7. Economic, social and cultural rights catching up
The work done by PHR-UK in supporting the adoption of a General Comment on the Right to Health is likely to be further enhanced this decade. Progress is being made towards giving individuals or groups the right to submit communications concerning non-compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR). This avenue is available under ICESCR's sister covenant, concerning civil and political rights, and under the conventions on torture, and discrimination.
This development was recommended by the second UN World Conference on Human Rights, held in Vienna in 1993. The Committee on Economic, Social and Cultural Rights (CESCR) concluded a draft optional protocol on communications in 1996 and submitted it to the annual session of the UN Commission on Human Rights (CHR) in 1997. The Commission then requested comments from its Member States as well as from States Parties to the Covenant, intergovernmental organisations, such as the Council of Europe, and NGOs.
Despite periodic reminders, relatively few states have responded. Of the 14 which have, 11 support the draft. Two intergovernmental organisations and six NGOs have also responded. They support the draft, and have usually added suggestions on both form and substance. States have two major problems with the draft. They dislike the prospect that they can be found to have violated the treaty, given that the rights are of a different character from civil and political ones. They point out that States Parties are only obliged to take steps within the maximum available resources to progressively achieve the full realization of such rights [Art.2.1]. This seems an unusual argument to make, because the Committee is fully aware of that and aims to achieve it through a system of benchmarks. It is only when agreed obligations are not being met that a country is likely to be found to have violated the rights set out in the treaty.
The second problem countries have with the draft optional protocol is that it enables any individual, group or third party to bring a complaint to the Committee's attention. States are concerned that a third party might bring a frivolous complaint, perhaps for political reasons. To prevent this, some States propose that such complaints should only be made with the knowledge and consent of the victim. Human rights groups have argued that this is not always practical, since victims could come under enormous pressure from governments to withdraw complaints. They point out that States can draw the attention of the Committee on Economic, Social and Cultural Rights to any perceived frivolous factors in the allegation when they respond, and that the Committee is competent to take that into account when considering the communication.
It seems possible that the UN is close to a consensus on the draft optional protocol, and that it is time for the matter to return to the Commission on Human Rights for discussion with a view to adoption. PHR-UK has been consulted by the UN about the Optional Protocol, and will urge its speedy adoption.
8. Medical Journal Recording Injuries of Arrivals Provides Vital Evidence Against Russia
The Council of Europe's Committee for the Prevention of Torture (CPT) has taken the exceptional step of making a public statement about a member state. The statement, issued on July 10, 2001, was only the third one in eleven years. The previous two concerned Turkey. Using its powers, under Article 10 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the Committee complains that Russia has failed to co-operate with it.
The Russians deny that a place of detention operated at Chernokozovo from early December 1999 to early February 2000. However, the CPT possesses a copy of the establishment's medical journal. It covers the day by day arrival of detainees, and records any injuries they bore for the period November 8, 1999 to February 12, 2000. The CPT also has statements from numerous staff who worked at the place of detention, as well as from detainees. It has strong evidence that many detainees were physically ill-treated there at that time, and has urged the Russian authorities to conduct a thorough and independent inquiry into this.
The CPT has also asked the Russians to investigate and prosecute all cases of ill-treatment of detainees that have occurred during the conflict in Chechnya. The Committee is particularly concerned about the progress of investigations into the deaths of about 53 persons, whose bodies were discovered in a dacha estate near Khankala in February 2001. Some of the bodies were identified as those of persons who disappeared after being detained by Russian forces. Some had clearly been summarily executed. The Russian authorities wrote in June to the CPT declining to co-operate in these matters and challenging the CPT's competence to request such co-operation.
In challenging the CPT in this way, the Russian authorities left the Committee with no alternative. Preventing torture, inhuman and degrading treatment or punishment in Europe's places of detention does not just require inspections, it also requires a commitment to investigate and punish, in order to deter. A state party that declines to demonstrate such a commitment could be defeating the objects and purposes of the treaty. If the Committee takes that view, it may ask the Council of Europe whether Russia should continue to be regarded as a party to the treaty.
Some human rights organizations have long argued against the admission of Russia and some of its neighbours to the Council of Europe, as these states simply were not ready to comply with the European Convention on Human Rights or the European Convention for the Prevention of Torture. They point out that Spain and Portugal were excluded from membership when they were under dictatorial rule, and that Greece was effectively expelled when it was under the rule of a military junta. Others argued that the best way to bring the former Soviet states up to speed was to admit them and engage them in dialogue. This helped to secure a moratorium on the death penalty in Russia, at a time when many Russians felt that the death penalty was needed to combat the Mafia violence that threatened many parts of post Soviet Russia.
