Category: school

Monday, October 27. Group 8: AT, AW, Yongho Kim
Response to the European Convention and the Case of Homosexuality

The European Convention for the Protection of Human Rights and Fundamental Freedoms System constitutes a model and a standard of its own in terms of effectiveness in enforcing Human Rights among its members. The Convention was signed in 1950 and entered into force in 1953. It gives the de facto unity between European members and the “common heritage of political traditions” as reasons for which a universal and effective enforcement of human rights is possible through the Convention. (1423)

Adequacy of a Regional System

The Convention is a place of convergence of several sources of tension in the international human rights movement. The UN was not fond of a competing organization, at least while the UN lacked a comparable treaty on Human Rights (ICCPR and ICESCR). Eastern European states are strongly opposed to the creation of regional systems on the basis that human rights cannot be “regionalized”, applied differently in distinct areas of the world, for it would betray the notion of universal human rights, and because the creation of an organization already being overseen by another – the UN Human Rights Commission – would create problems of consistency and inadequate use of financial resources (783). Western European states argue that a regional enterprise takes away energy from the two global covenants of higher importance.

Claude reflects in the issue pointing out that each problem should be considered to determine if it belongs to a regional or a global realm, but also warns that no single regional human rights issue may escape global impact. He also shows the sensible issue of delineating states into definite regional categories, which has the potential to surpass its purely administrative purpose to hold economic nuances in the geopolitical configuration of the region. The most pressing warning, however, is that regional states may closely collaborate to systematically ignore some specific human rights issue. (782) He concludes indicating that a global organization is always in the best position to mediate international conflicts and that, according to the UN Charter, the “United Nations should be supreme.”

Institutional Enforcement

Three regional organizations hold relationships with the monitoring and enforcement of the Convention. (789) The Council of Europe is the creator of the Convention and upholds democracy, the rule of law and human rights; states wishing to enjoy trade benefits through the European Union normally join the Council of Europe first. The European Union, which can be historically traced back to another economic treaty in 1952, has developed into a comprehensive political and economic unit which encompasses the abiding of human rights as one of its side concerns. The Organization for Security and Co-operation in Europe (OSCE) is a political organization created in the midst of cold war (1975) as a result of negotiations between the Soviet Union and the NATO bloc; its highlight is the High Commissioner on National Minorities who works on “issues of ethnic tensions that threaten peace and stability”. (793)

Section II of the Convention (Art. 19-51) establishes the European Court of Human Rights, which oversees and enforces cases of violations of human rights. ICCPR HRC and the Inter-American Court often refer to decisions of the European Court (808) and the Court itself recalls its own decisions in justifying rulings, indicating a high degree of authority enjoyed by the European Court.(810) The strongest support for the Convention comes from its binding force. Article 46, Paragraph 1 (not 53, as in p.809) states that “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” (1431). Additionally, the Convention fashions the highest authority in matters of human rights opinions, a highly developed judiciary, and the implicit benefit of economic and political integration as incentive.

Questions:

1. What are the overlapping (can they work hand in hand on a functional basis) and potentially conflicting (do they go against each other) areas between the national, regional and global legal systems?
2. If many Eastern European countries sign onto the ECHR as a ‘homework’ for joining the EU, what other incentives can be utilized in other regions of the world where the economic/ political motives are not applicable?

The issue of morals and homosexuality

Two related rulings throw light into the judicial proceedings of the European Court. One is the case of Handyside, in which the Court supported the decision of the UK Magistrate’s Court in censoring “The Little Red Schoolbook”, a reference book for children with liberally permissive contents on matters of sexual behavior, contraception and prevention of venereal diseases. Handyside claimed a breach of the right to Freedom of Expression (Art.10), to which the UK replied that it would “corrupt and deprave” children, appealing the protection of morals stated in Paragraph 2 of the same article. The European Court stated that it was not possible to find “a uniform European conception of morals”, and that therefore it was up to the state to settle the issue, bringing up the notion of “margin of appreciation”, an judicial space in which the state was to exercise discretion. (812)

The next case, Norris v. Ireland, has been presented along with the U.S. Supreme Court’s ruling on another similar case (Bowers v. Hardwick), and deserves close inspection.

Norris v. Ireland United States
Antecedent Ireland is party to the European Convention. Hardwick was arrested immediately after engaging in oral sex act by a surveilling police.
Relevant local legislation 1. Person Act (1861) sec.62: indecent assault upon a male person… subject to prison sentence not exceeding ten years
2. Criminal Law Amendment Act (1885) sec.11: act of gross indecency with another male… imprisonment not exceeding two years.
3. Constitution Art.29(6): no international agreement shall be part of the domestic law 1. Georgia statute: “any sex act involving the sex organs of one person and the mouth or anus of another” is a crime of sodomy.
2. US Constitution, Amendment 14: sec.1. …No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Accusation The law against homosexuality leads to: 1. Depression because of likely criminal persecution upon overt expression of sexuality. 2. Fear of prosecution. 3. Laws are no in accordance to the European Convention 1. Statute condemning oral or anal sex act is unconstitutional based on Due Process clause of the 14th amendment. (Prior decisions related to procreation, family and abortion relied on an implicit right of privacy)
Local ruling High Court: dismissed, although depression is possible. Accuser appealed directly to Supreme Court.

