1. WHAT ARE HUMAN RIGHTS?

¨ Human rights can be defined generally as those rights which are inherent in our nature and without which we cannot live as human brings. They are rights which every human being is entitled to enjoy and to have protected. Human rights and fundamental freedoms allow us to develop fully and use our human qualities and to satisfy our spiritual and other needs.

¨ Human rights are a human creation. They grow out of the feeling of injustice which human beings experience when their humanity is abused or denied. They are based on mankind's increasing demand for a life in which the inherent dignity and worth of each human being will receive respect and protection. Human rights introduce the idea of justice in the natural order of the world, thereby giving human existence a higher sense and purpose.

¨ Human rights are universal moral rights that should be respected in the treatment of all men, women and children. These are also called natural rights and they belong to people simply because they are human. They do not have to be earned, bought or inherited. People are equally entitled to them regardless of their race, sex, colour, language, national origin, age, class or religious or political beliefs. The underlying idea of such rights exists in some form in all cultures and societies. People still have human rights even when the laws of their own countries do not recognise or protect them.

¨ Human rights affect society as a whole. The denial of human rights creates conditions of social and political unrest, sowing the seeds of violence and conflict within and between societies and nations. The Universal Declaration of Human Rights opens with the declaration that recognition of the equal rights of all members of the human family "is the foundation of freedom, justice and peace in the world".

¨ Human rights are enshrined in internationally recognised laws such as the Universal Declaration of Human Rights. The Universal Declaration and various other convenants, conventions and declarations are created by international bodies such as the United Nations and they make up a body of "law" that has moral and sometimes binding force on nations.

UNIVERSAL DECLARATION OF HUMAN RIGHTS

On December 10, 1948, the Universal Declaration of Human Rights (UDHR) was created for the people of the world, affirming that all people are born equal in dignity. It was one of the first major achievements of the United Nations in the field of human rights. The Universal Declaration was drafted in the wake of World War II as a protest against the terrible atrocities which had occurred during the war and to help ensure that they would not be repeated. Each year on 10 December, the anniversary of the adoption of the Declaration is observed internationally as Human Rights Day.
The Universal Declaration states that human rights are "the foundation of freedom, justice and peace in the world". The UDHR laid down the basic hopes and needs common to all of humanity. It recorded the wishes not only of people from countries which had already reached a certain economic standard of living, but also the rights of people in countries where millions of human beings were still weighed down by oppression, poverty and lack of adequate education.
The UDHR was intended to be a "common standard of achievement for all peoples and nations". It has 30 articles which include civil, political, economic, social and cultural rights, and fundamental freedoms to which every human being is entitled.
The Universal Declaration of Human Rights was adopted by the General Assembly of the UN. At that time the UN had 56 members; 48 voted in favour, none against and 8 members abstained. The UDHR is not a treaty or a binding legal document. It is, rather, a declaration - a statement of intent or principle. Under the UN Charter, member states promise to take joint and separate actions to promote universal respect for the observance of human rights. There is therefore a strong moral expectation that member states will respect the spirit of the UDHR and follow its provisions.

The UDHR is also important because:

¨ It is used as a standard of beahviour and as a basis for appeals calling on governments to observe human rights.

¨ It has been made into law by several global and regional treaties or "covenants", and by legally binding agreements and contracts between individuals, groups and countries.

¨ It has influenced the constitutions, laws and court decisions of many nations and international organisations.

TYPES OF HUMAN RIGHTS

In 1966 the rights enshrined in the 1948 Universal Declaration of Human Rights were divided into two covenants - the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Covenants define in more detail most of the rights set out in the UDHR and deal with some additional rights.
The Covenants are treaties whose States Parties have formally agreed to abide by their provisions and the rights they recognize are expected to be law in those States. The ICCPR is considered to focus on individuals' rights and the obligations are meant to be discharged as soon as a State becomes party to the Covenant. The ICESCR is drafted more in terms of communal rights and states' duties, and the Covenant recognizes that full realization of these rights may have to be achieved progressively over a period of time.

Civil and Political Rights

Under the heading of Civil and Political Rights, all governments are to protect the life, liberty and security of their citizens. They should guarantee that no-one is enslaved and that no-one is subjected to torture or to arbitrary arrest and detention. Everyone is entitled to a fair trial. The right to freedom of thought, expression, conscience and religion is to be protected. These give people the freedom to think and to have access to information, the freedom to act and to choose what to do, and freedom to join in the political life of their community and society.

Articles 3 to 21 of the Declaration set forth the civil and political rights to which all human beings are entitled, including:

¨ the right to life, liberty and security of person;
¨ freedom from slavery and servitude;
¨ freedom from torture or cruel, inhuman or degrading treatment or punishment;

¨ freedom from arbitrary arrest, detention or exile;
¨ the right to a fair trial;
¨ freedom from arbitrary interference with privacy, family, home or correspondence;
¨ freedom of movement;
¨ the right of asylum;
¨ the right to marry and to found a family;
¨ the right to own property;
¨ freedom of thought, conscience and religion;
¨ freedom of opinion and expression;
¨ the right to peaceful assembly and association;
¨ the right to take part in government and to equal access to public service.

Economic, Social and Cultural Rights

Under the heading of Economic, Social and Cultural Rights, all governments are expected to work progressively to improve the living conditions of their citizens. For example, they should try to guarantee the right to food, clothing, housing and medical care, the protection of the family and the right to social security, education and employment. They are to promote these rights without discrimination of any kind. These provide people with protection against having the basic necessities of life taken away from them.

Articles 22 to 27 of the Declaration set forth the economic, social and cultural rights to which all human beings are entitled:

¨ the right to social security;
¨ the right to work, to receive equal pay for equal work and to form and join trade unions;
¨ the right to rest and leisure;
¨ the right to a standard of living adequate for health and well-being;
¨ the right to education;
¨ the right to participate in the cultural life of the community.

Environmental and Development Rights

These are sometimes referred to as the "third generation" of rights. This is a somewhat misleading characterisation as the right of all peoples to self-determination and to freely determine their political status and freely pursue their economic, social and cultural development is protected in article 1 of both the Covenant on Civil and Political Rights and the Economic, Social and Cultural Rights. As such, these rights are inalienable from the other "sets" of rights.
However, it is true that these group-based rights were actively discussed and specifically recognised and developed only in more recent years. The right to development was first recognised by the UN Commission on Human Rights in 1977 and was enshrined by the General Assembly in the 1986 Declaration on the Rights to Development. Environmental Rights include the right to live in an environment that is clean and free from pollution and protected from destruction.

UNIVERSALITY OF HUMAN RIGHTS

The principle of universality is fundamental to the understanding of human rights - ie. that human rights apply equally to each and every human being, regardless of the culture in which they live. Yet it is heavily disputed, even rejected, by certain governments and movements who advocate "cultural relativism" - ie. That rights and rules about morality depend on cultural context and therefore necessarily differ throughout the world.
Unfortunately, cultural relativism is often used as an argument to justify the failure to respect certain international standards of human rights. For eg ., proponents of the "full belly thesis" argue that individual civil and political rights are a luxury for the starving masses and can only be granted once the primary needs of food and health have been satisfied.
Arguments in favour of one or the other of the "sets" of rights ignore the indivisibility of human rights. This means that respect for civil and political rights cannot be divorced from the enjoyment of economic, social and cultural rights. Authentic economic and social development cannot exist without the individual right to participate in the political process.
The universality of human rights was reaffirmed in the Vienna Declaration adopted by the World Conference on Human Rights in 1993. The Declaration states definitively that "The universal nature of these rights and freedoms is beyond question" and that "All human rights are universal, indivisible, and interdependent and interrelated". This includes the broader range of rights including development and environmental rights and rights of indigenous peoples.