Russia has been very reluctant to co-operate with any visits to Chechnya, as UN High Commissioner for Human Rights Mary Robinson recorded following her trip there in 2000. The Council of Europe has discussed suspending Russia from voting; but the Russian authorities responded by threatening to leave the Council of Europe altogether. The prevalent mood at the Council of Europe is that European states are far more likely to influence Russian human rights if it remains within regional organizations than if it is outside. However, this view is only tenable while Russia shows signs of co-operation. Ignoring the evidence of medical journals is not a very positive prognosis.
9. Book review:
The Challenge of Human Rights: Charles Malik and the Universal Declaration, edited by Habib C. Malik (2000) Oxford; Charles Malik Foundation in association with the Centre for Lebanese Studies. 271pp.
"Soon my ten days vacation ended and I returned to Geneva. The station at Geneva was full of delegates. The President of the Social and Economic Council, Ambassador Charles Malik, greeted me with the words 'Good that I see you now; this very afternoon I signed a paper passing on the Genocide Convention to the General Assembly in Paris.' So we went to Paris, both the Genocide Convention and I."
The speaker is Raphael Lemkin, known as the father of the Genocide Convention; but who was Malik? Malik was arguably the godfather of the Universal Declaration of Human Rights. Not only was he present at its birth and involved in early drafts; but he steered its progress from the United Nations Commission on Human Rights, through the Economic and Social Council [ECOSOC] and on to the General Assembly. The Declaration was adopted on December 10, 1948, one day after Lemkin's Genocide Convention, without dissent. Malik's speech on the eve of the vote was influential in this, as he sought to attribute collective ownership of the Declaration, reminding each nation of its contribution.
Born in Lebanon in 1906, Malik studied mathematics and philosophy in Beirut before taking up philosophy at Harvard under A.N. Whitehead, and at Freiburg under Heidegger. Having established a department of philosophy in Beirut's American University, Malik was suddenly appointed as Lebanon's ambassador to the United States in 1945. In that capacity, he represented Lebanon at the 1945 conference to establish the United Nations in San Francisco. By 1947, Malik found himself on the UN Commission on Human Rights, which was tasked with drafting an International Bill of Rights, but swiftly decided to concentrate first on a Universal Declaration of Human Rights.
Diplomacy did not come naturally to Malik. At the Commission's first session, he treated the members to a philosophy lecture, pointing out the competing notions on the nature of man and how this effected perceptions of human rights. This resulted in a heated debate between proponents of the collectivist and individualist view of humankind. On another occasion, the Indian delegate urged members to avoid an ideological maze and concentrate on practical issues. Malik retorted, "Everything you say, Madam, must have ideological presuppositions, and no matter how much you may fight shy of them, they are there, and you either hide them or are brave enough to bring them out in the open and see them and criticize them."
On January 27, 1947 Malik was elected Rapporteur to the Commission. Soon after, it was decided that the Rapporteur, Chair and Vice-Chair, assisted by the Secretariat, would formulate a preliminary draft Declaration. The following Sunday saw the four of them, Malik, Eleanor Roosevelt, Peng-chun Chang and John P. Humphrey, working on a first draft in Mrs. Roosevelt's New York apartment. Chang and Malik were the intellectual heavyweights of the Commission and it was shrewd of Mrs. Roosevelt to get them together over tea. Chang emerged as a brilliant facilitator, through his ability to translate concepts from one culture into another. Another Commission member, Rene Cassin who was awarded the Nobel Prize in 1966, provided the drafting skills that consolidated the rights into a coherent Declaration. Malik swiftly developed diplomatic antennae, and it was these that enabled him to ensure that the Declaration was recognized as a universal one.
Early in 1948, Malik was elected to the presidency of ECOSOC. The Commission passed its draft Declaration to ECOSOC in June 1948. Its members were not so steeped in human rights as Malik; and they were expected to give the text a tough scrutiny. Yet that summer, ECOSOC unanimously accepted the instrument. The draft Declaration then moved to the General Assembly's Third Committee. The Third Committee held a secret ballot to elect its Chair, and Malik emerged as Chairperson. This was particularly fortunate, as the 58-member body went through the document line by line in 80 meetings ranging over October and November. There was a real risk that the prolonged debates would cause the Declaration to run out of time, and Mrs. Roosevelt and others were pushing for a vote. Malik calculated that every member had to participate fully if they were to take ownership of the Declaration. He believed that this was the only way to ensure a broad and lasting acceptance of the document. By the end of November, the Third Committee completed its deliberations and approved the text without opposition. The stage was then set for a vote by the General Assembly. Malik was one of only a very few people who were closely familiar with each stage of the Declaration's development. In his speech to the Assembly, Malik explained those stages with authority and clarity. He emphasized that no perspective had prevailed in the drafting save an international one, synthesizing earlier thinking about human rights. At three in the morning of Friday December 10, the delegates voted by 48-0 to adopt the Universal Declaration.
The Declaration has been accepted as an articulation of the rights referred to in the UN Charter, and is referred to in fifty international human rights instruments, sixty national constitutions, and numerous NGO mandates. It has been referred to in court cases in France, the UK, the US, Australia, the Netherlands, India and other countries. Things might have been otherwise had Malik not developed his diplomatic skills. In 1951, Malik succeeded Mrs. Roosevelt as President of the Commission on Human Rights. From 1957-58 he served as Lebanon's Minister of Foreign Affairs. In 1958-59 he chaired the thirteenth session of the General Assembly. In 1960, he left diplomacy for academia, and taught philosophy in the US, Canada and Lebanon. He died in Beirut in 1987.
The Challenge of Human Rights provides a record of Malik's work on the Universal Declaration. His speeches in 1945, his views on the Declaration and the famous 1948 address to the General Assembly are included. More interestingly for many readers will be the excerpts from the verbatim records of the drafting committee. Cassin, Roosevelt, Chang and Malik feature prominently in these, and readers can assess Malik's diplomatic skills for themselves.
ROOSEVELT E., The Autobiography of Eleanor Roosevelt (1961) NY; Harper and Bros. Ch.'s 30-32 - Pages 299-323.
HUMPHREY J. P., Human Rights and the United Nations: A Great Adventure (1984) Dobbs Ferry, NY; Transnational Publishers.
HAMILTON B., Rene Cassin, The Biographical Guide to French Politics, edited by David Bell and Peter Morris (1990) London; Macmillan Press.
HAMILTON B., Raphael Lemkin, Jewish Chronicle, January 26, 2001: 30.
HANNUM H., The Status of the Universal Declaration of Human
10. PHR-UK Secretary urges Emergency Resolution on Death Penalty
Harold Hillman, an international expert on capital punishment was so shocked by reports of China's use of the death penalty that he sought an emergency resolution on the issue at the BMA's annual three-day conference of regional representatives this July. PHR-UK Chair Peter Hall sent him reports of a US Congressional hearing in Washington, in which a former specialist in the burns victims unit in Tianjin described how he removed skin and corneas from the corpses of executed prisoners, and had observed kidneys being removed. The organs and tissues were then used in transplants at considerable profit.
It is widely reported that prisoners can be executed for minor offences in China, such as tax evasion. Under international human rights law, the death penalty is permitted; but should be restricted to the gravest crimes, and should only be carried out after an appeal. Many human rights lawyers are concerned about the method of execution. They say that hanging, stoning, gassing or the use of the electric chair can amount to cruel or unusual punishment, and therefore violate human rights law. Dr. Hillman has researched this and provided testimony to US courts on it.
The death penalty is an area where both medical and legal expertise are needed to ensure that human rights are not violated. Regular readers will know that this is a topic that Bernie Hamilton raises regularly in his talks with members of the UN Human Rights Committee (HRC). This year, PHR-UK will be represented at an international conference in Ireland on capital punishment, to which members of the HRC are invited, as well as staff from the Inter-American Commission on Human Rights and leading British and American academics.
Speaking in London, Dr. Peter Hall said, "There is clearly a growing sense of revulsion at the exercise of the death penalty in the Twenty-first century. The EU's Charter of Fundamental Rights, adopted in Nice last December, clearly states that no one shall be condemned to the death penalty or executed. Each of the thirteen states hoping to join the EU after 2004, must recognize that standard, and should ensure they have alternative punishments for those who commit grave crimes. This is an area where health professionals who have an understanding of pain and death should make their voice heard, and I hope that other European health and human rights organizations will be able to contribute to Europe's interpretation of human rights law."
11. The Impact of a Blunt Instrument
The final account of that fateful Friday night of the July 2001 G8 Summit in Genoa is likely to be determined by health practitioners. Certainly, PHR-UK read descriptions on the Internet that weekend of peaceful demonstrators who support such non-violent organizations as Oxfam being beaten by security officials as they slept in dormitories made available for them by the local authorities. It is difficult to reconcile such accounts with international human rights law.
The European Convention on Human Rights guarantees individuals freedom of expression (Article 10) and freedom of assembly (Article 11). Each member state of the Council of Europe must secure those rights for everyone within their jurisdiction, whether they be citizen or stranger. Article 3 states that no one may be subject to inhuman or degrading treatment or punishment. There may be no derogation from this, even in times of emergency (Article 15).
There are a number of questions to be answered. Accounts by demonstrators and security personnel may well conflict. Medical evidence is likely to be more convincing. PHR-UK salutes those medical practitioners who are prepared to testify on the injuries to their patients and their likely cause. Medical ethics and human rights law support such openness. The law can seem a very blunt instrument at times, but here is an opportunity for medicine to offer a degree of precision.