the conflict: the state and the liberation movements in their armed struggle against apartheid. However, the report stated that it had ultimately been the state that had generated violent political conflict, and that its apartheid policies amounted to a crime against humanity.
B. International enforcement of human rights
Many states do not comply with international human rights norms; one may argue that all states violate human rights every so often. As a result, there is justified international concern regarding states committing human rights violations. But how can individual states react? International law is founded on the will of states, which does not generally allow for intervention in delinquent states in order to assure compliance with human rights law. Nevertheless, international society is no longer an order of power in which might makes right; it is now recognised that states can and must challenge notions of sovereignty in cases of violations of human rights.
For states that value compliance with human rights, the promotion and protection of human rights is an important element in their international relations. It is, however, not a policy field that can be easily separated from other policies or handled by a single governmental department. While the promotion of human rights is an independent policy objective in foreign policy, its pursuance is often integrated into the various policies pursued in international relations by foreign ministries, including trade and development assistance.
In enforcing human rights compliance against violating states, international fora are of prime importance. Individual states are important and relevant actors in those fora as they can raise human rights issues resulting in violating states being shamed and confronted by their peers. The promotion and protection of human rights in other states is a priori within the competence of all states, in conformity with their constitutional traditions and their obligations under international human rights Conventions. Notably, in several of the UN Charter bodies, criticism is dependent on the initiative of individual states acting, preferably, in concert with others.
Outside the international fora there is room for bilateral action. Bilateral measures can be more informal and historical or personal relations or other relationships (e.g., economic, trade, aid) can play a significant role. Where international interventions cannot take place for some reason, bilateral intervention can be of importance, inter alia, when an outspoken approach is called for or action to strengthen and support a position taken by an international body is needed. A clear bilateral role is also played in the field of development co-operation where small projects in the field of human rights are often more efficiently undertaken bilaterally. Support for the judiciary or good governance projects is another example of how bilateral action can contribute to the improvement of compliance with human rights obligations. At the same time, one must realise that human rights promotion through bilateral relations runs the risk of conflicts of interest: a difficult balance must be maintained between national interests and human rights interests, between principles and direct benefits. Several states have initiated human rights programmes and integrated human rights into their bilateral co-operation.
Mention should also be made of the responsibilities of foreign missions. When governments wish to make their views in the field of human rights known abroad, they usually rely on their missions in the first instance. The instrument of demarches is one option, but informal measures are also frequently used. Foreign missions are especially important in relation to human rights dialogue with the host government: a dialogue can be conducive to improvement as it is often regarded as a constructive approach by the countries concerned. The dialogue may also extend to other layers of society as bilateral missions can maintain contacts with local human rights NGOs and other human rights defenders. Moreover, missions are a source of first-hand information on the human rights situation in a given country as monitoring and reporting on human rights issues is one of the regular tasks of missions.
Finally, mention should be made of the special role played by the permanent missions with the international fora dealing with human rights. Many states have missions in Geneva, New York, Vienna and Strasbourg and are actively involved in the human rights discussions taking place in the fora headquartered there.