"Individual Rights" and "Collective Rights"

Human Rights are designed to protect not only the individual but also individuals as members of groups or communities. It is therefore important to understand the relationship between "individual rights" and "collective rights".
A right may be "collective" by virtue of the way in which it is exercised or by virtue of its holder. There are rights and freedoms that presuppose the existence of other individuals, groups and communities with which and within which they are exercised. Mention may be made, by way of example, of freedom of religion, freedom of assembly, freedom of association, the right to organize and the right to free elections. These are rights with a collective dimension by virtue of the way in which they are exercised.
Another distinguishing factor is the holder of a right. Whereas individual rights are rights of human beings considered in their individual essence, collective rights construed in this sense would be rights of groups or of communities which group individuals together. The recognition of certain group rights is essential for the self-fulfilment of the individual as a social being and for the achievement of an effective and genuine universality of human rights as rights of each and every individual without exception.
"Collective" rights and individual human rights are both complementary and mutually exclusive. They are complementary because an individual cannot be free if he lives in an oppressed group or population. But the two categories of rights may also be mutually exclusive, for how can the conflicts that are always possible between them be settled?
To recognize the rights of groups is to maintain that such rights must be capable of performing their function for the individual's benefit if the individual is to be a full human being. The rights of the groups are nothing else than the right of the individual to receive from groups the means he needs for his self-fulfilment. Since the group derives its own rights from serving the individuals who compose it, it has no rights against the rights of the individual.

THE UNITED NATIONS

In order to defend human rights through the United Nations system, one must first know how that system works. The purpose of this section of the booklet is to explain some of the workings of the UN: why it was created; what the different organs and bodies do; and which UN mechanisms are available to individuals.

Background

The predecessor to the UN was the League of Nations which was founded immediately after the First World War. It originally consisted of 42 countries, 26 of which were non-European. At its largest, 57 countries were members of the League. The League was created because a number of people in France, South Africa, the UK and the US believed that a world organization of nations could keep the peace and prevent a repetition of the horrors of World War I. An effective world body now seemed possible because communication technology had improved and there was an increase in international co-operation.
The League had two basic aims. It sought to preserve the peace through collective action and created the League's Council for Arbitration and Conciliation to mediate in disputes. This body had the authority to impose economic and military sanctions if it deemed fit. The League's second aim was to promote international co-operation in economic and social affairs.
As World War II unfolded, however, it became clear that the League had failed in its chief aim of peace keeping in part because it has no military power of its own. It depended on its members' contributions and its members were not willing to use either economic or military sanctions. Moral authority proved insufficient.
Furthermore, several Big Powers failed to support the League: the United States never joined; Germany was a member for only seven years from 1926-33 and the USSR for only five years from 1934-39; Japan and Italy both withdrew in the 1930's. The League then depended mainly on Britain and France who were hesitant to act forcefully. It proved difficult for governments long accustomed to operating independently to work through this new organization.

Birth of the UN

The United Nations grew out of the ashes of the Second World War. It officially came into existence on 24 October 1945, when the UN Charter was ratified by a majority of the original 51 Member States. The United Nations is not a world government but is rather an organization of sovereign nations.
The official purpose of the United Nations is to bring all nations of the world together to work for peace and development based on the principles of justice, human dignity and the well-being of all people. It was intended to enable countries to balance global interdependence and national interests when addressing international problems. While respect for human rights is one of the founding principles of the UN, its human rights program reportedly accounts for less than one percent of the overall budget of the organization.
As of May 1996, there were 185 members of the United Nations. All members meet in the General Assembly which is the closet thing to a world parliament currently in existence. Each country, large or small, rich or poor, has a single vote. While none of the decisions taken by the assembly are binding, the Assembly's decisions become resolutions that carry the weight of world opinion.
The United Nations Headquarters is in New York City but the land and buildings are international territory. The United Nations has its own flag, its own post office and its own postage stamps. Six official languages are used in the United Nations - Arabic, Chinese, English, French, Russian and Spanish. The UN European Headquarters is in the Palais des Nations, Geneva, Switzerland. It has an office in Vienna, Austria and Economic Commissions in Addis Ababa in Ethiopia, Amman in Jordan, Bangkok in Thailand and Santiago in Chile. The senior officer of the United Nations Secretariat is the Secretary-General who is presently Mr. Kofi Annan.

The stated aims of the United Nations are:

¨ To keep peace throughout the world
¨ To develop friendly relations between nations.
¨ To work together to help people live better lives; to eliminate poverty, disease and illiteracy in the world; to stop environmental destruction; and to encourage respect for each other's rights and freedoms
¨ To be center for helping nations to achieve these aims.

The Main Organs of the United Nations

I. General Assembly

The General Assembly is the main deliberating body of the United Nations and is a place where countries can voice their concerns to the rest of the world. The General Assembly is composed of all UN members. Switzerland is one nation which is not a member of the UN, although the European headquarters of the UN is in Geneva. Each country has one vote and decisions on ordinary matters are taken by a simple majority. Important questions require a two-thirds majority.
The Assembly meets regularly from September to mid-December in New York and also holds special or emergency sessions when the need arises. Even when the Assembly is not in session its work goes on in special committees and bodies.
The General Assembly serves as a forum for Member States to discuss any matters of global concern. Each Member State is represented by a senior diplomat but, at times, foreign ministers or even heads of state attend meetings. The General Assembly promotes co-operation between nations in social and economic affairs and encourages the observation of human rights for all. It has special committees on such matters as disarmament, finance, humanitarian issues, and social and economic concerns. Deliberations in the General Assembly have resulted in significant agreements and the creation of new International law. These agreements, or adopted resolutions, are only recommendations and, as such, cannot be enforced. However, they carry great weight because they represent the opinion of a majority of countries.
The Assembly also sets policies and determines programmes for the UN Secretariat. It sets goals and directs activities for development, approves the budget of peace-keeping operations and calls for world conferences on major issues. Occupying a central position in the UN, the Assembly received reports from other organs, admits new Members, approves the budget and appoints the Secretary-General.

II. Security Council

The League of Nations Council was transformed into the UN Security Council consisting of the five victors of World Ward II as permanent members and ten other countries serving two year terms. The five permanent members - France, China, Russia, the United Kingdom, and the United States - can forbid an Security Council action even if the other 14 countries are in favour. This is called veto power. The make-up of the Security Council has received heavy criticism as being unrepresentative of the world as a whole, and there is a growing impetus to admit new permanent members and to increase the total number of members.
The veto power is significant because, while the other organs of the UN can only make recommendations to governments, the Security Council has the power to make decisions which member states are obliged to carry out. The main function of the Security Council is to maintain international peace and, as such, it also serves as a forum to negotiate international disputes.
When a threat to international peace is brought before the Council, it usually first asks the parties to reach agreement by peaceful means. The Council may undertake mediation or set forth principles for a settlement. It may request the Secretary-General to investigate and report on a situation. If fighting breaks out, the Council tries to secure a cease-fire. It may send peace-keeping missions to troubled areas, with the consent of the parties involved, to reduce tension and keep opposing forces apart. It may deploy peace-keepers to prevent the outbreak of conflict. It has the power to enforce its decisions by imposing economic sanctions and by ordering collective military action.
The Council also makes recommendations to the Assembly on a candidate for Secretary-General and on the admission of new members to the United Nations.

III. Economic and Social Council

ECOSOC, as it is often called, works under the authority of the General Assembly and co-ordinates the economic and social work of the UN. The Council has 54 members who serve for three years - 18 new members are elected each year. Voting is by a simple majority. It holds one month-long sessions each year. It discusses, studies and makes recommendations to the General Assembly relating to economic development, environmental issues, human rights and other economic issues. It also co-ordinates the work of the Commissions and the Specialized Agencies such as the World Health Organization (WHO), the International Labor Organization (ILO), the Food and Agriculture Organization (FAO) and the UN Educational, Scientific and Cultural Organization (UNESCO).

IV. The International Court of Justice

The International Court of Justice (also known as the World Court) is the main UN organ for handing down legal judgements. Only states, not individuals, can take cases before the court. It consists of 15 judges elected by the General Assembly. The judges are chosen on the basis of their qualifications and not on their nationality. However, no two judges can be from the same country. The seat of the court is in the Hague, Netherlands.
The UN Charter provides that each member of the UN is ipso facto (by that fact alone) party to the Statute of the Court and non-members may also become parties on certain conditions. Parties States can refer matters to the ICJ such as border disputes, fishing and mineral rights and other matters to do with the Charter, and the General Assembly or the Security Council may ask the Court for an advisory opinion on any matter.

V. The Secretariat

The Secretariat is the "civil service" of the UN; it works for all the other organs of the UN and administers their programs. It has an international staff of 15,000 to service the day to day work of various commissions and agencies. The Headquarters are in New York. Other UN centers are in Geneva and Vienna. The head of the Secretariat is the Secretary-General.