Supreme court ruling & reasons 1. Argument for European Convention rejected: Laws do not need to be in accordance. (Const.29)

2. Christian nature of Irish state is consistent with lack of privacy encompassing homosexuality, which is:

a. is against Christian teachings and nature. (moral) b. can lead to depression, despair and suicide. (psycho-clinical) c. has resulted in venereal diseases. (public health) 1. Constitution should not confer rights to homosexuals when many States are already involved in illegalizing it: a. Family and homosexual activity are unrelated. b. When the 14th Amendment was ratified, 86% of U.S. states had criminal sodomy laws. (Thus 14th Amendment was not understood as upholding homosexuality.) c. Law is based in morality. d. Court does not have time to bother with new interpretations of existing laws. (Justice White)
2. Traditions of western civilization, Christianity, and morals all have historically interfered with homosexuality. (Justice Burger)
Other legal recourse 1. European Convention Art.8. (1) Everyone has the right to respect to his private and family life … (2) except such as is in accordance with the law and is necessary in a democratic society with interests of national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or …rights and freedoms of others.
2. EHRC ruling on Dudgeon Case (1981) Apparently no other legal recourse.

Reference – South African Constitution (1996) Art.9 (3): The State may not unfairly discriminate directly or indirectly … race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Support for Accusation European Court: 1. interference is in accordance with [local] law, but is not enough of a basis since there has not been a public demand for enforcement of anti-homosexual law. (39,40,41,46) 2. A similar case previously ruled in favor of private sexual practice in Dudgeon. (44) 3. The issue deals with a highly intimate portion of private life, thus arguments for interfering should be serious; arguments based merely in morals are not sufficient. (46) 1. Dissenting opinions (Justice Blackmun, Brennan, Marshall and Stevens): 1. Philosophy underlying the U.S. constitution is not grounded in morals, but in the interest of the individual; and sexuality is a matter of individual bonds. 2. A legislation failing to justify itself on non-religious grounds is either illegitimate or non-secular. 3. The public realm is not affected when homosexuality is practiced in private space.
2. The government should not have been able to know of Hardwick engaging in oral sex act in the first place. (Tribe)

Questions:

1. Is a “European (or other regional) moral system” impossible to define? If yes, is it conducive to giving the state ‘margin of appreciation’ ?

CH, JM. Discussion Group 7

What kinds of complaints are brought before the ICCPR? How does it differ from other treaty regimes?

One of the components of the ICCPR Human Rights Committee is an optional protocol (ratified by 95 of the 144 states as of March 2000), with a critical provision stating that communications must be ‘from individuals…who claim to be victims of a violation’ by a state party to the Protocol ‘of any rights set forth in the Covenant’. The Committee then evaluates these individual communications, granted that the matter is ‘not being examined under another procedure of international investigation or settlement’, in closed meetings that take all written information available into account. These proceedings are a) meant to be distinct from any current judicial proceedings in the state where the dispute originated, b) do not need to address systematic violations of human rights, c) are written only, d) are closed to the public, and e) the ‘views’ agreed upon, which are ultimately made available to each party involved, are not binding.

While the Committee often comes to the conclusion that specific human rights have been violated, and sometimes provides recommendations to the parties committing violations, the Committee has no binding legal jurisdiction. And while the Committee urges the State party to submit ‘information about the measures taken to give effect to the Committee’s view’ within ninety days after the ‘view’ is disclosed, the Protocol does not enforce this wish. Only about thirty percent of the replies received are considered satisfactory, and many states do not even submit information. Therefore, the case can be considered closed as soon as the report has been forwarded to the parties. The Committee also faces an increasing number of caseloads (due to rising public awareness of the procedure and more state parties involved) and dwindling resources. Thus, the committee can unfortunately only formulate about thirty ‘views’ per year.

