 On the History and Implications of the Two Covenants: The Experience of the International Human Rights Movement
Dear Human Rights Activists, Dear Friends,
On 31 March this year your government ratified the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. Both conventions had been signed by the RoC in 1967, but nothing happened until the 90ies, when civil groups started to push for a ratification. The ratification is a first important step forwards, but not the only one. First, Taiwan has ratified the conventions without any reservations. Secondly, the conventions were not only ratified, but a law was passed on their implementation. This law gives priority to providing funds for implementation and gives all levels of government two years in which to review their laws, regulations and practices and to amend or reform those that do not comply with the covenants. This sets a precedent for Taiwan’s ratification of and accession to other international conventions. Thirdly, the implementation law calls for the forming of a national human rights reporting system to regularly monitor the implementation of the two covenants. This implementation law is important, because it puts the government under some pressure, independent of the fact, whether the UN accepts the ratification or not. And, as far as I know, until now the UN has not.
Moreover, it is important that Taiwan has ratified both conventions. The basis of both is the Universal Declaration of Human Rights, but because the West and the East during the time of the Cold War could not agree on one convention to put it into practice, they decided to create two. This was in 1966. I will come back to that later. But both conventions belong together, human rights are interdependent and indivisible. This has been underlined by the World Conference on Human Rights in Vienna in 1993. Therefore, Taiwan has undertaken the right step to ratify both conventions together.
To put these conventions into practice is, however, not only the task of the government, but also a task of the civil society in general. There are a lot of tasks to fulfil.
One very general task, of the government, of NGOs and of other influential people of the society, is human rights education. You should make public not only the covenants, but other human rights instruments as well. You have to translate texts, publish books, articles and flyers. You have to give lectures, go into universities and schools. You can create posters, films, theatre performances or other events. Human rights are not necessarily boring, they can be catching. The more a society knows about human rights, the more they will be engaged in human rights.
But back to theory and history. The United Nations as well as the Declaration of Human Rights are an outcome of the Second World War. At the Peace Conference in San Francisco 1945, the Charter of the United Nations was drafted, but there was also a proposal to embody a “Declaration on the Essential Rights of Man”. This proposal, however, was not examined and therefore postponed. The Preparatory Commission of the United Nations, which met after the closing session of the San Francisco Conference, recommended that the Economic and Social Council should establish a commission for the promotion of human rights. Accordingly, the Council established the Commission on Human Rights early in 1946. After several rounds of drafting and rewriting the declaration was submitted to the General Assembly of the United Nations. It was adopted as the Universal Declaration of Human Rights on the 10 December 1948. 48 states voted in favour, none against, with 8 abstentions. The Declaration was conceived as a common standard for all people and all nations (that means not only for the member states of the United Nations). This was again underlined by the International Conference on Human Rights held in Iran in 1968. In the Proclamation of Tehran, the Conference agreed that “the Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community”. The Conference affirmed its faith in the principles set forth in the Declaration and urged all peoples and governments to dedicate themselves to those principles.
The Declaration affirms, however, that a person’s rights or freedoms may be subject to certain limitations, which must be determined by law. These limitations are solely allowed for the purpose of securing due recognition of the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Rights must not be exercised contrary to the purposes and principles of the United Nations.
Now, the Universal Declaration of Human Rights is a nice piece of paper, wonderful to read, but not very concrete. It is, as the name says, a declaration, but it has no binding power. It is no legal instrument. Countries which accede to the United Nations have to accept the Universal Declaration, but this is only a declaration of good will. The United Nations were very well aware of this, and on the same day they adopted the Declaration the General Assembly requested the Commission on Human Rights to prepare a covenant on human rights (I underline a, one covenant) and draft measures of implementation. As I said before, it was the time of the Cold War, and after long discussions in 1951/52, the General Assembly requested the Commission “to draft two Covenants on Human Rights ... one to contain civil and political rights and the other to contain economic, social and cultural rights”. Both conventions were finally completed in 1966 and adopted by the General Assembly. They entered into force only in 1976. The Covenant on Economic, Social and Cultural Rights also authorizes some restrictions on the exercise of rights, as the Declaration does. The Covenant on Civil and Political Rights, however, does not. Certain rights, therefore, may never be suspended or limited, even in emergency situations. These are the right to life, to freedom from torture, to freedom from enslavement or servitude, to protection from imprisonment for debt, to freedom from retroactive penal laws, to recognition as a person before the law, and to freedom of thought, conscience and religion. In addition, the International Covenant on Civil and Political Rights has two Optional Protocols, one concerning individual complaints and one aiming at the abolition of the death penalty. These five bodies form the International Bill of Human Rights. For a short time now, the International Covenant on Economic, Social and Cultural Rights has also an Optional Protocol. It was passed by the UN in December last year and is open for signature since this September. Up till now, 29 states have signed. It will enter into force three months after the tenth ratification or accession.