UNITED NATIONS HUMAN RIGHTS BODIES

There are two main UN bodies dealing with human rights: the UN Commission on Human Rights and the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. There are also a number of human rights committees, working groups and special rapporteurs.

The UN Commission on Human Rights

This body was established in 1946 with 18 member countries. The membership has increased over the years to its current total of 53 nations. The 53 member countries are elected for three year terms by the UN Economic and Social Council: 15 members come from Africa; 12 from Asia; 5 from Eastern Europe; 11 from Latin America and the Caribbean States; and 10 from Western Europe and other States (including USA, Canada and Australia).
The Commission is the Central UN body responsible for promotion and protection of human rights. Its terms of reference are extensive; it may deal with any matters relating to human rights. The Commission considers and adopts resolutions on a wide range of human rights issues and some country-specific situations, makes studies, drafts international instruments setting human rights standards, and reviews recommendations and studies prepared by the UN Sub-Commission on Prevention of Discrimination and

Protection of Minorities.

The Commission meets annually in Geneva for six weeks, beginning in late January or early February. Its meetings are public, except when it meets in closed sessions for several days to discuss the "1503 procedure" (the confidential procedure for complaints about alleged human rights violations). During the public meetings, governments which are not members of the Commission and non-governmental organisations which have been granted consultative status with the UN Economic and Social Council may observe proceedings from the meeting room and make written and oral statements concerning issues on the agenda.
The Commission is a subsidiary of the UN Economic and Social Council (ECOSOC) to which it reports annually. ECOSOC operates under the authority of the UN General Assembly and reports annually to that body. The Commission's annual report to ECOSOC is a public document which summarizes the results of the session and includes the text of all adopted resolutions.
During recent years, the Commission has discussed subjects including (but not limited to): human rights situations in various countries, self-determination, torture, "disappearances", capital punishment, detention for exercising the right to freedom of expression, religious intolerance, rights of the child, migrant workers, the role of youth in the protection and promotion of human rights, and protection of human rights defenders.
The High Commissioner for Human Rights is the UN official with principle responsibility for UN human rights activities. The first High Commissioner took office in April 1994, and the current High Commissioner, selected in June 1997, is Mrs. Mary Robinson from Ireland. The High Commissioner works, through the Centre for Human Rights, to promote and protect human rights in the field and provides technical, financial and educational support.

The UN Sub-Commission on Discrimination and Protection of Minorities

This Sub-Commission is composed of 26 members nominated by governments and elected to four-year terms by the UN Commission on Human Rights. In contrast to the Commission, the Sub-Commission members are elected to serve as independent experts rather than to represent their government's policies. Despite its official title, the Sub-Commission deals with a wide range of human rights topics. It debates and adopts resolutions on human rights issues and some country situations, carries out studies, drafts international instruments, and makes recommendations to the Commission.
The Sub-Commission meets annually in Geneva for four weeks, beginning in early August. Its meetings are public, except for the several days when it meets in closed sessions to discuss the "1503 procedure". During public meetings government representatives and non-governmental organizations which have consultative status with ECOSOC maybe in the meeting room as observers and may make written and oral statements concerning issues on the agenda.
The Sub-Commission submits a public report annually to its parent body, the UN Commission on Human Rights. That report summarizes the results and includes the text of all adopted resolutions.

Human Rights Committees

The following six international human rights treaties are each monitored by a committee of independent experts. The Committee monitors the extent to which each of the States Parties (figures given are as at December 1996) are adhering to their treaty obligations and they may be required to report to the committee on human rights observance in their territory.

¨ International Covenant on Economic, Social and Cultural Rights - ratified 134 states
¨ International Covenant on Civil and Political Rights - ratified by 134 states
¨ International Convention on the Elimination of All Forms of Racial Discrimination - ratified by 147 states
¨ International Convention on the Elimination of All Forms of Discrimination Against Women - ratified by 100 states
¨ Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment - ratified by 100 states
¨ Convention on the Rights of the Child - ratified by 187 states.

Special Rapporteurs and Working Groups

The Special Rapporteurs and Working Groups are envoys entrusted with the politically sensitive and sometimes dangerous task of compiling information on violations in a specific country or of a certain type. Appointed as individuals rather than as Government representatives, special rapporteurs gather facts, maintain contact with local groups and Government authorities, conduct on-site visits when Governments permit and make recommendations on how human rights institutions might be strengthened.
Working groups and special rapporteurs are also appointed to conduct "thematic" studies on issues such as torture, religious intolerance, arbitrary detention, summary or arbitrary execution and the sale of children and to take action in instances of abuse falling within that classification.

NON GOVERNMENTAL ORGANISATIONS (NGOS)

What are NGOs?

A non-governmental organization (NGO) is any local, natinal, or international citizens' group (i.e. not part of a government) which does not work for profit. This simple definition also means that organizations under the NGO label have an extremely broad range of functions. NGOs work in fields as diverse as law, the environment, refugees, human rights and disarmament. They may work to influence government policy, to provide technical or medical assistance, to conduct research, and/or to educate or train others in the community.
Over the past decade the role of NGOs in local and international affairs has grown tremendously, reflecting a desire on the part of citizens to influence both their own lives and to take global responsibility for their world. Because of their flexibility, NGOs provide a unique channel through which ordinary citizens can participate in decisions which they feel affect their lives.
The work of publicising human rights violations and putting pressure on offending governments often falls to NGOs.

¨ At the international level, NGOs such as Amnesty International, the International Committee of the Red Cross and Human Rights Watch (with its divisions Africa Watch, Amercias Watch, Asia Watch, Helsinki Watch and Middle East Watch) conduct on-site investigations, disseminate detailed reports and wage advocacy campaigns in international and domestic forums.

¨ Operating with far less public awareness and physical protection than their transnational counterparts are domestic human rights organisations, which, where possible, monitor the actions of their respective governments.

UNITED NATIONS AND NGOS

NGOs are independent and therefore willing to take risks in areas which governments and intergovernmental organizations consider politically sensitive. Mr. Garcia-Sayan of the UN Working Group on Disappearances commented, ". . . . .Those who hold human rights above all other concerns are the NGOs . . .They are fuel and the lubricant which allow the [UN human rights] machine to function and speed the working up."
NGOs have, by their very nature, a freedom of expression, a flexibility of action and a liberty of movement which enable them to complement the role of the United Nations in the promotion and protection of human rights. At the 1945 San Francisco meetings in which the United Nations charter was drawn up and signed, 42 NGOs were invited to participate. They presented draft texts for the Charter, parts of which were eventually incorporated, including article 71: "The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations . . .. " This statement laid the foundation for co-operation between the UN and NGOs. The Council granted consultative status to a limited number of NGOs which means that these NGOs can participate in some debates and occasionally place items on the agenda.
It is probably "in the field" that the presence of NGOs began to be felt most strongly. Specialized agencies and bodies such as the UN Development Program and the UN Commissioner for Refugees realised early on that NGOs offered them crucial resources and expertise. For example, without the co-operation of humanitarian organizations such as CARE and Medicines Sans Frontier (Doctors Without Borders) it would have been virtually impossible to meet the needs of refugees fleeing war.
Many of these specialised agencies have their own relationships with NGOs; they can co-ordinate NGO efforts, provide funds for NGO projects, or even receive funds from NGOs for their own programs. The co-operation of NGOs has also furthered the goals of the UN in areas such as disarmament, human rights, education, the environment and science.
During the 1992 UN Conference on Environment and Development in Rio de Janeiro the broader participation of NGOs in addressing global issues was officially acknowledged. Over 1500 organizations were accredited to participate in the conference. In this and subsequent international conferences such as the World Conference on Human Rights (Vienna), the International Conference on Population and Development (Cairo), the World Summit for Social Development (Copenhagen) and the Fourth World Conference on Women (Beijing), NGOs have influenced the agendas and, hence, the laws resulting from these discussions.
In short, NGOs participate in the UN System in four ways:

¨ They raise issues such as women's rights and the environment which then get placed on world agendas;
¨ They shape decisions made by the UN, although they are move influential in social and humanitarian fields than in politics;
¨ They enter into partnership with the UN to help carry out its objectives and programs in the field;
¨ They serve as important watchdogs of the UN; observing, criticising and reporting on its role.