Does the Committee seem to be effective? Some things to consider: 1) The fact that the concentration of complaints among states seems paradoxical, since aside from Uruguay and Jamaica (which comprise half of the cases about which the Committee submitted ‘views’) the states that the Committee is examining most often are also the states whose citizens seem to enjoy freedom under the rule of law and the protection of human rights. This discrepancy may be attributed to a citizen’s fear to submit information to the committee, a general lack of awareness of the existence of the Committee in some states, insufficient resources (a citizen in some states may not be able to contact or pay for a lawyer), or perhaps because the person thinks that submitting a report to the ICCPR Committee would be useless given the state of the government in which he/she lives. 2) The fact that some decisions are made by a process of consensus (which can maintain a cooperative approach and anonymity of decision, but can also limit and undermine separate opinions). 3) The fact that the monitoring of human rights violations through the Protocol becomes a secondary function, and that therefore a better alternative may be to build and strengthen regional complaints systems. 4) The nature of the Committee as a nonbinding international organization often means that the Committee’s desires are not meant. Some states, such as Sierra Leone and the United States (in the Breard case) have not responded to requests of the Committee, by not postpone sentences of capital punishment.

Many issues have arisen as to how the Committee should function. The second section details several of these issues of procedure. One of these concerns is centered on the issue of hate speech and the difficult choice between the right to freedom of speech and the right to not be threatened by this hate speech. This issue was brought up in the case of a Danish reporter who did a television program on white supremacist groups that included an interview with several members of an organization that expounded these views. The much-edited interview played on TV, and inspired wrath in the groups attacked by the views that were expressed. Does the media have the right to report on offensive groups and ideas or should it edit out hateful content? Is there a middle ground (i.e. a statement saying that these views are not socially acceptable or valid)? Does this middle ground take away from the media’s ability to be unbiased and non-judgmental? A case was also made that hate speech in the media is dangerous and should not be carefully guarded against by looking at Rwandan propaganda efforts by the media during the Rwandan genocide. This argument stated that the Rwandan media’s efforts led peasant Hutus to slaughter Tutsis. Does the extreme power and control of the expression of opinion possessed by the media make more stringent controls on hate speech necessary?

A second issue raised is the issue of the committee’s ability to challenge standards between different countries. The conflict portrayed was between the governments of the U.S. and Canada. Canada was asked by the U.S. to extradite a man who had committed a series of murders in California so that he could be tried and, if found guilty, possibly be put to death in the gas chamber. Canada does not have the institution of capital punishment, but interpreted the ICCPR as saying that unless death by gas asphyxiation had been declared a human rights offense by the international community, it was okay to extradite the man. The man challenged this choice, claiming that gas asphyxiation was a cruel form of capital punishment, so Canada could not extradite him. This raises issues of the ability of the committee to enforce standards on a very precise and contentious issue within various cultural and legal frameworks. Should the committee be allowed to decide what constitutes a humane form of capital punishment in a country that has democratically established criteria for what is humane and what is inhumane? Should an authoritarian-style government be treated differently?

The second section of the reading concludes with an opinion about the proper role of the Committee. The authors argue that the most important role for the committee is to provide an area of dialogue for the various actors in the human rights system rather than actually impose judgments on certain cases. To this end, the authors argue that the Committee’s procedures should be more open, with accessible, easy-to-read decisions and a discretionary jurisdiction (similar to the U.S. Supreme Court) rather than a mandatory jurisdiction. They feel this would allow the court to do a better job of solving the more contentious issues rather than focusing on individual cases. This raises a few simple questions. What should the role of the Committee be? Is a mandatory jurisdiction or discretionary jurisdiction better?

In addition to the ICCPR Committee, five other treaty bodies have been formed to implement the treaty or monitor state conduct. They are the Committee on Economic, Social and Cultural Rights, The Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, and the Committee on the Rights of the Child.
Primary activity is the consideration of states reports (many of these treaties function similarly, with similar rules to the ICCPR treaty)

The third section of the reading deals with the reporting and complaints structures of the various international human rights treaties. One of the major forms of this is the states’ reports. States have to file reports within the first two years of becoming party to a treaty and then every 5 years after that. These reports have caused certain problems to arise, which have effected certain reforms. One such reform is the practice of allowing states to send representatives to work with the Committee in processing the report. A second is the procedure of examining states who don’t file reports to make sure that the treaties are being followed. A third reform is the growing NGO involvement in the process, as they attempt to monitor governments. However, certain problems remain pressing to this day. For example, Non-reporting is still rampant, as is the practice of superficial reporting. Countries have also increasingly had problems with the many treaty bodies, finding it difficult to satisfy the many different criteria of each treaty body. Some possible solutions to this include reducing the number of treaty committees, filing a single report to all committees or breaking up the report process into individual reporting on specific issues. Are there any other solutions to these problems?

A second institution is that of on-site visits. The Convention against Torture provides a way in which the committee can ask for reports or even visit a country on a specific issue that has raised some concern outside of the normal report schedule. Other treaties include similar provisions for a more intrusive monitoring of participating countries. Do these visits conflict with national sovereignty? How so?

A third sections deals with the outdated practice of interstate complaints. This was originally intended to allow states to file complaints against other states that violated international norms. However, this process has never been used, and thus is not an important piece of the international human rights reporting procedures.