There are nine core international human rights treaties. Apart from the two Covenants mentioned, these are the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities. Each of these treaties has established a committee of experts to monitor implementation of the treaty provisions by its States parties. Some of the treaties are supplemented by optional protocols dealing with specific concerns.
In addition to the International Bill of Rights and the core human rights treaties, there are many other universal instruments relating to human rights. The legal status of these instruments varies: declarations, principles, guidelines, standard rules and recommendations have no binding legal effect, but such instruments have an undeniable moral force and provide practical guidance to States in their conduct. Covenants, statutes, protocols and conventions are legally binding for those States that ratify them or accede to them.
All human rights put states under three kinds of obligations: the obligation to respect, to protect and to fulfil human rights. The obligation to respect means that states must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect means that states must protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.
Another cross-cutting principle is the principle of non-discrimination. It applies to everyone and prohibits discrimination on the basis of sex, colour, race and so on. You can find this principle in all major human rights treaties and it is the central theme in the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.
All these conventions, protocols and so on are, however, very abstract and don’t give much advice how to implement them. The most important instrument are the two Committees that monitor the implementation of the two Covenants, the Human Rights Committee responsible for the Covenant on Civil and Political Rights and the Committee on Economic, Social and Cultural Rights for the other Covenant. Both committees consist of 18 independent, international experts each. All state parties are obliged to submit regular reports to the Committees on how the rights are being implemented. States that acceded to the Covenant of Civil and Political Rights must report initially one year after acceding and then whenever the Committee requests; this is usually every four years. States that acceded to the Covenant of Economic, Social and Cultural Rights must report initially within two years and then after every five years. The Committees examine each report and address their concerns and recommendations to the state party in the form of "concluding observations".
But there are further resources for explanation. First of all, there are so-called fact sheets. These are not simple sheets of paper, but veritable long articles that explain different issues. At the moment, there are 33 fact sheets, most of them also in Chinese. Second, there are the so-called General Comments, also 33 in number at the moment, but purely by chance. Further fact-sheets and General Comments may follow. The General Comments are quite extensive, too; e.g. the General Comment on the Right to Water is 18 pages long. But, they as the fact sheets are soft law. Third, there are the reports of the Special Rapporteurs. There are Special Rapporteurs on individual countries, which are not relevant for us at the moment, 8 now, and there are Special Rapporteurs on themes, 30 in number at the moment. They all report to the Human Rights Council on their findings and recommendations. They are sometimes the only mechanism that will alert the international community on certain human rights issues. The Human Rights Council replaced the Commission on Human Rights in 2006. It is an intergovernmental body, which meets in Geneva 10 weeks a year, is composed of 47 elected UN member states who serve for an initial period of 3 years, and cannot be elected for more than two consecutive terms. Fourth, there are the state reports, the shadow reports of NGOs and the concluding observations of the UN. I would recommend that you look at all these papers and draw conclusions from them to the situation in your country.
In my view, it is not necessary that every NGO writes a shadow report of their own. Of course, you can write several ones, but you can write one report made up of chapters written by individual NGOs.
Amnesty International has always worked on civil and political rights in the nearly 50 years of its history. But in the last years, they enlarged their work and launched a campaign in the field of economic, social and cultural rights. At the moment, we are particularly working on the right to housing and the right to health as two examples. I will focus a bit more on the right to housing.
The right to housing is based in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Conventions of the Rights of the Child and the ILO Habitat Agenda from 1996. It is further explained in the Fact Sheet 21 "The Human Right to Adequate Housing" and the Fact Sheet 25 "Forced Evictions and Human Rights", the General Comment No. 4 "The right to adequate housing" and the General Comment No. 7 "The right to adequate housing: forced evictions".
I would like to go a little bit more into detail and start with General Comment No. 4 from 1991. At that time the UN estimated that there were over 100 million persons homeless worldwide and over 1 billion inadequately housed. The right to housing should not be interpreted in a narrow sense which equates it with the shelter provided by merely having a roof over one’s head or views it exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity. A definition of adequate shelter may be “adequate shelter means ... adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost.” Adequacy, however, is determined in part by social, economic, cultural, climatic, ecological and other factors. But certain aspects must be taken into account and they include the following-
‧Legal security of tenure
‧Availability of services, materials, facilities and infrastructure
‧Affordability
‧Habitability
‧Accessibility
‧Location
‧Cultural adequacy
Moreover, there must be a priority for underprivileged groups, there must be a national strategy for housing and there must be a monitoring of the housing situation.