THE UN AND INDIVIDUALS

In some circumstances, the UN can receive communications from individuals who have information about human rights violations and who have tried without success to obtain satisfaction within the country concerned. Three UN treaties provide this possibility:

¨ The Optional Protocol to the International Covenant on Civil and Political Rights - allows a person who claims to be a victim of any of the rights set out in the ICCPR to lodge a complaint provided that the State complained of is party to both the ICCPR and its Optional Protocol. The Human Rights Committee, established under the ICCPR, will consider such communications together with any information submitted by the concerned State and can then make its views known on whether the Covenant has been respected.

¨ The Convention on the Elimination of All Forms of Racial Discrimination - allows an individual, or group of individuals, to lodge a complaint with the Committee on the Elimination of Racial Discrimination stating that their individual or group rights under the Convention have been violated. Again, this is possible only if the State complained of is a party to the Convention and has declared that it accepts the optional complaint procedure.

¨ The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - allows, where a State Party has so accepted, an individual to complain to the Committee against Torture that she or he is a victim of a violation by that State Party.

In addition, anyone or any group in the world who feels that they have been prevented from exercising their human rights may take their case to the UN even when it is not covered by a UN treaty. Such complaints are dealt with by the Commission on Human Rights under the "1503" procedure. A copy of the complaint is sent to the government concerned (with the complainant's name withheld unless otherwise agreed) which may submit a reply. The case is also sent confidentially to the Human Rights Commission and Sub-Commission and the complaint and any reply is considered by a working group of the Sub-Commission. Where a consistent pattern of gross violations is revealed, the Commission may carry out a thorough study or appoint a special committee or rapporteur to investigate.

2. THEMATIC MECHANISMS AND THE

PROTECTION OF HUMAN RIGHTS
Bacre Waly Ndiaye

ORIGINS

The UN's thematic mechanisms on human rights are crucial to the global protection of the human rights contained in the international human rights instruments the United Nations has so proudly pioneered over the past fifty years. The thematic mechanisms are perhaps the most victim-focused component of the UN's human rights machinery. After all, they only came into existence as a result of international recognition that a practice exists which causes serious human rights violations in more than a single country. Their creation represents an expression of international will to address the plight of the victims of processes that violate human rights.
It is indeed ironic, therefore, that the thematic mechanisms came into existence as a compromise and as a result of the efforts of one country to evade its accountability to human rights standards. In the 1970s a large number of disappearances were taking place during Argentina's "dirty war". It was impossible to pretend that a serious human rights situation did not exist. But, nevertheless, it was difficult to mobilize sufficient political support within the United Nations to adopt effective measures in response. Governments were ambivalent about pointing a finger at Argentina for reasons ranging from indifference, fear that they might be next in line for scrutiny or because of trade interests. Representatives of the military junta then in control of Argentina were skilled in the arts of international diplomacy. The compromise reached by the United Nations to overcome these difficulties, while avoiding a country-specific inquiry, was to establish the first "thematic" mechanism - the Working Group on Disappearances created by the UN Human Rights Commission in 1980 in response to mounting pressure from NGOs, notably Amnesty International. The Group, based upon a proposal drawn up by Iraq with help from Cuba, was adopted without vote, reflecting a shaky consensus in which individual states were required not to vote for or against the proposal. The Working Group was created for one year only and was authorized to "examine questions relevant to enforced or involuntary disappearances of persons" responding only to specific "cases" or to urgent "situations." The Working Group was invited "in establishing its working methods, to bear in mind the need to be able to respond effectively to information that comes before it, "from Governments, intergovernmental organizations, humanitarian organizations and other reliable sources," " and to carry out its work with discretion." The mandate of this Working Group was created in 1980 and was renewed every year until 1992. Since then it has been renewed every three years.
Since 1980, the Working Group on Disappearances has served as a model for the creation of a growing range of "thematic" mechanisms termed Working Groups or Special Rapporteurs. In 1998, the year of the 50th anniversary of the Universal Declaration of Human Rights, "thematic" mechanisms exist on (listed in chronological order of establishment of each mandate by the Commission on Human Rights):

¨ Disappearances - 1980
¨ Arbitrary executions - 1982
¨ Arbitrary detention - 1985
¨ Torture - 1985
¨ Religious intolerance - 1985
¨ Freedom of opinion - 1987
¨ Mercenaries - 1987
¨ Sale of children - 1990
¨ Internally displaced persons - 1992
¨ Extreme Poverty - 1992
¨ Right to development - 1993.
¨ Racism - 1993.
¨ Violence against women - 1994.
¨ Independence of judges and lawyers - 1994.
¨ Foreign debt and economic, social and cultural rights - 1994.
¨ Toxic wastes - 1995.
¨ Structural adjustment and economic, social and cultural rights - 1996.
¨ Right to education - 1997.
¨ Children in armed conflict - 1997.

The thematic mechanisms, striving always for greater effectiveness, have developed several techniques and working methods that include: requests to governments for information on specific cases; an urgent action procedure requesting that a government take immediate action to rectify or clarify a case; and on-site visits in a wide variety of countries for a more intensive and enduring examination of a series of cases. It has to be noted that rights cannot take place without a government's consent. The manner in which these techniques and methods are used vary considerably from mechanism to mechanism. But, in general, these mechanisms seek to explore the conceptual aspects of the issues, develop the applicable normative human rights framework and appropriate working methods, pressure individual governments to clarify or rectify situations, and inform other UN human rights bodies with a view to taking appropriate, timely, and effective actions. This chapter provides insights into the workings of one such mechanism - the Special Rapporteur on extrajudicial, summary or arbitrary executions which came into existence on May 7, 1982.

MANDATES

It is inevitable that there are far more "thematics" that deserve creation of mechanisms than there are mechanisms. In a sense, the process of creating a thematic mechanism does involve selectivity but it is a selectivity that is principled - that is rooted in human rights principles. Failure to create a mechanisms to address a clearly needed theme may indeed occur as a result of political expediency or compromise. But non-creation of a thematic mechanism in no way constitutes condoning of the abusive practice involved. Indeed, the existing thematic mechanisms consciously address this problem in two ways.
First, on the basis of work on their own mandate, Special Rapporteurs do not hesitate to recommend the creation of new mechanisms. Thus, for example, as a result of work on executions, the Special Rapporteur involved has suggested the creation of a Special Rapporteur on prisons because of the high incidence of deaths taking place while in custody and because of the allegations that many such deaths occurred as a result of torture or life-threatening prison conditions. The African Commission on Human and Peoples Rights has indeed created such a Special Rapporteur on Prisons and Prison Conditions. It has also been recommended together with the Special Rapporteur on Torture that a Special Rapporteur on Colombia be established for similar reasons.
Second, Special Rapporteurs are also conscious of the need to creatively interpret their mandate to cover new and emerging issues and to respond to the lack of protection of victims. Thus, for example, it has been important not to define too specifically the term "extra-judicial, summary or arbitrary executions". This has made it possible to address "life-threatening" conditions and situations and act preventively rather than only reactively after death has taken place. Similarly, it has been possible to address situations of private lynching by holding the state responsible for its failure to protect. Lack of prevention, lack of compensation, impunity de jure or de facto all help establish government responsibility regarding practices of private lynching which are tantamount to public executions without tral with a justified sense of total impunity. Foreigners or minorities, the socially or economically backward, the poor are all more likely to be the victims of private violence and therefore require a higher standard of protection by the State. Patterns of violations of the right to life can be considered as falling within the mandate as, for example, is the case of state failure to protect the victims from private violence. Failure to rescue one whose life is in danger constitutes a criminal offense for individuals in many jurisdictions. Clearly, such behavior on the part of the state would also be a violation of the duty to protect when it becomes a pattern and when state agents are generally not punished. Refugees forcibly repatriated to situations where their lives are in danger have been accepted as falling under the mandate of the Special Rapporteur on extra-judicial, summary, or arbitrary executions. The same is true in the case of forced relocation of internally displaced persons into areas not yet cleared of land mines. Such careful, interpretative extension of the mandate is firmly rooted in and justified by human rights principles and subjected to the Commission on Human Rights' approval. Thus, Special Rapporteurs view their mandate in functional terms requiring effective response to an area of concern expressed by the international community in creating the mandate. Moreover, since the mandate is thematic (rather than relating to a specific country) there is greater room for consistency and non selectivity.