The reading also talks about individual complaints against a country. This allows individuals within countries a way to ensure that states do not break rules set by treaties. These complaints play an important part in ensuring that countries do not secretly break rules because individual citizens can make the international community aware of these violations.

CH, HM, AP. Group 6 Response

The UN currently has 6 treaty organs, which are distinguished from Charter organs in that they are not created under the UN charter, but are mandated by the 6 universal human rights treaties.

The ICCPR Human Rights Committee is a treaty organ created by Articles 28-45 of the International Covenant on Civil and Political Rights (1976). It has 3 dominant functions: 1. States submit reports to the ICCPR Committee on measures taken and progress made in meeting the rights stipulated by the Covenant, 2. The Committee must ‘transmit such general comments as it may consider appropriate’ back to these states, 3. The Committee is also authorized to receive communications from individuals claiming to be victims of violations by state parties, and to forward its views about these communications to the individuals and the states concerned.
The functions outlined for the Committee in the ICCPR Covenant took a long time to agree upon, particularly in light of the Cold War ideological conflicts and debates about protecting state sovereignty. The result is a compromise between those States who favored strong international measures and those who emphasized the primacy of national sovereignty, and therefore many issues about the functioning of the Committee were left unresolved by Covenant. Some recent developments in the Committee’s approach to reports are that the Committee may now request certain states to issue ‘emergency’ reports about a newly developed situations (eg Iraq, Yugoslavia), it now supports the suggestion that human rights bodies be able to bring violations directly to the attention of the Security Council, and finally, it may be possible for the Committee to send a ‘mission’ to certain states in cases where the Committee was unable to obtain required information.

The Committee is composed of 18 members, who must have ‘high moral character and recognized competence in the field of human rights’, and who represent an equitable geographical distribution. Most have some form of legal experience, and they are elected to serve in their personal capacity as experts, as opposed to as state ambassadors. The Committee meets 3 times a year, for 3 weeks each time. Most meetings are public, however only a few outsiders and representatives of NGOs tend to come. Decisions taken by the Committee should be by majority vote, but all decisions to date have actually been taken by consensus.

Two questions arise as a consequence of the structure of the Committee. First is the issue of to what extent the ‘experts’ really act independently of their government’s interests, considering that some come from authoritarian, single-party states, and most must continue to hold part-time jobs, often for their governments. Second, does the practice of decision by consensus cause undue compromise, blunting of positions and failure to take bold steps. Another more pressing problem is that of the reports: They are supposed to be presented by states every five years, to be prepared following Committee guidelines. However, the greatest weakness of the system, according to Thomas Buergenthal, is the failure of certain states to submit their reports on time. Furthermore, if all the states did submit their reports, the Committee would not have time to process them during their 3 yearly meetings. What are the benefits and liabilities of reporting systems?

The Concluding Observations of the Committee examine positive aspects, factors and difficulties affecting implementation of the Covenant, and principal areas of concern and recommendations for each country. In particular, the chapter examines Chile, Iraq, Israel, Japan, Poland, Senegal, Sudan and the United States of America, wherein it praises states which have eliminated the death penalty, and disapproves states which criminalize abortions and homosexual relations, discriminate against groups on the basis of religion, gender or ethnicity, operate under a government that lacks transparency and accountability, or permit torture, death penalty and police brutality.

What legal action can be taken to pressure states to follow recommendations? How much authority does the Committee hold? Despite sanctions, the committee expects Iraq to implement obligations under the Covenant, but Are there circumstances where might a state be excused from such obligations because of sanctions? If so, what other measures could be taken? States like the U.S. and Japan legally forbid discrimination but, in practice, gender and racial inequalities are very prevalent. The Covenant has only vague recommendations of “eliminating discriminatory attitudes.” What steps, beyond legal action, can be taken to eliminate discrimination, and is the state accountable for this?

Article 40 of the ICCPR states under section 4 that the Committee shall study states reports and “transmit its reports, and such general comments as it may consider appropriate, to the States Parties” (1389). This vague wording allows for various understandings of the purposes of the General Comments, and the Comments have so far taken on two distinct types. The first has the intention of chastising vague reports and outlining proper ways to report state’s steps towards fulfilling the requirements of the ICCPR. The second is concerned with clarifying the meanings of certain articles and providing detailed interpretations of the types of rights involved and corresponding government responsibilities. In an extreme case, a General Comment attempted to create a new article in the bold statement, advocating, “The production, testing, possession, deployment, and use of nuclear weapons should be prohibited and recognized as crimes against humanity” (735). It is obvious that General Comments are more specifically prescriptive than the original covenant. In this way the comments attempt to remedy the ambiguous nature of the ICCPR and lay down officially sanctioned interpretations and requirements. Do you feel that the more explicit nature of the Comments is a reasonable and effective method for increasing accountability? Do the Comments overstep their boundaries?