1. An overview of UN human rights instruments

As a result of many years of standard-setting work, the UN has created a significant body of international human rights law. The International Bill of Rights with its four parts is regarded as constituting the main foundation of this body.

The 1993 edition of the UN's A Compilation of Human Rights Instruments consists of two volumes and includes the texts of some 94 instruments.

A distinction can be made between general and special instruments. General instruments usually encompass a wide range of human rights. They are, in a broad sense, part of a constitutional order and operate within the framework of the UN or regional structures of international cooperation. General instruments include:

• Universal Declaration of Human Rights (1948)
• European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
• European Social Charter (1961)
• American Declaration of the Rights and Duties of Man (1948)
• American Convention on Human Rights (1969)
• African Charter on Human and Peoples' Rights (1981)

In its classification of special instruments, the compilation uses the following categories:

• right of self-determination
• prevention of discrimination
• rights of women
• rights of the child
• slavery, servitude, forced labour and similar institutions and practices
• human rights in the administration of justice
• freedom of information
• freedom of association
• employment
• marriage, family and youth
• social welfare, progress and development
• right to enjoy culture
• nationality, statelessness, asylum and refugees
• war crimes and crimes against humanity, including genocide
• humanitarian law

Amongst these general instruments, there are three main objectives:

a) elimination of discrimination: Special instruments have been developed to combat racial discrimination, discrimination against women, discrimination based on religion or belief, discrimination in employment, occupation and remuneration, and discrimination in education;

 

b) protection of vulnerable persons and groups: Instruments address the special rights and interests of ethnic, religious and linguistic minorities, women, children, detainees and prisoners, workers, indigenous and tribal peoples, mentally retarded and mentally ill persons, disabled persons, migrant workers, stateless persons and refugees;

 

c) struggle against large-scale evil practices: These include genocide, apartheid, slavery and other forms of human exploitation, torture and other crimes against humanity.

The legal status of these different human rights instruments varies. Those referred to as declarations, principles, guidelines, standard rules and recommendations are not the same as treaties. They do not require ratification and are without direct binding legal effect. At the very least, they have undeniable moral force and are declaratory of principles broadly accepted within the international community. Some have acquired the status of customary international law.

On the other hand, international treaties, variously referred to as covenants, protocols and conventions, are legally binding on those States which ratify or accede to them. Many establish bodies to supervise implementation by States parties of their treaty obligations. The six major human rights treaties within the UN System are:

• International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
• International Covenant on Economic, Social and Cultural Rights (ICESCR)
• International Covenant on Civil and Political Rights (ICCPR)
• Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and
• Convention on the Rights of the Rights of the Child (CROC)

2. International Convention on the Elimination of All Forms of Racial Discrimination Elimination of All Forms of Racial Discrimination (CERD) 1965

The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted by the General Assembly on 21 December 1965. It entered into force on 4 January 1969.

In Article 1(1) the term "racial discrimination" is defined broadly as:

"any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life''.

According to this definition, a positive intention to discriminate is not a necessary precondition to racial discrimination.

Parties to CERD undertake "to pursue...a policy of eliminating racial discrimination ... and promoting understanding among all races'' (Article 2(1)). In particular, parties undertake to eradicate all practices of racial segregation and apartheid, to adopt immediate measures to eradicate incitement to, and acts of racial hatred and discrimination and to declare an offence punishable by law dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination and acts of racist violence (Articles 3, 4).

In Article 5 States parties undertake "to prohibit and to eliminate racial discrimination ... and to guarantee the right of everyone, without distinction ... to equality before the law''. Article 5 contains a lengthy list of rights and freedoms in the enjoyment of which racial discrimination is to be eliminated and equality before the law guaranteed. These include civil and political, as well as economic, social and cultural rights.

The enumerated civil and political rights include:

• right to equal treatment before the organs administering justice;
• right to security of the person and to protection against violence;
• right to participate in elections and to take part in government and in the conduct of public affairs;
• freedom of movement;
• right to leave any country and to return to one's own country;
• right to nationality;
• right to marriage and choice of spouse;
• right to own property alone, as well as in association with others;
• right to inherit;
• freedom of thought, conscience and religion, and of opinion and expression, and
• freedom of peaceful assembly and association.

Prohibition of racial discrimination is guaranteed in the enjoyment of, amongst others, the following economic, social and cultural rights:

• right to work, to just and favourable conditions of work and to protection against unemployment;
• right to form and join trade unions;
• right to housing;
• right to public health, medical care and social security;
• right to education and training, and
• right to equal participation in cultural activities.

The Convention aims to achieve not only de jure but also de facto racial equality. Thus, special measures taken in relation to certain racial or ethnic groups are not considered racial discrimination, provided that:

• they do not lead to the maintenance of unequal or separate rights for different groups; and

• they are not continued after the objectives for which they were taken have been achieved: Articles 1(4), 2(2).

The Committee on the Elimination of Racial Discrimination monitors compliance with the Convention. The Committee consists of 18 experts "of high moral standing and acknowledged impartiality''. The Committee is involved in monitoring compliance with the Convention in three ways:

a) States parties are required to submit periodic reports to the Committee on the legislative, judicial, administrative and other measures they have taken to give effect to the Convention.

 

b) The Committee may consider communications by a State party concerned that another State party is not giving effect to the provisions of the Convention. There is no requirement of specific recognition of the Committee's competence to receive inter-State complaints.

 

c) The Committee may also receive communications from individuals and groups of individuals claiming violations of their rights under the Convention. This procedure requires a declaration by the relevant State party recognising the competence of the Committee to receive individual petitions and is available only upon the exhaustion of local remedies.

In order to promote a better understanding of the provisions of CERD, the Committee also adopts "general recommendations", comparable to the "general comments" of the Human Rights Committee in relation to the International Covenant on Civil and Political Rights. These do not address the situation in any specific State but draw on experience gained through examination of a large number of reports.

3. International Covenant on Civil and Political Rights (ICCPR) 1966

The International Covenant on Civil and Political Rights (ICCPR) was adopted by the UN General Assembly on 16 December 1966 and entered into force on 23 March 1976.

Article 1(1) of the ICCPR provides:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Part II contains a number of general provisions. Article 2 requires States parties undertake to adopt legislative and other measures to give effect to the rights recognised in the Covenant and to ensure effective remedies for persons whose rights have been violated.

Article 3 contains an undertaking to ensure the equal right of men and women to the enjoyment of the civil and political rights enumerated in the Covenant.

Part III (Articles 6-27) contains a catalogue of civil and political rights. These include:

• right to life (Article 6)
• prohibition of torture and cruel, inhuman or degrading treatment or punishment (Article 7)
• prohibition of slavery, servitude and forced or compulsory labour (Article 8)
• right to liberty and security of the person; freedom from arbitrary arrest or detention (Article 9)
• right of persons deprived of their liberty to humane treatment (Article 10)
• prohibition of imprisonment for inability to fulfil a contractual obligation (Article 11)
• right to liberty of movement and freedom to choose residence (Article 12)
• guarantee of a fair trial (Article 14)
• prohibition of the retroactive application of criminal law (Article 15)
• right to recognition as a person before the law (Article 16)
• prohibition of interference with privacy, family and home (Article 17)
• freedom of thought, conscience and religion (Article 18)
• freedom of opinion and expression (Article 19)
• prohibition of propaganda for war and advocacy of national, racial or religious hatred (Article 20)
• right of peaceful assembly (Article 21)
• freedom of association, including the right to form and join trade unions (Article 22)
• rights relating to the family and marriage (Article 23)
• right of every child to measures of protection (Article 24)
• right of the citizen to take part in the conduct of public affairs, to vote and be elected, and to have access to public service (Article 25)
• equality of all persons before the law and equal protection of the law (Article 26)

Article 27 provides that members of ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. In a General Comment on Article 27, the Human Rights Committee has stated that:

... positive measures by States may ... be necessary to protect the identity of a minority and the rights of its members. In their reports, States Parties should indicate the measures they have adopted to ensure the full protection of these rights. ... Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of the minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with other members of the group.

The General Comment recognises the significance of Article 27 in addressing the particular rights and interests of indigenous peoples:

[T]he Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.

In accordance with Article 28 a Human Rights Committee was established to supervise implementation of the ICCPR. The Committee consists of 18 members of high moral character and recognised competence in the field of human rights. The ICCPR establishes two supervisory procedures:

a) States parties are required to submit periodic reports to the Human Rights Committee on measures adopted to give effect to the rights recognised in the Covenant and on progress made in the enjoyment of those rights. At the end of the consideration of a report, the Committee formulates "concluding observations" addressed to the reporting State; and

 

b) States parties can recognise the competence of the Human Rights Committee to receive communications from States parties claiming that other States parties are is not fulfilling their obligations under the ICCPR. Unlike the equivalent procedure under CERD, the competence of the Committee to receive inter-State complaints does not result automatically upon ratification or accession.

The Human Rights Committee has also developed a practice of adopting "general comments". These address specific articles of the ICCPR or particular issues arising under it. They reflect the experience gained by the Committee in considering a significant number of reports, representing various regions of the world and different political, legal and social systems.

The competence of the Human Rights Committee to receive individual communications is recognised by States becoming a party to the First Optional Protocol (1OP) to the ICCPR. The 1OP was adopted by the General Assembly on 16 December 1966. It entered into force on 23 March 1976.

By becoming a party to the 1OP, a State party to the ICCPR recognises the competence of the Committee to receive and consider communications from individuals claiming to be victims of a violations of any of the rights set forth in the Covenant. The Committee cannot receive communications concerning States parties to the ICCPR not parties to the 1OP (Article 1(2)).

Individuals claiming that their rights in the Covenant have been violated may submit a written communication to the Committee once "all available domestic remedies'' have been exhausted (Article 2).

4. International Covenant on Economic, Social and Cultural Rights Economic, Social and Cultural Rights (ICESCR) 1966

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the General Assembly on 16 December 1966. It entered into force on 3 January 1976.

Part I (Article 1) contains a provision on self-determination, identical to that in the ICCPR.

Part II (Articles 2-5) contains general provisions relevant to the enjoyment of all the rights set out in ICESCR. Under Article 2(1) each State party undertakes to adopt legislative and other measures, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the Covenant. Under Article 2(2) States parties undertake to guarantee the exercise of the enunciated rights without discrimination. Article 3 contains an undertaking to ensure the equal right of men and women to the enjoyment of the economic, social and cultural rights enumerated in the Covenant.

Part III (Articles 6-15) contains a catalogue of economic, social and cultural rights. These include:

• right to work (Article 6)
• right to the enjoyment of just and favourable conditions of work (Article 7)
• right to join and form trade unions and to strike (Article 8)
• right to social security (Article 9)
• protection of the family, marriage, maternity protection and special measures of protection and assistance for children (Article 10)
• right to an adequate standard of living, including adequate food, clothing, and housing and the continuous improvement of living conditions (Article 11)
• right to the enjoyment of the highest attainable standard of mental and physical health (Article 12)
• right to education (Article 13)
• cultural rights, including rights to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to the protection of moral and material interests resulting from scientific or artistic productions (Article 15)

The Committee on Economic, Social and Cultural Rights consists of 18 independent experts. At present, the reporting procedure is the only international measure for monitoring implementation of ICESCR. States parties undertake to submit reports on measures adopted and progress made in achieving the observance of the rights recognised in the Covenant (Article 16(1)). Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations (Article 17(2)).

In order to promote a better understanding of the provisions of the ICESCR, the Committee also adopts "general comments", comparable to those of the Human Rights Committee. These do not address the situation in any specific State but draw on experience gained through examination of a large number of reports.

The Committee on Economic, Cultural and Social Rights has in recent years also worked towards the adoption of an optional protocol to ICESCR.

5. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the General Assembly on 10 December 1979. It entered into force on 3 September 1981.

In Article 1 the term "discrimination against women" is defined as:

"any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."

The definition of discrimination against women is broad. It prohibits unintentional as well as intentional discrimination ("purpose" or "effect"). The spheres in which discrimination is prohibited are public, as well as private ("political, economic, social, cultural, civil or any other field").

Parties to CEDAW condemn discrimination against women in all its forms and agree "to pursue...a policy of eliminating discriminationArticle 2). They undertake to ensure the existence of appropriate constitutional and legal structures to guarantee equality, to provide remedies for public and private acts of discrimination against women and to abolish laws and practices which constitute discrimination against women (Article 2(a)-(g)). against women" (

In its General Recommendation No. 12 on Violence Against Women, the Committee on the Elimination of Discrimination against Women noted that States parties are required under Articles 2, 5, 11, 12 and 16 to take appropriate steps to protect women against any kind of violence within the family, at the work place, or in any other area of social life.

Pursuant to Article 4(1), special measures aimed at accelerating de facto equality between men and women do not constitute discrimination as defined in the Convention. When the objectives of equality of opportunity or treatment are achieved, such measures are to be discontinued.

Other provisions of CEDAW impose obligations on States Parties to undertake measures:

• with a view to eliminating prejudices and practices based on the inferiority or superiority of either of the sexes or on stereotyped roles (Article 5)
• to suppress traffic in women and exploitation of prostitution of women (Article 6) and
• to eliminate discrimination against women in political and public life (Article 7); in education (Article 10); in employmenthealth care (Article 12); in other areas of economic and social life (Article 13); and in matters relating to marriage and family relations (Article 16). (Article 11); in

Pursuant to Article 15, States Parties undertake to accord to women equality with men before the law. Particular areas of the law in which women, especially married women, have traditionally experienced most discrimination are specified, including the recognition of legal capacity, conclusion of contracts, administration of property, freedom of movement and choice of residence and domicile. States parties must also grant women equal rights to acquire, change or retain their nationality (Article 9).

CEDAW pays particular attention to the special rights and needs of women in rural areas. By virtue of Article 14, State parties are required to take into account the problems of rural women and the special role they play in the economic survival of their families. States parties are obliged to take measures to eliminate discrimination against women in rural areas to ensure that they participate in, and benefit from, rural development. These measures shall ensure their rights to, amongst other things:

• participate in the elaboration and implementation of development planning at all levels
• have access to health care services and social security, education and training, credit, marketing facilities and appropriate technology,
• equal treatment in land reform and land resettlement schemes and
• adequate living conditions.

Pursuant to Article 18, States parties are obliged to submit periodic reports on measures adopted to give effect to the provisions of CEDAW and on progress made. These should indicate factors and difficulties affecting the degree of fulfillment of obligations (Article 18 (2)).

The Committee on the Elimination of Discrimination Against Women has also adopted a number of general recommendations, observations and suggestions, in accordance with Article 22.

6. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT) was adopted by the General Assembly on 10 December 1984 and entered into force on 26 June 1987.

In Article 1 "torture'' is defined as:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Article 2(1) imposes an obligation on States parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in territories under their jurisdiction. Neither exceptional circumstances nor an order from a superior officer or a public authority may be invoked as a justification for torture (Article 2(2), (3)).

States parties undertake to ensure that all acts of torture, attempts to commit torture and complicity or participation in torture are offences under their criminal law, and are punishable by appropriate penalties (Article 4). In certain circumstances, States parties are required to take measures to establish their jurisdiction over such offences (Articles 5-7).

Each State party is obliged to ensure that individuals alleging they have been subjected to torture in territories under its jurisdiction have the right to complain to its competent authorities (Article 13). Victims of acts of torture are entitled to redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of torture, his or her dependants are entitled to compensation (Article 14).

Pursuant to Article 16, States parties undertake to prevent in territories under their jurisdiction "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1." The procedural guarantee in Article 13 entitles individuals alleging to have been subjected to such acts in territories under the jurisdiction of a State Party to complain to its competent authorities. However, CAT does not impose an obligation on States parties to ensure that such acts are offences under criminal law. Neither does CAT address the question of compensation for such individuals and their dependants.

In accordance with Article 17(1) a Committee against Torture consisting of 10 experts "of high moral standing and recognised competence" has been established:

a) States parties are required to report every four years on measures taken to give effect to their undertakings under CAT;

 

b) the Committee may also make such general comments as it considers appropriate (Article 19);

 

c) the Committee may also consider inter-State and, subject to a declaration recognising its competence having been made by the relevant State Party, as well as the exhaustion of available domestic remedies, individual communications (Articles 21, 22).

 

Disputes between States parties concerning the interpretation or the application of CAT can also be referred to the International Court of Justice (Article 29(1)).

Finally, CAT establishes a confidential procedure for the examination of reliable information containing "well-founded indications that torture is being systematically practised in the territory of a State party'' (Article 20). The powers of the Committee in connection with this procedure do not extend to acts of cruel, inhuman or degrading treatment or punishment.

7. Convention on the Rights of the Child (CROC) 1990

The Convention on the Rights of the Child (CROC) entered into force on 2 September 1990. CROC recognises that in addition to the full range of human rights recognised in international law, children are also entitled to a range of rights relating to their special needs and interests as children.

Part I (Articles 1-41) enumerates a number of general obligations, as well as a specific catalogue of the rights of children. In Article 1 the term "child" is defined as "every human being below the age of eighteen unless, under the law applicable to the child, majority is attained earlier."

Article 2 imposes upon States parties the obligation to respect and ensure the rights in CROC to each child within their jurisdiction without discrimination of any kind.

Article 3 (1) specifies a general standard against which national laws and practices are to be evaluated. It provides that in all actions concerning children, "the best interests of the child shall be a primary consideration."

Pursuant to Article 5, States parties undertake to respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community, to provide "in a manner consistent with the evolving capacities of the child" direction and guidance in the exercise by the child of his or her rights.

CROC addresses the civil and political, as well as economic, social, cultural and humanitarian rights of the child. These include:

• right to life and development (Article 6)
• right to protection from violence and neglect (Article 19)
• right to the highest attainable standard of health (Article 24)
• right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development (Article 27)
• right to education in a manner directed to the development of respect for the child's cultural identity (Articles 28-29).

Of particular significance is CROC's recognition of the rights of children belonging to ethnic, religious and linguistic minorities and indigenous children, in community with other members of their group, to the enjoyment of their culture, the practise of their religion and the use of their language (Article 30). Related to this is the obligation in Article 20, in the consideration of options for a child temporarily or permanently deprived of his or her family environment, to pay regard to the desirability of continuity in the child's upbringing and to the child's ethnic, religious and linguistic background.

Article 40 enumerates the rights of children in connection with alleged infringements of the penal law and requires the availability of a variety of dispositions.

Article 43 makes provision for the establishment of a Committee on the Rights of the Child. This Committee consists of 10 experts of high moral standing and recognised competence, who serve in their personal capacity. States parties undertake to report two years after the Convention's entry into force, and thereafter every five years, on "measures ... adopted which give effect to the rights recognised ... and on ... progress made on the enjoyment of those rights".

Article 45 lists various measures to foster effective implementation of CROC and to encourage international cooperation in the field of children's rights. At present, CROC contains no provision for inter-State or individual complaints.

1. International law and practice prior to the UN Charter

International law, traditionally, has been the law between States, represented by their rulers. Modern international law is built up largely on the laws developed among European states. Today, there are 189 member States of the United Nations and only two States who are not members (Holy See and Switzerland- neutral). The international community is a small-scale community and, as with small-scale human communities, a primary concern is to maintain peace and security.

International law proceeds on the basis of the sovereignty of each State and the equality of States. In traditional International Law each Sovereign State is an entirely free agent. It is not subject to any compulsory process - no legislature, no executive power, no judicial system. It is subject only to such obligations in regard to other States as it voluntarily assumes. A State assumes obligations in regard to one or more other States when it ratifies a treaty. A treaty is the international equivalent of a contract.

Apart from treaties, the other principal source of international law is custom. Customary international law may be identified from a widespread pattern of States acting in a particular way based on the belief that that is how they should act.

The United Nations system itself is based on a treaty - the Charter of the United Nations. The General Assembly is not a legislature, and it can only adopt resolutions, which States are free to accept or reject. Only the Security Council has power to make decisions binding member States and only for the purpose of maintaining international peace and security. It is not a world executive government. Nor does it command a permanent police force, though, on rare occasions, it has authorised military action (Korea, Iraq) and, less rarely, peacekeeping and humanitarian operations (East Timor).

The jurisdiction of the International Court of Justice is also based on treaty - the Statute of the Court. A State is subject to the Court only if it chooses to accept the Court's jurisdiction.

International Law, then, even in the days of the United Nations, is a relatively undeveloped system of law. I Its primary concern has been with the relationships among States, and not with what happens within States.

THE UNITED NATIONS SYSTEM

PRINCIPAL BODIES UNDER THE CHARTER

2. Evolution of the United Nations

The complex apparatus which we see in the UN today is not the same UN which was created out of the ashes of World War II by the victors of that war. Originally, a "White Man's Club" dominated by the Europeans and the USA, it is still bureaucracy and high powered politics which characterise the UN of today. However, the original 51 members have now seen the membership grow to over 185 member States. The purpose in establishing the UN was to ensure international peace and security. It was built on the principles of International Law, and the UN Charter prescribed the essential principles which were understood to guarantee peace - the rule of law, basic human rights, self-determination, the equality of States and the sanctity of borders.

The UN grew out of the failure of the League of Nations, which had been created after the first world war (1914-1918). It too had attempted to keep the peace. It's Charter had prohibited the use of war but had instituted no ban on the use of force short of a declaration of war. The League found it had no collective system for enforcing its decisions. So when the UN was created it vested enormous power in the Security Council, allowing the UN to intervene with force if necessary. This happened directly in Korea in 1950 (where UN troops are still located) and indirectly in Kuwait in 1991 (when the Security Council allowed member States to intervene).

The UN started off with 51 member States. Article 2 (1) of the Charter refers to "the principle of the sovereign equality of all its Members", regardless of the size, wealth and might of each country. Hence, we have Saint Kitts and Nevis in the Caribbean with only 275 sq km and less than 50,000 people, Seychelles in the Indian Ocean with 280 sq km and 67,000 people, and China with almost 10 million sq km and over I billion people, having exactly the same rights and duties in the UN. Obviously that is not possible to achieve in practice.

Part of the problem of international diplomacy is the pretence that things are principled and orderly when in fact, more often than is preferable, naked power reigns. Some nations are more equal than others at the UN precisely because they have larger land areas, population, economic resources, and military power.

2.1 Principle of geographic distribution

Throughout the UN System a principle of geographic distribution holds. This means that UN staff are selected from every region of the world and that committees and official bodies have representation from all the regions.

The 189 States are grouped into five Regional Groups for election purposes

1. African States
2. Asian States
3. Eastern European States
4. Latin American and Caribbean States
5. Western European and Other States (WEOS)

The US, Canada and Australia belong to the WEOS group while Turkey, for instance, attends both the WEOS group and the Asian group meetings.

The Afro-Asian groups together with the Latin American and Caribbean States form a formidable voting bloc of more than two-thirds. This is what former USA Ambassador to the UN, Daniel Patrick Moynihan called "tyranny of the majority". It ensured the passage of many controversial resolutions (such as Zionism equals racism). It was this majority which succeeded in denying the white South African government delegation a seat in the General Assembly.

2.2 Main Bodies of the UN are:

• General Assembly
• Security Council
• ECOSOC
• Trusteeship Council
• International Court of Justice
• Secretariat

3. General Assembly

Every UN member sits in the General Assembly, which meets once a year for about three months commencing always on the third Tuesday of September until about mid December. Sessions are chaired by a President, elected for a one-year term by a two-thrid majority of the Assembly. The election is usually unopposed because each region has its turn and the choice of a candidate results from behind the scenes negotiations by members of the regional group. The President is assisted by 21 Vice-Presidents whose main function is simply to take the seat at the podium when the President is required to attend to his/her numerous other functions.

The structure of the General Assembly includes:

• Main Committees
• Procedural Committees
• Standing Committees
• Subsidiary, "ad hoc" and other bodies

3.1 Main Committees

There are six Main Committees of the General Assembly which share the work of the General Assembly:

All Member States have representatives in the Main Committees which carry out the debate and negotiations on all aspects of the questions on the agenda, vote on them and then report to the Plenary for final decision.

Of interest to human rights defenders are the Third and Forth Committees. Successful human rights lobbyists have managed to get resolutions on country situations in the Third Committee and, subsequently, in the General Assembly. Country resolutions have been adopted in the past on Chile, El Salvador, Guatemala, etc. The question of self-determination can also be raised in the Third Committee in the context of human rights.

However, unlike the Fourth Committee whose rules of procedure provide for individuals to take part in the general debate on any item on the agenda (such as East Timor, New Caledonia, Western Sahara), no such arrangements exist in the Third Committee. Instead, interested individuals lobby government delegations to raise issues of their concern.

Decisions in the General Assembly are taken by simple majority on all issues except on important issues, which require a two-third majority. Elections for the Security Council, International Court of Justice and other major bodies fall in the category of important issues.

3.2 Procedural Committees

There are two procedural committees, the General Committee of the General Assembly and the Credentials Committee of the General Assembly. The agenda and allocation of items to each of the Main Committees is decided by the General Committee.

The Credentials Committee is made up of nine members appointed by the General Assembly on the very first day, acting on a proposal by the President. As in every other UN body, geographic distribution is the criterion for appointment to the Credentials Committee. (Each regional group simply meets and decides who their nominee will be.) It reviews the credentials of Member States' representatives and reports to the Plenary.

It was often mistakenly thought that South Africa was not a member of the UN. South Africa's status as a member of the UN was never in question but the credentials of its representatives were successfully challenged. It was argued that the white minority regime of South Africa lacked legitimacy to represent the whole country. Obviously, if such strict standards of legitimacy were to be observed in all situations, military and one-party regimes would have difficulties in gaining a seat in the General Assembly. Most African countries, for example, would have lost their seat in the General Assembly.

The move in denying South Africa a seat in the General Assembly was initiated in 1974 by the then President of the General Assembly, the brilliant Foreign Minister Abdelaziz Bouteflika of Algeria, with the backing of the Third World and socialist blocs. Similar attempts have been made against Israel by Libya but each time a motion of non-action moved by Sweden defeats the Libyan exercise. Suggestions were made over the years to deny credentials to the Pol Pot delegation and more recently, to the Burmese military junta.

3.3 Standing Committees

During and in between sessions, two Standing Committees of the General Assembly, the Advisory Committee on Administrative and Budgetary Questions (ACABQ) and Committee on Contributions, deal with relevant questions. Member States' contributions to the UN budget is assessed on the basis of their GNP (Gross National Product). Hence, the US is the largest contributor with 25% of the budget while Vanuatu, Saint Kitts and Nevis and Seychelles contribute with 0.1%.

Some countries have failed to pay their contributions, either for political reasons or for lack of liquidity. The USA has withheld its contribution to a number of UN programs, most notably, to UNESCO, for political reasons. A number of developing countries have failed to pay simply for lack of money. In these situations they cannot vote in the General Assembly and their name is published for all to see. Some have seen their telephone disconnected for not being able to pay the phone bill.

3.4 Subsidiary, Ad Hoc and Other Bodies

More than 40 subsidiary and ad hoc bodies have been set up by the General Assembly covering a wide range of themes. Of these, one that is relevant to this course is the Special Committee on Decolonisation to which we shall return further along this chapter.

3.5 UN Special Representatives

A technique that is becoming increasingly common is the nomination of a Special Representative for a particular issue or country. An example is the Special Representative on Cambodia. Following the UN withdrawal of its peace keeping troops, the election monitoring and other program staff, a single person was given the task of reporting on the country to the Secretary-General. It is clear that this responsibility is very great and that much depends on the professionalism and goodwill of that person. (As with most of these "expert" tasks the person involved is basically a volunteer paid a per diem while on UN business but effectively providing skills, research time, report writing time etc for free).

The person involved is usually a lawyer or judge. Sometimes they might have NGO experience and can provide effective independent analysis. However this system can also break down as the individuals involved lack back-up and, depending on the issue, their personal influence may not be enough to ensure their report is dealt with effectively. At least in the UN human rights system in Geneva there is some process available which does not leave the experts completely isolated should their reports be troublesome for powerful interests.

4. Security Council

Made up of five permanent members (USA, UK, Russian Republic, France and China), each of whom holds a veto power on issues before the UN (Article 27(3)) plus 10 non-permanent members. The Security Council is the world's "policeman" whose function is to preserve peace, deter and punish acts of aggression through a wide range of actions provided for in the Charter. The Security Council reaction to the 1990 Gulf Crisis provides an insight into the way that body operates and the forces, which dictate its actions.

A draft resolution needs 9 yes votes to be adopted. However, the veto power means that one negative vote by any one of the five permanent members defeats the draft resolution, even if it had secured 14 votes.

The non-permanent members are elected for a two-year non-renewable term. A two-third majority is required for election to the Security Council and this is usually secured if the country running for election has the consensus support of its region. However, it has happened that a particular country did not secure the backing of its group and failed to obtain the two-third majority. Presidency of the Council is by monthly rotation, following alphabetical order.

The veto power was used in the past by the USA on numerous occasions to defeat motions censuring Israel and South Africa. The Security Council failed to take any action on the war in Afghanistan because any attempt would have been vetoed by the Soviet Union. In 1950 the Security Council intervened in the Korean War only because the Soviet Union had suspended its membership in the Security Council for a month. Since then every time the Soviet Union tried to get the Security Council to terminate the mandate for the so-called UN Command in the demilitarised zone (DMZ), it has been vetoed by the USA. Till this very day, the US forces in the DMZ of Korea carry the UN flag.

France and the UK rarely use the veto. The People's Republic of China has rarely used the veto power since 1972 when it took the seat held by the Republic of China (Taiwan). However, in one month alone, December 1981, it used the veto power 16 times to block the re-election of Kurt Waldheim to a third five-year term as Secretary-General of the UN. The Chinese were not very happy with Waldheim who, they felt, was too close to the Russians and the Americans, and argued that "10 years was enough" and that it was the "turn of a Third World candidate" (the words of a Chinese diplomat in informal conversation).

Running against Waldheim was Salim Ahmed Salim, an outstanding Tanzanian diplomat who was backed by every major Third World organisation, the Organisation of African Unity (OAU), Arab League, Islamic Conference, and the Non-Aligned Movement. However, Salim was not popular with the Americans and the Soviets because he was seen as an activist and the superpowers would not have an activist as Secretary-General. Salim was vetoed by the Americans whenever he managed to get the nine majority needed. The Russians did not have to use their veto but would have vetoed Salim if the Americans did not.

Finally the deadlock was broken with the entry in the race of a compromise candidate, a Peruvian diplomat who served as Under-Secretary-General, Javier Perez De Cuellar whose second five-year term ended in December 1991. Boutros Ghali was appointed without controversy, but failed to secure a second term, and was succeeded by another person from Africa, Kofi Annan. The story of the 1981 election for Secretary-General illustrates one aspect of international politics: no matter the opinion of the majority of the world community, each of the five permanent members retains the power over who will be the Secretary-General of the UN.

5. ECOSOC: Economic and Social Council

ECOSOC is the largest UN body, after the General Assembly, with 54 members. However it is not an active body like the General Assembly, or even its own Commissions and Sub-Commissions. Its mandate encompasses a vast area:

a) Higher standards of living, full employment, and conditions of economic and social progress and development;

b) Solutions of international economic, social, health and related problems, and international culture and educational cooperation;

c) Universal respect for the observance of human rights and fundamental freedoms.