WORKING METHODS

The basic response of a Special Rapporteur is to call for information from the government concerned. Inaction on the part of the government could frustrate the effectiveness of the Rapporteur. According, for example, the Special Rapporteur on Executions has drawn up a questionnaire for eliciting information. Upon receipt of allegations concerning extra-judicial, summary, or arbitrary executions in a country, the Rapporteur sends to the Government, in summary form, a reproduction of the allegations with the following request:

"In order to clarify the substance of these allegations, it would be useful if your government could reply to the following questions:

1. Are the facts alleged in the summary of the case accurate? If not, please provide details of the inquiries carried out to refute these allegations.
2. What is the cause of death as indicated in the death certificate?
3. Was an autopsy conducted? If so, by whom? What are the results of the autopsy? (Please provide a copy of the complete autopsy report).
4. Has a complaint, formal or informal, been made on behalf of the victim? If so, who made the complaint and what is their relation to the victim? To whom was the complaint made? What action was undertaken upon receipt of the complaint and by whom?
5. Which is the authority responsible for investigating the allegations? Which is the authority responsible for prosecuting the perpetrators?
6. Are any inquiries, judicial or other procedures in connection with the case under way? If so, please provide details of their progress to date, and the timetable envisages for their conclusion. If such inquiries or procedures have been completed, please provide details of the conclusions reached. (Please attach copies of any relevant documents.) Are these conclusions definitive?
7. Has the person alleged to have carried out the extra-judicial, summary or arbitrary execution been identified? To which unit or branch of the police, security forces, armed forces, or groups cooperating with the does he/she belong?
8. Have penal or disciplinary sanctions been imposed on the alleged perpetrators? If so, please provide details of the procedures followed to ascertain the penal or disciplinary responsibility of the perpetrators before imposing such penalties. If no such sanctions have been imposed, why not?
9. If no inquiries have been undertaken, why not? If the inquiries which were undertaken were inconclusive, why so?
10. Has any compensation been provided to the family of the victim? If so, please provide details including the type and the amount of the compensation involved. If no compensation has been provided, why not?
11. Please provide such other information or observations concerning the present case as you consider relevant.

Please include in your correspondence, the relevant incident and case number as well as the name(s) of the person (s) you are referring."

Such a detailed questionnaire precludes responses which are so broad and vague as to be meaningless. Special Rapporteurs do not have an investigative machinery and must make judgments based largely on the information received by them regarding the allegations and the information received in response from the government. The process could easily deteriorate into an ineffective round of allegations and denials. Hence, it is important for the Special Rapporteur to elicit the most detailed response possible. The value of a detailed formulation (such as that contained in the above questionnaire) is that it then becomes possible for the Special Rapporteur to draw inferences, both from the responses and from the lack of responses.
The Special Rapporteur can also rely on personal observation. But, obviously, no Special Rapporteur will have the capacity to go everywhere and, moreover, access to a country may be denied and access within a country may be impeded. In order to overcome such problems, Special Rapporteurs have developed the technique of observation by analysis of patterns of events or behaviour. A Special Rapporteur can place a country under scrutiny (and keep such country under scrutiny) even though denied access to the country, by exercising personal judgment based on analysis of patterns of events.
Rapporteurs evolve their own methods, appropriate to individual mandate, but with the objective of making effective recommendations to the government concerned with a view to seeking and securing the fullest cooperation possible from such government. The ultimate aim of each Rapporteur is to seek the best possible protection for victims or potential victims by undertaking an analysis from human rights perspectives regarding the mandate theme. The methods of work are dictated by such analysis.

PROBLEMS ENCOUNTERED

Most Rapporteurs have to overcome a cruel lack of resources. At best, they are each allotted just one full-time assistant. They have often, therefore, relied on information from NGOs and, sometimes, assistance, but must take care not to let this affect their impartiality, credibility, or integrity. The same applies to Governments who may provide earmarked funds or staff to specific mandates. The Special Rapporteurs are usually pressed for time needed for follow-up and time needed to take up new cases by going over lengthy documentation, such as tribunal judgements, sent by governments or reports from NGOs. They lack verification mechanisms and often do not have the forensic support they might need. They serve as Special Rapporteur on a part-time and voluntary basis while continuing with their regular professional work. Proposals have been made for full-time, permanent Rapporteurs, but there is the worry that such a move might make the mechanisms more bureaucratic and possibly less impartial. Suggestions have been made to apply to Rapporteurs conditions comparable to members of international jurisdictions. Periodic renewal of the mandates has not proved to be a problem. The practice has evolved that the Commission can only decide whether to renew a mandate or not. It cannot remove a specific Rapporteur unless it abolishes the mechanism itself. This helps secure the independence of the Rapporteur and, generally, the system has safeguarded the independence of the Rapporteur. But, recently, there have been attempts to obstruct the work of a Rapporteur, to delete a portion of the report of one of the Rapporteurs and to recall a Rapporteur from a country while in the midst of his inquiry in the country or to disregard immunities Special Rapporteurs have when on duty (e.g., the Special Rapporteur Param Cumaraswamy). The Commission, or its Chairman, can request a Rapporteur to undertake a specific investigation (e.g., in connection with the Dili killings in East Timor or the massacres and possible genocide in Eastern Zaire (Kiru). There have also been attempts to play some mechanisms against others (e.g., Thematic Rapporteurs and Country Rapporteurs or the High Commissioner or the Secretary-General, on the grounds of divide and rule.)
A dilemma that Special Rapporteurs may face relates to confidentiality. Having the obligation to report publicly to the Commission on Human Rights indeed protects the Special Rapporteur's impartiality and independence and the victims have also benefited from the publicity. Sometimes they may receive very sensitive information, the premature disclosure of which may result in destruction of evidence or, even worse, putting at risk witnesses or parties.

LOOKING TO THE FUTURE

There has been increasing cooperation between the different Special Rapporteurs, Special Representatives, Independent Experts, and Working Groups. The Special Rapporteurs meet annually and address cross-mandate thematic stress (such as terrorism and the difficulty to address human rights abuses by non-governmental entities) as well as administrative issues. But not much time is spent on discussing methods of work. That exchange takes place mostly through reading reports and through exchanges between assistants. Joint recommendations have been made by more than one Rapporteur and Thematic Rapporteurs and Country Rapporteurs have cooperated with one another on specific actions and on visits. There have also been joint efforts involving, for example, the Special Rapporteur on Torture and the Special Rapporteur on Executions and the Working Group on Arbitrary Detention.
The thematic mechanisms have made undoubted contributions to both protecting victims and preventing violations. But the preventive impact could be considerably enhanced if there were a proper forum to discuss their reports. Current procedures leave the Rapporteurs ten to fifteen minutes to present their report and there is no systematic discussion of the reports, either formal or informal at the Commission on Human Rights. There is not yet a role for even the UN High Commissioner for Human Rights to formally present the report (or highlights) to the Security Council as a contribution to an effective early - warning system and human rights approach to peace and security issues. As a result, too much is left to the manner in which the government reacts. More often than is desirable, the Commission has left their questions unanswered or their recommendations forgotten.
The Special Rapporteurs are accessible to victims, especially those that have the resources to make contact or have NGOs to make the contact. Awareness of the existence and work of a Rapporteur can also produce increased access. In Pakistan, for example, allegations of summary or arbitrary killings referred to the Special Rapporteur on Executions went up from around twenty to hundreds over a one-year period. Yet dissemination of Special Rapporteurs' reports is not systematic and their language not always user friendly. There has been consideration of creating Regional - Thematic Rapporteurs, and regional approach to some human rights violations, e.g., on trafficking in women. But, so far, there has been little exploration of the creation of a thematic Rapporteur at the national level in addition to mechanisms such as ombudspersons. This option would have been more flexible and perhaps more effective than a national Human Rights Commission covering a variety of human rights problems. The thematic mechanisms do have much to contribute to the future as is evident from the expansion of the number of such mechanisms. But such expansion of numbers has not been accompanied by a corresponding expansion in resources. The thematic mechanisms need to be reinforced, strengthened, and linked to adequate resources if they are to continue to make their significant contribution to the protection of victims, the prevention of victimization, and the compensation of victims. There is a problem in addressing the responsibility of non-governmental entities and of more gender specific or children oriented action. There is also a need to find an effective international mechanism against impunity for gross human rights violations.
The Commission on Human Rights' decisions to appoint thematic Rapporteurs on economic, social, or environmental themes clearly indicate the mechanisms potential for successful monitoring and reporting, and for enhancing the enforcement of human rights standards and accountability. But we are very far from a strong, well resourced system, which would allow for a global coverage of the world's most burning human rights problems. Such a system, involving experts from many different cultural and geographical backgrounds, with due consideration to gender and linguistic balance, would certainly raise the credibility of the United Nations and the significance of the Universal Declaration of Human Rights for ordinary men, women, and children from around the world.

