The International Law Commission met with the Sub-Commission this afternoon in a very interesting debate on the legal impact of reservations taken by countries when they ratify human rights treaties. In addition, several more papers were presented under the Sub-Commission’s agenda item 6. Today the Committee on Elimination of Racial Discrimination (CERD) also released its new general recommendation on the rights of non-citizens, work that was supported in part by the three year study of Professor David Weissbrodt on non-citizens.
The International Commission of Jurists also hosted an interesting panel over lunch, on military tribunals. That's the photo to the right.
Mrs. Hampson (expert from Britain) presented her final working paper on human rights treaty reservations, in a public session at which key members of the International Law Commission were also present to participate. The Law Commission is studying the overall impact of reservations to treaties, and efforts had been made in the past two years to establish a dialogue between the Sub-Commission and Law Commission on their parallel work on this topic.
The key problem is how to deal with reservations which states take to treaties where the reservation seems to gut the major intent of the relevant treaty provision. How should the treaty body tasked with monitoring that treaty provision react to such reservations? When does a treaty reservation become so broad that the purpose of the treaty seems to have been undermined? Should the country concerned be “invited” out of the treaty? Should they be required to comply with the treaty provision to which they have taken a reservation? Also, whose interpretation of the treaty and the reservation govern in the event of a conflict?
The discussion was “robust” as several members voiced concerns about state sovereignty, emerging norms of international human rights conduct, and the problem of states who seem to be saying one thing and doing another. More questions than answers are left. There seemed to be general agreement around the principle that treaty bodies have the competence to interpret the reservations to human rights treaties, but not what sanction authority they may have against states who disagree. Also, there seemed to be general agreement that human rights treaties are somewhat unique amongst treaties overall, and that this context should be born in mind when reviewing these reservations.
Mrs. Hampson’s paper is the final one in a series of papers she has produced on this topic over the last several years. The International Law Commission is also scheduled to issue some interpretative guidance on this topic soon. They promised to take into account the discussions ans developments in this year’s Sub-Commission in their final work product on this subject.
Terrorism has been a controversial subject at the Sub-Commission for many years. Mrs. Koufa (expert from Greece) has been conducting a multi-year study on the human rights impact of terrorism. Her study began before the events of September 11, 2001, and her work was obviously profoundly affected by those events. The study was extended an additional year to permit Mrs. Koufa to round up more information concerning the current developments.
Her final study was presented this year. It recommends the topic continue in various working groups and agenda sub-items. She made the point again this year that the definition of terrorism itself is too controversial to try to formalize. She said it could be legally defined, but politically there is no consensus as to what a terrorist is and what a legitimate freedom fighter is.
There were many experts and government observers who commented on Mrs. Koufa’s report, thanking her for her study and expressing their own views on what a terrorist is, whether there are both state-sponsored terrorists, and non-state actors, how important the fight against terrorism is, how much balance there should be with protecting human rights from counter-terrrorist laws, etc.
Mr. Rui Baltazar Dos Santos Alves (expert from Mozambique) produced a working paper this year on the concept of “international solidarity” in human rights. His alternate, Mr. Cristiano Dos Santos [similar name, but different person] presented the report and fielded questions and comments. The topic is important because it is referred to in many of the “classic” human rights instruments, implying some sort of obligation on behalf of states to help other states in promoting and protecting human rights. Normally, human rights obligations of states are thought of as an “inward” concept – towards the peoples of one’s own state. The notion of international solidarity points that obliation outward – towards helping peoples in other states.
The question is, what exactly are the boundaries and expectations of a state’s obligation when it comes to international solidarity? Judging from the debate after Mr. Dos Santos presented this paper, the question is a pretty open-ended one at the present. Minnesota Advocates volunteered a brief comment during the interactive dialogue after the paper was presented, pointing out that NGOs may exemplify international solidarity and that perhaps this example can be taken into account in future updates to this paper.
The paper will probably be updated again next year, by Mr. Dos Santos or another expert.
Mrs. Pinheiro (expert from Brazil) presented the report of the Working Group on Contemporary Forms of Slavery again this year. He served as chairman-rapporteur of the group’s 2004 session, which met at the end of June.
The group has done important work over the years. Because there are no treaty bodies who monitor and help states to implement the principal international treaties relating to the abolition of slavery, this working group is the only forum in the UN where states’ obligations under those treaties can be consistently monitored and discussed.
This year’s group continued the practice of commenting on states’ practices regarding their obligations under the international slavery abolition treaties. Mr. Pinheiro reported that some criticism was encountered by states who claimed the working group was operating outside its mandate in these types of activities.
Mrs. Warzazi (expert from Morocco) presented her 6th annual report on traditional practices which harm the health of women and girls. This report is very important, as it provides an annual assessment of the practices of female genital mutilation, honor killings, dowry killings, and other harmful practices which are observed against women and girls in many parts of the world.
Mrs. Warzazi has helped to build awareness of these problems, and promoted culturally-sensitive awareness campaigns and workshop in many Third World countries. She will no doubt be asked to continue her work in this area again for next year.
The Committee on the Elimination of Racial Discrimation also issued a press release today, finally releasing to the public the full text of its new general recommendation on the rights of non-citizens. This general recommendation provides interpretative guidance on how states who are a party to the Racism treaty should implement protections for non-citizens in their territories. The comment was in part supported by the multi year study conducted by Mr. David Weissbrodt, which culminated in a final report last August to the Sub-Commission.
The CERD had initially approved their general recommendation in March of this year, but had not released the actual text until today. It is now available in all official UN languages, and posted at their website.
Tomorrow the Sub-Commission continues discussion under item 6 (specific human rights issues).