To discharge this mandate, ECOSOC has created a number of subsidiary bodies. These include functional and regional commissions.

5.1 Functional Commissions include:

Statistical Commission (New York), Population Commission (New York), Commission on Social Development (Vienna), Commission on Human Rights - includes the Sub-Commission and Working Groups (Geneva), Commission on the Status of Women (Vienna), Commission on Narcotic Drugs (Vienna).

5.2 Regional Economic Commissions include:

Economic Commission for Africa (Addis Ababa), Economic and Social Commission for Asia and the Pacific (Bangkok), Economic Commission for Europe (Geneva), Economic Commission for Latin America and the Caribbean (Santiago de Chile), Economic and Social Commission for Western Asia (Baghdad).

5.3 Standing Committees and Expert Bodies

Committee on Non-Governmental Organisations (New York), UN Centre for Human Settlement (Nairobi), Committee for Programme and Coordination (New York), Committee on Natural Resources (New York), Committee on Transnational Corporations (New York), Committee on Crime Prevention and Control (Vienna), Committee on Development Planning (New York), Ad Hoc Group of Experts on International Cooperation in Tax Matters (New York), Meeting of Experts on Public Administration and Finance (New York), Committee of Experts on the Transport of Dangerous Goods (New York), Inter-governmental Working Group of Experts on International Standards of Accounting and Reporting.

6. Trusteeship council

We are all too familiar with the lofty ideals, principles and purposes embodied in the Charter. The first three words of the Charter are "We the peoples...". Peoples seem to be paramount in the Charter. Yet the wording should have been "We the Governments", thus more accurately reflecting what goes on in the UN. Peoples' concerns and aspirations are seldom represented nor are their voices heard. Rather it is the governments whose agendas are discussed and enacted.

The United Nations is a political body. It is made up of States with their differing, and often conflicting, perceptions and interests. It is a world political arena where governments jockey for advantage and power in their permanent quest to preserve, advance and consolidate their perceived national interests. This is their paramount concern. Not the principles and purposes embodied in the Charter. It is in this environment and against this background that the issue of decolonisation has been decided.

The Charter refers to the principle of self-determination in Articles 1, paragraphs 2 and 55, and deals with the question of dependent territories, the International Trusteeship System and the Trusteeship Council in several Chapters. Of particular importance was the adoption by the founding San Francisco Conference of Chapter 11 of the Charter entitled Declaration Regarding Non-Self-Governing Territories. This obliged Member States responsible for territories listed in GA Res 66 (I) of 14 December 1946 to transmit information to the Secretary-General regarding conditions in the territories under their administration (Article 73).

72 Territories were listed as "non-self-governing" in 1946. Of these, 8 became independent between 1946 and 1959. Transmission of information in regard to 21 territories was unilaterally discontinued by the administering powers. The French, for instance, unilaterally ceased to comply with Art 73 in regard to its Territories in the Caribbean, South Pacific and the Indian Ocean.

The case of New Caledonia is an example. While it appeared in the original 1946 list of "Non-self-governing" territories, it no longer appeared in the up-dated list drawn up in 1963. It took almost two decades before it was reinscribed in the list. How did that take place? Was it by miracle or a decision of the Secretary-General of the UN or the President of the General Assembly?

A number of factors must be considered. First, the years of persistent and often lonely lobby by the Kanak representative, Yann Celene Uregei; and second, to the changing attitude by Pacific States to France in the South Pacific, caused in large part by French nuclear tests in the region, as well as the sinking of the "Rainbow Warrior" (belonging to an international NGO, Greenpeace). An important factor not to be ignored was the independence of Vanuatu in 1981, under Prime Minister Walter Lini who decided to embark on a crusade for Melanesian dignity and freedom. After several unsuccessful attempts, New Caledonia was reinscribed in the GA list of "Non-Self-Governing Territories" in 1985.

The turning point in the anti-colonial struggle was the adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples contained in GA Res 1514(XV) of 14 December 1960, sponsored by 43 Afro-Asian States. Operative paragraph 2 of Res 1514(XV) reads: "All peoples have the right to self-determination...".

The wording of the draft was a radical one, uncompromising, reflecting the mood and the new balance of forces in the UN with the emergence of the Third World-Socialist bloc alliance. In 1960 alone, 16 newly independent African States joined the UN, thus substantially altering the composition and balance of power in the General Assembly.

The following day another resolution was adopted, GA Res 1541(XV) which qualified the sweeping proclamation in 1514(XV).

While Res 1514 favoured independence to the exclusion of other options, Res 1541 suggested that there are three decolonisation options at the UN for the colonised peoples. These options are:

(a) Independence (the creation of a new State);

(b) Free Association (for example Cook Islands);

(c) Integration with an independent State.

One inherent danger in Res 1541 is that Principle IX(b) largely leaves to the colonial power the decision to organise a referendum or any other act, without UN involvement, to determine whether the colonised people wish to be integrated with the independent State holding the referendum. And it must be said, Res 1541 has been used by certain colonial powers to undermine the independence of a number of countries. That was the case of West Papua and Puerto Rico. But a genuine, internationally monitored act of free choice occurred in 1999 in East Timor.

6.1 Special Committee on decolonisation

The Special Committee on Decolonisation was created by GA Res 1654(XVI), in 1961, initially with 17 Members nominated by the President of the General Assembly. This was expanded the following year to 24. Hence it's popular name, "Committee of 24". It has now merged with the Special Political Committee (this happened in October 1993).

The task of the Committee is to seek the most suitable ways for the speedy and total application of the Declaration. It meets once a year in August in New York. It was one of the most important and active UN bodies in the '60s and '70s, sending visiting missions to colonial territories either in cooperation with the colonial power or even through the backdoor.

Now the Committee is under pressure to fold. However its life has continued past the year 2000, the target date the General Assembly set for the total eradication of colonialism, and may most likely continued until it is eradicated.

6.2 Specialised agencies

The inter-governmental agencies related to the UN by separate agreements are separate, autonomous organisations which work with the UN and each other through the coordinating machinery of the Economic and Social Council (ECOSOC).

There are 16 so-called specialised agencies, a term used in the UN Charter, which report annually to ECOSOC. Some of the best known agencies are ILO, FAO, UNESCO, WHO, World Bank and the IMF, etc. All of these agencies have an impact on human rights but rarely do they acknowledge the importance of taking human rights into direct consideration in the course of their work. Some, like UNESCO, have conventions of their own (UNESCO even has a human rights complaint mechanism - but NGO's do not utilise it as it is partly dysfunctional and little known). WHO has made statements about a Right to Health.

7. The International Court of Justice

The ICJ is established under its own Statute of the International Court of Justice a "the principal judicial agency of the United Nations".

It consists of fifteen independent judges, no two of whom may be nationals of the same state. They are elected for a nine-year term by the General Assembly and by the Security Council from a list of persons nominated under procedures laid down in The Statute. The electors (in the General Assembly and Security Council) are required to take into account the qualifications of the individual nominees and also ‘that in the body as a whole the representation of the main forms of civilisation and the principal legal systems of the world should be assured" (Article 9).

Under Chapter 2 of the Statute, only states may be parties in cases before the Court. And they may be parties only to the extent that they accept the jurisdiction of the court.

In addition, the Court may give an Advisory Opinion on any legal question at the request of the General Assembly or the Security Council.

The scope of the Court's jurisdiction is, clearly limited by the concept of State Sovereignty. Over the years, it has been able to give influential judgements and advisory opinions on a number of matters including issues of self-determination and human rights. In addition ad hoc international criminal tribunals have been set up to prosecute crimes of war and against humanity such as in the former Yugoslavia and Rwanda. A permanent international criminal court if when established would eliminate the need for establishing ad hoc (case by case) tribunals for the prosecution of international crime.

8. Secretariat

The secretariat is the bureaucracy, WHICH serves the various activities of the United Nations and its constituent bodies. It is largely located at UN headquarters in New York but has a significant presence in Geneva and, to a lesser extent, other locations.

9. International Criminal Court

In June 1998 delegates from 150 States and dozens of NGOs met in Rome to finalise the Statue for a permanent International Criminal Court (ICC). The ICC represents a significant development in the international law as it extends criminal responsibility not only to States but also to individuals; and is a permanent court for prosecuting international crime. It represents a significant institutional development analogous to the establishment of the UN.

To date the Statute of the ICC has been signed by 139 States and been ratified by 27 States. On 31 December 2000 Iran, Israel and the United States signed (not ratified) the Statute. The ICC will be formally established after 60 countries have ratified the Statute.

Crimes established under the court include: genocide; crimes against humanity (murder, torture, rape, other sexual violence, enslavement, false imprisonment, unlawful persecution and deportation); War crimes and aggression.

The establishments of a permanent international criminal court would overcome:

• the case-by-case basis of ad hoc tribunals;
• the selective application of justice under the ad hoc method by only addressing certain conflicts and not others;
• remove any doubt about the proper legal basis of the court under international law as distinct from ad hoc tribunals constituted by SC resolutions.

The real negative at the moment is to what extent the court will be able to operate given that it will only reach signatories to the convention.

Acronyms

ACABQ- Advisory Committee on Administrative and Budgetary Questions

DMZ- Demilitarised Zone

ECOSOC- Economic and Social Council

FAO- Food and Agricultural Organisation

GA- General Assembly

ICC- International Criminal Court

ICJ- International Court of Justice

ILO- International Labour Organisation

IMF- International Monetary Fund

NGO- Non-Government Organisation

UN- United Nations

UNESCO- United Nations Educational Scientific and Cultural Organisation

WEOS- Western European and Other States

WHO- World Health Organisation

By Emeritus Professor Garth Nettheim, Faculty of Law, UNSW

In traditional theory and practice, human rights were considered to be a matter of domestic jurisdiction and quite beyond the reach of international law (subject to a few exceptions, such as slavery). A State could treat its own people as it chose. All this has changed quite dramatically since 1945.

The period of the European dictators in the 1920's-1930's and the atrocities of the war period created a widespread belief that international law could no longer leave individuals to the tender mercies of governments. Violations of human rights were seen as a potent source of international conflict.

1. The United Nations Charter

The major developments since the Second World War have been in terms of the recognition of the importance of human rights in the founding document of the new international organisation, the United Nations Charter.

Article 1 sets out the purposes of the new organisation, and places the promotion of respect for human rights on the same level as the maintenance of international peace and security. Under articles 55 and 56 member States pledge themselves to take joint and separate action "in cooperation with the organisation" for the promotion and universal respect of human rights. The International Court of Justice in its advisory opinion on the continued presence of South Africa in Namibia in 1971 said that these provisions bind members states to observe and respect human rights.

Under Article 68 of the Charter, the Economic and Social Council (ECOSOC) established a Commission on Human Rights.

2. The Universial Declaration of Human Rights and Covenants

One of the first tasks completed by the Commission on Human Rights was the drafting of what became accepted by the General Assembly in 1948 as the Universal Declaration of Human Rights (UDHR). The declaration was never meant to be a legally binding instrument. International treaties in the human rights sphere are commonly developed first by agreement, on a declaration, which is meant to set a standard of conduct without imposing legal obligations; later, that declaration may be developed into a more specific, binding, multilateral treaty. This was the path taken with regard to the Universal Declaration of Human Rights. It was followed by, not one, but two, treaties, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).

There were several reasons why the single Universal Declaration of Human Rights was followed up by two separate covenants. It is often said that it was ideological considerations which caused Western concern with civil and political rights to have to be counter-balanced by the Eastern bloc and Third World concern economic, social and cultural rights. It is also said that because these rights are of rather different nature they needed to be implemented in separate treaties.

Another indication of the international politics of human rights lies in the history of the two Covenants. The Commission on Human Rights (CHR) completed its work on the instruments in 1954 but it was only in 1966 that they were approved by the General Assembly and opened for signature. Politics had entered into the discussions in the Third Committee of the General Assembly and was responsible for the long delay. A further ten years elapsed before the two Covenants had been ratified by the required minimum number of States (35) so as to come into force in 1976.

As at 1 January 1998 137 States had ratified the ICESCR, 140 had ratified ICCPR, 93 had ratified the Optional Protocol to the ICCPR (communications) and 31 had ratified the Second Optional Protocol (death penalty).

3. The treaty-based system

Note again that treaties bind only those States that choose to ratify them.

The United Nations Charter is itself a treaty but one of almost universal adherence. What it has to say about human rights is critically important though it leaves the formulation of those rights to later development.

The Universal Declaration of Human Rights is not a treaty but a "mere" declaration, albeit one that has been given immense weight.

The two Covenants (ICCPR AND ICESCR) that develop the language of the Declaration into treaty form are of central importance and have attracted widespread, though not universal, ratification.

Other human rights conventions have been developed over the years and the process continues. The development of human rights standardsprocedures. has been accompanied by the evolution of implementation

The International Convention on the Elimination of All Forms of Racial Discrimination was completed in 1965 and commenced operation in 1969. It made provision for three forms of implementation, all based on the Committee on the Elimination of Racial Discrimination (CERD). The Committee consists of 18 members, supposedly individual experts of "high moral standing" rather than representatives of government.

3.1 Periodic Reports

The first method of enforcement is the only one which is absolutely mandatory. This requires State parties to submit Periodic Reports to the Committee. The initial report falls due within one year of a State acceding to the Convention and then every second year thereafter. A report is supposed to cover the legislative, judicial, administrative or other measures which the State has adopted pursuant to its obligations under the Convention. The Committee in its turn makes annual reports on its activities to the General Assembly. Committee reports are made public. However, the reports of individual States are not.

In this respect then the Committee operates as a clearing house and its only real power is to request additional information from States. The effectiveness of these procedures will depend on the independence of the members of the Committee and their interest in asking probing questions of States. The Committee may also be more successful in applying pressures on reporting States to the extent that it is prepared to receive information from non-official sources about the state of compliance with the Convention and to use such information in putting questions to the representative of that State.

3.2 State v State Complaints

Under a second enforcement procedure, any State party to the Convention is entitled to lodge a complaint to the effect that another State party is not in compliance with the convention. Such a State-versus-State complaint will require the Committee to undertake a mediation and conciliation role.

No such complaint has ever been lodged. Under this Convention, as under others, it seems that States are unwilling to cast the first stone.

3.3 Communications

The third enforcement procedure is one that provides for individual petitions or communications to the Committee. However this opportunity exists only when the State opts to allow petitions to be lodged against it. Even if a State does so opt, the individual still has to satisfy a number of requirements before his or her petition is heard. Initially all available domestic remedies have to be exhausted. If the Committee admits such a communication the State must submit explanations or statements to the Committee. The Committee can then make suggestions and recommendations to the State. There is no provision for any enforcement of the Committee's findings. The whole petitioning process is supposed to be confidential during the dispute mediation process; however the Committee's annual report to the General Assembly must contain a summary of any communications, which it has received.

During the early years after the Convention began operation, the reports submitted by States parties tended to be exercises of self-congratulation. Numbers of States chose to ignore their obligations to submit reports, or to provide additional information, on request of the Committee. In the early years the Committee itself tended to take a fairly formalistic approach to its task and to accept a State's report as satisfactory if it appeared to be in the appropriate form, as distinct from any inquiry into the truth of its contents.

In more recent years, however, the Committee has taken a stronger line. For example, it has decided that its members are not limited to the information contained in State reports and has designed means to obtain necessary additional information. The Committee has decided to permit representatives of States parties to be present during review of their State's reports, and this encourages communication as well as compliance. It issues general recommendations setting out the Committee's interpretation of particular Articles of the Convention, and giving guidance to States about preparation of their reports. And it has developed an urgent action/early warning procedure under which it can ask a State party to provide information on developments at any time.

The discussion about the enforcement procedures under the Racial Discrimination Convention is also relevant in regard to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Both adopt rather similar procedures to the Racial Discrimination Convention of State reports and of State-versus-State complaints. Moreover the International Covenant on Civil and Political Rights has a First Optional Protocol, which, if accepted by a State party, allows a right of individual communication to the 18 members Human Rights Committee. Optional provisions for communications to committees by individuals are also found in the Convention against Torture (CAT) and the Convention on the Elimination of Discrimination Against Women (CEDAW).

Four of these instruments are known collectively as the International Bill of Rights. They are:

• The Universal Declaration of Human Rights
• The International Covenant on Economic, Social and Cultural Rights (ICESCR)
• The International Covenant on Civil and Political Rights (ICCPR)
• The First and Second Optional Protocols to the ICCPR

There are other treaties developing specific topics of major concern. Apart from such early treaties focussing specifically on the experience of World War II such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Refugee Convention, the major treaties and their respective committees and procedures are as follows. (The six treaties are regarded as the "core human rights treaties.)

By Dr. Hans-Peter Gasser (Modified by Alfred Boll), International Committee of the Red Cross

Law and war: introductory comments on international humanitarian law, past and present.

International humanitarian law (IHL) - also called the law of armed conflict and previously known as the law of war - is a special branch of international law governing situations of armed conflict -- in a word, war. International humanitarian law seeks to mitigate the effects of war, first in that it limits the choice of means and methods of conducting military operations, and secondly in that it obliges the belligerents to spare persons who do not or no longer participate in hostile actions.

Today, at the beginning of the 21st century, can this still be considered to be a meaningful or legitimate goal?

War is characterized by outbursts of primitive, raw violence. When States cannot or will not settle their disagreements or differences by means of peaceful discussion, weapons are suddenly taken up. War inevitably results in immeasurable suffering among people and in severe damage to objects. War is by definition evil, as the Nuremberg Tribunal set forth in its judgment of the major war criminals of the Second World War. No one could presently wish to justify war for its own sake.

Yet, States continue to wage wars, and groups still take up weapons when they have lost hope of just treatment at the hands of the government. And no one would condemn a war waged, for example, by a small State protecting itself against an attack on its independence ("war of aggression") or by a people rebelling against a tyrannical regime.

Law and war? Can the law help States settle their conflicts (which are inevitable in any man-made order) peacefully, i.e. without loss of life or material damage? In other words, can the law help prevent war? Another question: in cases where war could not have been prevented, is it then the role of the law to concern itself with that war and its consequences, and thereby to give the war, as some maintain, an aura of respectability? Is the law of any value on the battlefield or in prison cells? Or was Cicero right when he sceptically said, "Laws are silent amidst the clash of arms"?

1. Humanitarian law and the prohibition of use of force

The starting point for any discussion of international humanitarian law is the means offered to States under contemporary international law for the peaceful settlement of conflicts without recourse to the use of force. The Charter of the United Nations prohibits war; it even prohibits the threat to use force against the territorial integrity or political independence of any State. The UN Charter does not, however, restrict the right of a State to resort to force in the exercise of its right to self-defense. The same holds true for third-party States who come to the aid of the State being attacked (right of collective self-defense). Finally, the UN may order military or non-military action to restore peace. Thus, war is prohibited under existing international law, with the exception of the right of every State to defend itself against attack.

The fact that international humanitarian law deals with war does not mean that it lays open to doubt the general prohibition of war. International humanitarian law quite simply stands mute on whether a State may or may not have recourse to the use of force. It does not itself prohibit war, rather it refers the question of the right to resort to force to the constitution of the international community of States as contained in the United Nations Charter. International humanitarian law is applicable whenever an armed conflict actually breaks out, no matter for what reason. Only facts matter; the reasons for the fighting are of no interest. In other words, international humanitarian law is ready to step in, the prohibition of the use of force notwithstanding, whenever war breaks out, whether or not there is any justification for that war.

A look at the recent past and at the present reveals how often war has been waged between States - even though international law prohibits the use of force. Clearly, international humanitarian law is an essential part of the order of peace as set forth in the Charter of the United Nations. The international community cannot, therefore, allow itself to neglect international humanitarian law.

International humanitarian law is part of universal international law whose purpose it is to forge and ensure peaceful relations between peoples. It makes a substantial contribution to the maintenance of peace in that it promotes humanity in time of war. It aims to prevent - or at least to hinder - mankind's decline to a state of complete barbarity. From this point of view, respect for international humanitarian law helps lay the foundations on which a peaceful settlement can be built once the conflict is over. The chances for a lasting peace are much better if a feeling of mutual trust can be maintained between the belligerents during the war. By respecting basic rights and dignity of human beings, the belligerents help maintain that trust. Once it is clear, moreover, that international humanitarian law helps pave the road to peace, no further proof of its legitimacy is required.

2. A glance at the history of humanitarian law

It is hardly possible to find documentary evidence of when and where the first legal rules of a humanitarian nature emerged, and it would be even more difficult to name the "creator" of international humanitarian law. For everywhere that confrontation (between tribes, clans, the followers of a leader or other forerunners of the State( did not result in a fight to the finish, rules arose (often quite unawares) for the purpose of limiting the effects of the violence. Such rules, the precursors of present-day international humanitarian law, are to be found in all cultures. More often than not they are embodied in the major literary works of the culture (for example, the Indian epic Mahabharata), in religious books (such as the Bible or the Koran) or in rules on the art of war (the rules of Manu or the Japanese code of behaviour, the bushido). In the European Middle Ages, the knights of chivalry adopted strict rules on fighting, not least for their own protection. Such rules also existed and still exist in cultures with no written heritage.

The achievements of 19th century Europe must be viewed against this rich historical background. Today's universal and for the most part written international humanitarian law can be traced directly back to two persons, both of whom were marked by a traumatic experience of war: Henry Dunant and Frances Lieber, who expressed an old idea in a form adapted to the times.

Dunant and Lieber both built on an idea put forward by Jean-Jacques Rousseau in The Social Contract, which appeared in 1762: "War is in no way a relationship of man with man but a relationship between States, in which individuals are only enemies by accident, not as men, but as soldiers...". Rousseau continued, logically, that soldiers may only be fought as long as they themselves are fighting. Once they lay down their weapons "they again become mere men". Their lives must be spared.

Rousseau thus summed up the basic principle underlying international humanitarian law, i.e. that the purpose of an attack may never be to destroy the enemy physically. In so doing he lays the foundation for the distinction to be made between members of a fighting force, the combatants, on the one hand, and the remaining citizens of an enemy State, the civilians not participating in the conflict, on the other. The use of force is permitted only against the former, since the purpose of war is to overcome enemy armed forces, not to destroy an enemy nation. But force may be used against individual soldiers only so long as they put up resistance. Any soldier laying down his arms, or obliged to do so because of injury, is no longer an enemy and may therefore, to use the terms of the contemporary law of armed conflict, no longer be the target of a military operation. It is in any case pointless to take revenge on a simple soldier, as he cannot be held personally responsible for the conflict.

The intellectual foundation for the rebirth of international humanitarian law in the 19th century was therefore laid. Henry Dunant could build on it. In his book A Memory of Solferino, he did not dwell so much on the fact that wounded soldiers were mistreated or defenceless people killed. He was deeply shocked by the absence of any form of help for the wounded and dying. He therefore proposed two practical measures calling for direct action: an international agreement on the neutralisation of medical personnel in the field, and the creation of a permanent organisation for practical assistance to the war wounded. The first led to the adoption in 1864 of the initial Geneva Convention; the second saw the founding of the Red Cross.

3. Protection of war victims through law

The first "Geneva Convention", the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (of 22 August 1864) lays the legal groundwork for the activities of army medical units on the battlefield. Because they were neutralised, their immunity from attack could be upheld: medical units and personnel may be neither attacked nor hindered in the discharge of their duties. Equally, the local inhabitants may not be punished for assisting the wounded. The 1864 Convention made it clear that humanitarian work for the wounded and the dead, whether friend or foe, was consistent with the law of war. As everybody knows, it also introduced the sign of the red cross on a white background for the identification of medical establishments and personnel.

The 1864 Convention was accepted in an exceedingly short time by all the then independent States, and by the United States in 1882. In force for over forty years, it was revised in 1906 on the recommendation of the International Committee of the Red Cross (ICRC) and on the basis of the experience of several wars. The First World War was a serious test for the law of Geneva, and resulted in a further revision in 1929. Four years after the end of the Second World War the international community adopted four new Geneva Conventions (of 12 August 1949), which with their two Additional Protocols of 1977, are in force today.

In addition to the process set in motion by Henry Dunant and the ICRC to codify the rules for the protection of the wounded, the sick and the soldiers who had fallen into enemy hands, there were developments on a second front. President Lincoln asked Lieber, a lawyer, to put together a few rules on the conduct of war for the use of troops in the American Civil War. The manual contained rules covering all aspects of the conduct of war. The provisions of the Lieber Code were intended to influence the conduct of war with a view to preventing unnecessary suffering and to limiting the number of victims.

4. Rules on limits to warfare

Lieber's work heralded two momentous developments. First, it set a precedent for subsequent military handbooks and instructions on the law of war. Secondly, it marked the starting point for the second series of developments in modern international humanitarian law, which saw the emergence of rules on the conduct of war itself. The first evidence of this was a short agreement, the 1868 Declaration of St. Petersburg, which prohibited the use of a certain type of ammunition in view of the fact that such projectiles uselessly aggravated the suffering of disabled men or rendered their death inevitable. Since the purpose of military operations, i.e. to disable the greatest number of enemy soldiers, does not require the infliction of such horrendous wounds, the diplomatic representatives were able to agree on the prohibition of the use of this type of projectile.

The St. Petersburg Declaration, as it is usually referred to, is important today not so much because of the actual prohibition as because of the considerations which resulted in that prohibition. As is explained in the Preamble, "the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy". In eliminating the possibility of total war, the St. Petersburg Declaration lends added strength to the above-mentioned principle of the law or war, namely that the belligerents are obliged to limit the use of force in meeting a (legitimate) military objective.

Both Hague Peace Conferences which took place at the turn of the century then attempted to set broader international legal limits to means and methods of warfare. The most important result was the Hague Convention No. IV of 18 October 1907 respecting the Laws and Customs of War on Land, and the annexed Hague Regulations.

The preambular paragraphs to Hague Convention No. IV contain one sentence which alone makes that treaty one of great importance. The Martens Clause, so called after the Russian representative, stipulates that in cases not covered by the rules of law, "the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established by civilised peoples, from the laws of humanity, and the dictates of public conscience". The Martens Clause constitutes a legal "safety-net". Where there are loopholes in the rules of positive law, says the Martens Clause, then a solution based on basic humanitarian principles must be found.

The Regulations on the Laws and Customs of War on Land had to stand the test of two world wars. In its judgment of the major Nazi war criminals, the Nuremberg Tribunal considered that these Regulations had become part of international customary law and were therefore binding on all States. This remains true to this day.

The topics dealt with in the Hague Regulations were subsequently developed to varying degrees. The chapter on prisoners of war was taken up in the 1929 Geneva Convention, whereas the Fourth 1949 Geneva Convention developed the legal rules pertaining to occupied territory. The actual law of the conduct of hostilities was taken up in Additional Protocol I of 1977.

The Second Hague Peace Conference also examined war at sea and adopted several conventions on different aspects of the law of war at sea. The Conference also went a step further than the St. Petersburg Declaration and prohibited certain types of weapons and munitions. Most importantly, however, a conference convened by the League of Nations in 1925 adopted the Protocol Prohibiting the Use of Poisonous Gases and Bacteriological Methods of Warfare. The prohibition of the use of poisonous gases in particular, which has become a rule of customary international law and is therefore binding on all States, has been an important factor in the struggle to ban inhumane weapons. At present, a comprehensive treaty on chemical weapons prohibits not only their use but also their development, production and stockpiling.

5. Sources of modern humanitarian law

On 12 August 1949, the representatives of 48 Stat4es unanimously adopted four new conventions for the protection of the victims of war. These conventions were the result of lengthy consultation which the ICRC had undertaken on the strength of its experiences during the Second World War. They were the work not only of legal experts and military advisers, but also of representatives of the Red Cross movement. The four Geneva Conventions of 12 August 1949 replaced the 1929 Conventions, and in part Hague Convention No. IV.

The first three Conventions cover well-known topics, namely protection of the wounded and sick, the shipwrecked and prisoners of war. The Fourth Geneva Convention, however, breaks new ground in that it protects civilian persons who have fallen into enemy hands from arbitrary treatment and violence. Its most important section is that on occupied territories. The 1949 treaties also led to a further extremely important development: the extension of the protection under humanitarian law to the victims of civil wars.

Until today, the Geneva Conventions have become the most universal of international treaties: they are presently binding on 188 States - with few exceptions the entire community of States.

The years after 1949 have not brought peace. Rather, the entire period has been characterised by countless conflicts. The decolonisation of Africa and Asia was often achieved through violent clashes. In the struggle between the (materially) weak and the (militarily) strong, refuge was taken in methods of fighting which were hardly compatible with the traditional manner of waging war (guerilla warfare). At the same time, an unlimited arms race led to the development of arsenals with weapon systems based on the latest technology. The use of such weapons, above all nuclear weapons, would have inevitably called into question the principles of international humanitarian law.

But the second half of the 20th century has also been characterised by the triumph of human rights. International humanitarian law could not and did not wish to remain indifferent to those changes. When one remembers that the 1949 Conventions almost completely pass over a very important point, namely the protection of the civilian population from the direct effects of hostilities, it is easy to understand why the ICRC, after much preparation, submitted two new draft treaties in the 1970s to governments for discussion and adoption. The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held in Geneva from 1974 to 1977, adopted the two Protocols additional to the Geneva Conventions on 8 June 1977. Protocol I contains new rules on international armed conflicts, Protocol II develops the rules of international humanitarian law governing non-international armed conflicts. The four 1949 Geneva Conventions remained unchanged, but were considerably supplemented by the Additional Protocols.

The Diplomatic Conference was attended by the representatives of 102 States and several national liberation movements. Non-European attitudes, concern from all over the world and new priorities influenced the texts, which nevertheless remain true to a universally accepted humanitarian goal. With the Additional Protocols, international humanitarian law gained a foothold in the Third World.

Both Protocols strengthen the protection of the defenceless to a considerable degree. Protocol I has been ratified by 155 States, and Protocol II by 148, allowing us to conclude that both are on the way to becoming universal international law, like the 1949 Geneva Conventions.

Protocol I brings together the laws of Geneva and of the Hague, which until then had developed separately. The view that it was not enough to assist the victims of hostilities finally triumphed. Rather, the law should set limits to military operations so that unnecessary suffering and damage can be avoided as much as possible. With the Fourth Geneva Convention on the protection of civilian persons and Protocol I, the law of Geneva moved a giant step closer to effective protection of the civilian population against the effects of war.

In addition to the two Additional Protocols, the years after 1949 saw further innovations in the protection under international law of persons and objects in time of war. There was the Convention of 14 May 1954 for the protection of cultural property in the event of armed conflict. Strongly influenced by the Geneva Conventions, the treaty created a sort of "Red Cross for cultural property" and charged UNESCO with its implementation.

Reference must also be made to the Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction. The Convention decisively strengthened one of the prohibitions set forth in the 1925 Geneva Protocol, namely the prohibition of bacteriological weapons. The Chemical Weapons Treaty of 1993 prohibits not only the use but also the production and possession of chemical weapons. The Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (of 10 December 1976) was intended to nip in the bud the expansion of the conduct of hostilities in a new field, that of environmental modification techniques. These conventions were adopted in the framework of the United Nations.

Finally, the Convention of 10 October 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively injurious or to have Indiscriminate Effects, and its four protocols, are also worth mentioning. Based on preparatory work done by the ICRC, the Convention was negotiated at a conference convened by the United Nations. Its aim is to limit the use of certain particularly grim weapons. The protocols deal with incendiary weapons, mines, non-detectable fragments and blinding laser weapons. Further protocols can be drawn up at any time at the request of contracting parties. The Rome Statute of 17 July 1998 creating an International Criminal Court must also be mentioned as a potentially very significant instrument in relation to the enforcement of international humanitarian law.

This impressive list of humanitarian law treaties should not blind us to the fact that the law for the protection of victims of war is not limited to treaties, i.e. to written texts. Agreements between States are at present undoubtedly the most common source of international laws and obligations; they have not, however, replaced unwritten law, or customary law, which contains important principles and rules. Large sections of the 1949 Geneva Conventions can be traced back to customary law. Treaty law and customary law can therefore develop simultaneously along the same lines. Sometimes international customary law must step in, for example when States cannot reach agreement on a treaty rule.

6. Fundamental rules of humanitarian law applicable in armed conflicts

1. Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction.
2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
3. The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and materiel. The emblem of the red cross (red crescent, red lion and sun) is the sign of such protection and must be respected.
4. Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, and personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
5. Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act that he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.
6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
7. Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare the civilian population and property. Neither the civilian population nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.

By Dr. Sarah Pritchard, Faculty of Law, UNSW

Working Group on Indigenous Populations (WGIP)

1. Who are the world's indigenous peoples?

Indigenous peoples are the original inhabitants of many countries. They are also called first peoples, tribal peoples, aboriginal peoples, autochthons and, sometimes, the "Fourth World".

Indigenous peoples number about 300 million. They live in more than 70 countries on all five continents, from the Arctic to the Amazon, from the Sahara to Australia. They include the Indians of the Americas, the Inuit of the circumpolar region, the Saami of Northern Europe and the Maori of Aoteoroa (New Zealand).

The majority - more than 150 million - live in Asia, in countries such as Bangladesh, Burma, China, India, Indonesia, Japan, Malaysia, Pakistan, the Philippines Sri Lanka and Thailand. Around 30 million indigenous people live in Latin America. In Bolivia, Guatemala and Peru, indigenous peoples make up over half the population.

Colonisation: During the period of European colonial expansion, many indigenous peoples were wiped out and their land taken by force. They experienced massacres, forced relocations, removal of their children and other forms of assimilation. In Asia and Africa, artificial colonial borders have separated peoples or turned them into powerless minorities.

Distinct cultures, attachment to land: Indigenous peoples have diverse cultures, religions and forms of social and economic organisation. Some maintain traditional lifestyles. Others live in cities and towns. However, all share a strong sense of their distinct cultures, most of all a profound attachment to their traditional land. They are united in a desire to maintain their unique identities and to adapt and survive as distinct peoples.

Economic and social disadvantage: Despite their diversity, indigenous peoples face similar problems. They are among the most disadvantaged groups on Earth. They are subjected to slavery and forced labour. They face discrimination, poverty, poor health, unemployment and high rates of imprisonment. Their land and resources are threatened by deforestation, mining, dam and irrigation projects, road construction, toxic waste dumping, nuclear testing and other aspects of development.

International action: Around the world, indigenous peoples have struggled to gain control over their land and lives and recognition of their rights. The concerns of indigenous peoples have become a concern of the international community. In 1982, the United Nations established a Working Group on Indigenous Populations (WGIP).

United Nations definition: In the interests of flexibility and openness, the UN has not developed a formal definition of indigenous peoples. As a guide, the WGIP has used the definition prepared by Jose Martinez Cobo. The Martinez Cobo definition states that indigenous communities, peoples and nations:

• have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories;

• consider themselves distinct from other sectors of the societies now prevailing in those territories;

• form non-dominant sectors of society;

• are determined to preserve and transmit to future generations their ancestral territories as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

In addition, an indigenous person:

• belongs to indigenous peoples through self-identification as indigenous;

• is recognized and accepted by these peoples as one of its members.

2. Working Group on Indigenous Populations (WGIP)

In May 1971 the UN Economic and Social Council (ECOSOC) authorised the Sub-Commission on Prevention of Discrimination and Protection of Minorities (Sub-Commission) to make a study of the problem of discrimination against indigenous populations and to suggest measures for eliminating such discrimination.

In August 1971 the Sub-Commission appointed José R Martinez Cobo as Rapporteur to carry out such a study. Before the study was completed, the Sub-Commission was authorised to establish a working group on indigenous populations to review developments pertaining to the human rights of indigenous populations and to give attention to the evolution of standards concerning the rights of such populations.

The Working Group on Indigenous Populations held its first session at Geneva in August 1982. It has since met annually for up to two weeks, except in 1986.

In the 1982 ECOSOC resolution authorising its establishment, the WGIP was entrusted with two tasks:

a) review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations;

 

b) give special attention to the evolution of standards concerning the rights of such populations.

At its early sessions, the WGIP focussed primarily on the review of developments. Whilst insisting that it is not a fact-finding tribunal, the WGIP has always considered that the review of "real-life experiences" of indigenous peoples can assist the clarification of relevant concepts and the formulation of standards. The review of developments has assisted understanding of the historical experiences and contemporary aspirations of indigenous peoples. This understanding provided the framework for the elaboration in the WGIP of standards on the rights of indigenous peoples. The review of developments remains a central part of the work of the WGIP.

3. Draft Declaration on the Rights of Indigenous Peoples

After discussion of various options, the WGIP decided at its fourth session in 1985 that it should aim to produce "a draft declaration on indigenous rights" for eventual adoption and proclamation by the UN General Assembly.

At the WGIP's sixth session in 1988, the Chairperson tabled a working paper containing a draft Universal Declaration on Indigenous Rights. In 1989 a Revised Draft Universal Declaration on the Rights of Indigenous Peoples was published for discussion. During its eighth and ninth sessions in 1990 and 1991, the WGIP established informal drafting groups to continue the revision process. In 1991 the Preamble and first three operative Parts of the Declaration of the Rights of Indigenous Peoples were submitted by the members of the Working Group at first reading.

At its tenth session in 1992, the WGIP had before it paragraphs agreed upon at first reading as further elaborated by the Chairperson, as well as paragraphs not yet considered at first reading.[1] During the session a first reading of all paragraphs was completed and a second reading commenced. At the WGIP's eleventh session in 1993, members of the Working Group agreed upon a final text of the Draft Declaration.

At the conclusion of its twelfth session in 1994, the WGIP submitted the text of the Draft Declaration to its parent body, the Sub-Commission. The members of the Working Group were of the opinion that the text "was comprehensive and reflected the legitimate aspirations of indigenous peoples as a whole, as well as a number of suggestions and concerns advanced by Observer Governments." Indigenous representatives emphasised the importance of maintaining the integrity of the WGIP's Draft Declaration. The Inuit Circumpolar Conference stated:

The need to preserve the integrity of the entire text is going to be a very important issue when the member States start the process of redrafting the various provisions. Serious consideration will have to be given by Indigenous Peoples whether the Draft Declaration can be supported after the governments have completed their analysis and made revisions.

4. Overview of the Draft Declaration

The Draft Declaration is divided into eight parts, each of which addresses particular thematic concerns. A ninth part contains miscellaneous provisions.

Part I - General Principles (Articles 1-5)

Articles 1-2, and 5 proclaim the rights of indigenous peoples to equality, freedom from adverse discrimination and nationality. Article 3 provides:

"Indigenous peoples have the right of self-determination. By virtue of this right they freely determine their political status and freely pursue their economic, social and cultural development."

Article 4 recognises the right of indigenous peoples to maintain and develop their distinct characteristics and legal systems, while participating fully in the life of the State.

Part II - Life, Integrity and Security (Articles 6-11)

Part II affirms the right of indigenous peoples to physical existence, integrity and security and to full guarantees against genocide, including the removal of indigenous children. There is recognition of the rights of indigenous peoples:

• to live in freedom, peace and security as distinct peoples and to full guarantees against genocide, including the removal of children (Article 6);
• not to be subjected to ethnocide or cultural genocide, including prevention of and redress for dispossession, imposed assimilation and integration (Article 7);
• to maintain and develop distinct identities and characteristics, including the right of self-identification (Article 8);
• to belong to an indigenous community or nation (Article 9);
• not to be forcibly removed from their lands or territories (Article 10); and
• to special protection and security in periods of armed conflict (Article 11).

Part III - Cultural, Spiritual and Linguistic Identity (Articles 12-14)

Part III proclaims rights connected with the cultural, spiritual and linguistic identity of indigenous peoples. These include rights:

• to practise and revitalise cultural traditions and customs (including to restitution of cultural, intellectual, religious and spiritual property) (Article 12);
• to practice and develop spiritual and religious traditions (including to have access to religious and cultural sites and to the repatriation of human remains) (Article 13); and
• to the revitalisation, use and transmission of histories, languages, oral traditions, writing systems and literature (Article 14).

Part IV - Educational, Information and Labour Rights (Articles 15-18)

Part IV addresses educational, information and labour rights. These include:

• the right of indigenous children to all forms and levels of education of the State, as well as the right of indigenous peoples to to their own educational institutions, providing education in indigenous languages (Article 15);
• the right of indigenous peoples to have their cultures and aspirations reflected in education and public information (Article 16):
• to establish their own media in their own languages (Article 17); and
• to international labour law and national labour legislation (Article 18).

Part V - Participatory, Developmental and other Economic and Social Rights (Articles 19-24)

Part V is concerned with participatory rights, as well as the right to development and other social and economic rights. Indigenous peoples have the rights:

• to participate fully in all levels of decision-making and implementation in matters affecting their rights, lives and destinies; and in devising legislative or administrative measures that may affect them. States are required to obtain their consent before adopting and implementing such measures (Articles 19-20);
• to their political, economic and social systems, to their own means of subsistence and development, and to their economic activities (Article 21);
• to special measures for the improvement of their economic and social conditions (Article 22);
• to develop and determine priorities and strategies for exercising their right to development (Article 23); and
• to traditional medicines and health practices (Article 24).

Part VI - Land and Resources (Articles 25-30)

Part VI addresses rights connected with the distinctive relationship of indigenous peoples with their lands, waters and other resources. There is recognition of rights of indigenous peoples:

• to own, develop, control and use the lands, territories, waters and other resources they have traditionally occupied or otherwise used (Article 26);
• to restitution of, or just and fair compensation for, lands, territories and resources confiscated or used without consent (Article 27);
• to the conservation and protection of the total environment and productive capacity of their lands, territories and resources (Article 28);
• to the ownership, control and protection of their intellectual and cultural property (Article 29); and
• to require that States obtain their free and informed consent prior to the approval of projects affecting their lands, territories or other resources, particularly in connection with the exploitation of mineral and water resources (Article 30).

Part VII - Exercise of Self-Determination, Indigenous Institutions (Articles 31-36)

Part VII contains rights relevant to the exercise of self-determination through forms of autonomy and self-government. These include rights of indigenous peoples:

• to autonomy or self-government in matters relating to their internal and local affairs (Article 31);
• to determine their own citizenship (Article 32);
• to develop and maintain their institutional structures and juridical customs and traditions (Article 33);
• to determine the responsibilities of individuals to their communities (Article 34);
• to maintain and develop relations and co-operation with other peoples across borders (Article 35); and
• to recognition and enforcement of treaties, agreements and other constructive arrangements concluded with State or their successors (Article 36).

5. Commission on Human Rights Working Group on the Draft Declaration (CHRWG)

In August 1994, the Sub-Commission adopted the text of the Draft Declaration transmitted by the WGIP and decided to submit it to the Commission on Human Rights (CHR) at the fifty-first session of that body in 1995. On 3 March 1995 the CHR decided:

to establish an open-ended inter-sessional working group ... with the sole purpose of elaborating a draft declaration, considering the draft contained in the annex to resolution 1994/45 of 26 August 1994 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, entitled draft "United Nations declaration on the rights of Indigenous peoples" for consideration and adoption by the General Assembly within the International Decade of the World's Indigenous People.[2]

The Commission on Human Rights inter-sessional working group (CHRWG) held its first session in Geneva from 20 November to 1 December 1995. It has since held sessions in 1996, 1997, 1998 and 1999. At the first session in 1995, the representative of the Grand Council of the Crees stated:

The Draft Declaration is perhaps the most representative document that the United Nations has ever produced, representative in the sense that its normative statements reflect in a more than token way, the experience, perspectives, and contributions of indigenous peoples. In a word, it is a document that was produced in a decade-long spirit of equal dialogue and mutual recognition ... [T]he Working Group should approach the Draft Declaration before it on the basis of a high presumption of validity of its provisions.

In the CHRWG few States delegations have been prepared to accept all articles of the Declaration, as currently drafted. Most argue that at least some require modification, clarification or correction. Some have suggested that proposed amendments should not weaken the text, but make it more reliable or indeed strengthen it. Many have commented that particular provisions are at variance with national legislation and policy, and are therefore unacceptable.

Indigenous delegations have adopted a number of strategies in defence of the existing text. Many have simply urged the CHRWG to adopt the Declaration, without changes, amendments or deletions, as minimum standards for the survival of indigenous peoples. Others have explained the practical significance of provisions in particular contexts, or demonstrated their consistency with existing international human rights law. It has been frequently stated that the Draft Declaration does not create special rights, rather ensures the enjoyment by indigenous peoples of equal rights.

6. Status of the Draft Declaration

After its adoption by the UN General Assembly, the Draft Declaration will constitute a non-binding declaration. In order for a catalogue of indigenous rights to become legally binding upon States, it would be necessary to commence work on the drafting of an international convention or treaty.

Whilst the Draft Declaration will be an aspirational document without obligations of direct implementation, it will contribute to a growing body of customary international law in the area of indigenous peoples' rights. It could also provide a solid moral framework for indigenous peoples' rights, a powerful tool in changing attitudes, a focus for dialogue, a basis for mobilising resources and for increasing the role of indigenous peoples in the UN system.

At the national level, the Draft Declaration could have an impact on debate about indigenous issues and bring about change in legislation and policy.

7. The International Labour Organisation (ILO) and indigenous peoples

The International Labour Organisation (ILO) was the first among international organisations to develop standards for the protection of indigenous peoples. Early instruments include:

• Forced Labour Convention 1930 (No 29)
• Recruiting of Indigenous Workers Convention 1936
• Contracts of Employment (Indigenous Workers) Convention 1939 (No 64)
• Penal Sanctions (Indigenous Workers) Convention 1939 (No 65)

In 1957 ILO Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (No 107) was adopted. ILO Convention No 107 reflects an integrationist philosophy widely held in the 1950s and it uses protective and integrationist language. Growing scepticism about this orientation resulted in a virtual halt in ratification, and activity of indigenous peoples at the UN increased pressure for its revision.

8. ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No 169)

ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No 169) was adopted by the ILO's General Conference in June 1989, and entered into force on 5 September 1991. Its general orientation is expressed in Article 7(1):

[T]o decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible over their economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.

In applying ILO Convention No 169, Governments are to consult with the peoples concerned through appropriate procedures, in particular through their representative institutions, with the objective of achieving agreement or consent (Article 6(1)).

Part I also contains provisions relating to customs and institutions, the recognition of methods customarily practised for dealing with offences, and penalties and procedural safeguards in legal proceedings (Articles 8-12).

Part II enumerates rights in relation to land and resource ownership. Article 14(1) provides that the "rights of ownership and possession of the peoples concerned over the lands they occupy shall be recognised". The effective protection of rights of ownership and possession are to be guaranteed (Article 14(2)), and adequate procedures established to resolve land claims (Article 14(3)). The rights to the natural resources pertaining to these lands are to be specially safeguarded (Article 15(1)). Where the State retains ownership of mineral or subsurface resources, procedures of consultation are to be established to ascertain to what degree the interests of the peoples concerned would be prejudiced. Where programs of exploration or exploitation are undertaken, the peoples concerned shall participate wherever possible in the benefits and receive fair compensation for any damage (Article 15(2)).

Subsequent Parts of ILO Convention No 169 deal with:

• recruitment and conditions of employment (Article 20)
• vocational training, handicrafts and rural industries (Articles 21-23)
• social security and health (Articles 24-25)
• education and means of communication (Articles 26-31) and
• contacts and co-operation across borders (Article 32).

9. Indigenous peoples and the principle of self-determination

From the establishment of the WGIP in 1982, indigenous representatives have maintained that the success of the UN's activities in the area of indigenous peoples' rights will depend on the recognition of their inherent right of self-determination. This right is said to arise from their status as self-governing peoples prior to their subjection to processes of colonisation in their own territories.

Indigenous peoples point out that their dispossession generally occurred with force and without their consent. With few exceptions, they were not part of State-building. They were denied opportunities to participate in designing the constitutional order of the States into which they were incorporated. In asserting their right of self-determination, they are seeking to renegotiate their political status and to insist that they provide their genuine consent to the terms of future relationships with existing States.

In many countries fundamental processes of constitutional review and reallocation of power are taking place. For indigenous peoples these processes of "belated State-building" are akin to decolonization, based upon the recognition of their unique status as first peoples and not simply as racial or cultural minorities in a larger society.

Indigenous peoples argue that pursuant to article 1 of the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, the right of self-determination is a right of "all peoples." They say that any qualification on the right of self-determination would mean that the international community regards the rights of indigenous peoples as inferior to those of other peoples.

For example, at the WGIP in 1990 a statement made by indigenous peoples, "Recommendations concerning the August 1989 Draft Universal Declaration on the Rights of Indigenous Peoples, 21 June 1990" provided that:

The right of indigenous peoples to self-determination is equal to the right of non-indigenous peoples to self-determination. We should resist efforts to re-define or to dilute for indigenous peoples a right that has already been recognized for all others. The declaration must carefully avoid establishing a category of second-class rights for indigenous peoples.

At the WGIP in 1993 Chief Ted Moses, Ambassador of the Grand Council of the Crees, stated on behalf of the North American Region:

The indigenous peoples ask to be accorded the same rights which the United Nations accords to the other peoples of the world. We ask for no more and no less than this. ... We ask simply that the United Nations respect its own instruments, its own standards, and its own principles. We ask that it apply these standards universally and indivisibly, that it accord all peoples the same universally recognized rights, that it act without prejudice, and without discrimination based on race, religion, or colour. ...

 

The International Covenants state that "all peoples" have the right of self-determination. "By virtue" of this right, they declare that all peoples have the right to enjoy and benefit from their own resources. The Covenants declare unequivocally that a people may not be denied their own means of subsistence. These International Covenants were drafted to protect peoples, all peoples without exception. There is no provision whereby these protections may be applied selectively to certain peoples and denied to other peoples. The Covenants are explicit. They apply to "all peoples". The Universal Declaration is also explicit; international human rights protections are to apply universally and indivisibly.

In 1993 it was the Position of the Indigenous Delegates on Self-Determination that:

It is the position of the indigenous delegates ... that self-determination is the critical and essential element of the Draft Universal Declaration on the Rights of Indigenous Peoples. Discussion on the right of self-determination has been and still is the sine qua non of our participation in the drafting process. The right of self-determination must therefore be explicitly stated in the declaration. ... We believe that the working group should demonstrate consistency and objectivity on this issue because the right of self-determination is the heart and soul of the declaration. We will not consent to any language which limits or curtails the right of self-determination.

At the WGIP in 1994, Lois O'Donoghue, Chairperson of the Aboriginal and Torres Strait Islander Commission stated:

The call for self-determination in the Declaration on the Rights of Indigenous Peoples is not a new or different right that applies to us as indigenous peoples. The emphasis in the Declaration highlights the historical fact that that this right has been denied to us.

 

Self-determination for the member states of the United Nations has taken many forms. The same will happen, I believe, in the evolution of self-determination for indigenous peoples. There is not a single future to which we must conform, there are multiple futures. And multiple futures within the same environment. Our experience in Australia, for example, reinforces this message. We have ATSIC as an example and we have the Torres Strait Regional Authority. There are presently aspirations for autonomous self-governing States among some of our indigenous communities.

At the first session of the CHRWG in 1995, the Saami Council stated:

[T]he right of self-determination for indigenous peoples is essential, not because this right is a right of indigenous only, but because it is a right of all peoples. Implementation of the fundamental rights of equality and non-discrimination calls for equality also in this regard. The right to self-determination is a right of all peoples, therefore indigenous peoples cannot be denied this fundamental right.

And the World Council of Indigenous Peoples noted that:

[A] failure to recognize indigenous peoples' inherent right, as peoples, to self-determination is not only racist and demeaning, but also violates the fundamental principle of equality and non-discrimination as defined in the Charter of the United Nations and elsewhere.

10. States and the principle of indigenous peoples' self-determination

The sessions of the CHRWG have seen an increasing number of State delegations supporting language of self-determination in the Draft Declaration on the Rights of Indigenous Peoples, provided that it poses no threat to the territorial integrity of States. These include Argentina, Bolivia, Canada, Chile, Colombia, Denmark, Finland, Mexico, New Zealand, Norway, Peru and Switzerland.

In 1996 Canada announced that:

The Government of Canada accepts a right of self-determination for indigenous peoples which respects the political, constitutional and territorial integrity of democratic states. In that context, exercise of the right involves negotiations between states and the various indigenous peoples within these states to determine the political status of the indigenous peoples involved, and the means of pursuing their economic, social and cultural development.

In 1997, New Zealand stated:

Subject to any draft Declaration being consistent with domestic understanding of the relationship between Maori and the Crown (representing all New Zealanders), and respecting the territorial integrity of democratic States and their constitutional frameworks where these meet current international human rights standards, New Zealand could accept the inclusion in the draft Declaration of a right of self-determination for indigenous peoples. ...New Zealand considers that consistent with an emerging usage at international law, any right to self-determination included in the Declaration shall not be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign or independent states, possessed of a government representative of the whole of the people belonging to the territory, without distinction as to race, creed or colour.

In 1999, the United States announced that it was initiating an inter-agency review of the US position on self-determination.

Acronyms

CHR- Commission on Human Rights

CHRWG- Commission on Human Rights Working Group on the Draft Declaration

ECOSOC- UN Economic and Social Council

ILO- International Labour Organization

WGIP- working Group on Indigenous Populations

[1] UN Doc E/CN 4/Sub 2/1992/28.

[2] Commission on Human Rights resolution 1995/32.

By Professor Hilary Charlesworth, Centre for International and Public Law, Faculty of Law Australian National University

1. Introduction

The term ‘human rights' implies that rights belong to all people, whatever their sex. In many ways, human rights law has been the most accessible and receptive area of international law for women because it explicitly acknowledges women's lives, albeit in a limited fashion. The lobbying by women's groups at the international level from early this century is reflected in the range of instruments dealing with women. However, in practice, the human rights of women have not been given the same importance or prominence as the human rights of men.

The main UN institution concerned with women and human rights is the Commission on the Status of Women. CSW is an inter-governmental body and meets in annual session in New York in March.

2. International treaties on women

Provisions in treaties dealing with women have been categorised as falling into three categories: protective, corrective and non-discriminatory. Some treaties contain elements of all three categories. `

• ‘Protective' treaties assume that women should be treated differently to men in particular circumstances because they are physically different to and more vulnerable than men. Examples include the International Labour Organization's (ILO) Convention Concerning Night Work of Women Employed in Industry (1948) which limits the amount of night work women can undertake, and provisions of the Third Geneva Convention on the Laws of War (1949) that require particular treatment for women prisoners of war (articles 14, 16, 69). While special provisions for women acknowledge the differences in women and men's lives, `protective' laws also tend to stereotype women as weak and helpless.

• `Corrective' treaties attempt to improve women's treatment without making overt comparisons to the situation of men. Conventions dealing with trafficking in women[1] or with the requirement for women to marry only with their full and free consent[2] are examples of `corrective' treaties.

• ‘Non-discrimination' treaties emphasise the right to equal treatment and non-discrimination on the basis of sex. This type of treaty is the most widely used in international law with respect to women and this chapter will focus on this category. The international legal system has dealt with non-discrimination on the basis of sex in both generally applicable and women-specific instruments.

3. Non-discrimination treaties

3.1 General instruments

The UN Charter was the first international agreement to establish non-discrimination on the ground of sex as a basic right. It refers in its Preamble to `the equal rights of men and women' and includes as a purpose of the UN the promotion and encouragement of respect for human rights and fundamental freedoms for all without distinction based on sex.[3] The Universal Declaration of Human Rights (1948) emphasises that all of its rights and freedoms must be guaranteed ‘without distinction of any kind, such as race, colour, sex ... or other status' (article 2).

General human rights treaties at both the global and regional levels contain rights of non-discrimination on a number of bases that include sex and prohibit distinctions based on sex with respect to the enjoyment of rights.[4] For example, article 3 of the ICCPR provides that `States Parties ... undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant'. More generally, article 26 provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Human Rights Committee, the treaty body responsible for monitoring states' implementation of the ICCPR, has adopted a General Comment on article 26,[5] which gives it a broad meaning.

The General Comment:

• states that article 26 is an autonomous right to equality and is not limited to those rights already provided for in the ICCPR. In other words, the right to equality applies across the spectrum of civil, political, economic, social and cultural rights.

• offers a definition of the term `discrimination', unelaborated in the text of article 26 itself. The Comment refers to the definition of discrimination in both the Convention on the Elimination of All Forms of Racial Discrimination (1966) and the Convention on the Elimination of all Forms of Discrimination against Women (1979) (Women's Convention) and adapts this to the context of the ICCPR: the Committee believes that the term `discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. This definition makes clear that a discriminatory intention is not necessary to establish discrimination and that article 26 extends to both direct and indirect discrimination.

• states that equality does not always mean identical treatment. It acknowledges the possibility of different treatment in particular circumstances (for example the prohibition in the ICCPR on the imposition of the death sentence on those under 18 or on pregnant women). It also points out that 'the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions that cause or help to perpetuate discrimination prohibited by the Covenant.'

• provides that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose that is legitimate under the Covenant. Such a justification for differential treatment has been interpreted to involve showing that it has been adopted in pursuit of a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aims sought to be realised -- the so-called `margin of appreciation' doctrine.

The interpretation of article 26 in the context of individual cases brought before the Human Rights Committee under the first Optional Protocol to the ICCPR has been relatively narrow. The Committee has been more concerned to respond to cases of direct (`disparate treatment') than indirect (`disparate impact') discrimination. The Human Rights Committee has declared national laws that discriminate on their face between men and women to be in violation of article 26.

For example Mauritian immigration legislation that required foreign husbands to apply for residence permits, but did not make the same requirement of foreign wives, was found to violate several provisions of the ICCPR, including article 26.[6] So too a Peruvian law that prevented a married woman from taking legal action with respect to matrimonial property was held to discriminate against women.[7][8] Two Dutch women's challenge to national social security laws, which required married women, but not men, to prove that they were breadwinners before obtaining unemployment benefits, was also upheld by the Committee.

3.2 Women-specific instruments

A number of international instruments focus entirely or in part on discrimination against women. These include the Convention on the Political Rights of Women (1952) the Convention on the Nationality of Married Women, and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962).

The most wide-ranging of the international human rights treaties devoted to women is the Women's Convention, adopted by the UN General Assembly in 1979. The Convention contains a broader definition of discrimination than that contained in the earlier treaties, covering both equality of opportunity (formal equality) and equality of outcome (de facto equality). It states in article 1 that discrimination against women means:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

The Women's Convention also covers discrimination in the civil, political, social, economic and cultural fields (article 3). Article 2 requires states to take legal and other measures to ensure the practical realisation of the principle of sex equality and refers to a range of arenas where states parties must work to eliminate discrimination: political and public life (article 7), international organisations (article 8), education (article 10) employment (article 11), health care (article 12), financial credit (article 13 (b)), cultural life (article 13(c)), the rural sector (article 14) and the law (article 15). It contemplates the use of `temporary special measures' to accelerate de facto equality between women and men (article 4).

The Women's Convention has been ratified widely by states from all regions of the world. In December 1999 the Convention had 165 parties. However, many of these states have made broad reservations to provisions of the treaty, which effectively undermine their commitment to it. The text of reservations is available at http://www.un.org/depts/treaty.

The Women's Convention is monitored by the Committee on the Elimination of Discrimination against Women (CEDAW) - a 23-member body made up of independent experts elected by the General Assembly. The main task of CEDAW has been to consider the periodic reports states parties to the Women's Conventions are required to submit. States are required to submit an initial report within one year of the Convention entering into force and every four years after that. CEDAW questions the states on their implementation of the Convention and then adopts ‘Concluding Observations' which are submitted to the General Assembly.

NGOs can have a significant impact on the process of reporting under the Women's Convention. CEDAW is always interested to hear from NGOs about issues of concern in a state whose report CEDAW id about to consider. Some NGOs prepare an alternative report to the official governmental one, and prompt national and international attention in doing so.

In October 1999, the General Assembly of the United Nations adopted an Optional Protocol to the Women's Convention (GA Res. 54/4 --available at http://www.un.org/womenwatch/daw/cedaw/protocol). The Optional Protocol allows women to make complaints directly to CEDAW if their state has failed to fulfil the terms of the Women's Convention. The Optional Protocol method can only be used if the state has accepted the Protocol. The Protocol will come into force when 10 states accept it. It promises a valuable new method of international scrutiny for the protection of women's rights.

4. Inadequacies of human rights law for women

Although women have achieved some recognition in the international system for the protection of human rights, it has been argued that international law does not provide an adequate response to the situation of women globally. Two important issues are the way that women's rights are pushed to the margins of the UN human rights system, and the influence of claims of culture on the observance of women's rights.

4.1 Marginalisation

In many ways, the creation of a specialised `women's' branch of human rights law, of which the Women's Convention is the flagship, has allowed its marginalisation. `Mainstream' human rights institutions have tended to ignore the application of human rights norms to women. The UN's separation of `general' and `women's' matters seems to have disadvantaged women. There is a strategic dilemma with respect to international legal structures and women. On the one hand, the attempt to improve the position of women through more generally applicable measures has allowed women's concerns to be submerged by what are regarded as more `global' issues. On the other hand, the price of the creation of separate institutional mechanisms and special measures dealing with women within the UN system has typically been the creation of a 'women's ghetto', given less power, fewer resources and a lower priority than `mainstream' human rights bodies.

In 1994, the UN Commission on Human Rights appointed the Sri Lankan jurist, Radhika Coomaraswamy, as Special Rapporteur on the Elimination of Violence against Women. This was the first gender-specific mandate of a Special Rapporteur. In her reports, Ms Coomaraswamy has drawn attention to the phenomenon of violence against women in a systematic manner and made valuable proposals for change. But the very nature of the mandate may be viewed as an ambivalent advance for women in the international legal order because it can be read as implying that violence against women does not constitute torture, nor is it within the mandates of `general' Special Rapporteurs, such as those on the right to life, disappearances and religious intolerance.

4.2 The influence of cultural relativism

One strong response to the creation of a universal system of human rights protection has been assertions of the philosophy of cultural relativism. The claim is that if international human rights norms conflict with particular cultural standards, the particularity of culture must take precedence over universalising trends. Critics of universal human rights standards point to the Western ethical basis of human rights law and reject this as a basis for commitments in other traditions. At the same time, Western states have developed their own form of cultural relativism in the human rights area in arguing for very broad `margins of appreciation' in implementing their human rights obligations, based on the particularity of their national circumstances.

While concerns of cultural relativism arise with respect to human rights generally, it is striking that `culture' is much more frequently invoked in the context of women's rights than in any other area. Indeed, Radhika Coomaraswamy has argued that in Asia especially the first decade will be marked by the collision of national cultural movements and women's rights.

Appeals to cultural relativism have grown in intensity and frequency as the scope of the international human rights regime grows wider. Arguments of cultural relativism are rejected by many proponents of human rights because they challenge the validity and retard the development of universal standards. Such proponents have pointed out that subordinating human rights to cultural traditions provides no objective yardstick against which state behaviour may be assessed; that it allows human rights to be traded as negotiable commodities; that it reconstructs the `domestic jurisdiction' screen behind which authoritarian governments can shelter; and that it is based on the assumption that human rights standards are good for people in some parts of the world, but irrelevant elsewhere.

National and international bodies have had to deal with claims that set individual rights and cultural practices or standards against each other, particularly in the context of women's rights.

One example of this is Lovelace v Canada.[9] Sandra Lovelace was born and registered as a female member of the Maliseet Indian tribe. Under Canadian law, she had lost her rights and privileges as a member of the tribe, including the right to live on the Tobique Indian reservation, after her marriage to a non-Indian. Lovelace made a communication under the first Optional Protocol to the ICCPR asserting that this law violated articles 26 and 27 of the ICCPR. In determining that the legislation breached article 27, the Human Rights Committee held that ‘persons who are brought up on a reserve, who have kept ties with their community and wish to maintain these ties must normally be considered as belonging to that minority.'

Lovelace illustrates the identity conflict between Sandra Lovelace, who regarded herself as an Indian, and wished to return home after the breakdown of her marriage, and the group who considered that women (but not men) who married outside the group ceased to have group identity. The group was supported in this view by the Canadian legal system, reflecting a shared cultural acceptance that the identity of married women is determined by reference to their husbands. Native Indian women had differing responses to the decision. The primary goal for some was to redress the discriminatory provisions of the Indian Act; for others the goal was the replacement of the Act by a form of indigenous self-government. Still others saw the case as imposing Western assumptions of sex equality, although the Human Rights Committee did not in fact address the claim under article 26. The Canadian indigenous writer, Mary Ellen Turpel (Aki-Kwe), asked:

Before imposing upon us the logic of gender equality (with White men), what about ensuring for our cultures and political systems equal legitimacy with the Anglo-Canadian cultural perspective which dominates the Canadian State?[10]

Another example is the case of Md Ahmed Khan v. Shah Bano Begum.[11]. An Indian Muslim woman who was being divorced after forty years of marriage claimed the maintenance payments under the Indian Code of Criminal Procedure rather than those lower payments available under Muslim personal status law. After the Supreme Court of India upheld her claim, opposition and protests from within the conservative Muslim community ultimately persuaded the government to reverse the decision through the inaccurately named Muslim Women (Protection of Rights on Divorce) Act 1986. Shah Bano Begum was thus disadvantaged by three layers of identity: as a woman; as a Muslim woman within the predominantly Hindu society; and as a Muslim woman who wished to assert rights not supported by her community.

A major problem with cultural relativism is that the notion of culture is itself endlessly mutable. All social values and hierarchies in their own time frames can be described as forms of culture. If all cultures are seen as special, resting on values that cannot be investigated in a general way, it is difficult to make any assessment from an international perspective of the significance of particular concepts and practices for women. Feminists have pointed out that we need to investigate the gender of the `cultures' that relativism privileges. Relativism is typically concerned with dominant cultures in particular regions and these are, among other things, usually constructed from male histories, traditions and experiences. Arati Rao has argued that the notion of culture favoured by international actors must be unmasked for what it is: a falsely rigid, ahistorical, selectively chosen set of self-justificatory texts and practices whose patent partiality raises the question of exactly whose interests are being served and who comes out on top.[12]

Rao has proposed a series of questions to assess claims of culture, particularly those used to counter women's claims of rights: whose culture is being invoked? what is the status of the interpreter? in whose name is the argument being advanced? and who are the primary beneficiaries of the claim?

Acronyms

CEDAW- Convention on the Elimination of Discrimination Against Women

CSW- Commission on the Status of Women

ICCPR- International Covenant on Civil and Political Rights

ILO- International Labour Organisation

Further reading

A useful guide to the literature on women's rights is R. Cook & V. Oosterveld, 'A select bibliography of women's human rights', 44 American University Law Review (1995) 1429

R. Cook, ‘Women' in C. Joyner ed., The United Nations and International Law (Cambridge, Cambridge University Press, 1997) 181

R. Coomaraswamy, ‘Reinventing international law: women's rights as human rights in the international community', in P. Van Ness ed., Debating Human Rights (London/New York, Routledge, 1999) 167 at 180-1.

Internet Resources

http://www.un.org/womenwatch/daw/cedaw/

http://www.feminist.org/research/cedawmain.html

http://www.sdnp.undp.org/cedaw/

http://www.unhchr.ch/html/menu3/b/e1cedaw.htm

http://www.law-lib.utoronto.ca/diana/cedaw/cedaw.htm

http://www.apgen.apdip.net/component4cedaw/overview4.html

http://www.safnet.com/cedaw/other.html

[1] E.g. Convention for the Suppression of the Traffic in Women and Children, 24 April 1950, 53 UNTS 39.

[2] E.g. Convention on the Nationality of Married Women, 29 January 1957, 309 UNTS 65.

[3]. Charter of the United Nations, 26 June 1945, article 1(3). Other references in the Charter to non-discrimination on the basis of sex are in articles 13, 55 (c) & 76 (c).

[4]. E.g. International Covenant on Civil and Political Rights, articles 2, 25 & 26; International Covenant on Economic and Social Rights, articles 3 & 7; American Convention on Human Rights, article 1; African Charter of Human and Peoples' Rights, articles 2 & 18 (3); European Convention on Human Rights, article 14.

[5]. UN Doc. CCPR/C/21/Rev.1/Add.1, 21 November 1989.

[6]. Aumeeruddy-Cziffra v. Mauritius Communication no. 9/35.

[7]. Avellanal v. Peru Communication no. 22/1986.

[8]. Zwaan de Vries v. The Netherlands Communication no. 182/1984; Broeks v. The Netherlands Communication no. 172/1984.

[9] Communication no. 24/197 (1986), UN Doc. CCPR/C/OP/1 at 83.

[10] M.E.Turpel (Aki-Kwe), ‘Patriarchy and paternalism: the legacy of the Canadian State for First Nations Women', 6 Canadian Journal of Women and Law (1993) 174 at 183.

[11] [1985] 3 S.C.R. 844.

[12]. A. Rao, ‘The politics of gender and culture in international human rights discourse', in J. Peters & A. Wolper eds, Women's Rights, Human Rights: International Feminist Perspectives (New York, Routledge, 1995) 167 at 174.

By Radhika Withana-Arachchi, Program Director, Diplomacy Training Program, Faculty of Law, UNSW

1. Introduction

The rights of children have been covered in other international human rights instruments such the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite this, the Convention on the Rights of the Child (CROC) represents an important development in international human rights law by defining rights that have previously been found in numerous other international instruments into one international document that elaborates and develops those rights with specific reference to the needs and interests of children.

The CROC represents one of the great achievements of the efforts of Non-Government Organizations (NGOs) involved in human rights diplomacy. They had an instrumental impact on the Convention as well as on its conceptual framework. It is an example of what can be achieved in human rights by NGOs with sophisticated diplomacy.

2. Convention on the rights of the child

The text of the CROC was concluded in 1989 and has since become the most widely signed international human rights instrument. By 1996 it had 187 ratifications. To date the United States of America (and Somalia) have yet to sign the treaty.

2.1 General principles

There are four general principles enshrined in the CROC-

• Best interests of the child

Article 3 enshrines that when a state makes decisions with regard to children the ‘best interests of the child' must be the primary consideration. The principal relates to decisions by courts of law, administrative authorities, legislative bodies and public and private social welfare organizations. This principle is present implicitly in all the rights and is given explicit expression in: Article 9 (on the separation of the child from its family), Article 18 (on the child's upbringing and development), Articles 20 and 21 (concerning the child's separation from its family through various procedures and adoption, and Article 37 and 40 (on a child's involvement with police and the judicial system.)

The inclusion of the best interests principle was an acknowledgement of the fact that there would be times when certain rights of the child would come into conflict with the rights and responsibilities of parents/guardians and the State. The language of Article 3 stipulates that the bests interests of the child are primary but not paramount: thus it does not privilege one set of rights against another (child versus parent/guardian/State) but allows for both to co-exist.

• Non-Discrimination

Article 2 provides that no child should suffer discrimination due to the child's or his or her parents or legal guardians race, colour, sex, language, religion political and other opinion or any other status. The principle of non-discrimination does not require that all children receive identical treatment in all cases but that children (as with adults) should enjoy equality of opportunity.

• The right to life, survival and development

Article 6 contains the right to life and in addition places parties under an obligation to "ensure to the maximum extent possible the survival and development of the child." The right to survival and development encompasses a number of issues: the right to health (Article 24) and physical development (Articles 26 and 27(3)), mental development (Articles 23, 27(1), 28 and 29), spiritual and moral development (Articles 14, 27(1) and 30) and social development (Articles 12, 13, 15, 17, 72(1) and 30).

• The views of the child

Article 12 protects the rights of children to have free opinion in all matters affecting them and that those views should be given due weight in ‘accordance with the age and maturity of the child.' This principle expressed in Article 12 underpins rights such as freedom of expression (Article 13), freedom of thought, conscious and expression (Article 14), and freedom of association and assembly (Article 15). Such rights are not absolute rights granted indiscriminately. They are relative rights that take into account the age and maturity of the child in the exercise of such rights.

2.2 Monitoring procedures

The Committee of the Rights of the Child comes under the mandate of Article 43 of the Convention. The procedural functions of the Committee are set out in Article 44 and 45.

The Committee, consisting of 10 experts from a number of countries, currently holds three sessions a year, each of 4 weeks duration in Geneva. State parties to the treaty elect committee members for a four-year term, with the possibility of re-election.

Under Article 44, State parties accept the duty to submit regular reports to the Committee on the steps they have taken to put the Convention into effect in their own country. First implementation reports are to be submitted two years after ratification or accession to the treaty, and every five years thereafter.

The Committee also receives information from other UN institutions and treaty bodies such as the Commission on Human Rights and from the Special Rapporteurs on torture, on extrajudicial, summary or arbitrary executions, and on violence against women and especially the Special Rapporteur on the sale of children, child prostitution and child pornography.

The role of NGOs in the decision making of the Committee is also important. Indeed NGOs (or "competent bodies" in the language of the Convention- Article 45a) are assigned a role in the implementation machinery. They might be invited by the Committee on the Rights of the Child to provide expert advice on implementation in areas falling within their scope of expertise. In addition they may receive requests from State parties via the Committee for technical advice or assistance in implementation. In addition the Committee may also invite certain NGOs to take part in the preparatory meetings on State reports. The role assigned to NGOs by the CROC is significant as it is the first time that NGOs are mentioned in the text of an international human rights instrument. It is a testament to the determination of NGOs who participated in the long and strenuous diplomatic process of negotiating the terms of this treaty.

At the end of the deliberations process the Committee adopts ‘concluding observations' that are statements on its consideration of a State's report. These observations are meant to form the basis of a national debate within the country as to how to improve the enforcement of the treaty provisions. The concluding observations constitute an essential document, which Governments are expected to implement. However it needs to be stressed that the recommendations of the Committee are just that: recommendations, and not binding obligations.

3. Sexual and economic exploitation of children

The exploitation and abuse of children occurs in so many ways that the drafters of the Convention realised the impossibility of addressing them all. As such they focused on two especially serious exploitative practices: sexual and economic exploitation of children.

3.1 Sexual exploitation

The issue of sexual exploitation of children has attracted increasing attention in recent years. The main forms of sexual exploitation of children for commercial value include: child sex tourism, child prostitution, child pornography and the trafficking of children for sexual purposes.

While the commercial sexual exploitation of children exists in almost every country, in recent decades, large well-organised child sex industries have emerged in the developing nations of Asia, Africa and Latin America. The main reason for children entering the sex industry is economic. Many are from poor rural areas; some who are homeless become exploited because they have no shelter or protection; many are sold by someone they know (usually a parent); others work as either the sole source of income for families or to supplement a family's income; others are just abducted.

An official figure, given the secretive nature of such work is difficult to establish. The official UNICEF figure is I million children working in the sex industry (in its many forms) throughout Asia alone.

The causes of commercial sexual exploitation of children are complex, with poverty being undoubtedly the major causal factor. However there are multiple factors that create the conditions in which children are sexually exploited, including for example; domestic violence and sexual abuse, racial and gender discrimination, corruption and weak law enforcement, urban and rural migration. Three structural causes in understanding the causes of sexual exploitation include:

• poverty
• globalisation
• gender bias

Article 34 of CROC is the main provision covering sexual exploitation. The intent of the article is not to regulate the sex lives and activities of children, which would be impossible and undesirable. Children are allowed to marry at different ages in some countries and children may want to voluntarily engage in sexual activity at young ages. Therefore the article is framed in such a way that it addresses the sexual exploitation of children rather than the sex lives of children.

3.2 Economic exploitation

The second major from of child exploitation that the drafters of the convention were concerned about was the commercial economic exploitation of children, particularly in relation to child labour. This is usually taken to mean:

• low wage rates or no wages at all;
• long working hours;
• hazardous work in unhealthy conditions;
• possible threats of physical violence from employer.

While child labour is prevalent in all parts of the world, industrialised countries have made enormous progress to addressing the issue of child labour. In such countries universal or near universal primary and secondary education exists and many have adopted laws that regulate the age at which children can enter different occupations and the conditions in which they work.

In developing countries the problem of child labour and the general economic exploitation of children is enormous. The collection of reliable statistics is difficult given that most child labourers are ‘hidden' in informal or unstructured economies outside government control. ILO estimates suggest that around 50-60 million children (5-11 year olds) in developing countries are working in hazardous circumstances.

As with sexual exploitation the main causes of economic exploitation is poverty. In addition to the basic poverty of developing states there is the further complication of the huge debt burdens of developing countries, which has led to cut backs in social welfare programs. Related to poverty is the trafficking of children for the purposes of child labour. In places like India, there is also another social factor. The Indian view of the social order- the caste system- which is a firm ordering of the roles of different strata in society is a view shared by a wide cross section of society: within and outside government; religious and secular; among educators, social activitists, and more broadly by members of the Indian middle class.

Article 32 of CROC covers this form of exploitation. The article is non-specific on the issue of the minium age for work, leaving it up to states to determine for themselves, in their own legalisation and administrative measures, how they wish to deal with the matter. The same is true for the regulation of hours and conditions of employment. Furthermore, in 1999 the terms of the text for a new treaty (Worst Forms of Child Labour Convention) were concluded.

4. Other forms of exploitation

Although sexual and economic exploitation are the two main forms of exploitation addressed in the CROC there are other activities that diminish the rights of children. It is impossible to give each the exhaustive treatment given to sexual and economic exploitation, however it is worth highlighting some of the other problems facing children. These other forms of exploitation are addressed in a general article (Article 36) that obliges State parties to "protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare."

• Girl children

Gender discrimination entrenched in various societal norms keeps young girls from school and from full involvement in the community. In addition they are subject to physical abuse, domestic violence, rape, enforced pregnancy and used as weapons of war.

• Victims of war

In the decade since the adoption of the CROC over 2 million children have been killed and over 6 million injured in armed conflict. The trend continues.

• Child soldiers

The proliferation of light inexpensive weapons has contributed to the use of children as soldiers in countries such as Sierra Leone, Congo, Sudan, Afghanistan, and Sri Lanka top name just some. As recently as May 2000, the text for an Optional Protocol on child soldiers called the Involvement of Children in Armed Conflict was adopted.

• HIV/AIDS

Around the world 8,500 children have been infected by HIV. In Africa the combined social and economic devastation caused by HIV/AIDS in the last decade is greater than the combined destruction of its wars. The same patterns of stigma, taboo and silence found in Sub Saharan Africa is being repeated in Asia, particularly south east Asia. Since the appearance of HIV in south east Asia in 1986, 5 million people including children have been infected. In 1999 the UNAIDS estimated the following levels of infection for adults and children: Bangladesh, 13,000; Cambodia, 220,000; India, 3.7 million; Nepal, 34,000; Pakistan, 74,000; Philippines, 28,000; Sri Lanka, 7500; Thailand, 755,000. The rates of infection continue to increase. Children are particularly in danger due to their invisibility in the community with regards to the disease.

5. Obstacles to the fulfilment of children's rights

5.1 Domestic implementation

When a State ratifies the convention it assumes a legal obligation on its government to take the legislative and administrative steps necessary to implement the standards of the convention within its jurisdiction. Ratification is not enough but the terms of the convention must be given domestic effect. The most direct action in the realisation of the treaty goals is the policy and practice of governments in relation to the functional areas of the convention.

The vagueness of some provisions in the Convention in relation to State duties can be used in a self-serving way by governments to rationalise the implementation of certain requirements. Phrases such as "all appropriate measures", "such protection and care as is necessary", maximum extent of available resources" have uncertain meanings. They virtually offer governments who do not want to fully implement various provisions a way out, despite accountability mechanisms within the convention.

Fundamental to the fulfilment of the treaty provisions is political will on the part of national governments. Where there is an absence of such will, the role of NGOs/informed pressure groups/civil society is essential for both the creation of political will and the monitoring of government accountability in fulfilling its legal obligations.

5.2 Absence of an individual complaints mechanism

There is no provision in the Convention or as yet a subsequent Protocol for individual complaints from children or their representatives in the event the State fails to fulfil the terms of the CROC. Unlike the Optional Protocol of the ICCPR, CEDAW and CERD, which provides for individuals who have exhausted all their domestic remedies to appeal directly to the Committee overseeing the compliance and implementation of the various treaties mentioned. Children at the moment can only rely on the reporting of States, which is inevitably an attempt to show the best picture. While NGOs and other non state party reports are accepted in some cases, children as yet lack the possibility of directly accessing the institutional mechanisms set up to protect their rights and interests.

5.3 Issues of cultural relativism

It has been the non-western states more than others who have stressed the non-universal nature of international human rights norms. For instance in the 1993 Bangkok Declaration, several Asian States while recognising human rights are universal in nature noted that "...they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds."

Culture is a double-edged sword. It is both a force for the better and the worse. Culture (meaning among other things, custom, customary law, tradition) can provide a political base for the protection of minority and indigenous rights. It allows for the practice of ones own religion and the use of ones own language. Culture extends safety nets to children better than governments. However culture, usually with self serving interpretations of tradition, have been used to defend practices such as forced marriages of young girls and bonded child labour, that deny the very liberty and freedom of children.

It is possible to see regional differences and restrictions in the interpretation and the exercise of children's rights, especially in relation to the concept of the child as an independent human being. The principle of the best interests of the child mediates through such differences. Indeed while we do have a treaty covering children's rights, this does not mean that we have a uniform understanding of what the concept of children's rights implies and indeed it continues to be debated and refined. However care needs to be taken to separate between genuine differences of opinion that may occur between cultures, which still holds the possibility of improvement in the rights of children; and self-serving interpretations of tradition that offer no hope of improvement.

Acronyms

AIDS- Acquired Immune Deficiency Syndrome

CEDAW- Convention on the Elimination of Discrimination Against Women

CERD- Convention on the Elimination of all Forms of Racial Discrimination

CROC- Convention on the Rights of the Child

HIV- Human Immunodeficiency Virus

ICCPR- International Covenant on Civil and Political Rights

ICESCR- International Covenant on Economic, Social and Cultural Rights

NGO- Non Government Organization

Further Reading

Philip Alston (ed) The Best Interests of the Child: Reconciling Culture and Human Rights (Clarendon: Oxford 1994)

Per Miljeteig-Olssen "Advocacy of Children's Rights- The Convention as More Than a Legal Document" 12 Human Rights Quarterly (1990) pp148-155.

ILO, World at Work, No 30, July 1999, p6.

United Nations Children's Fund, "Report of the ESAR HIV/AIDS taskforce" Held in Nairobi, 11-12 March 1999, UNICEF, April 1999.

Joint United Nations Program on HIV/AIDS, Facts and Figures, 1999

Bangkok Declaration, A/Conf.157/PC/59, Para 8.

By Trina Markandu and The Refugee Council of Australia

1. Who is a refugee?

A refugee is someone

• who is outside his/her country of origin;
• has a well-founded fear of persecution because of his/her
• race,
• religion,
• nationality,
• membership of a particular social group or
• political opinion and,
• is unable or unwilling to avail him/herself of the protection of that country, or to return there for fear of persecution.

This internationally recognised definition of the term refugee appears in the 1951 Convention relating to the Status of Refugees. This Convention and the 1967 Protocol Relating to the Status of Refugees are the two main treaties in international refugee law.

The Convention and Protocol provide a framework for the international protection of the rights of refugees. Some of the important rights set out in the Convention include:

• non-discrimination (Article 3)
• freedom of religion (Article 4)
• free access to the courts of law on the territory of all States party to the Convention (Article 16)
• the right to work (Article 17)
• the right to housing (Article 21)
• the right to education (Article 22)
• the right to public relief and assistance (Article 23)
• freedom of movement within the territory (Article 26)
• the right not to be expelled from a country unless the refugee poses a threat to national security or the public order (Article 32)
• the right to be protected from refoulement (Article 33)

This last right is the most important, that is the right to be protected against forcible return, or refoulement, to the territory from which the refugee has fled.

Today the Convention definition is no longer consistent with the actual causes of flight in many cases. These causes include people fleeing civil war or general political unrest, those fleeing extreme poverty and those displaced internally as a result of civil war, ethnic strife or forced relocation. As a result, it excludes a number of categories of people who are legitimately deserving of international protection because of situations of generalised violence that prevail in their countries of origin. This view is shared by the United Nations High Commissioner for Refugees, Sadako Ogata.[1] She stated that those fleeing political conflict to save their lives and freedom still have a "need for protection, even if (they) do not fear persecution in terms of the 1951 Convention on Refugees."[2]

2. Asylum

Asylum is the granting of protection, by a State, to persons fleeing persecution or serious danger. A person who is granted asylum is known as a refugee. An asylum seeker is someone who is outside his or her country of origin and has applied to another country for refugee status.

3. Determination systems

To comply with the Convention/Protocol, each government should have procedures for determining whether an applicant is to be granted refugee status, though not all do. These procedures are known as refugee determination procedures.

Recently, there has been an increase in the number of asylum seekers which has led to an overburdening of refugee determination systems in Western countries. These determination systems tend to be bureaucratic and expensive so Western states have responded by making their determination systems more restrictive. This is evident in the overall decline in acceptance rates across the board in Western countries. This has been accomplished through a number of methods, the most significant of which is the narrow application of the Convention/Protocol definition of refugee.

4. UNHCR

The United Nations High Commissioner for Refugees (UNHCR) is the refugee organisation of the United Nations. It provides protection and assistance to the world's refugees. It was created by the United Nations General Assembly in 1951 to resettle 1.2 million European refugees after World War II. Today, there are 22.7 million people in over 140 countries that fall under UNHCR's mandate. It is one of the world's main humanitarian agencies, with headquarters in Geneva, Switzerland, and offices in 122 countries.

The current High Commissioner for Refugees is Sadako Ogata, a former Japanese diplomat and academic who assumed her post in February 1991. She reports annually to the U.N. General Assembly through the Economic and Social Council. The High Commissioner's programs are approved and supervised by the UNHCR Executive Committee, currently composed of 54 member countries.

4.2 UNHCR Mandate

• The United Nations mandates UNHCR to lead and coordinate action to protect refugees internationally and resolve refugee problems.

• UNHCR's main purpose is to safeguard the rights and well-being of refugees. UNHCR aims to ensure that everyone can seek asylum and find safe refuge in another state, and to return home voluntarily.

• UNHCR also seeks lasting or durable solutions to their plight by assisting refugees to return to their own country or to settle in another country.

• UNHCR's efforts are governed by the organisation's Statute, and guided by the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol.

• International refugee law provides an essential framework of principles for UNHCR's humanitarian activities.

• UNHCR's Executive Committee and the UN General Assembly have also authorized the organisation's involvement with other groups. These include people who are stateless or whose nationality is disputed and, in some cases, internally displaced persons.

• UNHCR tries to reduce situations of forced displacement by encouraging states and other institutions to create conditions which are conducive to the protection of human rights and the peaceful resolution of disputes. UNHCR also actively seeks to consolidate the reintegration of returning refugees in their country of origin, thereby averting the recurrence of refugee-producing situations.

• UNHCR offers protection and assistance to all refugees and others, based on their needs, irrespective their race, religion, political opinion or gender. In all of its activities, UNHCR gives special attention to the needs of children and seeks to promote the equal rights of women and girls.

• UNHCR works in partnership with governments, regional organisations, international and non-governmental organisations.

• UNHCR is committed to the principle of participation by consulting refugees on decisions that affect their lives.

• UNHCR also promotes the purposes and principles of the United Nations Charter by maintaining international peace and security; developing friendly relations among nations; and encouraging respect for human rights and fundamental freedoms.

5. Special protection issues

The situations that produce refugees around the world often have common causes and effects. In spite of this, some groups are especially vulnerable and worthy of further discussion. These groups include children, women and internally displaced persons

5.1 Children

More than half of all refugees and displaced people are children. Infants and young children are often the earliest and most frequent victims of the violence, disease and malnutrition which can accompany population displacement. Disruption of family and community structures can also severely affect them. Children are among the most vulnerable members of any displaced population, and they need special care and assistance.

The first priority is to ensure that refugee children have access to food, water, shelter and medical help. The most effective approach is to help parents to take care of their children.

School is an important part of any assistance program because it helps meet the psychological needs of displaced and often traumatised refugee children. School gives structure to a child's life, provides group activities and encourages a more hopeful approach to the future. All refugee children should have access to primary education, including at least literacy and numeracy skills.

5.2 Unaccompanied Children

Often a mass exodus will produce a high number of unaccompanied children. It is estimated that unaccompanied children account for 2 to 5 percent of the refugee population in camps. Most are not orphans. They have been separated from their families during flight or because of the conflict. It is important to try to identify the parents or relatives of the child. If immediate reunification is not possible, it is important to ensure that unaccompanied children are taken care of within their own community. Children are placed in foster families rather than in orphanages, to help avoid separation from the community and related trauma. Often, with some effort, their families can be found.

These children have not only experienced events that will scar them for life - many have witnessed savage murders and other atrocities - but they also must overcome the trauma of separation.

The priority is to locate the children's parents but that may take years, especially when the children come from areas still at war. In the interim, the objective is to re-introduce these children to a family structure in the refugee camps. A family environment can provide not only the physical needs of a child but also soothe some of the psychological distress of separation, particularly if the foster family comes from the same background, culture and region.

5.3 Women

Among the people hit hardest by the violence and uncertainty of displacement are young girls, elderly widows, single mothers - women. Generally, more than 75 percent of these destitute displaced people are women and their dependent children. The proportion of women and children may be as high as 90 percent in some refugee populations, when husbands or fathers die, are taken prisoner or drafted as combatants. Most take refuge in remote, poorly developed areas and face huge problems of security.

Protection is at the heart of the responsibility the world bears toward refugees. At the heart of that protection is freedom from assault. Despite the strength and courage that has carried them out of their homelands, refugee women have special needs in terms of shelter, supplies and health care. They also require attentive preventive action to protect them from sexual violence and exploitation at all stages of their flight.

UNHCR has formal guidelines on preventing and responding to sexual violence. Based on recommendations by field workers experienced with rape and piracy attacks, they aim to provide other field workers with practical, non-specialist advice on the medical, psychological and legal ramifications of sexual violence. UNHCR has also developed gender training, known as People Oriented Planning (POP), to encourage staff to focus on the protection and assistance needs of refugee women.

UNHCR encourages countries to consider that when rape or other forms of sexual violence are committed for reasons of race or political opinion, for example - and particularly when such actions are condoned by the authorities concerned - then they should be grounds for refugee status. Women who face inhumane treatment because of perceived transgressions of social mores should also be eligible for refugee status. For example, female genital mutilation may be considered a form of torture. Forcible abortion or sterilisation may be considered an element leading to refugee status as well. Currently, Canada, Australia and the United States are the only countries which have guidelines for decision-makers about persecution related to gender.

5.4 Women's rights and human rights

Women and children make up most refugee populations. Women have a right to help make decisions that will affect their lives. It is therefore vital that refugee women actively participate in planning and implementing programs designed for refugees.

Unfortunately, women's participation in activities can be hindered by cultural norms, a lack of skills or low self-esteem. Inequality in the public sector often begins at home, with unequal power relations and unequal division of labour between men and women. It is important that women are provided with basic skills training, literacy and management skills to build women's self-confidence and enable them to contribute effectively to community management. These kinds of programs are especially important if traditional family and social structures break down, as men leave home to fight or to seek better economic opportunities. Women, then, must assume the roles of breadwinner, protector and head-of-household, in addition to their role as care-giver. By supporting these women in the political, economic and social spheres and by fostering their resourcefulness and self-sufficiency, these women will promote peace, economic stability and social change.

A program in skills development for Rwandan female members of parliament who are returning from exile includes drafting gender-equity legislation. In Liberia, UNHCR supports NGOs and civil society in promoting the rights of returnee widows who face discriminatory inheritance laws. In Guatemala, UNHCR lobbies for equal rights for returnee women in areas related to land ownership and women's participation in credit schemes to purchase land. Throughout the Americas, UNHCR offices are working to ensure that the individual woman's right to eligibility procedures is respected. In Kenya, Malawi, the Islamic Republic of Iran and the Americas, UNHCR conducts training on women's rights for both refugee men and women.

5.5 Internally Displaced Persons (IDPs)

Internally displaced persons are defined as "persons or groups of persons who have been forced or obliged to flee or leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have nor crossed an internationally recognised State border."[3]

In general, internally displaced persons have many of the same protection needs as refugees, but they have not crossed an international border and sought refuge in another country. Protecting internally displaced persons poses difficult problems because such persons remain under the jurisdiction of their country of origin.

It is difficult to determine the number of people living in interior exile within their own country. Estimates usually place them at least 30 million. Today, of the 22.4 million people presently under UNHCR responsibility worldwide, nearly 6 million are internally displaced.

The plight of vulnerable populations in countries of origin has become a high priority issue in recent times, as the size of the problem has continued to grow.

UNHCR can work on behalf of internally displaced persons only under specific circumstances. This includes obtaining permission from the United Nations and obtaining the consent of the State concerned.

6. Current issues

Two important issues that the international community is currently dealing with include temporary protection and people trafficking. These issues have created significant tension between governments and organisations that work for the protection of human rights.

6.1 Temporary protection

A combination of politics and pragmatism has resulted in UNHCR and other refugee advocates, recommending in certain cases that refugees be given temporary protection in countries of asylum instead of immediate access to refugee determination procedures under the 1951 Convention. Temporary protection has been proposed to meet emergency refugee influxes in many nations in Europe and elsewhere. It is an interim form of protection, which should lead to a durable solution. It allows governments to avoid undertaking individual screening (which is both time-consuming and costly) of people displaced by civil wars and other forms of generalised violence.

It is a compromise between trying to convince states to keep their borders open and to respect the principle of non-refoulement, while seeking the cooperation of governments apparently more concerned with limiting the duration of protection than with guaranteeing its effectiveness.

Most temporary protection schemes offer refuge to everyone fleeing an area of generalised conflict or human rights abuse. Those protected include people who are refugees within the definition of the 1951 Convention.

There is no firm consensus at the international level as to what is meant by temporary protection. Its use in various regions shows that temporary protection can be a useful tool in situations of mass exodus, if combined with respect for non-refoulement and other basic rights, while the search for solutions through repatriation and resettlement is conducted.

Governments are turning to the concept of temporary protection at the same time as they are obstructing access to their countries, showing less and less respect for the principle of non-refoulement, and claiming that they cannot cope with the responsibility of sheltering refugees. They are using temporary protection as another means of denying refugees their rights.

People granted temporary protection are generally given fewer rights than those granted refugee status under the UN Refugee Convention. In the case of refugees from Bosnia, UNHCR stated in 1993 that almost all those fleeing would have qualified as refugees under the Convention. Despite this, most were denied the chance of applying for refugee status and so denied their full range of rights under the Convention.

The renewed use of temporary protection indicates a gap in the international refugee protection system - the inability to deal coherently with refugees fleeing as part of a mass exodus and the failure of the international community to share the responsibility for protecting such people. It also shows the inadequacy of the current international system to address in a consistent manner the fact that a growing number of people fall outside the narrow interpretation of the UN Refugee Convention definition of a refugee, yet cannot safely be returned to their countries of origin because of widespread human rights abuses, often associated with armed conflict.

Temporary protection undermines the standard of protection for asylum-seekers if they are forced to return to a country before basic human rights conditions in that country have been met. States have not yet agreed a set of practical, non-binding guidelines on when it is appropriate to use temporary protection, let alone standards on what rights those temporarily protected should enjoy in host countries. Amnesty International believes that if states unilaterally decide to use temporary protection, then standards should be agreed, based firmly on human rights considerations, and that all those offered temporary protection should have an opportunity to have their individual asylum claim examined before being sent home.[4]

6.2 People smuggling

The smuggling of people is a growing area of transnational organised crime. The UN is currently negotiating a new Convention to address this issue through the UN Convention on Transnational Organised Crime and the Protocols on Migrant Smuggling and Trafficking in Persons. These agreements aim to criminalise people smuggling and trafficking and to introduce harsh penalties to effectively deter such activities.

The growth in the number of people arriving through unauthorised means has alarmed governments particularly in the developed world. In addition to measures targeting the organisers of people smuggling, many governments, including that of Australia, have also introduced measures that penalise the people who are trafficked. For some time Australia has had a policy of mandatory, non-reviewable detention for unauthorised arrivals and the government has recently introduced tough new measures that see unauthorised arrivals who are found to be refuges given only temporary protection and denied many important rights such as access to income support and family reunion.

This effectively means that the Australian Government is discriminating against a group of asylum seekers simply on the basis of how they entered the country despite the fact that in signing the Refugee Convention, it has undertaken not to impose penalties, on account of their illegal entry, on refugees coming directly from a territory where their life or freedom was threatened, under Article 31 (1).

Commercial trafficking in people is a crime but this does not mean that the people being trafficked should be penalised. Amongst the trafficked are those who have fled in fear of their lives and are seeking international protection. The international community still has a legal and moral obligation to protect them.

By Stan Palassis, Faculty of Law, UNSW

1. Introduction

From as early as the 17th century nations have addressed issues that could today be said are both international and environmental. However, it was not until the end of the 19th century that international law provided formal negotiated regimes in treaties, governing various aspects of the environment. During the 20th century nations have systematically, through international cooperation, been addressing numerous environmental concerns and providing appropriate solutions. Even though the UN Charter does not specifically mention environment, there is no doubt that its mandate is wide enough to include it, as the right to a decent and healthy environment is viewed as a basic human right.

The IEL area is broad and accordingly it is important to note the following:

• Many environmental problems such as climate change and loss of biological diversity can only be addressed by a global effort.
• A large part of IEL deals with protection of the global commons such as the sea, air and atmosphere.
• IEL is primarily created through agreements achieved through international cooperation
• International agreements operate at four levels; global, regional, sub-regional and bilateral.
• International agreements are negotiated principally by nations in conjunction with international organizations and NGOs.
• There are both legally binding and non-legally binding international agreements. Treaties and conventions are legally binding, whereas declarations, principles and resolutions are referred to as soft law and are not legally binding. There is, however, a strong moral expectation that nations will adhere to their provisions.
• There are currently some 1000 international agreements relating to the environment.
• It is important to note that environmental and developmental issues overlap with issues concerning trade and development. This overlap is often inconsistent, consider for example provisions of the UNCED and UNCTAD.
• Enforcement of international law generally and of IEL, in particular, is a problem.

This gives some idea of the breadth and scope of IEL. This chapter will focus principally on the major global environmental protection agreements with some discussion of agreements at regional level.

The chapter will first discuss the development of IEL. It will then outline certain environmental regimes created in key areas. Finally, there will be a conclusion followed by a glossary of terms, further readings and useful Internet sites.

2. The development of IEL

The contribution and development of international law during this century, in protecting the environment, can be divided into two distinct periods, pre-1972 and post-1972.

As early as 1876 treaties arose because nations were concerned about resource use. These early environmental concerns principally addressed conservation of valuable natural resources. Early conventions negotiated did not focus on environmental values, but rather on sovereignty and the use of valuable natural resources. Sovereignty issues, whereby nations act in their best interests, are an impediment to the creation of effective IEL. Yet the principle that nations can not be bound by rules they do not consent to is strongly held in international law.

After the Second World War there emerged numerous specialized and autonomous UN agencies eg IMO, UNESCO, FAO, IAEA. These agencies provided an appropriate forum for the development and adoption of numerous environmental protection treaties. By the 1960s nations were creating environmental protection regimes in a variety of areas particularly marine pollution and nuclear activities.

In 1972 the international community convened the UNCHE. This was to be a landmark conference and is of significance because it recognized the inter-dependent nature of humans and their surrounds. The UNCHE resulted in the famous Stockholm Declaration, an aspirational set of principles to guide the international community in cooperating to find solutions to environmental problems. Principle 21 of the Stockholm Declaration states that:

Nations have the right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other nations or the areas beyond national jurisdiction.

In 1972 IEL can be said to have crystallized into a separate and discrete area of law. The body of international law dealing with environment has since become a new and discrete body of law known as IEL. In 1972, the international community first formally addressed the holistic issues regarding the state of the human environment. Prior to this date the international law had addressed environmental issues in a very adhoc and fragmented manner regulating specific resource and environmental perceived as a reactive manner.

Following the UNCHE, the UNGA passed a resolution providing for the creation of the UNEP. Even though UNEP has convened several conferences and facilitated the development of conventions it has no formal or executive powers, but rather a coordinating role. There has been much discussion regarding whether UNEP should be given more significant powers or whether a new autonomous UN agency should be created to specifically cater for the environment.

In July 1993 the International Court of Justice set up a special chamber on environmental issues. In November 1994, an independent and non-governmental court was set up to deal with environmental disputes - the International Court of Environmental Arbitration and Conciliation.

3. Marine pollution

There are various sources of pollution of the marine environment. By far the greatest source is land-based sources. Some 77 percent of total marine pollution originates from land-based sources and as is difficult to regulate under international law. This is mostly due to the sovereignty implications of regulation under international law. However, global and regional conventions dealing with land-based marine pollution have been negotiated. In addition UNEP has adopted a Global Action Program for the Protection of the Marine Environment from Land-Based Activities.

• Convention for the Prevention of Marine Pollution from Land-Based Sources (Paris) 1974
• Athens Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources (Athens) 1980

Some 12 percent of the world's marine pollution originates from vessels, and of that only a small percentage is from oil spills. Regimes governing the regulation, liability and compensation for vessel-source damage to the marine environment have traditionally been based in international law because of the trans-boundary nature of maritime activities. Since the 1950s the international community have systematically addressed issues concerning pollution of the marine environment, particularly vessel-source pollution. This has been facilitated by the IMO. The IMO has drawn up many draft conventions on a variety of areas and convened many conferences to negotiate the adoption of the various international legal instruments.

The following are the IMO regimes dealing with regulation, liability and compensation for vessel-source oil pollution of the marine environment:

• International Convention for the Prevention of Pollution of the Sea by Oil 1954 (London) (OILPOL)
• International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Damage (Brussels) 1969 (Intervention Convention)
• International Convention on Civil Liability for Oil Pollution Damage (Brussels) 1969 (CLC) and the Protocol to the 1969 CLC (London) 1992 (CLC92)
• International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Brussels) 1972 (FUND) and the Protocol to the 1971 Oil Pollution Fund Convention (London) 1992 (FUND92)
• International Convention for the Prevention of Pollution from Ships (London) 1973, as modified by the Protocol to the Convention (London) 1978 (MARPOL 73/78)
• International Convention for the Safety of Life at Sea 1974 (London) (SOLAS)
• International Oil Pollution Preparedness, Response and Cooperation Convention 1990 (London) (OPPRC)

4. Hazardous wastes

One of the inevitable consequences of growth and development has been the increasing generation of hazardous wastes and no way to deal with them. It was not until recently that nations have seriously addressed these issues by passing domestic waste management and minimisation regimes and by addressing waste issues e.g. dumping wastes at sea and the import and export of hazardous wastes.

• Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo) 1972
• Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London) 1972 (LDC)
• Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel) 1989

5. The Law of the Sea Convention

This provided a broader and more strategic framework level encompassing relevant existing conventions, the UN adopted the LOSC - UN Convention on the Law of the Sea (Montego Bay) 1982. The LOSC attempts to balance the result of nine years negotiation by the international community and the outcome is a truly global regime codifying the laws governing human usage of the seas. The LOSC attempts to balance the rights and interests of nations and covers all aspects of use of the oceans including, of course, with protection of the marine environment. It balances freedom of navigation and the rights of flag states on the one hand with protection of the marine environment and the rights of coastal states on the other. The LOSC lays down a series of interrelated and integrated legal regimes providing for the protection and preservation of the marine environment. More specifically, the convention protects the marine environment from exploitation and provides for the sound conservation of the living and non-living resources of the sea. The convention could only be enforced because of the amendment to provision of exploitation of minerals of the deep sea bed not been amended.

6. Nuclear activities

In the early days of nuclear energy use it was popularly believed that the benefits of this energy use greatly outweighed its risks, and that these benefits could be shared by all. We now know, however, that use of nuclear energy gives rise to significant and long-term adverse effects to both human health and contamination of the environment. During the 1960s the international community addressed nuclear activities in several conventions. The issues addressed were principally liability regimes in case of a nuclear incident as well as non-proliferation of weapons and a nuclear test ban treaty. Additional conventions were adopted after the Chernobyl incident.

• Convention on Third Party Liability in the Field of Nuclear Energy (Paris) 1960
• Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Materials (Brussels) 1971
• Convention on the Early Notification of a Nuclear Accident (Vienna) 1986
• Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Vienna) 1986
• Convention on Nuclear Safety (Vienna) 1994
• Nuclear Test Ban Treaty (Vienna) 1997

7. Air & atmospheric pollution

Recently the international community began directly addressing issues regarding air and atmospheric pollution. In 1979 the international community negotiated a convention on long-range transboundary air pollution to deal with such pollution as well as acid rain. This led the way for a further regime covering ozone depletion that has been particularly successful. Greater difficulties, however, surround preservation of our global climate. This has been a particularly difficult area to regulate because of the relationship of climate change and fossil fuel use. Accordingly, preservation of global climate through reduction of greenhouse gases emissions regime has been particularly controversial.

Transboundary Air Pollution

• Convention on Long-Range Transboundary Air Pollution (Geneva) 1979
• Protocols to the Convention on Long-Range: Financing Monitoring and Evaluation Protocol (Geneva) 1984; Sulphur Protocol (Helsinki) 1985; Nitrogen Oxides Protocol (Sofia) 1988; Volatile Organic Compounds Protocol (Geneva) 1991; Further Sulphur Protocol (Oslo) 1994

Ozone depletion

• Convention for the Protection of the Ozone Layer (Vienna) 1985
• Protocol on Substances that deplete the Ozone Layer (Montreal) 1987
• Amendments and Adjustments to the Montreal Protocol, (London) 1990 and (Copenhagen) 1992

Climate change

• UN Framework Convention on Climate Change 1992 (New York)
• Protocol to the UN Framework Convention on Climate Change 1997 (Kyoto)

8. Conservation and biological diversity

As previously mentioned many conventions regarding conservation of resources were adopted early this century. These conventions tended to be specific to particular species rvesting. Later conventions, however, appear to be driven by greater environmental concern. There are now a great variety of international agreements dealing with the preservation of both species and ecosystems.

• International Convention for the Regulation of Whaling (Washington) 1946
• International Convention for the North-West Atlantic Fisheries (Washington) 1949
• UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris) 1972
• Convention on Wetlands of International Importance (Ramsar) 1971
• Convention on International trade in Endangered Species of Wild Flora and Fauna (Washington) 1973
• Convention on the Conservation of Migratory Species of Wild Animals (Bonn) 1979
• UN Convention on Biological Diversity (Nairobi) 1992
• Convention for the Protection of the Marine Environment of the North-East Atlantic (Paris) 1992
• Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Rome) 1993
• International Tropical Timber Agreement (Geneva) 1994
• Convention to Combat Desertification in Those Counties Experiencing Drought and / or Desertification , Particularly in Africa (Paris) 1994
• Agreement on Straddling Fish Stocks and Highly Migratory Stocks (New York) 1995

9. Antarctic

The Antarctic region has always been accepted as important because of its strategic territorial value and in terms of its biological and mineral resources, as well as its scientific value. In recent times we have also witnessed new concern for the state of the fragile Antarctic system, the problems due to increasing temperatures and global warming.

• Antarctic Treaty (Washington) 1959
• Agreed Measures for the Conservation of Antarctic Fauna and Flora (Brussels) 1964
• Convention for the Conservation of Antarctic Seals (London) 1972
• Convention for the Conservation of Antarctic Marine Living Resources (Canberra)1980
• Protocol on Environmental Protection to the Antarctic Treaty (Madrid) 1991

10. Regional initiatives

Regional initiatives have become particularly important because of particular regional needs which have in recent times become acute. As regional needs have become more acute regional initiatives have become more important, for example, the South Pacific, the greater Caribbean, the Mediterranean and the North. Consistent with LOSC and UNEPs regional seas program is the SPREP regime. Regional conventions for protection of the South Pacific environment include:

• Convention for the Protection of Natural Resources and Environment of the South Pacific Region (Noumea) 1986
• Protocol Concerning Co-operation in Combating Pollution Emergencies (Noumea) 1986
• Protocol for the Prevention of Pollution of South Pacific Region by Dumping (Noumea) 1986

11. Sustainable development

The greatest challenge facing IEL is the issue of Sustainable Development, and how nations can follow a path of development that is truly sustainable thereby providing security to future. Sustainable development was popularized by the 1987 Report of the WCED. Often referred to as the Brundtland Report it defines sustainable development as:

Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. ‘Needs' refers to the needs of the world's poor, to which overriding priority should be given. Limitations are set by the state of technology and social organization on the environment's ability to meet present and future needs.

In June of 1992 the nations of the world met at Rio de Janeiro (UNCED or the Earth Summit) to reach agreement on principles regarding environment and development and thereby forge a truly sustainable future. The outcome was two non-legally binding agreements - the Rio Declaration and Agenda 21.

Attractive as it may seem as a concept, the greatest difficulties surrounding ESD are implementation of its principles. Under the Australian Federal Government's ESD Policy, ESD is based on intergenerational principles. This means that the present generations should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations as well as equity within generations, for example the north south dichotomy.

• The precautionary principle - where there are threats of serious or irreversible environmental damage lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
• The polluter pays principle - those who generate pollution and waste should bear the cost of containment, avoidance or abatement.
• Improved valuation, pricing and incentive mechanisms - environmental factors should be included in the valuation of assets and services.

Pursuant to the Brundtland Report the IUCN has taken on the task of preparing the International Covenant on Environment and Development, a framework instrument into which various aspects of global environmental and developmental issues will be inserted.

Conclusion

At the close of the 20th century we see that the international legal system has become quite proficient at creating laws on the protection and preservation of the environment and developing new principles and styles of lawmaking. IEL began as part of international law dealing with the environment. In 1972 it has become a separate discipline. Since then IEL has flourished addressing a variety of environmental concerns and is currently one of the fastest growing areas of international law. However, enforcement of IEL remains a difficult issue.

Glossary of acronyms

ESD - Ecologically Sustainable Development

FAO - Food and Agriculture Organization

IAEA - International Atomic Energy Agency

IEL - International Environmental Law

IMO - International Maritime Organization

LOSC - United Nations Convention on the Law of the Sea

NGOs - Non Governmental Organizations

SPREP - South Pacific Regional Environmental Program

UN - United Nations

UNCED - United Nations Conference on Environment and Development

UNCHE - United Nations Conference on the Human Environment

UNCTAD - United Nations Conference on Trade and Development

UNEP - United Nations Environment Program

UNESCO - United Nations Educational Scientific and Cultural Organizations

UNGA - United Nations General Assembly

WCED - World Commission on Environment and Development

Further reading

• Boer BW, "Implementing Sustainability" (1992) 14 Delhi Law Review 1-33
• Freestone D, "The Road From Rio: International Environmental Law After the Earth Summit" (1994) 6 Journal of Environmental Law 193-218
• Palmer G, "New Ways to Make International Environmental Law" (1992) 86 American Journal of International Law 259-283
• Sands P, "Greening International Law" (New York: The New Press, 1994)
• Sands P, "Principles of International Environmental Law" (Manchester: Manchester University Press, 1992)
• Weiss EB, "International Environmental Law: Contemporary Issues and the Emergence of a New World Order" (1993) 81 Georgetown Law Journal 675-710

By James Arvanitakis, AIDWATCH

1. Introduction

The international financial institutions (or IFIs) are global institutions that have been established to promote economic development and trade. Examples of IFIs include the World Bank, Asian Development Bank (ADB), the International Monetary Fund (IMF) and the World Trade Organisation (WTO).

These organisations now dominate the processes of economic development. Although they have many supporters, they also have many critics. This section reviews the role of these international financial institutions in promoting "Western style" economic development both within nations and internationally, and some of the negative consequences that result.

The process of promoting international economic development and the increasing inter-relationships of economies has become known as "economic globalisation". This term reflects a perception that the world is increasingly being moulded into a shared space by both economic and technological forces. The result is that developments in one region of the world can have profound consequences on individuals or communities on the other side of the globe. These effects can be cultural, economic or political.

The term economic globalisation reflects the increased relationships of economies. It is in this area that the international financial institutions have the greatest impact.

2. International financial institutions

The major international financial institutions discussed in this section include:

2.1 The World Bank and International Monetary Fund

In 1944, the Bretton Woods conference on the global financial system resulted in the creation of the World Bank and International Monetary Fund (IMF). This was done to assist in financing the reconstruction of Europe following the devastation caused by World War II, and to provide a mechanism for promoting international trade.

Both these institutions are known as multilateral development agencies. This means that they pool funds from individual nations to make loans and fund development projects. This is in contrast to bilateral agencies such as AusAID, which involves direct assistance between Australia and other nations. The aims of both forms of agencies include the reduction of poverty through the promotion of economic development.

Both the IMF and World Bank come under the broad United Nations (UN) umbrella, as they have legal relationships with UN agencies. However, in practice and principle, they remain autonomous bodies.

While the World Bank has 180 member nations and the IMF 81, these institutions are dominated by the major powers of the North. This is because contributions and the voting structure are calculated in proportion to a nation's economic wealth. The G7 countries - Canada, France, Germany, Italy, Japan, the UK and the US - control 47 per cent of the Bank's resources.

2.2 The General Agreement on Trades and Tariffs and the World Trade Organisation

The General Agreement on Tariffs and Trade (GATT) was another Bretton Woods initiatives and was established to set rules to govern world trade. The general aim of GATT was to reduce national trade barriers and to stop the actions that had restricted trade in the pre-World War II era. Seven rounds of tariff reductions were negotiated under the GATT treaty, with the final "Uruguay Round" commencing in 1986.

The World Trade Organisation (WTO) replaced GATT in 1995. The WTO, which currently has 134 member countries, vastly expands the GATT's mandate in new directions.

The WTO includes both the GATT agreements that focus on trade in goods, and the new General Agreement on Trade in Services (GATS), which covers areas such as telecommunications, banking and transport. There are also agreements covering trade-related intellectual property rights (TRIMS) and trade related investment measures (TRIPS). These new treaties have far-reaching implications for environmental standards, education, public health, cultural diversity, food safety, drug patents and other areas.

In contrast to the GATT, the WTO can impose trade sanctions against member nations that breach rules. The WTO's ability to impose legally binding sanctions has prompted a number of authors to describe it as the most powerful institution in the world. This ability to challenge the laws, practices and policies of individual countries means the WTO is like no other global institution. For example, if the United Nations had the authority of the WTO, mandatory sentencing laws would likely not exist in Australia.

The WTO has no direct relationship with the UN.

2.3 Asian Development Bank

Established in 1966, the Asian Development Bank (ADB) is a multilateral development finance institution owned by 59 members, mostly from Asia and the Pacific.

ADB's principal tools are loans and technical assistance, which it provides to governments for specific projects and programs. ADB's lending volume in 1999 was US$5 billion. Technical assistance grants, amounting to US$173 million in 1999, are provided for preparing and executing projects and supporting advisory activities. The ADB's headquarters is in Manila, but it is planning to establish resident missions in 13 Asian countries, a regional mission for the Pacific, and three representative offices in Frankfurt, Tokyo, and Washington, DC.

Australia, the United States and Japan are amongst the highest contributors to the ADB. The ADB has no formal links to the United Nations.

2.4 Export credit agencies

Over the last two decades, export credit agencies (ECAs) have emerged as the new power in global finance. ECAs are government-owned corporations that aim to increase private sector exports by:

• providing commercial finance to exporters;
• making ‘tied' loans"[1] to developing nations to purchase host nation goods;
• acting as insurance agents to ensure corporations receive their profits in case of payment or political risk emerging; and
• Underwriting the risks that the private sector will not.

These services allow exporters to take risks and finance projects that the private sector has rejected.

The Export Finance and Insurance Corporation (EFIC) is Australia's official ECA. The organisation is a statutory corporation of the Commonwealth of Australia established under the EFIC Act 1991, and guaranteed by the Commonwealth. In 1998-99, EFIC's portfolio was valued at AUD$7.5 billion (EFIC 2000). As with most other ECAs, EFIC's loans are mainly directed to developing nations.

Export credit agencies are run like businesses, with the aim of making a profit. These organisations have no formal links to the United Nations.

3. The international financial institutions: are they meeting their goals?

The IFIs described above include in their official aims to reduce poverty through the promotion of economic development. Although the goals of these organisations are diverse, they can be summarised under five broad headings:

Goal 1: Reduction in poverty

Like the World Bank and IMF, the ADB states that its principal goal is to reduce poverty. Its related objectives are to foster economic growth, support human development, improve the status of women, and protect the environment. Poverty reduction became the key goal of the World Bank in 1990 and the core focus of the IMF in 1999.

In assessing its own effectiveness in reducing poverty, the World Bank admitted that many of its projects had failed, and often aggravated the inequalities. In its "1999 Annual Report of Development Effectiveness", the Bank admitted that the majority of projects fail to demonstrate any sustained benefits in terms of poverty reduction.

The report reviewed the performance of 28 nations that had borrowed from the Bank between 1981 and 1997. The following bleak conclusions clearly portray a decline in economic and human well being despite the Bank's stated aims (ibid.):

• In 40 per cent of the nations, per capita income either failed to grow or decreased;
• In 85 per cent of cases, annual per capita income grew by less than 1 per cent in the 1990s;
• In 25 per cent of cases, the share of the population in absolute poverty increased;
• In 23 per cent of cases, life expectancy of the general population declined;
• In 54 per cent of cases, the people experienced stagnating per capita income, rising poverty, declining life expectancy, or a combination of these events;
• The percentage of savings as a percentage of GDP, a measure of the long-term economic health of a nation, stagnated at less than 10 per cent or was declined.

The World Bank admitted these failings were due to the policies it had implemented and its inadequacies in assisting with the goal of poverty reduction. Only a fifth of its country strategies focused on equity and distribution, and there was a general failing to address the links between poverty and macro-economic policies such as trade and exchange rate policy.

The inability of the IMF and World Bank to effect poverty reduction was confirmed by the Institutional Financial Institutions Advisory Commission of the U.S. Congress (also known as the Meltzer Commission), which stated that these organisations are "irrelevant" to the goal of eradicating poverty (IFIAC 1999).

Goal 2: Achieving currency stability

Currency stability has always been central to the goals of the IMF and World Bank. The ADB also attempts to promote currency stability. Until 1973, this goal was largely achieved by a fixed exchange rate system, restraining the flow of capital. The floating of the US dollar in 1973 saw these restrictions disappear, and exchange rates and capital flows became subject to market forces. Most trading nations have now implemented floating currencies.

The currency and capital markets of today are completely different, with a number of authors describing the current system as "casino capitalism", as speculators attempt quick profits by gambling around the clock on the direction of exchange and interest rates. Speculation is now estimated to represent 97.5 per cent of the US$1.5 trillion traded per day or US$548 trillion per annum.

Instability is now endemic in the currency and capital markets. The promotion by the World Bank, ADB and IMF of economic globalisation aggravates this situation.

The removal of exchange rate controls has promoted speculation by transferring the control of currencies to market forces. Under such conditions, currencies are at the mercy of speculators, who move massive amounts of capital in and out of economies with profit the only driver.

Goal 3: Stability and balance of international trade

Economic globalisation and international trade are not balanced phenomena, leading to the more economically powerful nations of the North disproportionately gaining at the expense of the South. The World Bank, ADB, IMF and WTO promote the policies that entrench such systemic inequity. Even the World Bank noted that trade is uneven, noting that under GATT, world trade would add $213 billion in income, but sub-Saharan Africa would be $2.6 billion worse off.

Goal 4: Corruption and improved governance

Although "governance" is a somewhat difficult term to define, the World Bank defines it as more accountable, responsible and transparent government. Central to this definition is the absence of corruption. Once seen as a political problem and outside their purview, fighting corruption is now central to the aims of the World Bank, ADB and IMF.

Despite this rhetoric, the processes of the IFIs appear to lead to major corruption. Although these institutions have not been directly implicated, the Structural Adjustment Programs (SAPs) promoted have resulted in many corrupt practices emerging.

It appears that neither the World Bank nor the IMF can deny that their policies assist the process of corruption, and in essence fail in their goal for better governance. Secrecy is valued over transparency and accountability, and economic expansion ahead of community development. This establishes a framework for corrupt practices.

Goal 5: Environmental management

Economic growth and the environment health are directly linked. The continued focus on economic policies at the expense of environmental protection has resulted in environmental devastation.

For example, the World Bank is the largest source of funds for development projects. It has been severely criticised for funding projects that have resulted in ecological disasters causing pollution and deforestation, requiring export agriculture rather than domestic food production, and forcing resettlement of indigenous peoples.

In recognition, the current World Bank announced a reorganisation plan to improve the Bank's effectiveness. The proposal aimed to increase the success rate of projects, from below 50 per cent to 75 per cent, by introducing environmental standards, focusing on nations that are relatively stable and have a record of using aid effectively, moving away from construction, and increasing partnerships between the Bank and private investors.

These attempts have failed in many ways, but most obviously the amount of money flowing to environmentally safe technologies continues to be "dwarfed" by the "other" projects funded by the World Bank.

4. International Financial Institutions: a series of failures

Since the 1980s, there has been an increasing acceptance and belief in economic rationalism and the "free market" as the best tool to direct the fate of society. This is a principle that has been promoted by the international financial institutions described above.

The IFIs have promoted developments that have seen the dominance of market-based rules, resulting in the continued removal of trade barriers, the shrinking of government and increasing acceptance of corporate self-regulation.

It is becoming increasingly evident that current economic practices and the international financial institutions that promote them, are systematically failing the majority of the world's population, the environment and even democracy. The results of economic globalisation include:

1. An inequitable relationship

The definition of globalisation presented describes the increasing interconnectedness of economies. There is nothing inherently equitable in the escalating relationships discussed. This growing relationship leads to an uneven interconnectedness, which allows agencies in one region to exercise power through decisions, actions, or inaction and have significant consequences for nations, communities and households of other regions.

The economic powers of the North dominate while the South typically suffers the consequences. This aggravates the current North-South inequities, as the centres of power continue to gain access to the technologies, information and knowledge not available elsewhere.

2. Increasing disparities

The unevenness of economic globalisation is also reflected in the growing disparities of wealth between the North and the South, as well as within nations. The UN Conference on Trade and Development Report of 1997 highlighted this trend, noting that since the early 1980s, the world economy has been characterised by slow growth and rising inequality, as the "income gaps between the North and South have continued to widen". A second UNDP report confirmed these trends, including the following statistics:

• In 1965, the average per capita income of G7 countries was 20 times that of the world's poorest seven; in 1995 it was 37 times as much.
• Only 33 countries achieved sustained three per cent annual growth in gross national product (GNP) per capita during 1980-96. For 59 countries, mainly in sub-Sahara Africa and the countries of the former Eastern Bloc, GNP per capita declined.
• The income gap between the richest fifth of the world's people and the poorest fifth, measured by average national income per head, increased from 30 to one in 1960 to 74 to one in 1997.
• The fifth of the world's people living in the highest income countries has 86 per cent of world gross domestic product (GDP), 82 per cent of world export markets, 68 per cent of foreign direct investments and 74 per cent of world telephone lines: the bottom fifth, in the poorest countries, has approximately one per cent in each of these sectors.
• Eighty countries had lower per capita incomes in 1997 than they did a decade or more before.
• It is estimated that 200 million more people were living in absolute poverty in 1997 (less than $1 a day) than in 1987.

Similar trends of increasing disparities are emerging within nations. This "within country" disparity was reflected in a recent OECD report on income distribution, which showed a general trend towards income inequality.

The "trickle down effect" should theoretically see prosperity trickle down the wealth chain that emerges from increasing trade. Neither the statistics of economic well being nor technological change supports this argument.

3. Increasing privatisation

Another key characteristic of economic globalisation is the increasing privatisation of publicly owned assets. Internationally, more than 10,000 state-owned companies were privatised between 1988 and 1998.

The World Bank, ADB and IMF also promote privatisation through SAPs. The arguments for privatisation include efficiency improvements and the removal of unnatural government monopolies that restrain trade. For low-income nations, the results are very different however. The experience shows declining employment, increasing corruption and environmental degradation.

4. Decreasing cultural diversity

It was noted that the process of globalisation results in a deepening of the interrelationships between cultures. The uneven power relationships that characterise economic globalisation result in the transnational corporations of the North influencing international consumption patterns. The consequences of this process were reflected in a recent GenerAsians survey, which asked 5,700 Asia-Pacific young people to name their favourite food and drink. Their answers were:

Table 2.2: Cultural diversity

Source: GenerAsians 1998, cited from Barlow 2000 (no page).

5. Environmental consequences

Nowhere has the systemic failure of the economic rationalist model been greater than is evidenced by environmental degradation. The table below presents some of the abundant statistics confirming the environmental consequences of current economic processes.

Most governments to varying degrees have accepted the growing evidence of environmental devastation. The systemic nature of the impacts of economic globalisation means that these environmental consequences cannot be separated from those of poverty, debt and other social issues.

Table 2.3: Global economic developments and the environment in the 1980s

Source: Worldwatch Institute, sourced from Beder 1996, p. 11.

Economic globalisation as promoted by the IFIs has aggravated environmental problems in a number of ways including:

1. An increase in consumption and depletion of resources that emerges from the expansion of the culture, institutions and practices of Western development (Held et al 1999). Western style development is now central to the demands and consumption in the South.
   
   
2. Historically unprecedented global economic activity, industrialisation and investment processes have caused previously unseen demand on resources. Industrial production has increased exponentially in the latter part of the twentieth century with the environmental results increasingly visible and devastating.
   
   
3. The transformation of energy sources and productive processes that have emerged since the beginning of the 19th century. These immense transformative powers have ecological risks inherent in modern technology (Adams 1998).
   
   
4. Intense and only partially regulated urbanisation around centres of economic power.

The environment and economy are linked. In the late twentieth century, the environmental consequences of industrial production and economic expansion have resulted in environmental degradation beyond the local or national to the global level. Global warming is a particularly clear example. Although the South will be more predominantly affected by global warming than the North, the results will be universal, ultimately causing severe social dislocation, migration and upheaval.

Additional policies that impact on the environment include:

The promotion of capital flows

Capital flows illustrate how large-scale economic activities have direct impacts on the environment. Expanding economies require foreign capital investment. Agents such as the World Bank and IMF promote policies that maximise this flow (such as structural adjustment programs).

Large capital flows aggravate the excessive use of natural resources. Capital flows that follow development are directed to the areas of greatest economic attraction. As the most valuable assets the nations of the South posses are their natural resources, capital flows to the environmentally devastating areas of extractive industries or other environmentally exploitative sectors (such as excessive forestry in PNG or inappropriate labour practices).

A focus on trade

There are many reasons why the free trade rhetoric has failed the environment. The more economically powerful nations of the North have the ability to exert influence on the production strategies of low-income nations. The result is often one of inappropriate environmental management. As described in the previous section, food security rates behind the demand for specific export commodities.

The free trade and free market mantra also dismisses the need for minimal environmental standards for goods traded (Barker and Mander 1999). The WTO's policy of "non-discrimination" in trade, translates to the removal of barriers that exist for environmental reasons, resulting in cheaper and dirtier technologies despite the establishment of national environmental standards.

Debt and the environment

Over the last 50 years, the financial debts faced by the South have grown dramatically, with 50 per cent of the world external debt falls on the same 14 nations that are responsible for two-thirds of the world's deforestation.

Debt results in developing countries continuing to sell their natural resources to fund loan repayments. The pressure on natural resources is compounded by falling commodity prices. Not only does debt-servicing drain a nation's economy, but also the environment (ibid.).

5. A reform agenda?

The role of the various international financial institutions continues to be challenged. A global protest movement has emerged whereby annual meetings are held to raise concerns with the roles of the World Bank, IMF, ADB and others. These protests run in parallel with the annual general meetings of the IFIs. This is despite claims by the various institutions that they have reformed.

Supporters of the institutions point out significant new environmental and social standards. Critics respond that the institutions continue to fail in their core goals of poverty reduction, and the reforms are merely "window dressing".

There is much literature on this debate. However, it is up to the various institutions to prove that they are serious about reform rather than using this as merely a public relations exercise. Until this occurs, many will remain sceptical.

Acronyms

ADB- Asian Development Bank

ECA- Export Credit Agencies

EFIC- Export Finance and Insurance Corporation

G7- Group of 7 wealthiest nations

GATS- General Agreement on Trade and Services

GATT- General Agreement on Tariffs and Trade

GDP- Gross Domestic Product

GNP- Gross National Product

IMF- International Momentary Fund

OECD- Organization of Economically Developed Countries

SAPs- Structural Adjustment Programs

TRIMS- Trade Related Investment Measures

TRIPS- Trade Related Intellectual Property Rights

WTO- World Trade Organization

By Geoff Evans, Director, Mineral Policy Institute

Introduction - Ok Tedi: a mining disaster

Environmental degradation and abuses of human rights often go hand in hand. The forces behind one are often the forces behind another. Denial of rights to a sustainable livelihood, to organise, to education and self-determination is often the foundation for exploitation of people and destruction of their environments.

The Ok Tedi copper and gold mine in the Fly River region of Papua New Guinea demonstrates the links between the abuse of the environment and human rights.

The Ok Tedi mine was developed in the late 1970s, in Papua New Guinea's immediate post-colonial time of independence from Australia. PNG's newly independent government was under pressure to achieve economic prosperity and demonstrate an entrepreneurial environment for big development projects.

A host of transnational mining companies from USA, Germany, Canada and Australia bought into the project which is now 52% owned by the Australian mining giant BHP, 18% by Canadian miner Inmet, while the PNG Government, local provincial government and local landowners between them own 30%.

National economic development overrode both environmental protection and the rights of the indigenous Yanngoom and Awin people of the Ok Tedi.

Speaking about the Ok Tedi mine, Junne Cosmas, a Yonggom woman, says "I worry daily for the livelihoods of my people, family, my land and the resources of the Ok Tedi and Fly Rivers which form the basis of our livelihoods. Questions such as these pop up - how can we survive if we are unable to grow good crops or get fish from the rivers, how can we earn cash for our kids school fees..."

Each day for the last twenty years the operators of the Ok Tedi mine have dumped 80,000 tonnes of tailings and 100,000 tonnes of mine wastes directly into the Ok Tedi River which flows into the Fly River and on to the Torres Strait Islands and the tip of the Great Barrier Reef.

The Ok Tedi River is now choked with sediments. Thousands of hectares of riverine rainforest and swamplands have been inundated and died. Hundreds of square kilometres more are threatened as a wave of sediment moves down the Ok Tedi and Fly Rivers over the next fifty years. The environmental impacts have threatened the food security of local people.

The introduction of industrial-style development and cash economy has also had huge social impacts, making many previously self-sufficient communities dependent on supermarket food and handouts. It has also denied communities basic rights to justice and compensation. In 1995, when landowners sought compensation for damages, BHP lawyers secretly drafted a law for the PNG Government that made it illegal for landowners to sue foreign corporations in the PNG courts.

In a letter to the Australian Prime Minister, John Howard, before his recent visit to PNG in October 1999, the PNG's NGO Environmental Watch Group (NEWG) expressed deep concern about "ecological damage inflicted on the environment and social fabric of communities by development enclaves, particularly mining...we do care for those who are not able to read and write and want to restore their fundamental ecological, human and social rights which have been severely curtailed by the thoughtless and irresponsible deeds of the Big Australian (BHP)."

BHP has acknowledged that the Ok Tedi mine was a "mistake" and "not compatible with the company's current values". Yet BHP's shares continue to climb. Its shareholders enjoy secure livelihoods in healthy environments thousands of kilometres away.

Communities and landowners in the Ok Tedi and Fly River region fear BHP will sell or close the mine, leaving them with an environmental and social disaster that will last for generations.

This paper focuses on the impacts of mining, at Ok Tedi and elsewhere. Similar problems are also happening at logging, dam building, fishing, tourism, manufacturing, agribusiness and other projects in the Asia Pacific and around the world. The paper discusses these issues by looking at:

• Trade liberalisation and globalisation;
• Transnational corparations and "good citizenship"
• Community rights and tools for action.

1. Trade liberalisation and globalisation

Until recently most mining in the Asia Pacific, with the exception of Australia, was small-scale and controlled by local companies and communities.

In the last twenty years, and especially in the last ten, there has been a huge increase in the number and scale of mining projects in the Asia Pacific. The industry has also become dominated by a few transnational corporations.

In the Philippines, for example, there were only four mining projects that involved foreign corporations in 1995. Today most of the Philippines is covered by mining concession areas, most taken up by multinational corporations, or Filipino companies in partnership with transnational corporations.

Canadian-based companies like Placer Dome, Inco and Philex; the Australian-based Western Mining Corporation (WMC) and Mount Isa Mines (MIM); US-based giants Newmont and Cyprus Amax; and the world largest mining company, the British/Australian Rio Tinto, now control a huge stake in mining in the Philippines and the Asia Pacific.

So what's happened to create this shift in control from relatively small domestic operations to transnational mining companies?

The dramatic expansion of transnational corporation dominated mining in the Asia Pacific region has gone hand in hand with the expanding powers of international agencies like the World Bank, the International Monetary Fund (IMF) and the World Trade Organisation (WTO) and the WTO, and regional multilateral institutions like Asia Pacific Economic Council (APEC).

The WTO, the IMF, the World Bank and APEC primary purpose is promote economic growth through the free movement of goods, services and capital to all parts of the globe. It is not to promote sustainable and equitable development.

Globalisation draws the world into single market and political system. It is driven by the ideology that says "the free market creates wealth and opportunity for all." Unfortunately the impact of the current policies and values driving globalisation have not benefited all, but instead have created enormous gaps between the rich and poor, accelerated the pace of environmental destruction, and destroyed local cultures and economies.

1.2 Undermining local power, strengthening transnational corporations

The IMF and World Bank conditions for lending identify and remove barriers to investment by transnational corporations. Powers to protect local environments, local economies and the rights of workers, women and indigenous people are weakened or removed altogether.

Liberalisation of investment codes to encourage transnational mining projects include:

• tax holidays;
• removal of import duties;
• 100% foreign ownership and repatriation of profits;
• removal of the need to employ local contractors;
• the granting of extensive land, water and other concessions and;
• state protection against community opposition.

Russell Mokhiber and Robert Weissman (who write a weekly email column Focus on the Corporation, corp-focus@essential.org) say "the WTO's penchant for secrecy, could potentially be fixed, but the core problems - prioritization of commercial over other values, the constraints on democratic decision-making and the bias against local economies -- cannot, for they are inherent in the WTO itself."

Mokhiber and Weissman argue that beneficial reforms should not focus not on adding new areas of competence to the WTO or enhancing its authority, even if the new areas appear desirable (such as labour rights or competition). They say reforms to pursue are those that reduce or limit the WTO's power such as:

• denying it the authority to invalidate international environmental agreements and laws;
• limiting application of WTO agricultural rules in the Third World; or
• eliminating certain subject matters (such as essential medicines or life forms) from coverage under the WTO's intellectual property agreement.

"These measures are necessary and desirable in their own right" say Mokhiber and Weissman "and they would help generate momentum to close down the WTO".

1.3 Opportunities and Threats

Globalisation driven by trade liberalisation and deregulation which has benefited transnational corporations and undermined the powers of nation states and communities is being contested.

An alternative, sometimes referred to as "globalisation from below" is challenging the hegemonic rule of transnationals and the international agencies they control.

Instead of centralising economic and political power beyond the possibility of citizen control and nature's capacity, the alternative prioritises local production for local consumption, using local resources under the guidance of local communities and reflecting local and regional cultures and traditions within the limits of nature.

Globalisation from below acknowledges the benefits of global information exchange and solidarity networks and the need for minimum standards of environmental, labour and human rights protection.

2. Transactional corporations and "good citizenship"

Transnational corporations are aware that their environmental and human rights performance can now be monitored throughout the world. They also know that international solidarity networks of NGOs can very quickly organise campaigns against their activities. They know there is no place to hide from public outrage and are becoming aware that they must develop the image of good "corporate citizens".

Mining companies are particularly aware that NGO campaigns against abuses of the environment and human rights could force tighter environmental and social regulations and threaten their access to resources through denial of permission to explore or mine.

2.1 Seeking a "Social Licence To Operate"

Robert Wilson, chairman of the world's largest mining company Rio Tinto speaking at a "Centre for Tomorrow's Company" conference in London in August 1999, noted how important it is for transnational companies to demonstrate responsibility to the wider community to obtain a "social licence to operate". This social licence to operate can enable companies to avoid regulation and help win the hearts and minds of communities.

Rio Tinto's corporate citizenship campaign focuses on its interaction with the communities who are "neighbours" of their operations and espouses principles of

• mutual respect
• active partnership
• long-term commitment.

Rio Tinto, BHP and other mining corporations have recently developed charters of corporate operating principles or code of conduct. BHP's recently adopted set of operating principles, known as the BHP Charter. It was written by its CEO, Paul Anderson, in March 1999 who said that the Charter is "a statement of who we are and our purpose, the direction we are going, and the fundamental core values from which we will operate as part of the BHP team."

Mining industry associations in most countries have adopted Codes of Environmental management. These have been widely criticised because:

• environmental and social issues are isolated from each other;
• they fail to prevent major impacts (eg submarine and riverine tailings disposal);
• they are self-regulated rather than independently monitored;
• there are no sanctions for non-compliance.

Corporate charters, codes of conduct and self-regulation are no substitutes for government and community policies to achieve ecological sustainability and social justice. They cannot replace strict environmental and social laws, regulations, monitoring, and where appropriate sanctions, by local communities, national governments and international agencies.

2.2 Engagement or Manufactured Consent

A few years ago transnational mining companies, like BHP arrogantly ignored community protests about issues like Ok Tedi, and used governments to facilitate their access to resources and suppress public opposition.

Now corporations are very actively engaging their critics in dialogue and trying to establish partnerships with environment, development and indigenous peoples' organisations.

Mining corporations use various engagement strategies to gain consent for their plans. The Australian mining giant WMC has been accused of "manufacturing consent'" for their Tampakan copper/gold project in Mindanao, Philippines, by sponsoring bogus local government structures in order to gain consent of indigenous Bl'aan communities to their proposed mine. This has been backed up by use of patronage, bribery and intimidation by the military.

Rio Tinto has recently negotiated a Memorandum of Understanding (MoU) with Aboriginal Australians, represented through the Kimberley Land Council, which the company says commits it to:

• consult with indigenous land owners
• respect indigenous culture
• promote local employment and training
• promote local economic development

At the same time as Rio Tinto negotiates a local MoU, the mining companies' industry association (the Minerals Council of Australia) of which Rio Tinto is a leader, has led the campaign against the Australian Government recognising Aboriginal native title rights to land.

Rio Tinto has also led the campaign against workers' rights, forcing workers to negotiate their wages and conditions as individual contracts rather than through collective bargaining through trade unions.

The mining industry talks a lot now about accountability and "sustainability." They talk about a new "triple bottom-line" thinking, which promotes sustainability by integrating ecological and social factors with financial factors.

However, achieving sustainability in a world threatened by ecological and social catastrophes requires fundamental change in values, power relations and production systems. It requires moving outside the current framework controlled by political, social and economic elites and their policies.

2.3 Outsourcing controversial decisions

BHP has actively engaged environment and development NGOs to help come up with a solution to "its dilemma at Ok Tedi.

Corporate public relations consultants, like the US-based public relations-crisis consultant Peter Sandman, suggests "offering communities the choice of either insisting on environmental clean-up or trading possible benefits from the company. This is a way of getting external groups to face hard choices, and of outsourcing controversial decisions that would have little credibility if made within the company".

BHP has invited Australian and PNG NGOs to visit the mine and to participate in stakeholder consultative forums about the future of both Ok Tedi and BHP's operations more generally.

NGO engagement as part of BHP's "policy community" has opportunities and risks for all parties. Policy communities distinguish those who are "in" the community and those who are "outside". The views of those who are inside are more likely to be considered, while those outside are more likely to be ignored. Former allies can be divided and ruled. Radical NGOs or communities can be marginalised.

On Ok Tedi, the Mineral Policy Institute has engaged in dialogue with BHP (including participating in a company/NGO workshop and visiting the mine site at company expense). MPI's tactics and policies on engagement and campaign demands generally, are guided by partnerships with local landowners and PNG NGOs.

3. Community rights and tools for action

The struggle for environmental and social justice, at Ok Tedi and elsewhere, combines:

• demanding multi-lateral agencies implement treaties which would enable governments to protect people and the environment;
• campaigns for local initiatives that force corporate accountability to local communities;
• mobilisation of communities for social transformation through awareness, empowerment and resistance.

3.1 International laws and treaties

Global networks of NGOs are matched in the corporate world by global networks of transnational corporations, like the World Business Council for Sustainable Development (WBCSD), a coalition of 125 transnational corporations. The WBCSD works to ensure that debate and decisions on environmental policies and standards support free trade and deregulation.

In 1998, for example, Rio Tinto strongly opposed proposals that the European Parliament adopt a Code of Conduct governing the operations of European-based transnational corporations, arguing for self-regulation instead.

International treaties and conventions which can be used, and strengthened, to prevent environmental and human rights abuses by mining corporations include for example:

• the United Nations Declaration of Human Rights,
• the International Labour Organisation Draft Declaration on the Rights of Indigenous Peoples,
• the International Labour Organisation labour rights conventions,
• Convention on Wetlands of International Importance (the RAMSAR Convention),
• World Bank Guidelines on Mining, and
• the Berlin Mining and the Environment Guidelines.

The Draft Declaration in the Rights of Indigenous Peoples is another important potential tool, currently being negotiated among governments.

Unfortunately the United Nations and other international agencies are increasingly becoming captured by corporations. Can the UN, IMF, World Bank, WTO ever be transformed to become accountable, or should they be abolished? The debate continues...

In the meantime, labour organisations, environmentalists, human rights activists, farmers, women's organisations, consumers, small business people and fair trade groups are all joining local and global campaigns to make international agencies, and the corporations that rule them, accountable to people and Nature.

The stalemate at the Word Trade Organisation meeting in Seattle, USA in November 1999, shows campaigns for economic and political democracy from the grassroots can create paralysis at the "top" and create the space for environmental justice and human rights to emerge.

Mining futures that are founded on environmental and social justice requires:

• resource conservation and mineral efficiency to minimise the demand for new mines
• mining companies implementing global standards of environmental and community engagement in mine management, and
• empowered communities controlling development on their lands.

Along the Ok Tedi and the Fly Rivers, local villagers are linking with international supporters. They are determined to force BHP to pay the costs for the disaster it has created, and to implement a mine closure plan that rehabilitates destroyed environments and economies, and restores to local people the power to control their futures.

Acronyms

APEC- Asia Pacific Economic Council

IMF- International Monetary Fund

NGOs- Non Government Organisations

WTO- World Trade Organisation

By Clarence Dias, Director, International Center for Law in Development, New York

1. Introduction

• The only region in the world that does not have a regional human rights system is the Asia-Pacific region.

• Every year, the UN Human Rights Commission and the General Assembly adopts a resolution calling upon the governments of the region to meet, discuss and make progress towards adopting a regional human rights system.

• Every year, the Office of the High Commissioner for Human Rights (OHCHR), at considerable expense, organizes an Asia-Pacific intergovernmental workshop for this purpose. But progress is slow and NGO participation has been far from adequate.

• Asian and regional NG0s, however, have indeed been undertaking many significant initiatives but support from the governments has been lacking.

Is a Regional human rights system for the Asia-Pacific regional desirable and feasible?

What kind of regional human rights system would be most appropriate and effective for the Asia-Pacific region?

How can progress be accelerated towards such a system?

What lessons are there to be learned from the experiences of other regional human rights systems in other parts of the world?

2. Obstacles to an Asia-pacific human rights system

Neelan Tiruchelvan, a noted human rights scholar and activist from Sri Lanka, identified "several factors which constrain the adoption of a regional instrument or the establishment of a regional mechanism for the Asia-Pacific region":

• The lack of precision in the very conceptualisation and geographical definition of the region;

• the absence of a process of political, economic and legal integration and an institutional framework to which such human rights arrangements could be linked;

• the extraordinary geographical, political, ideological and economic diversity of the region;

• the absence of a common legal culture based on at least partly shared legal history;

• the traditions of legal thought and judicial interpretation are very different in countries with legal systems which are dissimilar as Nepal, Fiji, and Thailand. These differences are as sharp as the differences between common law and civil law traditions;

• the serious violations of human rights that occur in many countries in the region, the low level of ratification of human rights treaties, the non-observance of treaty obligations after ratification and the advocacy of a cultural relativism position ("Asian values") on human rights as opposed to the universality of human rights;

The governments of the Asia-Pacific region, at the Jakarta Workshop in 1993 identified "three key obstacles":

• The geographical complexity, different levels of development and cultural diversity of the region;

• the lack of any unifying tradition, and

• the absence of high levels of mutual understanding between the governments which is essential for an effective regional arrangement

How formidable are these obstacles? What other obstacles exist at the country level?

How can these obstacles be overcome?

3. Reasons for a regional human rights system in the Asia-pacific region

• A regional mechanism could provide a less costly, more accessible and effective redress than existing international processes and procedures.

• It could help overcome procedural and institutional weaknesses and shortcomings of some domestic jurisdictions and of the international system.

• It could help overcome tack of expertise and experience in human rights jurisprudence.

• It could lead to more effective implementation and enforcement of human rights norms and standards.

• It could draw on the concepts and values which are integral to the intellectual and religious traditions and world-views of Asia and the Pacific.

• It could address regional human rights problems (e.g. trafficking, refugees and displaced persons, migrant workers) more effectively.

• Its moral legitimacy would stem from being drawn up by the governments, scholars, lawyers and civil society representatives of the region.

What further reasons can be offered in favour of an Asia-Pacific Human Rights System?

What practical measures could ensure the transparency, accountability, access and effectiveness of such a system?

4. Lessons from other regions

There are many variations and significant differences between the regional human rights systems of the world. A typical system comprises a Commission, a Charter and a Court. The Asia-Pacific governments, at the First Asia-Pacific Regional Workshop on Human Rights (Manila 1990) carefully examined three regional experiences of the African, European and Inter-American arrangements and noted five aspects on which they differ:

i) in the extent to which they go further and adopt even more stringent standards than the international system;

ii) the extent to which the standards and decisions are binding upon States or are merely persuasive;

iii) the extent of limitations allowed in the interests of national security or in declarations of States of emergency. In Europe there is power of judicial review to determine whether an emergency really did exist;

iv) what happens in situations of conflict between national law and regional law? Usually, the latter would prevail;

v) the extent of access and inputs that NG0s have. Here, once again, for Europe the access was significant.

4.1 The Inter-American system

This system tends to be dominated by the disproportionate strength of one member (the USA). But nevertheless, the Charter and subsequent standard-setting agreements do develop economic, social and cultural rights standards higher than national standards. The Court has developed human rights jurisprudence. But the Commission tends to get politicised from time to time.

4.2 The African system

this has an excellent Charter of Human Rights and Peoples Rights. But it has a weak Commission and only recently adopted a statute creating a Court. However, the Court is yet to come into existence pending the minimum necessary ratifications.

4.3 The Arab region

There is no Commission on Human Rights and, in 1990, the Organization of Islamic Conference adopted the Cairo Declaration on Human Rights, which some critics feel erodes the principle of universality. In 1994, the league of Arab States approved the Arab Charter on Human Rights, which sets up as its monitoring mechanism, a Human Rights Committee of Experts that reviews reports from state parties once in three years. It does not, however, set up a Court. Moreover, some critics feel that the Charter omits a few internationally recognized rights and allows states to derogate from the rights in times of emergency.

4.4 Europe

The European system is by far the best regional system. Minority rights are well developed under the Helsinki Accords and the Conference on Security and Cooperation in Europe. The

European Social Charter complements the Covenant on Economic, Social and Cultural Rights in a most positive manner. The European Parliament accepts citizens' petitions, compiles reports and passes resolutions on human rights issues (which, however, are non-binding). The European Court is evolving very significant human rights jurisprudence.

Undoubtedly, there is much to be learned from the different regions. But the Asia-Pacific governments have made it clear (at the Amman Workshop, 1997) that any regional arrangement must emerge from and be directed to the needs and priorities set by Governments of the region, with roles, functions, tasks, outcomes and achievements determined by consensus among the Governments of the region.

How can one influence, from a nongovernmental sector, the needs and priorities set by the Governments?

What role does civil society have in helping develop the needed consensus?

5. Agreement reached thus far in the Asia-pacific region

When governments met for the first time to discuss this subject (in Colombo in 1982) they expressed the consensus that there was little or any need for a regional human rights arrangement in the Asia-Pacific region. In the years since then, however, there has been a marked change and the governments are no longer opposed, in principle, to any regional human rights arrangement. Discussions now, although painfully slow, are indicating an emerging consensus:

• Development of a regional arrangement should be through, a step-by-step approach" using 'building blocks" and recognizing that there are different "speeds in the region;

• Four "building-blocks" have been agreed upon, namely: human rights education; national human rights institutions; national human rights plans of action; and more effective implementation of economic, social and cultural rights and the right to development;

• Regional cooperation (beginning through sub-regional initiatives) shall lay the foundation for a regional system built on harmonization and common achievements at the national level;

• A specific program of regional technical cooperation, focusing on the four above- mentioned building-blocks has been adopted (in Delhi, 1 999) and is in the process of implementation;

• Ratification of international human rights instruments has been identified as crucial in the initial phase of the process and so, too, have several agreed principles and conclusions (Amman, 1997 and Teheran, 1998).

The challenge now lies in accelerating the process of building the 'building blocks" and moving ahead.

6. Next steps and interim approaches

Several next steps have been identified by Asia-Pacific NG0s at a number of meetings over the past six years starting with the Bangkok NGO Declaration to the regional Prep Com before the Vienna World Conference on Human Rights.

i) building upon and consolidating the work of Asia-Pacific NG0s. There already exist two regional human rights instruments drawn up by NGOS: the Declaration on Basic Rights and Duties of ASEAN Peoples and Governments (Produced by the Regional Council for Human Rights) and the Asian Human Rights Charter (drawn up by the Asian Human Rights Commission). NG0s must strategize to make more effective use of these instruments at the national level;

ii) NG0s have organized several 'peoples tribunals" at national and regional levels as commissions of inquiry or hearings. How can the findings of these bodies be better addressed?

iii) National Human Rights Commissions have emerged in several Asia-Pacific countries and have organized themselves into a Forum of Asian-Pacific National Human Rights Commissions. How can NG0s enhance the contribution of such Forums to the creation of a regional human rights commission?

iv) How can human rights concerns be introduced within existing sub-regional intergovernmental bodies such as ASEAN, SAARC, the OIC, the Arab League, the ASEAN Inter-Parliamentary Organization, etc?

Most of all, how can NG0s participate more effectively in the annual intergovernmental workshops on regional human rights arrangements for the Asia-Pacific region, in inter-sessional meetings and in the regional technical cooperation program?

Acronyms

ASEAN- Association of South East Asian Nations

NGO- Non Government Organization

OHCHR- Office of the High Commissioner for Human Rights

OIC- Open Interchange Consortium

SAARC- South Asian Association for Regional Cooperation

By Carol Devine & Victoria Coakley

1. Introduction

Many individuals and organizations, UN, governmental and NGOs do human rights fact-finding and monitoring as the fundamental basis of their work. It is an important activity in most countries facing internal and external conflict. Groups monitoring human rights include community-based or local NGOs world-wide, international human rights groups including Amnesty International and Human Rights Watch, Trade Unions, the International Labour Organization, the International Commission of Jurists, UN field operations with human rights operations or components (for example in Cambodia and Rwanda) and civilian police (CIVPOL) who are currently working in East Timor. It is important to reflect on why this is such a popular activity and how it fits into the overall struggle of your organization/opposition movement/country. Questions to assist this reflection and which this paper addresses are:

What is monitoring?

Why monitor and document human rights violations?

What are the standard principles and techniques in human rights monitoring and documentation?

What issues need to be considered when collecting human rights information?

What do you want to do with the information?

1.2 What is monitoring?

• Monitoring involves research, investigation, documentation, analysis and reporting
• Human rights monitoring can help build a picture of the human rights situation in a region or country.

2. Why collect human rights data?

Human rights data collection can be used for immediate and longer-term use, national, regional and international use. Reasons for human rights data collection can include:

• To piece together information related to events
• To keep track of human rights abuses/violations which are occurring
• To monitor trends and patterns which can be used for preventative action
• To provide a historical record of what has happened to communities
• To empower by restoring peoples dignity by listening to their stories and helping them understand that what they face is not personal but structural - monitors provide people with a voice, and can assist them in analysing the situation and developing pro-active strategies for prevention
• To illustrate the nature of the abuse: frequent, widespread or systematic
• To disseminate the information to the public, governments, national, regional and world bodies, non-governmental organisations and the media
• To provide the international community with facts and clear analysis of the human rights situation and how the international community can support the movement for peace and justice
• To challenge government official reports or statistics placing a burden on the government to answer or remedy the situation assisted by international pressure
• To seek justice and urgent remedy for victims of human rights abuses
• To make a successful presentation in legal cases
• To provide alternative human rights reports to the UN Human Rights Commission and other international human rights bodies
• To provide evidence which could be used by a People's Tribunal
• To be used in the future as either evidence for national or international legal proceedings and/or as a resource for a possible truth and reconciliation commission - a tool to assist the reconciliation process so that people can peacefully coexist in the future.

3. Basic principles of human rights data collection

• The purpose of collecting human rights documentation is to help people who have no direct knowledge of a situation understand, as clearly as possible, what is happening and what this means. This necessarily means writing reports following the collection of human rights data. A good report which follows these guidelines will be accurate, objective and believable which is crucial in order to have the support of people nationally, regionally and internationally.
• The fundamental rule when writing a report is to assume that the reader has no knowledge of the area you are writing about.
• Every report should be structured so that the information is easy to understand. Reports should always have an introduction, a body of information and a conclusion.
• The introduction should tell the reader where the information collection occurred (village, township etc) and the incident(s) documented. The body of the report should give details of the introduction and be written objectively. The conclusion must provide analysis.
• Quality of Data
• Human rights monitors should try to collect factual information from reliable sources. Facts help build the background, so the reader can understand a situation. Basic questions must be answered: who/what/where/when/how/why?
• Provide details as they give more information about the facts. The facts need to be in clear order so that the details have meaning. Background information about the area where information is collected is useful. Details about the victims of human rights violations are very important or the person who gave the information about what happened so that they can be contacted at a future time to ‘corroborate' the information. If specific policies are mentioned, explain what they are eg., "Four Cuts" policy - assume the reader does not know.
• Always state the source of your information: victim, relative, friend, village leader, soldier, another fact finder etc.
• Indicate where the evidence is corroborated: if your source is not the victim, it is important to corroborate. What one person saw happen amounts to "evidence". If another person gives the same "evidence" then they "corroborate" the first person's information. Corroboration provides strong evidence. If you cannot corroborate, seriously consider how to use the information.
• Uses objective language: it is better not to use emotional language unless it is something the information giver said him/herself, and it should be written as a direct quote. The use of emotional language can lead to accusations of bias and subjectivity. A loss of public confidence can destroy credibility of the human rights worker and/or organisation.
• Tells everything that happened: it is important to explain all the things that happened leading up to and, where applicable, caused the event.
• No information is information: note deliberate suppression or withholding of data
• Contains analysis: This is very important. It is the opportunity to tell the reader what all the facts and details mean to the situation. It allows the writer to identify the most important issues and inform people what should be done about them. Questions which might help when making analysis about an event include:
• Who collected it?
• What organisation are they from?
• Where is the information from and do you have other information from that area?
• Who is the source and is it reliable? Why?
• What are the weaknesses of the data and how might you deal with them?
• Why did this happen?
• What facts, trends, patterns does the data reveal? Has this happened in other places nearby? If so, what is similar/different about what happened each time. Is there a pattern? If so, what is it, and where is it coming from?
• Are there any development projects happening in the area?
• What might happen in the future? Do you think this activity will continue? What trends can you identify? Can you see any future change to the situation?
• How can people in other countries assist?
• Describes difficulties: every report should explain the difficulties the fact-finder faced in collecting information, and how these difficulties were approached.
• Contains supplementary material(s): if possible, a map of the area, photographs or video footage should accompany a report. These materials should have accompanying descriptions and details.
• Incomplete or faulty data may still be useable. It will not necessarily stand up in a court of law, but it could be used to help establish a trend or pattern. Do not be discouraged by imperfect data but assess how it may be improved or useable
• For safety, security and protection issues for yourself, the witness(es) and the information, use common sense as your key tool.

4. Basic form for a human rights violation (hrv) report

Title - Decide on an appropriate title. It should contain information regarding the area where the information has been collected and either the victim's name or the main HRV documented

Who:

1. Name (for security reason consider using a code or not using the name)
2. age
3. gender
4. status (married, single, widowed, deceased)
5. address/town (use code or delete if insecure)
6. occupation
7. affiliations (if applicable)

Perpetrator(s)

1. name
2. gender
3. position and rank, (if applicable),
4. army or organisation

What and How:

1. What violations were perpetrated?
2. Explain the circumstances in which the violations were perpetrated

When: date of the HRV

Where: place where violation(s) took place

Analysis: Reasons for the violation(s), if known. What trends, patterns does the data reveal? What else is happening in the area (development projects)? What might happen in the future? How can people in other countries assist.

Date report written:

Fact finder: code name may be used - this may be important to protect fact-finders working in dangerous areas.

Source

Difficulties

Translator/interpreter

Countries involved

Supplementary materials - maps, photographs, video footage, official orders

5. Checklist: writing a human rights violations report

DO

• Write naturally and simply
• Just state the facts. Answer the basic questions: who/what/where/when/how/why?
• Make sure the report is logical and the reader can easily follow the event
• Provide details
• Corroborate evidence
• Use objective language
• Tell everything that happened
• Write actively with nouns and verbs which leave no doubt as to who did what, avoiding passive statements (instead of "it was found that...", write, "the relief workers found..."
• State clearly whatever method used to collect data and your source
• Describe the difficulties in collecting this information
• Provide analysis
• Provide supplementary material where possible.

DO NOT

• Use vague words like: little, very, extensive
• Overstate your facts
• Over-explain
• Give your opinion
• Include any irrelevant information
• Exaggerate - it is better to under estimate than over estimate
• Use emotional language
• Give propaganda

6. Important issues in fact-finding

The human rights monitor must take care: precautions for the safety of his or her witnesses, him/herself, and protection of the information gathered. Often fact-finders speak with witnesses who have undergone trauma. The fact-finder must be sensitive to the witnesses' emotional state and to the local cultural, legal and political environment in which the monitoring is taking place. The fact-finder must also be prepared to deal with potential questions about or follow-up for medical, psychological or legal assistance, protection or referral.

Women: It is preferable and more appropriate for women to interview women, particularly if women have been victims of sexual violence. There is social stigma attached to sexual violations so women often find it difficult to talk about their experiences and feel a deep sense of shame. Some survivors of rape may not be aware that rape is a violation of their rights.

Children: Gathering testimony from a child is difficult. Be prepared to accept the child's view of the world and do not impose your own view on the child if you interview them.

Young children are not considered reliable witnesses.

Confidentiality/Security: The fact-finder must protect the confidentiality of the witness. In insecure situations, the human rights monitor can delete or not take the name/details of witnesses to protect them, or can use simple codes to protect the information. Generally, vulnerable individuals will learn to be silent as a means of self-protection.

They also may resent numerous requests for information when they do not see the situation improving.

Cultural/regional sensitivity: People from different cultures and rural areas may have a different concept of time and their own methods of recording events. A fact-finder should clarify evidence gathered from rural people concerning the time and date of an event. Concepts of distance may also differ (eg. not two hours away by car but 10 hours by foot). Dates may be resented by major occurrences such as famines, wet season, floods, typhoons, drought etc.

Use of shock value material: If you have graphic photographs of human rights victims reflect on why you would wish to disseminate them, the purpose this would serve. Ensure that you ask permission from the victims relatives. Do not make false promises. Remember that the victim should be treated with dignity.

Interpreters: Not only is it highly important to consider the selection of the interpreter to ensure the credibility of the data collected, but also the protection of the interpreter used.

Data storage: Whether the information is stored on a computer or on paper, the human rights monitor should be careful to keep the data in a safe place, to protect the network and to ensure swift transfer of reports and evidence to a secure place inside the country or outside of the country. For dissemination of information consideration should be given to sensitive information.

Information for whom?

In collecting human rights information, clear objectives should be made. For what purposes and for whom. Identifying your target audience is important. If you have more than one audience, you may have to change your report. It is important to understand the nature and work of the organisations that you send the information to. It is also a good idea to try and personalise your report. Send a covering letter or message, showing you know the nature of the organisation's work, and asking for feedback. Establishing contact in this way can be valuable in establishing your organisation's credibility.

Potential audiences include:

• Other local NGOs - this can help corroborate evidence, to share analysis and strengthen local campaigns
• Other Asia-Pacific NGOs
• International NGOs (such Amnesty International, Human Rights Watch, Lawyers Committee on Human Rights, US Committee on Refugees)
• Media - local, regional and international
• Your government
• Other governments and international agencies such as the International Monetary Fund and the World Bank.
• The UN - Working Groups, Special Rapporteurs (countries and thematic issues)

7. Future accountability of data

Raw data and information should be preserved so that you and others can make future use of the same data. There are two main options: as evidence for legal proceedings or as a resource for a truth and reconciliation type commission. Whatever option the country decides to take, documentation will be crucial for the process.

For countries that choose to undertake legal proceedings, if the country does not have an adequately functioning national legal system or the political will to cope with the aftermath of conflict, the question of accountability may be passed onto an international tribunal. Once the International Criminal Court (ICC) is functioning, NGOs will be able to provide evidence for cases. Not all NGOs will be able or willing to assist the ICC in this capacity, but human rights and advocacy organisations may be able to present evidence to the prosecutor of the ICC (as done at the International Criminal Tribunals for the Former Yugoslavia and Rwanda). Relevant to NGOs are the draft statutes of the ICC which state for example, that grave breaches of the Geneva Conventions such as a war crime and attacks directed against any civilian population is a crime against humanity. Article 15 (2) of the ICC statute explicitly envisages a role for non-State actors in the initial gathering of evidence, a crucial element in the prosecution process.

"The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, inter-governmental or non-governmental organisations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court." (from "The Role of Non-state Actors in giving Evidence at the International Criminal Court ", Helen Durham, ICRC, unpublished PhD thesis, 1999)

8. Some definitions for fact-finding

Bias: "bias" is any systematic distortion of the data, deliberate or inadvertent

Corroboration: is placing side by side otherwise separate and distinct pieces of information about alleged violations in order to establish the likelihood that the violation took place

Credibility: capable of being believed

Cross-checking: checking a report or rumour you have heard with another source

Documentation: the process of systematically recording and organising the information gathered during fact-finding for easy retrieval and effective dissemination.

Eyewitness account: direct personal knowledge of human rights violations eg. relative who saw a family member being arrested, medical staff who treated a torture victim

Fact: systematic collation, measured description or report of an event, using methods that if applied by another observer, would yield the same results.

Fact-finding: collection of information about alleged human rights violations by human rights monitors in order to determine the truth. It is essential to collect information which is as reliable, credible and comprehensive as possible.

Hearsay: information about a violation which is obtained from a 3rd party, a person who does not have direct personal knowledge of the violation but has obtained the information from someone else. Always clearly indicate whether conclusions were based on eyewitness accounts or hearsay evidence. This helps in assessing the reliability of information

Human rights abuse: to be identified as such an individual case must fit a previously established pattern, or a pattern must be clear from a series of individual cases

Violation: the act of breaking a law, rule, rule, agreement, promise or instrument; the disregard for human rights standards

Persecution: is the act of targeting someone for bad treatment because of his/her identity, principles or beliefs; generally involves a course or period of systematic punishment or oppression

Source: the individual, relative, friend, non-governmental organisation, government official or publication (eg. morbidity, mortality, economic data), book, newspaper article, radio report etc. from where you received the information

Statistics: the collection, classification, and use of numerical facts and data helps to assess the magnitude and scope of the human rights violation, to find patterns of violations, to give a basis for decisions and recommendations and to justify decisions and recommendations to others

9. Some human rights violations definitions

Arbitrary arrest: arrest is arbitrary when the person is taken into custody by state authorities and the authorities do not comply with the legal procedures under the local and international law.

Arbitrary detention: holding of the person in state custody without complying with the legal procedures under local or international law. Usually it is when someone is held by the authorities and are not charged with a crime, and there is no trial or formal court proceedings.

Deaths in custody: The death of anyone while in jail or detention. Includes judicial executions, the death penalty, death from torture and death from ill-treatment.

Deportation: Sending someone back to their country of origin after they have been arrested or detained, usually against their will.

Land confiscation: land is taken away (confiscated) by the authorities without fair compensation.

Property confiscation: confiscation of livestock and food, and destruction of property (houses, crops/barns etc).

Forced portering: when people have to carry weapons or food for the Army or any organisation under order or against their will. Usually no payment is received.

Forced labour: labour which is demanded on infrastructure projects, buildings, and/or renovations for tourist attractions without pay, health care etc.

Minesweeping/human shields: minesweeping means clearing the ground for mines, while acting as human shields means when people are forced to stand between two enemy armies while they are fighting.

Extortion, intimidation & theft: demanding/taking of money, jewellery, household good, and other property by force or by threat of force. Includes intimidating behaviour of officials/soldiers, and extortion for return of goods stolen (eg. asking for an unreasonable price).

Corruption: activities of government officials, civil servants, law enforcement officers, leaders eg. accepting money for release of people either arrested or detained.

Forced relocation: when people are forcibly moved from one location to another specified location(s).

"Four Cuts": when civilians are forcibly relocated and/or displaced from areas where insurgents are active in an effort to destroy the insurgents' support base and supply lines.

Ethnic Cleansing: when civilians are forcibly relocated and/or displaced in an attempt to destroy their ethnic culture, identity, and/or livelihood. Includes military campaigns and human rights abuses focuses against a specific ethnic group in an attempt to destroy or subjugate.

Importation of settlers: when people of one ethnic or religious group or military personnel are forced or encouraged, to move into an area in an effort to weaken indigenous populations.

Forced displacement: when populations are cleared from one area to another without being told where to go. Often these areas are declared "Free Fire" zones, meaning that people are not permitted to return to these areas.

Forced repatriation/refoulement: sending refugees or asylum seekers back to their country of origin against their will. Can involve coercion, trickery & psychological means in addition to physical force.

Voluntary repatriation: when refugees or asylum seekers decide to return voluntarily to their country of origin.

Refugee harassment: harassment of refugees, including abductions, military attacks, forms of intimidation, and restrictions on freedoms.

Internally Displaced Persons: people who have fled their homes, and are either in hiding or making their way to border areas. They are defined as people who have been forced to flee or to leave their homes as a result of, or in order to avoid, the effects of armed conflict, situation of generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised border.

Torture: act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for obtaining information, punishment for an act committed or suspected of having been committed or for intimidation.

Mental torture: emotional abuse, brainwashing and humiliation. Psychological punishment inflicted to deliberately punish, coerce, or intimidate someone or force someone to take an action against their will - usually a way of trying to get a confession, or information from someone eg. the person is threatened that their family will be harmed.

Physical torture: physical punishment inflicted (more than merely beating someone) to deliberately punish, coerce, or intimidate someone to take an action they do not wish to do, such as give information.

Physical assault: an act of inflicting bodily injury upon a person - a person is physically hurt by someone else.

Disappearance: disappearance is where a person has disappeared, and no-one knows where the person was taken. Usually there are reasonable grounds to believe that local authorities are responsible for the disappearance (although they have denied this) and attempts to locate the person missing are unsuccessful.

Kidnapping: when someone is secretly taken, and the people who have taken him/her demand money or some other action before releasing the person.

Extra-Judicial Execution: the killing of a person without any legal proceedings (usually by state authorities), not including legal execution or death in combat.

Massacre: the indiscriminate killing of persons, between 10 and 10,000 who are deliberately slain in a specific place at a particular time despite the fact that they are unarmed (or disarmed).

Rape and sexual abuse: any type of sexual relations with another person without that person's consent. Sexual relations includes sexual intercourse and insertion of any object into the vagina or anus.

Sexual harassment: unwelcome verbal and physical advances of a sexual nature, such as jokes, words, calling out, and touching.

Not only civil and political rights abuses can be human rights violations, but so can economic, cultural, social rights and environmental abuses, such as denial of health care, restriction of movement to food sources, the mining of a water source. Certain human rights violations can also constitute crimes against humanity, war crimes, genocide, etc.

Sources of this chapter: East Timor Human Rights Centre, Medecins Sans Frontieres, Data Analysis for Monitoring Human Rights, Herbert F. Spirer and Louise Spirer, American Association for the Advancement of Science & HURIDOCS, Washington 1993, "Getting The Facts Down, Documenting Human Rights Violations", Manual Guzman, Forum-Asia, Thailand 1997, UN Human Rights Operations: Principles & Practice in United Nations Field Operations, Paul LaRose-Edwards for the Human Rights and Justice Division, Canadian Department of Foreign Affairs May 1996, Burma Issues Human Rights Documentation Centre Manual 1998.

A new highly recommended resource is The Torture Reporting Handbook

by Camille Giffard published by the University of Essex, Human Rights Centre and sponsored by the Foreign and Commonwealth Office of the United Kingdom, February 2000. Downloadable from the internet: http://www/hrpd.fco.gov.uk or http://www.essex.ac.uk/torturehandbook. Human Rights Centre, University of Essex, Wivenhoe Park, Colchester CO4 3SQ, UK, T: 00 44 1206 872558, F: 00 44 1206 873428, email: hrc@essex.ac.uk, http://www2.essex.ac.uk/human_rights_centre/

10. Organizations: potential follow-up sources for your data

GOVERNMENTS, MEDIA, REGIONAL HUMAN RIGHTS BODIES

THE UNITED NATIONS:
Working Group (WG) on Arbitrary Detention, WG on Enforced or Involuntary Disappearances
Special Rapporteur on Torture, Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions, Special Rapporteur on Freedom of Expression and Opinion, Special Rapporteur on the Elimination of Violence Against Women, Special Rapporteur on Religious Intolerance
Special Rapporteur on the Independence and Impartiality of the Judiciary

UN CENTRE FOR HUMAN RIGHTS
Palais des Nations
CH-1211 Geneva 10, Switzerland
Tel: +41 22 9171234 fax: +41 22 9170123
Web site: http://www.unhchr.ch

*year round deadline, annual deadline for CHR Report is November/December

INTERNATIONAL COMMISSION OF JURISTS
81A, Avenue of Chatelaine
CP 216
CH 1219 Chatelaine - Geneva
Tel: (+41 -22) 979 38 00 Fax: (+41-22) 979 38 01
E-mail: info@icj.org web site: http://www.icj-cij.org

OTHER RESOURCES:

For reporting HRV

UN Hotline Fax Number Fax: +41 22 917 0092

"In 1994, the UNHCHR established a human rights hotline, that will allow the Office of the High Commissioner for Human Rights in Geneva to monitor and react rapidly to human rights emergencies. The Hot Line is available to victims of human rights abuses, their relatives and non-governmental organisations". Be sure to include details on who, what, where, when, how and why. State what human right(s) was violated.

Recommended Format:

To: Working Group/Special Rapporteur (Specify if possible)
Address:
Re: Case of (example)
Date of Incident:
Place of Incident:
Alleged Perpetrator/s:
Description of Incident:
Present Situation:
Submitted by: Name:
Organisation:
Contact Address:
Annexes (if any):

ASIAN HUMAN RIGHTS COMMISSION (AHRC)
The AHRC is an independent non-governmental body which seeks to promote greater awareness and realisation of human rights in the Asian region, and mobilise Asian and international public opinion to obtain relief and redress for the victims of human rights violations. The AHRC focuses on pressing human rights concerns within the Asian region as they are seen by the Commission to issues of civil and political rights, although it will also be concerned with the protection of cultural, social, economic rights and the right to development.

7th Floor, Mongkok Commercial Centre
Argyle Street, KOWLOON, Hong Kong, CHINA
Tel: +(852) 2698 6339 Fax: +(852) 2698 6367
E-mail: ahrchk@ahrchk.org, ahrch@hk.super.net
Web site http://www.hk.super.net/~ahrchk

HUMAN RIGHTS WATCH
Asia Division, Deputy Asia Director: Joe Saunders, NGO Liaison: Jeannine Guthrie
350 Fifth Avenue 34th Floor, New York, NY 10118-3299
Tel: +212-216-4700 (main) Tel: +212-290-1227 (direct) Fax: +212-736-1300
Email: guthrij@hrw.org Web site: http://www.hrw.org

AMNESTY INTERNATIONAL
1 Easton St., London WCIZ 8DJ, United Kingdom
Tel: +44 171 4135500 Fax: +44 171 9561157
Web site: http://www.amnesty.org

LAWYERS COMMITTEE ON HUMAN RIGHTS
333 Seventh Avenue, 13th Floor
New York, NY 10001-5004 USA
Email: lchr@lchr.org Web site: http://www.lchr.org

FOR PUBLISHING HUMAN RIGHTS ACTION ALERTS (INTERNET)

HUMAN RIGHTS INTERNET
Web site: http://www.hri.ca, Urgent Action Alert website: http://www.hri.ca/urgent/post.shtml

IFEX International Freedom of Expression eXchange
The IFEX Clearing House 489 College Street, Suite 403, Toronto, Ontario
Canada, M6G 1A5 Phone: +1 416 515 9622 Fax: +1 416 515 7879
E-mail: ifex@ifex.org, http://www.ifex.org

For reporting free expression abuses of journalists, writers, publishers etc. IFEX circulates this information to other members and interested organisations worldwide. The Action Alerts also provides updates on recent developments in ongoing cases and circulates important freedom of expression press releases. Email: alerts@ifex.org

ASIAN HUMAN RIGHTS COMMISSION
Tel: +852 2698-6339 Fax: +852 2698-6367
Email: ahrchk@ahrchk.org, ahrch@hk.super.net Website http://www.hk.super.net/~ahrchk

INTERNATIONAL CRIMINAL COURT
http://www.un.org/icc/

NGO Coalition for an International Criminal Court
777 UN Plaza 12th Floor
New York 10017 USA
Tel +1 212 687 2176 Fax +1 212 599 1332
Email: cicc@igc.org web site http://www.iccnow.org

FOR HUMAN RIGHTS DOCUMENTATION INFORMATION AND TRAINING

SOUTH ASIAN HUMAN RIGHTS DOCUMENTATION CENTRE (SAHRDC)
B-6/6, Sardarjung Enclave Extension, New Delhi, 110029-India
P: +91 11 619-2717, 619-2706, 619-1120 F: +91 11 6191120
Email: rnairsahrdc@hotmail.com, http://www.hri.ca/partners/sahrdc/

ASIAN REGIONAL RESOURCE CENTRE FOR HUMAN RIGHTS EDUCATION
ARRC Secretariat:
PO Box 26, Bungthonglang P.O
Bangkok 10242
Tel: +66 2 377-9357, 370-2701, 731-2216 Fax: +66 2 731-2216, 374-0464
Email: acfodbkk@ksc15.th.com

FORUM ASIA
The Asian Forum for Human Rights and Development (Forum-Asia)
C/o Union for Civil Liberties, 109, Suthisarnwinichai Rd.
Samsennok, Huay Kwang, Bangkok 10320, Thailand
Tel: 662 2769846-7, Fax: 662 2762183

HURIDOCS
Executive Director: Manuel Guzman, 48, chemin du Grand-Montfleury
CH-1290 Versoix, Switzerland
Tel: +41 22 7555252 Fax: +41 22 7555260
Email: huridocs@comlink.org Web site: http://www.huridocs.org

"HURIDOCS is a global, decentralized network of human rights organizations. It aims to improve access to public information on human rights through more effective, appropriate, compatible methods and techniques of information handling."

AMERICAN ASSOCIATION FOR THE ADVANCEMENT OF SCIENCE (AAAS)
SCIENCE AND HUMAN RIGHTS PROGRAM
Economic, Social and Cultural Rights Violations Project
1200 New York Ave. NW, Washington, DC 20005
Tel: 202-32606600 Fax: 202-289-4950 Email; shrp@aaas.org

PHYSICIANS FOR HUMAN RIGHTS
100 Boylston St., Suite 702
Boston MA 02116 USA tel: (1) 617 695-0041 fax: (1) 617 695-9050
Email: phrusa@phrusa.org
http://www.phrusa.org

WITNESS (Video human rights advocacy and training)
Lawyers Committee for Human Rights,
333 Seventh Avenue, 13th Floor, New York, NY 10001-5004 USA
http://www.witness.org, http://www.lchr.org

By Diplomacy Training Program

1. Introduction

Non-government organisations (NGOs) are crucial to the defence of human rights. There would be no system of international human rights without the actions of NGOs. They are involved directly in the promotion and protection of human rights.

NGO activities in the field of human rights can be seen as having three main functions:

1. Standard setting - this work carried out by specialist NGO human rights defenders in association with States' representatives. The outcome of this work is seen in the human rights standards set by various human rights instruments and incorporated into international law and the development of the UN human rights system.
2. Public debate - this is extremely important work, carried out both at the grass roots level as well as at international forums and at a national level. The outcome of this work is the development of knowledge by people about human rights. It is more than purely educational activities as it includes actions like public demonstrations, court cases, and media reporting.
3. Direct action - this varies widely depending on the issue. It can mean project work that takes on some of the activities of the State - like establishing schools or health clinics; or pursuing specific human rights campaigns (e.g. of political prisoners).

An important aspect of NGO work is its ability to create a global social movement.

Many thousands of people, in all countries of the world, believe strongly in the importance of human rights and are prepared to undertake various types of actions in support of those rights. Sometimes they put their own lives at risk. Mostly they contribute to a growing awareness of the human rights situation in their own societies. These actions change the way people think - about their own lives, their place in society and the way in which it should be governed.

This activity leads to the creation of new knowledge. Human rights is a global social movement that creates new knowledge through action and debate. The effect of this is dramatic, especially if we look at the history of the last fifty years. It is probably far more important than any decision made in Geneva or New York by a UN body. In societies where feudalism and patronage have wielded power for centuries, modern States are being created based heavily on individual rights and market-driven economies. The nature of these States carries the possibility of further exploitation. So the fight for human rights will always be with us.

The new knowledge created by the human rights movement is not restricted to developing countries. It is important in all countries around the globe. Defenders of human rights must understand the historical importance of their work and see beyond the immediate issues to the larger picture. Defence of human rights and new campaigns also must evolve with our changing planet.

2. What are NGOs?

NGOs refer here to organizations, both national and international, which are constituted separate from the government of the country in which they are founded.

They include hundreds of thousands of non-profit associations, foundations, groups, and volunteers. They are very diverse, in structure, composition and objectives, each NGO organization in a particular sector of society. Some deal with education, others are direct activists, and yet others have technical projects engaging in material assistance or information. NGOs are also professional organizations, trade unions, cooperatives, youth movements, women's organizations, religious associations, research organizations, etc.

The term, "NGO" is a general one. But it is not possible to unify something that cannot be unified. NGOs working for human rights don't always agree with each other. And why should they? Human rights require diverse opinions and actions. There is no single way of achieving a just society.

This chapter deals with NGOs which have a human rights defence component in their aims and objectives. There are some who do not see their work in political terms.

One distinguishing feature of genuine NGOs is that they are not part of a government apparatus. A simple test is the amount of government funds an _rganization receives. Any significant level of government funding usually means an NGO's activities are constrained by government or that the _rganization is pursuing government policy. But this does not necessarily mean that such an _rganization cannot do useful work, nor that it should not be accepted among the community of NGOs. Some governments find it easier to work through NGOs when they enter troubled political waters. It allows them some distance from the action and from possible criticism from other governments. However, there is no excuse for a government to give up its responsibilities to its population just because it funds some NGOs.

2.1 Trade unions

The first trade unions were formed by workers to directly combat their own exploitation. In some countries, mainly in the developed industrial nations, trade unions have become established power bases for politicians and they can actively pursue programs of reform in social justice. However sometimes in developing countries, where trade unions, if they exist at all, are vigorously, if not violently, opposed by government and the wealthy elites who control those governments.

Trade unions were among the first NGOs to become effective largely because they were able to build up power through their ability to inflict financial losses on the employers. Workers give them funds, making them independent and capable of undertaking actions. Some Trade Unions in western countries have political platforms, like political parties, and stances on issues, which are influential on politicians and international organisations. For example they might have a particular stance in support for full independence of New Caledonia, or against nuclear testing in the Pacific. Gaining the support of Trade Unions may assist you in:

• Accessing the International Labour Organization procedures
• Raising the issue at an international trade union meeting
• Forming an alliance which will gain other trade union support for the issue
• Getting work bans on particular work sites (e.g. The Waterside Workers Federation in Australia banned the unloading of Fijian cargo in protest at the Fiji coups)
• Raising funds to enable your NGO to do something (e.g. Travel to Geneva, produce a newsletter, bail someone out of gaol). Some trade unions have been infiltrated by governments and some are "tame unions" (i.e. they only do what they are told)

Do not expect workers in a foreign country to automatically support your issue just because it appears morally right to you, especially if you are asking for money. In general Trade Unions will only support issues, which have some connection with their own members' interests.

2.2 International aid agencies

These are NGOs established for the purpose of providing development assistance and emergency relief for developing countries. They are usually based in developed countries and form some of the best sources of assistance available to Human Rights defenders. Many have partner organisations in developing countries through which they provide emergency relief, dispense funds, provide technical assistance, etc. Respected international aid agencies with diverse specialities include Oxfam (technical assistance, education, advocacy), International Rescue Committee (refugee assistance) and Survival International (minority and cultural rights).

All western countries have a wide range of aid agencies. As with all NGOs there is a large spectrum of interests, motivations, and capabilities. Some aid agencies are tied into government development programs, some have evangelical religious interests and some have political motivations, which may or may not accord with your interests.

Most developed countries will have a peak council of aid agencies, which can provide lists and contact persons. However, only very few agencies will have the financial and technical ability to provide help to human rights defenders.

Aid agencies that raise funds from the general public often have a difficult job to do if they are thought to be supporting "political" causes. Some reactionary organisations in western countries have taken part in attacks on aid agencies in the media, as well as making physical threats to staff when they support certain political causes, labeling them as "terrorists" or "communists". This can have a devastating effect on the fundraising ability of these organisations.

The politics of third world development is a big subject. If you are looking for assistance from aid agencies you will need to understand the politics involved and be able to critically analyse the different types of organisations, the work they do and what they are likely to fund. Otherwise you could waste enormous amounts of your valuable time on organisations which would have trouble providing funds to any activist.

Unfortunately many aid organisations still do not see the connection between the abuse of human rights and poverty nor do they see their own work as requiring a deeper understanding of what is required to defend human rights, preferring to treat the "symptoms" rather than the "cause".

This tendency is beginning to be addressed as NGOs are being more scrutinized by donors and the public, and as NGOs themselves begin to address the links between human rights and the environment, human rights and education etc. NGOs are having to guard their independence and consider ethical codes of conduct as recipient States abuse aid and continue to deny basic human rights to their citizens.

With the proliferation of aid agencies, NGOs are also adopting codes of conduct and attempting to distinguish themselves from agencies with lower ethical and program standards. Instead of competition, they should, and some do, focus on collaboration and complementarity as well as demanding evaluation and high standards in the non-governmental field.

To distinguish aid agencies with genuine interests in human rights these are some things to look for in their charters, mission statements and annual reports:

1. A philosophy of development which talks about empowerment of people
2. Development projects which work through local partners, not controlled from afar
3. A record of participation in campaigning within their own country (e.g. environmental campaigns or support for indigenous peoples)
4. Development projects which target the poorest people and most vulnerable, e.g. specific programs for women or minority groups, and do not create dependency

2.3 What can aid agencies provide?

• Information and advocacy support
• Assistance for direct needs, technical, humanitarian and legal support
• Funds to enable human rights defenders to attend international meetings and forums
• Include human rights issues in their own development education programs
• Some have consultative status under which you may address the UN

International aid agencies, and lately, environmental organisations, are often actively involved in the debate over the model of development which the western industrialised nations impose on the countries of the South. This is a crucial issue as it lies at the root of the cause of many human rights abuses all over the developing world. It is increasingly important for aid agencies to work within a human rights culture, to make respect for human rights the basis for their work and to address the political, cultural, social, economic and human rights implications of "aid". More than "doing no harm", aid agencies must research, monitor and evaluate of their assistance and work hand-in-hand with the people they wish to assist to ensure their work is welcome and beneficial.

2.4 Human rights organizations

These are political activists who base their activity on the principles of human rights as described by international treaties and the Universal Declaration of Human Rights.

The range of activity can be enormous - from support for detainees to campaigning on environmental issues, health or education. In the past, most Human Rights Organisations concentrate on civil and political rights as these rights are the most explicit and more effective mechanisms for monitoring and reporting are available.

The most effective organisations concentrate on specific types of issues, for example Amnesty International (AI), one of the most successful human rights NGOs in the world, has a very specific charter and set of activities. The amazingly rapid growth of AI is proof of the wide support which people all over the world give to human rights.

There are thousands of these organisations around the world. Human Rights Internet and Huridocs maintain databases and websites with contact addresses.

More and more though, human rights organizations are concentrating also on monitoring and remedying economic, social and cultural right violations. For example, the American Association for the Advancement of Science and Human Rights Program has developed an Economic, Social and Cultural Rights Violations Project and is preparing a guide for monitoring economic, social and cultural human rights violations.

2.5 Environmental organizations

This is a growing area for NGOs. With increased sensitivity to environment globally, the scope for successful lobbying and campaigning increases daily.

Some western NGOs, like Greenpeace or the Sierra Club, have huge resources and much goodwill. In the past and somewhat still today, western Environmental NGOs may prefer to campaign about issues affecting small furry animals rather than oppressed people. Some continue to have undeveloped philosophies about their actions and are operated with a top-down structure.

Although a few environmental NGOs demonstrate these characteristics, not all do, and many that perhaps started out that way, have now adapted and have become increasingly sophisticated in their philosophy and management. Environmental and human rights NGOs and activists from developing countries early on understood the fundamental interconnectedness of human rights and the environment.

ENVIRONMENT AND HUMAN RIGHTS: KEN SARO-WIWA AND CHICO MENDES

The link between human rights and environmental rights has been fused for example with the defiant and compassionate actions of activists who gave their lives for their beliefs. Human rights campaigns resulted in the deaths of activists such as Ken Saro-Wiwa in Nigeria and eight others for their struggle against the disastrous affects of the Shell Oil company on his indigenous people, the Ogoni, and their land.

Likewise, the murder of environmental activist Chico Mendes of Brazil for his work to protect rubber plantations and workers rights in the rainforest, have made it clear for many that human rights are environmental rights and vice versa. This is just what the Universal Declaration of Human Rights affirms--universality, indivisibility and interconnectedness of rights.

Organizations such as Human Rights Watch research and write reports for example on Oil Companies in Nigeria (1999). EarthRights International campaigns for environmental, cultural and human rights alike. Medical humanitarian organizations such as Medecins Sans Frontieres are forced to tackle health issues related to environmental degradation in Central (Aral Sea) for example.

Many aid agencies are now working directly on environmental issues, bringing a developmental philosophy to this area which has often been lacking in the past. The combination of experience and philosophy from the aid agencies and the energy and resources of the environmental movement may prove to be an influential marriage.

2.6 Women's organizations

Of enormous importance in every country of the world. Women's organisations are increasingly taking the lead in many aspects of social justice. Without the direct involvement of women human rights will never come to fruition for half the world's population. Women must have their own organisations as well as participate in other organisations. Their interests are not necessarily separate from men's. But experience has shown that women's organisations will fight for women's rights most effectively.

Although usually having few resources there are essential networks and support mechanisms that women's organisations can provide. Many women's organisations have a philosophy that identifies the requirements of women and children as having primary value. The women's movement is a global phenomenon and is probably the fastest growing area of human rights defence.

Many male human rights defenders forget the importance of women's contributions to human rights work. Human rights depend on every person knowing what their rights are and how they can assert those rights. Women are in a unique position in their families and villages to teach and demonstrate human rights.

3. NGOs international networks and assistance

The categories listed above are only a convenient way of describing the multitude of activities associated with NGOs around the world. The categories are not clean divisions between different types of organisations. Most NGOs cross over those boundaries and have many interests and skills. Human Rights defenders need allies and international support if they are to do their work effectively. They need money, skills, moral support and encouragement. They also need an information network on which they can send out urgent information and know it will be addressed by supporters in other countries. This is possibly where the greatest value lies in establishing links with NGOs around the world.

NGOs also need protection against violence. International support can provide a certain measure of protection. Although there are some governments and paramilitary groups which will take no notice of international opinion, these are rare. Even superpowers like China are now taking notice of international pressure on human rights.

All Human Rights defenders in the developing world should have an emergency plan which they can activate in the event of a military coup or paramilitary attack. This should include getting factual information out to international supporters immediately and other forms of protection that might be necessary.

4. International supporters, solidarity groups, etc.

There are many people and organisations of goodwill in western countries who can provide essential support to human rights defenders of the developing world, especially in times of crisis.

Sometimes these are focused around a migrant community in which some members continue to support political forces inside their country. Solidarity Groups have an important role to play. They can:

• get media attention
• provide funds or volunteers
• lobby on your behalf at governmental forums
• demonstrate public support
• provide a safe haven for victims of persecution who may have to leave their country

International supporters must be kept informed regularly about your situation. A newsletter is a useful way of doing this. Visits should be encouraged, both by your overseas supporters to your country and by your people to them.

Sometimes migrant communities are out of touch with the home country. They might have left many years before. In their own minds they may picture their home country in the way they remember it, not realising that it has changed as the years have passed. Consulting with the people for whom any activist is struggling, lobbying and campaigning is a primary responsibility.

5. Academics

University academics are an important resource, which should be considered. Due to their high credibility with the western media and with governments, academics can play an important role in lobbying. They can write a report, attend government forums and make media statements on your behalf.

Note: Some care should be exercised in this process. Make sure that you retain control of the process and make sure you know what the person is going to say and how they will express it. Too often academics remain silent on issues due to the nature of their own institutions. They may be unwilling to take sides in a political issue. Sometimes they may earn money as a consultant to governments or multi-national corporations and so may not necessarily take your side in a dispute. But you may also find a specialist with an independent and credible voice who can assist your campaign.

6. Protecting human rights defenders

Those who defend the rights of others-- trade unionists, lawyers, men, women, children, religious figures, teachers and others--are all too often violated for their actions. Recognition of the important but often difficult and dangerous work of human rights defenders is essential so that they are protected in their struggles. For over a decade, a working group of the United Nations Commission of Human Rights has been negotiating a declaration which would reaffirm and strengthen the work and rights of those who contribute to the elimination of human rights violations.

In 1985 the working group began to draft a "UN Declaration on the Rights and Responsibilities of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms" which became more commonly known as the Declaration on the Rights of Human Rights Defenders. On March 4, 1998 the draft declaration was finally adopted by consensus.

7. Applying for funding

When writing submissions for funding to western NGOs, it is important to keep the following points in mind:

Credibility is everything. A potential funder is going to ask - can these people actually do what they say the will? Include some evidence to show you can (e.g. previous project funding, reports submitted, etc.) It will help enormously if the person making the decision on your submission knows you so try to make personal contact. If representatives of funding organisations are visiting your area, meet them, invite them home.

Make a concise budget with as much detail as possible. And keep a constant series of reports flowing back to the funder. Account for all the money spent promptly. In your submission, show how you are going to accomplish your objectives. Do not make a broad statement of intention, always provide practical details.

Presentation is important. Provide a neat, well written, concise submission. Too many words saying very little impresses no one. Provide a one-page summary at the front (keep in mind the needs of the person reading your submission - he/she may have hundreds of others to read as well). Keep in mind the funding guidelines of the organisation you are writing to and try to anticipate their questions. Always keep a copy for yourself. You may need to negotiate some changes.

Once you receive funding always report regularly to the funder and maintain your credibility. Not surprisingly many NGOs of the South do not report, nor do they account properly for the funds received. If you do not make regular reports you will stand out and be remembered next time.

Some funders make unreasonable demands on their partners in the developing world. If you receive funding from a number of different organisations, all with different guidelines, deadlines and methods you could spend all your time writing reports. Try to negotiate joint funding arrangements and so be able to write a common report which will suit the different funders. Try to establish reporting deadlines which suit you. Some funders work in time periods which are too short. For example, one year or six months can be too brief a time to establish and run a particular project, yet the funders can be unable to adapt themselves to your needs. Make them aware of the way their priorities are affecting you and preventing you from accomplishing your work. Develop your relationship to the stage where you can request sufficient funds for two or three year projects.

Do research: ensure that the potential funder has spent money before on your type of human rights activity. Find out whom they have funded in the past and custom-make your funding requests. Finally, do not give up on potential funders with funding priorities and criteria that match your organizations' programs and goals. A funder may say no once or twice, but the third time they could say yes.

8. Asia-pacific NGOs

Following the stimulating and effective Bangkok NGO Forum of March 1993, one of the preparatory meetings for the Vienna World Conference on Human Rights (June 1993), there is enormous interest among Asian and Pacific NGOs for future networking and combined action.

The Bangkok NGO Declaration now stands as an important document for NGOs. Perhaps its most significant achievement is that it destroys the concept, promoted by the governments of China, Malaysia, Indonesia and Singapore, in particular, that there is an "Asian way" of human rights. This attempt to undermine the universality of human rights was completely undercut by the combined NGO statement.

One outcome of Asia-Pacific NGOs' participation in the Vienna World Conference on Human Rights in 1993 has been the establishment of closer regional networking. In particular, a Facilitating Team has been established. While it is not yet clear how effective this will be, nevertheless it indicates the importance which NGOs are placing on enhancing networking on a regional basis.

Further information/contacts

NGO CODES OF CONDUCT

Code of Conduct for The International Red Cross and Red Crescent Movement and NGOs in Disaster Relief www.ifrc.org/pubs/code

INTERNATIONAL SERVICE FOR HUMAN RIGHTS, HUMAN RIGHTS MONITOR

produced by the, 1, Rue de Varembe PO Box 16, CH-1211 Geneva 20 cic Switzerland Tel: +41 22 733 51 23 Fax: +41 22 733 08 26

ACFOD

PO Box 26, Bungthonglang, PO Bangkok 10242, Thailand, t: + 5779357 f: +662 3740464

THE AFRICA FUND

50 Broad Street, Suite 711

New York, NY 10004 tel: 212-785-1024 f: 212 785-1078 www.prairienet.org/acas/afund.html

THE CARTER CENTER

One Copenhill, 453 Freedom Parkway

Atlanta GA 30307 tel: 404 331-3900 http://www.emory.edu/CARTER_CENTER/homepage.htm

FORUM ASIA

The Asian Forum for Human Rights and Development (Forum-Asia)

C/o Union for Civil Liberties, 109, Suthisarnwinichai Rd.

Samsennok, Huay Kwang, Bangkok 10320, Thailand

Tel: 662 2769846-7, Fax: 662 2762183

HUMAN RIGHTS INTERNET http://www.hri.ca

INTERNATIONAL CENTRE FOR HUMAN RIGHTS AND DEMOCRATIC DEVELOPMENT

63, rue de Bresoles, Montreal, PQ, H2Y 1V7 Canada t: 514-283-6073, f: 514-283-3792

http://www.ichridd.ca, email: ichrdd@ichrdd.ca

INTERNATIONAL FEDERATION OF HUMAN RIGHTS LEAGUES

17 Passage de la Main d'Or 75011, Paris, France t: 33 1 43 55 25 18, f: 33 1 43 55 18 80

www.fidh.imaginet.fr/uindex.htm

INTERNATIONAL RESCUE COMMITTEE

122 East 42nd Street, New York, NY 10168-1289

t: 212.551.3000, f: 212.551.3180, e-mail: irc@intrescom.org, www.intrescom.org

OXFAM INTERNATIONAL

Email: administration@oxfaminternational.org Website: www.oxfam.org

PROJECT DIANA: ONLINE HUMAN RIGHTS ARCHIVE

Maintained by the Orville H. Schell Centre for International Human Rights Yale Law School

PO Box 208215, New Haven, CT 06520-8215 http://diana.law.yale.edu/

SURVIVAL INTERNATIONAL

11-15 Emerald Street. London WC1N 3QL, UK

Tel. +44 (0)20 7242 1441 Fax: +44 (0)20 7242 1771 http://www.survival.org.uk

WORLD ORGANIZATION AGAINST TORTURE

PO Box 35-17 Rue de varembe CH-1211 Geneva 20, t: 41 22 733 31 40 f: 41 22 733 10 51

Email omct@omct.org

By Joan Staples, Executive Director, DTP

1. General Principles

The model for developing strategic advocacy, which is discussed here, is based on the principles that NGOs should:

(a) be responsible to their constituents, ie not elitist. They should always be reporting back to constituents to ensure that the policy being stated is understand and supported. This allows them to claim that they are truly representative;

 

(b) be developing broad-based support for their ideas in order to inform and influence decision-makers;

 

(c) be aware that they use ethical means to obtain their ends. This means attacking adversaries' policies, but not their humanity.

2. Overview of a Model Strategy

A. Decide on the objective/goal of the strategy. To make it realistic and achievable:

• Identify target groups/decision-makers who can make the changes you want, eg national government, UN agency, multinational.
  
  
• Establish a timeframe for your planning. How long a campaign? Are there milestones that can help to raise the profile? Eg national elections, ‘International Year of....', a key relevant anniversary.
  
  
• Identify resources available:
  • Finances
  • People to work on the strategy
  • Legal framework in which you are working
  • Data about your target group
  • Current research available on the issue, players, etc.
  • Key people who can be accessed who have inside information or can facilitate the obtaining of information
    
    
• Identify gaps in your resources. (Resources such as people and finances will increase in relation to the increasing profile of your work. If you have a worthy cause, show your NGO to be reputable, efficient, able to attract supporters and mount a successful campaign, then money and people are likely to eventuate. Success breeds success.)
  
  
• Most importantly, make sure that your constituents have input to developing the goals of your campaign, so they fully support it.

B. When a goal is decided, develop an ongoing media strategy relevant to the goal. Your media strategy is a key part of your overall strategy.

C. Develop a communications strategy for constitutents and allies to keep them informed and advised of support and mobilisation required. Empower them with commitment and passion. Always provide information on actions they can take to show support for your goal. Being able to show that you are building public support is important in influencing decision-makers and in giving positive feedback to your supporters, who will then want to continue working on the goal.

D. Develop alliances, with, for example, local, national, international NGOs, lawyers, civil liberties groups, scientists, technical experts. Keep them informed of progress towards your goal and with information on what actions they can take in support.

E. Actively create new support groups for your cause, particularly overseas, if there is an international aspect to your issue. Keep them provided with up to date information and support activity needed from them.

F. Identify and research opponents, eg elites holding power, relevant interest groups, multinationals, corrupt officials.

G. Continually educate and train your supporters and constitutents.

H. Reassess your progress and adapt your strategy accordingly.

3. Discussion.

(a) Relationships with constituents. Keeping a feedback loop going between your constituents and your NGO leaders is essential. It allows the NGO to claim legitimacy that they really do have support. You can be a great diplomat or speaker, but if you cannot show that you have support, your influence is negligible.

It is often hard work balancing the competing interests and factions within your constituents, but this is part of advocacy work that must be done to claim legitimacy.

It can also be frustrating for leaders to have to put in the effort to inform and educate constituents on what is happening. It is always tempting to negotiate ahead of what your constituents know, but bringing your constituents with you is essential, if NGO leaders want to continue to exercise influence and authority.

As an NGO leader, you are wise to respect strongly stated policy from your constituents. First try to inform and persuade them to your point of view if it is different, but beware of losing them if you act against their wishes.

Success in keeping your constituents informed and supporting you as an NGO leader will increase your authority as constituents learn they can trust you.

(b) Relationships with the corporate sector.

(c) Relationships with government officials.

(d) Principles for developing alliances.

By Diplomacy Training Program

"Show me a country without a free press, and I'll show you a country where human rights are trampled down."
Justice Richard Goldstone

Effective use of the media is essential for human rights defenders and this section gives an introduction only. Utilisation of the media is a skill developed through practice, as well as by developing a network of contacts among journalists. It cannot be learned simply by reading about it. Media techniques vary widely and different countries and situations need specific solutions.

1. What is The Media? and Getting our Message Out

By media we mean newspapers, radio and television, and now some aspects of the Internet. However, in this article we will concentrate on newspapers, radio and television.

Many countries of the South do not have a free media, or have only limited access to radio or television news and current affairs as well as newspapers. While there are some high quality newspapers in the South with coverage of international events, most of them are in English, which means that the average citizen cannot read their information. In recent years, in countries like Indonesia where there has been a change of regime, there has been improvement in the ability of the media to be more independent.

Modern politics in the countries of the North is almost inconceivable without the media. Politicians and the media need each other to functions effectively. However, the media in the North is also continually under threat, often from economic centralisation of ownership. So, freedom of the media in the North and South is a precious right that needs to be protected and encouraged for a free society.

Some international news services provide local language programs. For example - Radio Australia is still heard by many people in Asia and the Pacific every day, despite recent cutbacks to its operation. It has a good reputation and is usually widely accepted by ordinary people as being truthful. The BBC World Service also has a high reputation.

For human rights defenders in Asia and the Pacific, these news and current affairs services are not difficult to contact. Providing information to them is an important tool for human rights defenders wanting to influence their governments. Keeping such news services informed can be a key element in any media strategy, because they broadcast to the whole region. They make your news truly international. Telling other governments, investors and foreign corporations about the issue puts important pressure on them.

2. More on Getting Our Message Across

If we are the newsmakers we should consider:

1. establishing who the target audience is;
2. understanding the structure and personalities in the complexity of the media;
3. establishing legitimacy in the eyes of the media as news makers;
4. achieving a basic level of technical competence.

2.1 Target Audiences

The target audience will differ depending on your overall strategy of whom you are trying to influence. (Who holds the power to bring about change and how can we influence them?). We may need to reach more than one target audience. For example,

• in our own country the target audience is likely to be the broad population and sometimes neighbouring countries;
• in a former colonial country the target is likely to be the government, expatriate population, aid agencies and other NGOs, i.e. key opinion makers whose criticism influences government policy;
• in the region the target group is likely to be various governments and opposition parties and regional organizations, such as the South Pacific Community, ASEAN, UN Agencies etc and possibly also an expatriate community;
• on a global scale there is the UN and its agencies, the EEU, multinationals, as well as international NGOs such as Greenpeace and Amnesty International.

2.2 Media Complexity

The complexity of the media is contingent on the health of the democracy in which the media operates. Reaching specific audiences also means targeting different publications, channels, programs and journalists. Each of these can keep a full time worker busy. That is why all large organizations employ full time journalists on staff. However the complexity and structure of the media varies from one country to another. There are no easy rules to follow because what is common practice in one place may be quite different in another. However, it is worth analysing which media is most likely to be read by your key decision makers.

Each form of media - print, radio and TV - has vastly different standards and needs so that a single story needs to be dealt with slightly differently if coverage by all three is being sought. You are not going to be able to change the media, so you will need to be flexible if you want your story to get coverage. Journalists are individual people with their own individual skills, interests and prejudices, so the newsmaker needs to learn to identify the paths through the complexity, which will allow the story to get to the target group. Never assume that because one journalist is not interested in your story that others will be the same.

We can also get the story into different outlets and reach different audiences by thinking laterally. For example, women's magazines in some countries, may take a story about children or women's oppression, if the story is given a human interest by being told about a woman who is involved. Care must be taken not to ‘use' individuals, but a responsible adult woman who can give consent and who can tell her story well, can create a powerful message with a "woman's angle".

2.3 Establishing Legitimacy

Journalists will soon start coming to you and to your organization, if you are seen as having credibility and to be legitimate. Building this up will take considerable time. The most important factors are:

• respect for accuracy,
• newsworthiness and style
• personal contact, including the establishment of good working relationships with journalists

Purism and dogmatism are certain failures. Do not assume that because your cause is high minded that you are right and that therefore your story should be run. You have a responsibility to your cause to understand the media and how to best present your message in a professional manner.

2.4 Technical Competence

Chaotic and sloppy work will seriously damage the effect of your work. Too often NGOs use the excuse of having limited resources. This constraint needs to be recognised and those resources which we do have must be used as efficiently as possible. (Many famous journalists have only used a pencil and a notebook) Often this means not trying to do too many things at once. We must work within our means. This means no spelling mistakes, factual errors or untidy presentation, as well as appropriately written media releases, and newsworthy media conferences.

Journalists quickly learn to respect the competence of others because it benefits them directly. They will not have to rewrite your media release, or take additional photographs, or research your sources. Remember that journalists work to tight deadlines and have little spare time. They also risk their own reputations if they trust the accuracy of your material and it turns out to be incorrect in some way.

3. Media releases

The single most common means of gaining media attention is through a media release, no matter from which country you are operating. Often radio and TV interviews only happen because of the groundwork that has been achieved with a written media release. Journalists need media releases because it gives them some "hard copy" from which to commence their story and makes their job a lot easier. News is immediate and so journalists like their media releases immediately i.e. by fax, or by email.

Above all, the information provided must be accurate. If you are caught providing inaccurate or misleading information respectable journalists will quickly shun you. An important aspect of competence is judging when information is likely to be wrong - after all you may not be able to check facts directly. Your sources of information must be reliable if you are to pass that information on to international media attention.

3.1 Writing a Media Release

When writing a media release think of how a person who is totally ignorant of the situation would read it. It must answer the essential questions:

Who?, What?, When?, Where? and Why?

Who - it must identify the major actors in the drama (all good stories have some element of drama, news loves confrontation - note the use of the word story - journalists like stories, rather than reports or accounts because the word signifies something that people will want to read or listen to). The importance (i.e. well known public figures) can be crucial but, also, the image of the battler, a David fighting a Goliath, is a powerful one.

What - we must state carefully and straightforwardly what actually happened which needs to be reported to the world. Never assume that everybody knows the basic elements of your particular struggle. Because you are close to it, you must not forget that the rest of the world is busy living their own lives and struggles, and you may have to include a few words that briefly tell the main story again.

When - it must clearly say when the events occurred. Details are important - give actual times, not "recently" or "last week". If a press conference is planned do not forget to say when it starts.

Where - the place must be clearly identifiable. If it is not well known it may be necessary to explain where it is.

Why - it must provide some reason for what has happened - it is not just a random event. There is a cause, and in most human rights situations this is the crucial piece of information.

3.2 Technology

We live in an era when it has never been so easy to send written and spoken communication to each other. Not so long ago, it was necessary to deliver press releases by hand, or to post them in the mail if hand delivery was not possible. Now a fax machine or email can send your media release instantly.

Other technological marvels bring effective use of the media directly into our hands. The portable video camera for example enables us to take our own television pictures. These can be sent by satellite instantly to the centres of media power, if we are sufficiently organised to do so. Video cassettes can be smuggled out of war zones, or through security checks easily. The ease of modern travel, with huge numbers of tourists visiting developing countries every day, gives us the means to travel quickly and cheaply.

3.3 Some simple principles in writing a media release

If you are new to writing media releases, look at those put out by experienced journalists working for politicians in your country. This can be a guide to what is considered professional in your region. The following is a recipe to use, if you feel inexperienced. With experience, you will know how to vary the recipe, but in the interim the following check list may help.

1. Provide a catchy title to attract attention. It is unlikely this will be reproduced. Its purpose is to get the journalist to read the release. Although colourful, it should be reasonably accurate in reflecting what the story is about. Remember that newsrooms receive hundreds of releases every day and yours can easily get overlooked.
   
   
2. State the basic message in the first paragraph including who, where, when, how and what, eg name of organization, person, their title, where they were and what happened or will happen or was said. The ‘when' should be very recent for it to be news. ‘Today' is best. ‘Yesterday' is not so good and ‘recently' is hopeless, if you want the story used. This paragraph is an overview of the story and the key angle you are promoting.
   
   
3. The remainder of the release, after the first paragraph, should contain no more than about three key ideas, concepts or aspects of the story. It should be broken into about 3-5 paragraphs, with the less important information towards the end of the story, because this is where it will be cut first. Keep it simple. Do not write an essay with lots of explanation.
   
   
4. Quotes are useful in ensuring that the exact words you want are used. In fact, the whole of the release after the first paragraph, can all be quotes if you wish. The person quoted must by identify by having their title or position given on the first occasion their name is used, and they should be the appropriate person from a reputable group. The journalist may paraphrase what is said when the article is written.
   
   
5. Language should be simple. Do not use long or unusual words. However, so use a good simile or metaphor or some colourful picture language in an appropriate place to liven up your story. This can be an important powerful way to emphasise your message in a brief way, which will be remembered.
   
   
6. Length should not exceed one and a half pages, or two at the most. However, one page has the advantage that half the story does not get lost on the newsroom floor in faxing.
   
   
7. Never give estimates of how many people you expect to attend a meeting or rally. If you do not meet your target, your meeting or rally will be branded a failure.
   
   
8. Contact information for a person or persons who can give further information must be provided at the end of the story. This should include phone contacts outside usual working hours and numbers for which you are sure someone will be available, if a journalist rings. This contact information is essential in having your story picked up, particularly for radio and television.

4. Press Conference

The increasing dominance of the media by television has meant that successful news makers must compete with dramatic visual events for air time on news bulletins and current affairs programs.

The Greenpeace organization has largely pioneered international news making through the use of visual events. Flotillas of boats surrounding nuclear warships, surfboard riders cresting the bow wave of a US Navy warship, rubber dinghies battling toxic waste vessels in the North Sea, Rainbow Warrior dodging the French Navy off Muroroa.

These images are designed for the world's media and have been extremely successful. TV news editors around the world, whatever their own politics, jump for visual images that make daily events look more and more like the movies and adventure shows that fill the gaps between advertising slots. On any day Greenpeace can beat Presidents and Prime Ministers to the top of the evening news.

We probably cannot compete with this sort of publicity and may not wish to do so, but being visual in presenting stories is important to get a picture in a newspaper, a further radio interview because the journalist's interest is aroused, a magazine story and especially a TV news story where visual images are always important.

The most common visual news event is the news conference. Always make the conference visual. Large photographs, posters, flags and various objects that illustrate the story are essential. If the story is about a particular village or town, hold the conference in that place, giving the camera operator a chance to film as much footage as possible. The backdrop behind the main speaker should be consistently visual, such as your group's logo, a colourful banner, posters, etc.

The same applies to one to one interviews, which often follow a conference. Also, if you have some physical object to present (eg weapons or documents), tell the crews before and place them on the table, well presented, where the operator can take close-up shots that will later be edited into the story.

It is most important that a news conference is open ended. After the presenter has made his or her presentation and then answered journalists' questions, many journalists will want their own interview, if they like the story. This is quite time consuming but it is the real purpose of the conference. We need to recognise the journalists' need to present something different from their competitors. They therefore want an ‘exclusive interview' to supplement the media conference.

To get the media to attend a press conference the following conditions are necessary.

For an Organisation:

• Need to provide clear and concise details about the event, especially the time, place, contact person etc;
• must have something strong to present (newsworthy);
• should issue a media conference announcement, preferably the day before, that will encourage the media to come by indicating sufficient about the story to show that it is newsworthy;
• should follow-up the media conference announcement before the conference, with a phone call to some journalists to ensure that it has been received. Many media conference announcements are retrieved from the rubbish bin as a result of this phone call!

In Addition:

• the presenter should be a person of some stature or have a media profile;
• the presenter should be articulate and preferably experienced;
• a media release should also be distributed to journalists when they arrive at the conference, to assist them to quickly understand the story;
• timing is important for news bulletins, with the best times being between 11 am and 1.30 pm unless the issue is strong enough to push another story out of the bulletin;
• timing for radio is not so important as radio can use material quickly and easily, it is very immediate, but it is best in metropolitan situations to get stories up before 4 pm;
• you should try not to clash with another media conference, if possible, particularly if it is your opponents' (you will find that government announcements will be seen as more important than yours);
• newspaper stories should generally be in by about 4 pm at the very latest, unless the story is very strong (deadlines for newspaper differ widely depending on the day of the week, the day's stories, the keenness of the journalist etc);
• you should consider the day of the week since Fridays are busy days, whilst Saturdays and Sundays are slow days (meaning that not many news stories are available), although sometimes this means that media organisations are poorly staffed.

5. International media networks

The major news gathering organizations (called News Agencies) are very large and western dominated. Some of them operate as a journalists' cooperative, some are privately owned and some are government owned (eg Agence France Press). The main ones are Associated Press (US), Reuters (London), United Press International (US), Agence France Press (Paris), Australian Associated Press (Sydney).

Interpress News Service is the only large news agency, which has a philosophy of presenting news from the developing world. It is based in Europe but has offices throughout the Third World (but with little coverage of the Asia-Pacific region). It regularly covers the United Nations meetings. Another good newspaper receptive of issues from developing countries and does over the Asia Pacific is the Guardian Weekly, based in the UK.

Most international news presented in newspapers and television comes from the large agencies. With greater concentration of ownership in news media the generation of news stories can occur centrally and they can then be sent by satellite to individual newspaper and television stations. Consequently we are likely to read a story written in New York or London when we open our local daily newspaper. This is especially true of international news and is one reason why there are not many journalists who are well versed in international affairs.

6.Conclusion

When visiting a Western country, and in attempting to tell your story, assume that journalists know nothing about your issue, so explain the basics first, even simple history, which you might expect everyone to know. You will be amazed, if you give a press conference in a Western country, at the depth of ignorance of most journalists (and the general population), about important issues in the developing world.

Journalists sent to cover your story are often young and inexperienced. They may be going from your important issue to write an account of a social dinner or a sporting prize. They may not have time to even write your story. So what you give them must be capable of being given direct to their sub-editor. You can expect it to be cut severely in length, or to have an unsuitable headline attached to it. (Reporting journalists usually do not write the headlines that go with their stories, that is the job of the sub-editors). We need to try and understand the limitations within which the media work, that journalists may be often pushed for time, have deadlines that do not match our expectations, owners who hold different political views and that headings of stories are written by sub-editors, not the journalist who wrote and hopefully understood the story. It is up to us to work around these limitations in as professional a way as possible.

Disappointment is inevitable in dealing with much of the media as they are certain not to share your concept of how important your 'news' is. Nevertheless, getting our story into the media is one of the most important weapons in defending human rights. It is simply a matter of persevering, developing our media skills, of cultivating networks among journalists and helping our issues by being as professional as we can in our media work.

We are aware if three major organisations that work to defend press freedom around the world and to protest against and publicise violations of press freedoms;-

Reporter Without Boarders (RSF) defends media freedom around the world, investigates and protests violations of press freedom, takes action and raises awareness through reports and campaigns. RSF has consultative status with the Council of Europe, and the UN Commission on Human Rights, and UNESCO.

Contact information:
5 rue Geoffroy-Marie 75009 Paris
Tel: (33) 1 44 83 84 84
Fax: (33) 1 45 23 11 51
www.rsf.fr
rsf@rsf.fr; Asian issues asie@rsf.fr

SOS hotline to report violations Fax (33) 1 47 77 74 14

The Committee to Protect Journalists is based in New York city, with a full-time professional staff that monitors media freedom conditions around the world.

Contact information:
330 7th Avenue, 12th Floor
New York, NY 10001 USW
Tel: (212) 465-1004
Fax: (212) 465-9568
www.cpj.org
info@cpj.org, to report a concern in Asia asia@cpj.org

IFEX The International Freedom of Expression exchange links freedom of expression groups around the world and publishes worldwide freedom of expression updates.

Contact information:
489 College Street
Suite 403, Toronto
Canada, M6G 1A5
Tel: +1 416 515 9622
Fax: +1 416 515 7879
www.ifex.org
ifex@ifex.org