3. PRINCIPLES DEALING WITH NATIONAL

HUMAN RIGHTS MECHANISMS

These days every country has to have a national human rights commission. Their numbers have burgeoned in the 1990s, especially since the 1993 World Conference on Human Rights, helped by the increasingly ready material assistance available from intergovernmental and other donor bodies. Many countries in transition from dictatorship to democracy have established such institutions in the genuine hope that they will prevent and curb the abuses of the past. Governments presiding over continuing serious violations of human rights calculate that establishing a commission will be a low-cost way of improving their international reputation.
The paradox, inevitably, is that the institutions that have the greatest formal guarantees of effectiveness and independence are almost certainly going to be those where the government has the greatest commitment to protect human rights. Those in countries where human rights violations are most serious are likely to be those that have the weakest powers and resources to address these issues effectively.

The Paris Principles

In 1991, the first major international gathering on this issue, meeting under United Nations (UN) auspices formulated the Paris Principles. These have become the benchmark against which national human rights institutions are measured. The Paris Principles fall into four parts:

¨ Competence and responsibilities: it is suggested that a national human rights institution (NHRI) be given as broad a mandate as possible "which shall be clearly set forth in a constitutional or legislative text". Its responsibilities shall include reporting to the government on human rights matters; ensuring harmonisation of national laws with international human rights standards; encouraging ratification of international human rights instruments; contributing to states' reports to UN treaty bodies and committees; co-operating with international, regional and other national human rights institutions; assisting in human rights education; publicising and promoting human rights.

¨ Composition and independence: independence is guaranteed through three means. The first is composition, which ensures "the pluralist representation of the social forces (of civiliansociety) involved in the promotion and protection of human rights". The second is a level of funding and infrastructure that allows it to be "independent of the Government and not be subject to financial control which might affect its independence". The third is that the mandate of the institution be established by law.

¨ Methods of operation: provisions here include that an NHRI shall "freely consider any questions falling within its competence" whoever refers them, including "any petitioner". This section also makes specific reference to maintaining "consultation with the other bodies, whether jurisdiction alor otherwise" responsible for human rights issues. It also stresses the "fundamental role played by the non-governmental organisations in expanding the work of the national institutions" and enjoins NHRIs to develop relations with Non-Governmental Organisations (NGOs).

¨ Finally, the Principles state that an NHRI may be authorised to hear and consider complaints, and provide guidelines for such procedures, including an emphasis on "amicable settlement through conciliation or, within the limits prescribed by the law, through binding decisions".

The Paris Principles, inevitably, were the starting point for most discussion of national human rights institutions in the 1990s. They are indeed a vital reference point, yet they are curiously inadequate in a somewhat paradoxical way. On the one hand they lay down a maximum programme that is met by hardly any national institution in the world - certainly none of the ones that this research has studied. For example, how many NHRIs have appointment processes that genuinely guarantee the social pluralism set out in the Paris Principles? How many have "adequate funding" - a condition which is set down, quite correctly, without qualification? On the other hand, the Paris Principles do not even take it as given that a national institution will deal with individual complaints, which most observers and practitioners in this field would probably regard as an essential characteristic.
Inevitably much of the discussion of NHRIs has been legal and largely normative. Much discussion has taken place largely under UN auspices, often in the context of extending UN technical assistance in this area, with the result that it has concentrated on implementation of the Paris Principles rather than on the broader political dynamics of the role and effectiveness of human rights institutions. Similarly, documentation of this issue from international human rights NGOs has concentrated on propagating normative standards rather than analysing the variety of ways in which human rights institutions have evolved in practice. All that is good and proper; but this study has approached the discussion from the other end. The starting point for research has been to look at what already exists and at what works.
Much of this research leads back, in one way or another, to the Paris Principles. There is no doubt, for example, that a broad mandate, a founding statute, an independent appointments process and adequate funding all aid effectiveness. But there have been institutions that have been effective in their own context without any of these things. To put it bluntly, we were interested in why some institutions set up more or less in conformity with the Paris Principles have been completely ineffective, while others that had little independence and inadequate funding have made a positive impact on the human rights situation in their country.

Types of national institutions

"National human rights institution" is a hybrid category and includes many different varieties within it. As far as this study is concerned, the defining point is simply that it is a quasi-governmental or statutory institution with human rights in its mandate. That would exclude a government department on the one hand (say a human rights office in the foreign ministry) and an NGO on the other. But it would include human rights commissions, ombudsmen, Defensores del Pueblo, procurators for human rights and an infinite variety of other institutions. The number of members that an institution has is not a criterion for inclusion in this study (although it might arguably be for recognition under the Paris Principles). The national human rights institution is a recent creation that has two vulnerable precursors: the ombudsman-type institution that deals with matters of maladministration and the ad hoc commission of inquiry. Many national human rights institutions have a mandate that goes beyond human rights and includes administrative justice issues as well. That does not rule them out of the study either - indeed, we are interested in how effectively these different functions might be combined.
Another interesting question relates to institutions whose mandates only extend to a limited spectrum of rights or the protection of a particular sector or society - for example, bodies established to promote racial or sexual equality, or even human rights commissions, such as the Canadian commission, whose mandate with regard to individual cases focuses entirely on the prevention of discrimination. We have included them in the study too.
It is no doubt foolhardy to attempt a typology of national human rights institutions, since it would be so easy to name an institution that did not fall into any of these. Common attempts to categorise national institutions do so in a number of ways: by membership (commission versus ombudsman), by mandate (human rights, discrimination, advisory role, etc.) or by political tradition (the "Commonwealth model", the "Francophone model" and so on). Any of these may be perfectly valid in their own terms, but the typology used in this study is slightly different since it combines consideration of membership and mandate but attaches less importance to issues of political tradition. It appears, for example, that African human rights commissions, whether English or French speaking, have far more in common with each other than either have with a "Commonwealth model" (such as Canada or Australia) or a "Francophone model". The main types of national institution identified are the following:

¨ A national commission on human rights- a multi-member institution whose mandate is likely to include: investigation of complaints, education and review of potential legislation. Examples would include Indonesia, India, South Africa, Togo, Benin, Cameroon and Uganda among others.

¨ A national advisory commission on human rights: as above but with no mandate to investigate complaints and an orientation primarily towards advising the government on matters of human rights policy. Examples would include France and Morocco.

¨ A national anti-discrimination commission: this would have many similar functions to a national human rights commission, but its mandate would be confined to discrimination issues. Examples include: Canada, Australia and New Zealand. The British Equal Opportunities Commission and Commission on Racial Equality are variants of this with a narrower mandate.

¨ An ombudsman: a single-member institution. As derived from the original Scandinavian model, the ombudsman is likely to have a specifically defined mandate - maladministration, ethnic discrimination, gender discrimination, children's rights - in a system of interrelated institutions.

¨ A Defensor del Pueblo: this is usually seen as a variant of the ombudsman. The principal difference is that a single institution covers the various mandates that would usually be dealt with by different ombudsman. The model originated in Spain and has been broadly adopted in Latin America. Peru has a particularly successful Defensor del Pueblo. The Procurador de Derechos Humanos (Human Rights Counsel) in Guatemala falls into the same category. So, despite its name, does the National Human Rights Commission in Mexico. Although this is largely a Hispanic phenomenon, the Latvian Human Rights Office probably also falls into this category.