Moreover, instances of forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.
The other General Comment dealing with the right to housing is the General Comment No. 7 “The right to adequate housing: forced evictions” from 1997. The term “forced evictions” is defined as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance of the law and in conformity with the provisions of the International Covenants on Human Rights. Women, children, youth, elder persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups suffer disproportionately from forced evictions. The non-discrimination provisions of the Covenant impose an additional obligation upon governments to ensure that, where evictions do occur, appropriate measures are taken to ensure that no form of discrimination is involved. Forced eviction and house demolition as a punitive measure are also inconsistent with the norms of the Covenant. Evictions should not result in individuals being rendered homeless. Procedural protection and due process are always essential, but in these cases they should include:
‧An opportunity for genuine consultation with those affected
‧Adequate and reasonable notice for all affected persons prior to the scheduled date of eviction
‧Information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected
‧Especially where groups of people are involved, government officials or their representatives to be present during an eviction
‧All persons carrying out the eviction to be properly identified
‧Evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise
‧- provisions of legal remedies, and provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts
Moreover, there is a Special Reporters on the right to adequate housing. Concerning Asia, visits were made and reports delivered on Afghanistan in 2003, Cambodia in 2005 and Australia in 2006. Since 2008 the Reporters is a lady from Brazil.
But there are also other organizations working on the right to housing. The biggest ones are The Centre on Housing Rights and Evictions based in Geneva and the Asian Coalition for Housing Rights based in Bangkok, the last one focussing on cities.
Gradually coming to an end of my presentation, I would like to focus on the implementation of these rights.
Different to other regions in the world, such as Europe, Africa and Latin America, Asia has no human rights instrumentalism and no court of its own. The more important are national human rights institutions.
On a conference in Paris in 1991, principles concerning the position of human rights institutions were developed and on 20 December 1993 adopted by the General Assembly of the United Nations together with Resolution 48/134. These principles are known as the Paris Principles. According to international law, they are not binding, but they are relevant, because they give some orientation and they set standards.
In 1993 an International Co-ordinating Committee was founded that makes decisions on the recognition of national human rights institutions, and since 2000 such institutions are recognized.
Moreover, there is an Asia-Pacific Forum of National Human Rights Institutions, based in Sydney. This forum differentiates between full members, candidate members and associate members. The full members observe the Paris Principles and can send a member to the Forum’s Council and a jurist to the Forum’s Advisory Council of Jurists. Candidate and associate members do not observe the principles, associate members not even in the near future, and can therefore not send any delegates.
National human rights organizations are not non-state organisations, because they are based on governmental decisions and funds given by the governments. Therefore, they are not NGOs, such as the Asian Commission for Human Rights based in Hong Kong.
The Paris principles lay down the competence and responsibilities, principles for the composition and guarantees of independence and pluralism, the methods of operation as well as additional principles concerning the status of commissions with quasi-jurisdictional competence.
One example of such a national human rights organization is the German Institute for Human Rights. This institute was established in March 2001 on the recommendation of the German Parliament. It provides information about the human rights situation within and outside of Germany. It aims to prevent human rights violations, and contributes to the promotion and protection of human rights. In detail, the activities are:
-Information and documentation (e.g. it published a German translation of the General Comments)
-Research on human rights topics
-Policy advice for representatives of politics and society
-Human rights education, e.g. developing training materials for professional groups, state authorities and schools as well as conducting advanced education seminars for experts in development cooperation, for police and the armed forces
-International cooperation with other national human rights institutions and human rights bodies of the European Union, the Council of Europe, the Organization for Security and Cooperation in Europe and the United Nations
-Promotion of a public debate on human rights and cooperation of human actors in Germany.
The institute, however, has no mandate to deal with human rights violations on an individual level. When contacted with individual cases, they try to refer to other help lines and services. It is federally funded with a budget of nearly 2 million euros. The Ministry of Justice supplies 40 percent of its budget and the Foreign Office and the Ministry for Economic Cooperation and Development 30 percent each.
A recent survey of National Human Rights Institutions has revealed that they are not as effective as they should be. Many of their recommendations to governments are not followed-up. About half of the questioned institutions complained about their relationship with public bodies, such as the executive, parliament, the judiciary or the police, which they believe attach little value to their work.
I do hope that a future Taiwan Human Rights Institution will be more effective.
‧By Dr. Renate Müller-Wollermann,
at the Human Rights Covenants and Citizens’ Advocacy Workshop for NGOs in Taiwan,
12 November 2009, Taipei
中文譯稿 ► |
首頁 
聯絡我們