It will be immediately obvious that even one of our chosen case studies - Ghana - does not fit within this typology. The Commission on Human Rights and Administrative Justice (CHRAJ) is a hybrid of the multi-member institution and the ombudsman or Defensor del Pueblo, both in its composition and structure and its mandate. Such is the real world.
This attempt at categorisation is not intended to rank the different types of national institution one above the other. Indeed, what seems particularly important is that national human rights institutions should be developed in consonance with the political and institutional traditions of the country - rather than being an imported "model" - provided that they meet certain basic standards of independence and impartiality.

PRINCIPLES RELATING TO THE STATUS OF NATIONAL INSTITUTIONS

Competence and responsibilities
1. A National institution shall be vested with competence to promote and protect human rights.
2. A national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence.
3. A national institution shall, inter alia, have the following responsibilities:

(a) To submit to the Government, Parliament and any other competent body, on an advisory basis, either at the request of the authority concerned or through the exercise of its power to hear a matter without higher referral, opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights; the national institution may decide to publicise them; these opinions, recommendations, proposals and reports, as well as any prerogative of the national institution, shall relate to the following areas:

i) Any legislative or administrative provisions, as well as provisions relating to judicial organisation, intended to preserve and extend the protection of human rights; in that connection, the national institution shall examine the legislation and administrative provisions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights; it shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures;
ii) Any situation of violation of human rights which it decides to take up;
iii) The preparation of reports on the national situation with regard to human rights in general, and on more specific matters;
iv) Drawing the attention of the Government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the Government;

b. To promote and ensure the harmonisation of national legislation, regulations and practices with the international human rights instruments to which the State is a party, and their effective implementation;
c. To encourage ratification of the above mentioned instruments or accession to those instruments, and to ensure their implementation;
d. To contribute to the reports which States are required to submit United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations, and, where necessary, to express an opinion on the subject, with due respect for their independence;
e. To co-operate with the United Nations and any other organisation the United Nations system, the regional institutions and the national institutions of other countries that are competent in the areas of the promotion and protection of human rights;
f. To assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional circles;
g. To publicise human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness; especially through information and education and by making use of all press organs.

Composition and guarantees of Independence and pluralism

1.The Composition of the national institution and the appointment of its members; whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the promotion and protection of human rights, particularly by powers which will enable effective co-operation to be established with, or through the presence of, representatives of;

(a) Non-governmental organisations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organisations, for example, associations of lawyers, doctors, journalists and eminent scientists;
(b) Trends in philosophical or religious thought;
(c) Universities and qualified experts;
(d) Parliament;
(e) Government departments (if they are included, these representatives should participate in the deliberations only in an advisory capacity).

2. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence.

3. In order to ensure a stable mandate for the members of the institution, without which there can be no real independence, their appointment shall be effected by an official act which shall establish the specific duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution's membership is ensured.

METHODS OF OPERATION

Within the framework of its operation, the national institution shall:

(b) Freely consider any questions falling within its competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner;
(c) Hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;
(d) Address public opinion directly or through any press organ, particularly in order to publicise its opinions and recommendations;
(e) Meet on a regular basis and whenever necessary in the presence of all its members after they have been duly convened;
(f) Establish working groups from among its members as necessary, and set up local or regional sections to assist it in discharging its functions;
(g) Maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for the promotion and protection of human rights (in particular, ombudsmen, mediators and similar institutions);
(h) In view of the fundamental role played by non-governmental organisations in expanding the work of national institutions, develop relations with non-governmental organisations devoted to promoting and protecting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialised areas.

Additional principles concerning the status of commissions with quasi-jurisdictional competence

A national institution may be authorised to hear and consider complaints and petitions concerning individual situations. Cases may be brought before it by individuals, their representatives, third parties, non-governmental organisations, associations of trade unions or any other representative organisations. In such circumstances, and without prejudice to the principles stated above concerningthe other powers of the commissions, the functions entrusted to them may be based on the following principles:

(a) Seeking an amicable settlement through conciliation or, within the limits prescribed by the law, through binding decisions or, where necessary, on the basis of confidentiality;
(b) Informing the party who filed the petition of his rights, in particular the remedies available to him, and promoting his access to them;
(c) Hearing any complaints or petitions or transmitting them to any other competent authority within the limits prescribed by the law;
(d) Making recommendations to the competent authorities; especially by proposing amendments or reforms of the laws, regulations and administrative practices, especially if they have created the difficulties encountered by the persons filing the petitions in order to assert their rights.

District Human Rights Courts in Tamil Nadu

District Human Rights Courts in Tamil Nadu have been constituted for the first time u/s. 30 of the Protection of Human Rights Act 1993 with the purpose of providing speedy trials of offences arising out of violation of Human Rights. The Madras High Court had the privilege of a special reference made to it, which provided guidelines for the functioning of these District Human Rights Courts in Tamil Nadu. We are re-producing here excerpts from the judgement of Mr. Justice Janarthanam and Mr. Justice M.Karpaga Vinayagam in Criminal Revision Case No.868 of 1996 in Tamil Nagu Pazhangudi Makkal Sangam Vs. Government of Tamil Nadu, the Director General of Police and the Superintendent of Police, Periyar District.
The Tamil Nadu Pazhangudi Makkal Sangam presented a petition before the Chief Judicial Magistrate Court in Erode which was designated as the Human Rights Court on 14.3.1996. In this petition Mr. V.P.Gunasekaran, the Joint Secretary of the Association stated that the Special Task Force constituted to nab the sandalwood smuggler Veerappan, subjected the tribals in that area to torture and inhuman treatment. He referred to certain incidents of assaults against the villagers and prayed for the appointment of a proper person to investigate into the matter, besides seeking a direction to the Government of Tamilnadu represented by the Home Secretary, Director General of Police--in charge of STF-- Madras and the Superintendent of Police, Periyar District, Erode to stop the atrocities and release the persons illegally detained.

This petition was returned by CJM on 14-03-1996 with the following queries:

"(i) Under what provision, the petition is filed should be stated?;
(ii) It appears the prayers are not within the jurisdiction of this Court, though the Court is appointed as Human Rights Court and therefore such remedies cannot be given; and
(iii) Under what provision, this Court is empowered to appoint a person for investigation should be stated?"

Mr. S. Balamurugan, the Advocate, in this case and the Secretary, People's Union of Civil Liberties (PUCL), Periyar District addressed a letter to the Honourable Mr. Justice V. R. Krishna Iyer, Former Judge, Supreme Court of India; the Honourable Mr. Justice Ranganath Misra, the then Chair Person of National Human Rights Commission, Mr. K. G. Kannabhiran, National President, PUCL; the Honourable Mr. Justice V.M.Tarkunde, Advisor, PUCL, bringing to their notice the inadequacy of the equipment of Human Rights Courts and matters allied thereto.
Mr. Justice V.R. Krishna Iyer addressed a letter dated 11th November, 1996, enclosing the letter received from the aforesaid Mr. Balamurugan, Advocate, Bhavani and Secretary, PUCL, Periyar District to the Honourable Mr. K.A. Swamy, then Chief Justice of this Court, which reflected as below:

"I am forwarding a letter received by me from an advocate in Bhavani. He complains that Human Rights Courts have not taken off yet and the situation is deplorable. Justice AHMADI, CJI, rightly stresses the need for Human Rights Courts. Therefore, I am forwarding the letter received by me to you as one deeply concerned with human rights functionalism. Whatever action you take in making the infrastructure efficient will be a contribution to Human Rights Legal System".

The Hon'ble Chief Justice Mr. K. A. Swamy directed the Registry to take on file the petition filed by the Tamil Nadu Pazhangudi Makkal Sangam as suo motu Criminal Revision Case No. 868 of 1996 -- the present action-- under Article 227 of the Constitution of India laying down the law authoritatively regarding the scope, nature of jurisdiction and function of HRCs in the State of Tamilnadu and if necessary, to devise the forms, and registers to be maintained etc., by the said Courts.

Section 2(1) (d) of PHRA defines 'human Rights' as...

"HUMAN RIGHTS" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution of embodied in the International Covenants and enforceable by Courts in India."

Section 30 thereof reads as under:

"30. HUMAN RIGHTS COURTS -- For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification specify for each district, a Court of Session to be a Human Rights Court to try the said offences:
Provided that nothing in this section shall apply if

(a) a Court of Session is already specified as a Special Court; or

(b) a Special Court is already constituted, for such offences under any other law for the time being in force."
Human Rights Courts may not have the powers in the Human Rights under Article 227 of the Constitution to interfere in every case of human rights violation since the jurisdiction of Human Rights Courts is confined to try violations which amounts to offence under the law. Section 2(n) of the Code of the Code of Criminal Procedure 1973 advises the terms of offences as follows:

- Section 4 of the Code deals with the trial of offences under the IPC and other laws.

(A) "All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained."

(B) Sub-section (2) thereof prescribes,

"All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner of place of investigating inquiring into, trying or otherwise dealing with such offences".

Section 4 provides for a procedure to be followed in every investigation, inquiry or trial in regard to offences under IPC as well as under any other laws. In the former, the procedure, as laid down in that Code is to be followed. But, in the latter, this is subject to any enactment in force, which regulates the procedure in such cases. In other words, the procedure in the two cases is the same, except to the extent that the special enactment regulates the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Section 5 of the Code containing the saving clause, prescribes,
"Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect, any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.

The terms 'Special or local law', as referred to in Section 5, had not at all been defined in the Code. But, there is an indication in the definition of Section 2 (y) of the Code as to the meaning to be ascribed to certain expressions used in the said Code but not defined therein. According to Section 2 (y) of the Code, the words and expressions used therein and not defined, but defined in IPC have the meanings respectively assigned to them in that Code (IPC).

(a) Section 41 of IPC deals with 'Special Law'. A 'Special Law', according to the section, is 'law applicable to a particular subject'.
(b) Section 42 of IPC deals with 'local law'. According to the said section, a 'Local Law' is a 'law applicable only to a particular part of India'.

- The saving provisions under Section 5 of the Code lay down that ordinarily the Code will not affect

(a) any special law;
(b) any local law;
(c) any special jurisdiction or power; and
(d) any special form of procedure.

But the existence of any specific contrary provision, either in the Code itself or in the special or local law will have a contrary effect. In other respects, the Code shall be applicable.
PHRA, can be stated, without any pale of controversy, as a 'special law', falling within the four corners of Section 41 of IPC. Though such a special law does not create and enumerate specific offences, as arising out of violation of human rights, yet, the salient provisions adumbrated under sections 2 (1) (d) and 30 therein, do contain the parameters for identifying offences arising out of violations of Human Rights.
Since the said special law, that is to say, PHRA, does not contain any provision relatable to the procedure for trial of such offences, as arising out of Human Rights Violation and allied matters thereto, excepting the constitution of a Court of Session, to be a HRC-- a special court -- of original jurisdiction to try such offences in each and every district under Section 30 and appointment of a Special Public Prosecutor under Section 31, the Code, in other respects, cannot at all be said to cease to operate.

District Human Rights Courts in Tamil Nadu

District Human Rights Courts in Tamil Nadu have been constituted for the first time u/s. 30 of the Protection of Human Rights Act 1993 with the purpose of providing speedy trials of offences arising out of violation of Human Rights. The Madras High Court had the privilege of a special reference made to it, which provided guidelines for the functioning of these District Human Rights Courts in Tamil Nadu. We are re-producing here excerpts from the judgement of Mr. Justice Janarthanam and Mr. Justice M.Karpaga Vinayagam in Criminal Revision Case No.868 of 1996 in Tamil Nagu Pazhangudi Makkal Sangam Vs. Government of Tamil Nadu, the Director General of Police and the Superintendent of Police, Periyar District.
The Tamil Nadu Pazhangudi Makkal Sangam presented a petition before the Chief Judicial Magistrate Court in Erode which was designated as the Human Rights Court on 14.3.1996. In this petition Mr. V.P.Gunasekaran, the Joint Secretary of the Association stated that the Special Task Force constituted to nab the sandalwood smuggler Veerappan, subjected the tribals in that area to torture and inhuman treatment. He referred to certain incidents of assaults against the villagers and prayed for the appointment of a proper person to investigate into the matter, besides seeking a direction to the Government of Tamilnadu represented by the Home Secretary, Director General of Police--in charge of STF-- Madras and the Superintendent of Police, Periyar District, Erode to stop the atrocities and release the persons illegally detained.
This petition was returned by CJM on 14-03-1996 with the following queries:

"(i) Under what provision, the petition is filed should be stated?;
(ii) It appears the prayers are not within the jurisdiction of this Court, though the Court is appointed as Human Rights Court and therefore such remedies cannot be given; and
(iii) Under what provision, this Court is empowered to appoint a person for investigation should be stated?"

Mr. S. Balamurugan, the Advocate, in this case and the Secretary, People's Union of Civil Liberties (PUCL), Periyar District addressed a letter to the Honourable Mr. Justice V. R. Krishna Iyer, Former Judge, Supreme Court of India; the Honourable Mr. Justice Ranganath Misra, the then Chair Person of National Human Rights Commission, Mr. K. G. Kannabhiran, National President, PUCL; the Honourable Mr. Justice V.M.Tarkunde, Advisor, PUCL, bringing to their notice the inadequacy of the equipment of Human Rights Courts and matters allied thereto.
Mr. Justice V.R. Krishna Iyer addressed a letter dated 11th November, 1996, enclosing the letter received from the aforesaid Mr. Balamurugan, Advocate, Bhavani and Secretary, PUCL, Periyar District to the Honourable Mr. K.A. Swamy, then Chief Justice of this Court, which reflected as below:

"I am forwarding a letter received by me from an advocate in Bhavani. He complains that Human Rights Courts have not taken off yet and the situation is deplorable. Justice AHMADI, CJI, rightly stresses the need for Human Rights Courts. Therefore, I am forwarding the letter received by me to you as one deeply concerned with human rights functionalism. Whatever action you take in making the infrastructure efficient will be a contribution to Human Rights Legal System".

The Hon'ble Chief Justice Mr. K. A. Swamy directed the Registry to take on file the petition filed by the Tamil Nadu Pazhangudi Makkal Sangam as suo motu Criminal Revision Case No. 868 of 1996 -- the present action-- under Article 227 of the Constitution of India laying down the law authoritatively regarding the scope, nature of jurisdiction and function of HRCs in the State of Tamilnadu and if necessary, to devise the forms, and registers to be maintained etc., by the said Courts.
Section 2(1) (d) of PHRA defines 'human Rights' as...

"HUMAN RIGHTS" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution of embodied in the International Covenants and enforceable by Courts in India."
Section 30 thereof reads as under:

"30. HUMAN RIGHTS COURTS -- For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification specify for each district, a Court of Session to be a Human Rights Court to try the said offences:
Provided that nothing in this section shall apply if

(c) a Court of Session is already specified as a Special Court; or
(d) a Special Court is already constituted, for such offences under any other law for the time being in force."

Human Rights Courts may not have the powers in the Human Rights under Article 227 of the Constitution to interfere in every case of human rights violation since the jurisdiction of Human Rights Courts is confined to try violations which amounts to offence under the law. Section 2(n) of the Code of the Code of Criminal Procedure 1973 advises the terms of offences as follows:

Section 4 of the Code deals with the trial of offences under the Indian Penal Code

(A) Sub-Section (1) thereof prescribes,
"All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained."

(B) Sub-section (2) thereof prescribes,
"All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner of place of investigating inquiring into, trying or otherwise dealing with such offences".

Thus, Section 4 provides for a procedure to be followed in every investigation, inquiry or trial in regard to offences under IPC as well as under any other laws. In the former, the procedure, as laid down in that Code is to be followed. But, in the latter, this is subject to any enactment in force, which regulates the procedure in such cases. In other words, the procedure in the two cases is the same, except to the extent that the special enactment regulates the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Section 5 of the Code containing the saving clause, prescribes,

"Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect, any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.
The terms 'Special or local law', as referred to in Section 5, as extracted above, had not at all been defined in the Code. But, there is an indication in the definition of Section 2 (y) of the Code as to the meaning to be ascribed to certain expressions used in the said Code but not defined therein. According to Section 2 (y) of the Code, the words and expressions used therein and not defined, but defined in IPC have the meanings respectively assigned to them in that Code (IPC).
In this judgement the Court highlighted 25 different questions on the basis of arguments put forth before it by the various councils who appeared. The questions along with the brief finding of the court on each of the questions is provided below: