Human Rights Standards: Learning from Experience

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This report is co-published with

the International Commission o Jurists &

the International Service or Human Rights

Hua Rihs SaarsLeari r Eperiec


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Ieraial Cucil Hua Rihs Plic

The International Council on Human Rights Policy was established in Geneva in1998 to conduct applied research into current human rights issues. Its researchis designed to be o practical relevance to policy-makers in international andregional organisations, in governments and inter-governmental agencies, and

in voluntary organisations o all kinds. The Council is independent, internationalin its membership, and participatory in its approach. It is registered as a non-prot oundation under Swiss law and has consultative status with the UnitedNations Economic and Social Council.

Ieraial Cissi Juriss (ICJ)

The ICJ is a global network o judges, lawyers and human rights deenders unitedby international law and rule o law principles that advance human rights. Since1952, the ICJ has used its expertise in law, justice systems and advocacy, towork or victims to obtain remedies, or those responsible or abuses to be held

accountable and or justice systems to be independent and active protectorso human rights. The ICJ works to change law and policy at the national andinternational levels when they do not adequately protect people rom humanrights violations. Headquartered in Geneva, the ICJ is registered as a non-prot association under Swiss law and has consultative status with the UnitedNations Economic and Social Council, UNESCO, the Council o Europe and theArican Union. It also maintains cooperative relations with various bodies o theOrganisation o American States.

Ieraial Service r Hua Rihs (ISHR)

ISHR is primarily a servicing organisation that promotes the development,strengthening, eective use and implementation o international and regionallaw and mechanisms or the protection and promotion o human rights.Established in 1984 by members o a variety o NGOs in Geneva, ISHR providesanalytical reports on the UN human rights mechanisms; training on how to usethe international norms and procedures; strategic advice or eective lobbying;contributions to standard-setting; and practical inormation and logisticalsupport to enable human rights deenders rom around the world to take ulladvantage o international human rights law and procedures.

The Trustees o theBritish Museum. Detailo Pachisi game boardmade o embroidery usedto create the grid on abackground o ne velvet.Sri Lanka, 19th century AD.

Cover illustration


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Hua Rihs Saars: Leari r Eperiece


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The International Council thanks the Netherlands Ministry o Foreign Aairs;the British Department or International Development (Dd); the SwedishInternational Development Agency (SIDA); the Ministry or Foreign Aairs oFinland; the Swiss Federal Department o Foreign Aairs (DFAE); the FordFoundation, United States; King Baudoin Foundation; Christian Aid, United

Kingdom; and CAFOD, United Kingdom or their nancial support to thisproject.


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Hua Rihs Saars: Leari r Eperiece

2006 International Council on Human Rights Policy


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2006 International Council on Human Rights Policy

48, chemin du Grand-Montfeury, P. O. Box 147, 1290 Versoix, Switzerland.

Human Rights Standards: Learning rom Experience, 2006.

International Council on Human Rights Policy. Versoix, Switzerland.

All rights reserved.

No part o this publication may be reproduced, stored in a retrieval system, ortransmitted in any orm or by any means, electronic, mechanical, photocopying,recording and/or otherwise without the prior permission o the publisher.

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the International Service or Human Rights concerning the legal status o anycountry, territory, or area, or o its authorities, or the delimitation o its rontiersor boundaries.

The International Council on Human Rights Policy is a non-prot oundationregistered in Switzerland.

ISBN 2-940259-46-1

Cover illustration: The Trustees o The British Museum. Detail o Pachisi gameboard made o embroidery used to create the grid on a background o ne

velvet. Sri Lanka, 19th century AD.

Design and layout by Fairouz El Tom, Research & Publications Ocer at theInternational Council on Human Rights Policy.

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ContEntS

Acknowledgements I

IntroductIon 1

Denitions and scope 4Methodology 5

I. whenArenewstAndArdsdesIrAble? 7

II. whAt?choosIngtheInstrument 11

Hard law instruments 11

Sot law instruments 14

Dierent instruments or dierent types o protection gaps 19

III.who?theActors 21

States 22

Human rights NGOs and coalitions 24

Experts 27

Secretariats o international organisations 30

Beneciaries, victims and those who are directly aected 31

National human rights institutions 33

Media 34

IV. where?thelocAtIonofnegotIAtIons 35

The United Nations 37

Other international organisations 46

Regional organisations 52

V. how?methodsofwork 55

Mandate or negotiation processes 55

Format o the meetings 56

Time limits 57

Drating 58

Rules or adopting an instrument 59

VI.concludIngremArks 61

Challenges 62

Pointers and Recommendations 63

AppendIxI:documentlIst 73

AppendIxII:Acronyms 77


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Human Rights Standards: Learning rom Experience I

ACknowLEdgEmEntS

This report was drated by Jean-Nicolas Beuze and Magdalena Seplveda, whosucceeded one another as Research Directors at the International Council onHuman Rights Policy. Cordula Droege, ormer Legal Ocer at the InternationalCommission o Jurists, also contributed; Robert Archer, Executive Director othe International Council, edited the report.

The report is based on short papers prepared by:

Rachel Brett Representative or Human Rights and Reugees,Quaker UN Oce. Optional Protocol to the Conventionon the Rights o the Child on the involvement o

children in armed conict.

Julian Burger Senior Human Rights Ocer, OHCHR. Drat United

Nations Declaration on the Rights o IndigenousPeoples.

Param Cumaraswamy Vice-President, International Commission o Jurists;Former Special Rapporteur on the Independenceo the Judiciary. Bangalore Principles on JudicialConduct.

Caroline Lambert Independent consultant. Open-Ended Working Groupto consider options regarding the elaboration o an

Optional Protocol to the International Covenant on

Economic, Social and Cultural Rights.

Grainne OHara Protection Ocer, Department o InternationalProtection, UNHCR. Standard-setting processes atUNCHR.

Martin Scheinin Director, Institute or Human Rights, bo AkademiUniversity. Declaration o Minimum HumanitarianStandards.

Lee Swepston Human Rights Coordinator, International Labour

Organization. Adoption o Standards by theInternational Labour Organization: Lessons and

Limitations.

Wilder Tayler Legal and Policy Director, Human Rights Watch. Noteon Standard-Setting in the Inter-American System o

Human Rights Protection.


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II Human Rights Standards: Learning rom Experience

Theo van Boven Proessor, University o Maastricht; ormer SpecialRapporteur on Torture. Drat Principles and Guidelineson the Right to a Remedy and Reparation.

Kirsten Young Director o Rights and Advocacy, Landmines

Survivors Network. Participation and Partnership: ARights-Based Approach to a Weapons Legacy.

All papers are accessible at www.ichrp.org

In addition, the ollowing individuals attended a meeting that was convenedby the International Commission o Jurists and the International Council on13-14 February 2006:

Minelik Alemu Ministry o Foreign Aairs o Ethiopia

Robert Archer International Council on Human Rights Policy

Luis Alonso De Alba Permanent Mission o Mexico to the UN in Geneva

Mariette Grange International Catholic Migration Commission

Nicholas Howen International Commission o Jurists

Anuradha Mohit National Commission on Human Rights, New Delhi

Betty Murungi Urgent Action Fund-Arica, Nairobi

Sir Nigel Rodley Member, the UN Human Rights Committee; Proessor,Essex University

Ian Seiderman International Commission o Jurists

Maria Stavropoulou UNHCR, Athens

Ulrika Sundberg Permanent Mission o Sweden to the UN in Geneva

Mark Thomson Association or the Prevention o Torture

Patricio Utreras Permanent Mission o Chile to the UN in Geneva


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Human Rights Standards: Learning rom Experience III

The research was conducted under the supervision o an Advisory Groupcomposed o:

Hina Jilani Special Representative o the Secretary-General onHuman Rights Deenders

Bacre Ndiaye Director, New York Oce o the UN High Commissioneror Human Rights

Sir Nigel Rodley Member, the UN Human Rights Committee; Proessor,Essex University

Ulrika Sundberg Permanent Mission o Sweden to the UN in Geneva

Thanks also are due to Tatiana Fedotova, Anna-Karin Heedh, Ruby Madanand Shivani Verma, interns at the International Council, who provided research

assistance.

A drat o this report was sent or comment to individuals with experienceo standard-setting processes. We would like to thank the ollowing or theiradvice: Lydia Alpzar Durn, Federico Andreu-Guzmn, Christoph Bierwirth,Christine A. Brautigam, Roberta Clarke, Jos A. Guevara Bermudez, NicholasHowen, Imrana Jalal, Scott Jerbi, Walter Klin, Helena Nygren-Krug, CarmenRueda-Castanon, Chris Sidoti, Lee Swepston and Kirsten Young.

ne Reereci

At rst mention in each chapter, a human rights standard is generally given its ull title(usually with its acronym or abbreviated name, and the adoption year in brackets).Standards are subsequently reerred to by their acronym or abbreviated name. Forexample: Universal Declaration o Human Rights (UDHR, 1948). All human rightsstandards mentioned in the text (with their short names in brackets) are listed inAppendix I.


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Human Rights Standards: Learning rom Experience 1

IntRodUCtIon

The adoption o the Universal Declaration o Human Rights (UDHR) in 1948paved the way or the creation o an unprecedented number o standards toprotect human dignity.

The most signicant are the International Covenant on Civil and Political Rights(ICCPR, 1966) and the International Covenant on Economic, Social and CulturalRights(ICESCR, 1966), which provided the oundation o the international legalramework that protects human rights.1 These two Covenants together with theUDHR orm the International Bill o Human Rights. Other major human rightstreaties include the International Convention on the Elimination o All Formso Racial Discrimination (CERD, 1965); the Convention on the Elimination oAll Forms o Discrimination against Women (CEDAW, 1979);2 the Conventionagainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(CAT, 1984); the Convention on the Rights o the Child(CRC, 1989);3 and theInternational Convention on the Protection o the Rights o All Migrant Workers

and Members o Their Families(ICMW, 1990). Dozens o other documents havebeen adopted on issues as varied as the treatment o prisoners and consentto marriage.

The Cold War was at its height when the Covenants were drated, and thisinfuenced their negotiation. Ater the UDHR, the United Nations (UN) adoptedno global human rights treaties or almost two decades.4 Though many newstandards were created ollowing adoption o the Covenants, major politicaldivisions, including the Cold War and rictions between North and South haveregularly infuenced the negotiation o new human ri ghts standards.

Over the same period human rights received attention in other orums and atregional level. The International Labour Organization (ILO) adopted numeroushuman rights conventions on non-discrimination, orced labour, child labour,reedom o association and collective bargaining, and indigenous and tribalpopulations. Regional organisations also developed many standards. Majorhuman rights treaties adopted under the auspices o the Council o Europeinclude the European Convention or the Protection o Human Rights and

1 The Covenants entered into orce in 1976.

2 An Optional Protocol to the Convention on the Elimination o Discrimination against Women(OP-CEDAW) was adopted in 1999.

3 This Convention has two additional protocols, the Optional Protocol to the Convention onthe Rights o the Child on the involvement o children in armed conicts (OP-CRC-AC,2000) and the Optional Protocol to the Convention on the Rights o the Child on the sale ochildren, child prostitution and child pornography(OP-CRC-SC, 2000).

4 This said, the Convention on the Prevention and Punishment o the Crime o Genocidewasadopted in 1951 and CERD in 1965 (one year earlier than the Covenants) and other globalorganisations, such as the ILO, adopted human rights treaties during this time.


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2 Human Rights Standards: Learning rom Experience

Fundamental Freedoms (ECHR, 1950), the European Social Charter (ESC,1961), the European Convention or the Prevention o Torture and Inhumanor Degrading Treatment or Punishment (ECPT, 1987) and the FrameworkConvention or the Protection o National Minorities (Convention on Minorities,1994). For its part, the Organisation o American States adopted the American

Declaration o the Rights and Duties o Man (1948),5

the American Conventionon Human Rights (American Convention, 1969),6 the Convention to Preventand Punish Torture (1985), the Convention on the Forced Disappearances oPersons(1994), the Convention on the Prevention, Punishment and Eradicationo Violence against Women (1995), and the Convention on the Eliminationo All Forms o Discrimination against Persons with Disabilities (1999). TheOrganisation o Arican Unity, now the Arican Union, adopted the AricanCharter on Human and Peoples Rights(Arican Charter, 1981),7 the ConventionGoverning the Specifc Aspects o Reugee Problems in Arica (1969) and theArican Charter on the Rights and Welare o the Child(1990).

The value o this work is undeniable. Taken together, international human rightsstandards have transormed the nature o the relationship between governmentsand individuals, and made public authorities ar more accountable. At the sametime, the prolieration o standards has created new challenges. Some overlapand duplicate one another, or instance: the UN, the ILO, the Council o Europeand the European Union have each developed standards on social securityand discrimination that oer dierent orms and degrees o protection.

The system developed to monitor their implementation and handle complaintsis also under stress. States nd it burdensome to submit so many reports andthe United Nations committees that monitor human rights treaties and deal with

complaints have accumulated a backlog o work.

8

As a result, even cooperativestates have become more reluctant to adopt new monitoring mechanisms,without which legal standards risk becoming ineective.

In addition, much more needs to be done to improve implementation ostandards that exist. There is little point in elaborating standards i they arenot implemented. In some countries, standards have not been incorporated

5 This Declaration was adopted a ew months beore the UDHR on 2 May 1948.

6 This Convention has been complemented by two protocols, the Protocol o San Salvador oneconomic, social, and cultural rights (1998) and the Protocol to Abolish the Death Penalty(1990).

7 Two protocols to the Charter have been adopted: the Additional Protocol on theEstablishment o the Arican Court on Human and Peoples Rights(1998), and the Protocolon the Rights o Women in Arica (2003).

8 The High Commissioner or Human Rights published a concept paper in 2006 that proposedthe creation o a single committee to monitor all human rights treaties. See Concept Paperon the High Commissioners Proposal or a Unifed Standing Treaty Body, HRI/MC/2006/CRP.1 (14 March 2006).


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in domestic law, or remain aspirations. In others, standards still are not ullyimplemented despite incorporation.9

The slowness o standard-setting processes is a urther deterrent. Even i thereare exceptions to every rule, most recent negotiations have been cumbersome

and long-winded, and their outcomes have been uncertain.10

Some textshave been watered down, others have been abandoned. The creation o newstandards is so time-consuming that many states have become reluctant todiscuss new initiatives, while non-governmental organisations (NGOs) arestarting to question whether they should engage in protracted negotiations thatmight result in weak texts.

As a result o these challenges, some ear that eorts to create new standardsmay weaken rather than strengthen protection o rights, or even underminethe entire system. On this basis, it is sometimes argued that governments andhuman rights advocates should broaden the application o existing standards,

in order to extend protection as required, rather than create new ones.

Yet there are limits to the extension o existing standards: new standards willcontinue to be needed in the uture. Society is continually changing and humanrights laws must also change when gaps in protection appear. As social andcultural values evolve, new claims will be made that international law will needto address. As this report went to press, two important standards had just beenadopted by the United Nations Human Rights Council (HRC or Council), onedealing with enorced disappearances and the other with the rights o indigenouspeoples. Two new standards were being drated, concerning people withdisabilities and violations o economic, social and cultural rights. Additionally,

calls were being made to develop standards to cover discrimination on thebasis o sexual orientation and the human rights responsibilities o businesses.

9 The historic legacy o the United Nations human rights programme is ound especiallyin the wide-ranging body o human rights norms and standards produced in the last 60years. But putting new resources and capacities to work in response to the human rightsproblems posed today by poverty, discrimination, confict, impunity, democratic decitsand institution weaknesses will necessitate a heightened ocus on implementation. Letterrom the United Nations Secretary-General transmitting his report In Larger Freedom tothe President o the General Assembly, 26 May 2005, www.un.org/largerreedom/add3.htm

(accessed 28 August 2006).

10 Some instruments have taken more than a decade to negotiate. They include theDeclaration on Human Rights Deenders(A/RES/53/144), the Declaration on the Protectiono All Persons rom Enorced Disappearance (A/RES/47/133), the Declaration on theRights o Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (A/RES/47/135), the Principles and Guidelines on the Right to a Remedy and Reparation orVictims o Gross Violations o International Human Rights Law and Serious Violations oInternational Humanitarian Law (E/CN.4/RES/2005/35), and the Set o Principles or theProtection and Promotion o Human Rights through Action to Combat Impunity (E/CN.4/RES/2005/81).


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Nor should the infuence o new standards be underestimated. Especially whensupported by public advocacy, they can promote reorm o domestic law andpractices, and they provide objective benchmarks by which to measure theperormance o state institutions. They can thereore improve accountabilityand the redress available to victims.

At the same time, standard-setting may take new orms in the uture, andthose involved may need to organise in new ways while the creation o theHRC, which replaced the Commission on Human Rights (CHR or Commission)in 2006, provides an opportunity to respond creatively to the challengesencountered in standard-setting to date.11 For all these reasons, it is a goodmoment to consider what we can learn rom past experience. Looking back,at a moment o change, may help us to understand what we can most useullytake orward into the uture.

DefinitionsanDscope

The report examines the recent evolution o international human rights standard-setting processes in the United Nations and some o its specialised agencies,programmes and unds. It reers to regional standard-setting processes but itdoes not discuss them in detail.

It covers ormal processes that lead to the adoption o instruments that requireratication or accession to become binding; and more inormal processes, orexample instruments that do not include binding legal obligations but whichprovide practical guidance to states in their conduct or have moral orce.12

Standards are dened as internationally negotiated or endorsed human rightsdocuments (instruments), whether these are binding or not binding. Bindingdocuments codiy or create legal obligations or duties (hard law), while non-binding documents make recommendations about norms o conduct and policy(sot law).

The report also discusses supervisory mechanisms, many o which arealso established through intergovernmental negotiations, to monitor theimplementation o human rights norms. Some o these mechanisms werecreated at the same time as the standards they monitor; others were negotiatedseparately.

11 The Council was established by General Assembly resolution 60/251 o 3 April 2006. It isa subsidiary organ o the General Assembly, and thereore has higher status within the UNthan its predecessor, the CHR. In ve years the General Assembly will review its status. I atthat time the Council is ound to have established its authority, states may agree to amendthe UN Charter and elevate the Council to the status o a principal organ o the UnitedNations.

12 For a denition o the terms ratication and accession, see textbox, page 13.


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Discussions o standards that would directly implicate non-state actors, such astransnational corporations and armed groups, are increasingly common. Thisis an emerging trend in human rights policy that is likely to develop actively incoming years.13 Most past standards have ocused on the obligations o states,however, and this report which draws lessons rom past experience does

so too.

MethoDology

The analysis reviews some o the experiences o standard-setting that havebeen gathered in the past ty years at the UN and in other specialised agencies,programmes and unds. It tries to determine what part o that experience is stillrelevant and what methods and standard-setting approaches are useul or theuture.

It is based on several short papers prepared by individuals who participatedin dierent standard-setting processes, and a two-day meeting in Genevaorganised by the International Commission o Jurists and the InternationalCouncil. The meeting brought together diplomats, representatives o non-governmental organisations and sta o intergovernmental organisations, whowere invited to share their experiences. Drats o this report were circulatedor comment to these and other experts, and the advice received has beenintegrated in this publication.

The picture that emerged is inevitably incomplete, and sometimes anecdotal.It quickly became evident that no magic ormula would explain success andthat each standard-setting process has been unique. The subject o a standarditsel shapes the character o negotiations as well as the choice o instrument;and the changing political and diplomatic environment constantly infuencesthe way in which human rights standards are adopted. In addition, manyprocesses that at rst sight looked ormal and rational turned out to have beenmuch less orderly beneath the surace, reliant on local actors personalities,the conjuncture o events, timing, chance that cannot be reproduced at will. Tocite an extreme example, ailure to prevent genocides in the ormer Yugoslavia

13 Those interested in proposals to make businesses directly accountable to internationalhuman rights law might reer to the interim report o Proessor John Ruggie who was

appointed Special Representative o the Secretary-General on human rights andtransnational corporations and other business enterprises in 2005 (E/CN.4/2006/97); theUN Sub-Commissions Norms on the Responsibilities o Transnational Corporations andOther Business Enterprises with Regard to Human Rights (E/CN.4/Sub.2/2003/12/Rev.2,2003); and the DratUN Code o Conduct on Transnational Corporations (1984), dratedby an Ad Hoc Intergovernmental Working Group o the Commission on TransnationalCorporations, established by ECOSOC in 1974 (E/1990/94). For a general analysis, seeBusiness and Human Rights Resource Centre (www.business-humanrights.org), theInternational Commission o Jurists (www.icj.org), and International Council on HumanRights Policy, Beyond Voluntarism: Human Rights and the Developing International LegalObligations o Companies, Geneva: ICHRP, 2002.


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and in Rwanda helped to precipitate the adoption o the Rome Statute o theInternational Criminal Court(Rome Statute, 1998), which had languished on theinternational agenda since the Second World War.

To urther complicate matters, the negotiation o new human rights standards

is almost always politically contentious. Some are in avour while others areagainst and consequently the history o particular standards is itsel usuallycontested. The actors, too, have dierent, partial and oten quite personalperceptions o their role and that o their institutions. As a result, it is usuallynot straightorward to report consensually the acts associated with a givenstandards adoption and these diculties are only increased because moststandards are adopted ater many years o work, involving contributions bynumerous dierent actors and institutions.

This means that, had we selected other examples, they would have provideddierent insights and other actors would probably have told dierent stories about

the same events. What some view as success or progress others call ailure.

For these reasons, the report sets itsel limited objectives. It seeks to reviewtrends in negotiation procedures and suggests some guidelines that actorswho wish to set standards may nd useul. Though comparison is dicult andthe uture will not necessarily resemble the past, insights do emerge that shouldbe helpul, especially to readers who are prepared to work by analogy.


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I. wHEn ARE nEw StAndARdS dESIRABLE?

New human rights standards are usually created to ll a gap in protection. Inthis report, three kinds o protection gaps have been identied: normative,application and supervisory. Protection gaps should be distinguished romimplementation and ratication gaps (see chart below).

A normative gap exists when a recurrent event (or act or structural actor)deprives human beings o their dignity. Even when existing instruments provideprotection in certain respects, in many cases a new or more comprehensiveinstrument is required to rame the rights o an aected group more clearly orin human rights terms. Such standards enable members o the group to protecttheir rights more eectively and clariy the duties o states at the same time.

In this context, it is sometimes suggested that the rst years o standard-settinggenerated oundation standards that applied to all human beings, whereas laterstandards provided more detailed protection to specic groups. The InternationalCovenants adopted in 1966 protected women and children on the same termsas all people, or example. However, new instruments such as the Conventionon the Elimination o All Forms o Discrimination against Women (CEDAW,1979) and the Convention on the Rights o the Child(CRC, 1989) subsequentlybecame necessary to (a) identiy principles specic to the group (e.g. the bestinterest o the child), (b) recognise new rights (e.g. the right o children not tobe separated rom their parents against their will, or the reproductive rights owomen), and (c) speciy duties o states that were not dened clearly in thegeneral instruments (e.g. the duty to eliminate stereotyped roles or men andwomen or the duty to ensure that discrimination against women does not occurin the private sphere, in addition to the public sphere).

Disability might be an example o a current normative gap o this type.Existing human rights norms, notably the principle o non-discrimination,protect the rights o people with disabilities. However, welare approaches todisability, combined with low awareness o human rights in public institutions,are so entrenched that it is reasonable to claim that the rights o people withdisabilities are not properly protected. The Drat Comprehensive and IntegralInternational Convention on the Protection and Promotion o the Rights and

Dignity o Persons with Disabilities (Convention on the Rights o Persons withDisabilities) aims to ll this gap.14

It may be said that a normative gap also exists when a new instrument becomesnecessary to prevent and provide protection against a specic practice that

14 In 2001, General Assembly resolution 56/168 o 19 December 2001 created an Ad HocCommittee to consider proposals or a convention on disabilities. The Committee began tonegotiate a drat convention in 2004 and hoped to nalise its revised drat text during itsEighth Session, in August 2006.


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violates human rights. Until recently, or example, no norm explicitly coveredcases o enorced or involuntary disappearances. The International Conventionor the Protection o All Persons rom Enorced Disappearance (CED, 2006)lled this gap. It establishes that people are entitled to be protected rom orceddisappearance and requires states to prohibit the practice in law.

An application gap exists when an international instrument applies to aspecic situation or a category o people, but does not apply to similar cases.This gap can be illustrated by the problem o disappearances. For many years,relatives o a person who disappeared during an armed confict were entitledto know what happened to him or her. This right was specied in Protocol Ito the Geneva Conventions (1977).15 However, the Protocol did not apply topeople who disappeared in other circumstances (i.e. not in the context oarmed confict). This gap was subsequently lled by the Principles or theProtection and Promotion o Human Rights through Action to Combat Impunity(1997)16 and the Basic Principles and Guidelines on the Right to a Remedy and

Reparation or Victims o Gross Violations o International Human Rights Lawand Humanitarian Law(2005).17

A supervisory gap exists when a right has been included in an instrument,but no mechanism exists to monitor and enorce its compliance, or themechanism is insucient to secure compliance or provide remedy to victims.For example, neither the Optional Protocol to the Convention on the Eliminationo Discrimination against Women (OP-CEDAW, 1999)18 nor the Optional Protocolto the Convention against Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment(OP-CAT, 2002)19 created new rights: they added newsupervisory mechanisms to strengthen state compliance with the Conventions

concerned.

It is not always easy to draw clear distinctions between dierent orms oprotection gaps. This helps to explain why proposals to create a new standardoten generate disagreement. Governments tend to argue that existing rights

15 Article 32.

16 E/CN.4/Sub.2/1997/20/Rev.1, annex II. The Principles were recently updated and acceptedby the ormer CHR (see ootnote 49).

17 Adopted by General Assembly resolution 60/147, 16 December 2005. The Basic principles

had earlier been adopted by the CHR (resolution 2005/35 o 19 April 2005) and theEconomic and Social Council (resolution 2005/30 o 25 July 2005).

18 The OP-CEDAW contains two additional supervisory procedures: (1) an individual andgroups complaints procedure covering violations o rights protected under the CEDAW,and (2) an inquiry procedure that enables the Committee to examine grave or systematicviolations o womens rights. In both cases, states must be party to the Convention and theProtocol.

19 The OP-CAT is designed to assist states to implement their obligations under the CAT. Itdoes so by establishing a system o regular visits to places o detention. It entered intoorce on 22 June 2006.


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provide protection or groups which are particularly exposed to risk, whilemembers o such groups and civil society organisations oten argue that newstandards are needed.

Moreover, more than one gap may exist simultaneously; and a new instrument

may cover several gaps. The CED has recognised that people have a right notto be disappeared (a normative gap), extended the right o relatives to knowthe ate o a missing person (an application gap), and also established a newsupervisory mechanism that allows a Committee on Enorced Disappearances tomake an urgent appeal to the General Assembly when enorced disappearancesare shown to be widespread or systematic (a supervisory gap).

In theory, certain protection gaps might be resolved by amending the originaltext, rather than adopting a new protocol. It would have been possible to amendthe CRC, or example, rather than adopt the Optional Protocol to the Conventionon the Rights o the Child on the involvement o children in armed conict(OP-

CRC-AC, 2000), which prohibited military recruitment and use o children inhostilities. However, it is always complicated to amend a text because statesmay use the opportunity to reduce rather than raise the level o protection thatstandards oer. For this reason, any decision to call or amendment requiresvery careul political analysis.

Protection gaps should not be conused with ailure by states to adopt an inter-national norm (ratication gap) or apply it nationally (implementation gap).

Implementation gaps occur when states ail to pass domestic legislation, ordo not establish procedures and institutions that are required to implement an

international standard. Ratication gaps occur when states do not adopt aninternational treaty or ail to enact it in domestic law. An extreme example isprovided by the International Convention on the Protection o the Rights o AllMigrant Workers and Members o Their Families(ICMW, 1990). Adopted withouta vote in 1990, in mid-2006 only thirty-our states had ratied this convention.20

The diagnosis o gaps is based on pragmatic analysis (acts on the ground)and international law. This said, new standards are not always the best solutionor gaps in protection. Even when a clear gap in international law is identied,the risks involved in starting a standard-setting process need to be evaluated.Many initiatives also ail. The attempts to develop an international convention

on housing rights, and a third optional protocol to the International Covenant onCivil and Political Rights on the right to a air trial and remedy, are examples.21

20 Inormation valid to July 2006.

21 See, or example, the second progress report o the Special Rapporteur on the right toadequate housing (E/CN.4/Sub.2/1994/20), and the CHR (decision 1995/110 o 3 March1995) respectively.


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tpes gaps Pssible Reeies

Normative gapNew international standardORExtended application o existing norms

Application gap

in specicsituations or aspecic groupo people

New international standardORExtended application by analogy

Supervisory gap New international standard

Implementation gap

no domestic law Establishment o new domesticproceduresAND/ORNational institutions

no domesticimplementingmechnism

Ratication gap

Campaign or ull raticationOR

Building consensus around lesscontroversial aspects o a contestedstandard to create conditions or eventualratication


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II. wHAt? CHooSIng tHE InStRUmEnt

harD anD softlaw instruMents

International human rights texts may be divided into hard law and sot lawinstruments.

The rst group is composed o conventions, covenants and protocols thatare binding on states which have ratied, accepted or acceded to them (seetextbox, page 13).

The second group includes declarations, principles, plans o action andguidelines. It is oten said that these documents are not legally binding becausestates have not ormally agreed to be bound by the provisions they contain.Nevertheless, they can have considerable political and legal weight.

harDlaw instruMents

Until now, the most common procedure or negotiating a new binding instrumenthas been to mandate an open-ended working group (WG) to drat the instrumentconcerned.22 Most working groups were established by the Commission onHuman Rights (CHR or Commission). The working groups or both the OptionalProtocol to the Convention on the Rights o the Child on the involvement o

children in armed conict(OP-CRC-AC, 2000) and the International Conventionor the Protection o All Persons rom Enorced Disappearance (CED, 2006)were set up this way, or example.23 The Commission on the Status o Women

also established working groups, including a working group to drat theConvention on the Elimination o All Forms o Discrimination against Women(CEDAW, 1979). The General Assembly created several working groups aswell or example the Ad Hoc Committee ormed to prepare a conventionagainst the reproductive cloning o human beings.24

It should be noted that open-ended WGs may have a variety o mandates. Notall prepare texts; the WG on the Right to Development is one that does not.25

The working methods or standard-setting are examined in Chapter IV. At thispoint it is worth noting that (under the CHR) a working group normally orwarded

a drat text to the Commission or discussion and adoption. Once adopted, by

22 Open-ended means that states which were not members o the CHR, and NGOs, couldparticipate; working groups typically met between sessions o the Commission.

23 CHR resolution 1994/91 and CHR resolution 2001/46 respectively.

24 General Assembly resolution 56/93 o 12 December 2001.

25 CHR resolutions 1998/72 and 2005/4.


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consensus or a majority o Commission members, it was then orwarded tothe General Assembly, via the United Nations Economic and Social Council(ECOSOC), or urther discussion and approval.

The newly established Human Rights Council (HRC or Council) is expected to

adopt similar procedures, with the dierence that adopted texts would not passthrough ECOSOC. In its rst session, the HRC extended the mandate o the WGon the Optional Protocol to the International Covenant on Economic, Social andCultural Rights(OP-ICESR) and orwarded the CED to the General Assembly,having approved it by consensus.26

Once adopted by the General Assembly, a UN instrument is opened orratication. It enters into orce when it receives the number o raticationsrequired under its provisions. Only states that have ratied an instrument arelegally bound by its provisions (see textbox, page 13).

Hard law instruments oten require many years o negotiation. As noted, it tookalmost two decades to complete the two principal Covenants.27 Some havehowever been adopted relatively rapidly. It took only seven years to approve theConvention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment(CAT, 1984),28 and the working group established to elaboratea drat text on enorced disappearances drated the CED in just three. Severalactors explain the speed with which the CED was completed. They include thedetermination o the Chair to move the process orward quickly, and his abilityto engage participating states in a constructive manner; the presence o a well-organised coalition o associations o relatives o disappeared persons rom Asiaand Latin America; the support and commitment o several states, principally

rom the Latin American and Caribbean Group (GRULAC);29

the involvemento several international NGOs with experience o international negotiation; andthe appointment o an Independent Expert mandated to consider the value oa treaty on orced disappearances.30 It should be noted as well that NGOs hadfagged the need or a Convention since 1981.

26 HRC resolution A/HRC/1/L.4/Rev.1 and HRC Res. A/HRC/1/L.2 respectively.

27 Drating began in June 1947 at the rst session o the Drating Committee o the CHR. TheGeneral Assembly voted to adopt both Covenants on 16 December 1966.

28 This said, discussions had begun in the General Assembly long beore the adoption o the

CAT; the General Assembly adopted the Declaration against Torture in 1975 (Declarationon the Protection o All Persons rom being Subjected to Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment, General Assembly resolution 3452 (XXX) o 9December 1975). Eorts to drat a treaty were greatly helped by the political environmentater 1973 when repression in Chile and the brutal death o Steve Biko in detention in SouthArica (1976) concentrated public attention on the issue o torture.

29 Five regional groups are recognised by the United Nations: the Asian, the Arican, the LatinAmerican and Caribbean (GRULAC), the Western European and Other (WEOG) and theEastern European (CEIT).

30 See ootnote 57.


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In general it is thereore dicult to predict the time required to negotiate a hardlaw text. Those interested in doing so should nevertheless not assume that itcan be done quickly.

glssar ters

A treaty does not become binding on a state until the state consents to it. Statescommonly consent to multilateral treaties by ratication, acceptance or approval, andaccession.

Signature. Signature indicates the states intention to consent at a later date. Signaturedoes not by itsel bind the state to the terms o the treaty. This said, under internationallaw, states that have signed an instrument are obliged to rerain rom acts which woulddeeat the object and purpose.

Ratifcation. Most multilateral treaties provide or states to sign subject to ratication.This gives states the opportunity to seek domestic approval, and enact any national

legislation required in advance o ratication when the treaty becomes legally binding.Once it has ratied an international treaty, a state is required to implement its provisionsdomestically.

Acceptance or approval. Acceptance or approval o a treaty ollowing signature hasthe same legal eect as ratication, and the same rules apply. I the treaty allowsacceptance or approval without prior signature, these acts are treated as an accession,and the rules relating to accession apply.

Accession, adherence or adhesion. Accession, adherence or adhesion is theact whereby a state becomes a party to a treaty it has not signed by depositingan instrument o accession. Accession has the same legal eect as ratication.

However, accession requires only one step, namely the deposit o an instrument oaccession. Accession may occur beore or ater a treaty has entered into orce.

Reservations. When ratiying a hard law instrument, states may enter reservations.These limit, exclude or alter the legal application o certain provisions o the treaty inthe state concerned. Reservations that are inconsistent with the object and purpose othe treaty are prohibited. Some treaties orbid reservations or restrict them to certainprovisions. Reservations o a general character are generally prohibited (e.g. Article57(1) ECHR). The ILO does not allow reservations to the Conventions it adopts.

Denunciation. Denunciation is the withdrawal rom a treaty by a state. Generally,this is permitted provided the terms o the treaty are respected. Some human rights

instruments do not permit denunciation. They include the ICCPR, ICESCR andCEDAW. Others including the CRC, CAT, and CERD do. Nonetheless, denunciationo a human rights treaty is extremely rare.


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softlaw instruMents

Intergovernmental negotiations leading to a human rights treaty are sometimespreceded by a political declaration that refects state concerns and lays theoundations o an eventual treaty by dening core issues, (legal) concepts and

the likely scope o protection.31

The General Assembly adopted such declarationsbeore negotiating the CAT32 and the CED or example.33 Because declarationsare not binding, they are sometimes easier to adopt.34 Nevertheless, they canhave considerable political and moral authority and represent statements ocommitment by governments.

Declarations and other sot law documents oer a more fexible orum inwhich to develop a norm and the process tends to be less arduous. However,because they are statements o moral and political intent, some o them haveproved to be controversial and taken a long time to negotiate.

The working group established to elaborate a Drat Declaration on the Rightso Indigenous Peoples met rom 1995 to 2006. The Declaration was nallyadopted in June 2006 during the rst session o the HRC. Considering thatthe working group was asked to take into account a text that had earlier beenprepared and adopted by the Sub-Commission, the standard-setting processlasted more than twenty-three years.35 Where a sot law instrument is likely torequire lengthy negotiation, a strong case can be made or choosing a hardlaw option. However, it is dicult to predict such matters in advance.

Sometimes sot law instruments prepare the way or a binding document; butthis too is a dicult matter to predict. Negotiation o sot law documents can

also be extremely hard, as was the case o the Drat Declaration on the Rights oIndigenous Peoples.

31 An international treaty may be titled a covenant, charter, convention, pact orprotocol.

32 The Declaration on the Protection o All Persons rom Being Subjected to Torture and OtherCruel, Inhuman or Degrading Treatment or Punishmentwas adopted by General Assemblyresolution 3452 (XXX) o 9 December 1975.

33 The Declaration on the Protection o All Persons rom Enorced Disappearance wasadopted by General Assembly resolution 47/133 o 18 December 1992. Declarations donot always lead to a treaty, however. Examples o the latter type include the Declaration onthe Rights o Persons Belonging to National or Ethnic, Religious and Linguistic Minorities(1992); the Declaration on the Elimination o All Forms o Intolerance and o DiscriminationBased on Religion or Belie(1981); the Declaration on the Elimination o Violence againstWomen (1993) and the Declaration on the Right to Development(1986).

34 Although the recently adopted Declaration on the Rights o Indigenous Peoplesoccasionedlong and torturous negotiations.

35 See ootnote 88.


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Sometimes academic experts or NGOs initiate sot law instruments. Examplesinclude the Limburg Principles and the Maastricht Guidelines mentionedbelow,36 as well as the Siracusa Principles on the Limitations and DerogationProvisions in the International Covenant on Civil and Political Rights (SiracusaPrinciples, 1984).37 Similarly, the Bangalore Principles o Judicial Conduct

(Bangalore Principles, 2002), adopted by a group o Chie Justices, have beenwidely disseminated within the judicial community, especially in Asia but alsoin Arica.38

Obviously some initiatives o this kind ail to be recognised by intergovernmentalstandard-setting processes. They may, nonetheless, acquire some legal weight.For example, a group o academic experts adopted the Turku Declaration onMinimum Humanitarian Standards(Turku Declaration, 1990) during a meetingthat was held at bo Akademi Universitys Institute or Human Rights (Finland)to clariy legal provisions applicable to states o emergency that ail thethreshold or states o emergency agreed in humanitarian law. Although those

who drated the Declaration envisaged that it would be adopted (or at leastendorsed) by the UN, it has not been ocially recognised.39 On the other hand,the Declaration has been reerred to in the case law o the International CriminalTribunal or the ormer Yugoslavia and in various experts documents.40

The term sot law can be misleading. Though sot law texts are notthemselves legally binding, most draw on principles and norms contained ininternational instruments that are (such as the ICCPR and the ICESCR). Obviousexamples include the Declaration on the Elimination o Violence against Women

36 See page 29.

37 The Siracusa Principles were adopted in May 1984 by a group o international human rightsexperts convened by the International Commission o Jurists, the International Associationo Penal Law, the American Association or the International Commission o Jurists, theUrban Morgan Institute or Human rights, and the International Institute o Higher Studiesin Criminal Sciences in Siracusa, Italy, to consider the limitation and restriction provisionso the ICCPR. The Sub-Commission subsequently recognised them (E/CN.4/1984/4, 28September 1984).

38 The Bangalore Principles provide a ramework enabling judicial authorities to regulatejudicial conduct with respect to independence, impartiality, integrity, propriety, competence,and diligence. Intended to establish international standards, they were adopted in an expertmeeting in 2001, revised at a Round Table Meeting o Chie Justices in 2002, and includedas an annex to the ninth report o the UN Special Rapporteur on the independence o

judges and lawyers (E/CN.4/2003/65, 10 January 2003).39 The Sub-Commission or the Promotion and Protection o Human Rights (see Chapter

IV) transmitted the Declaration in 1994 to the 1995 session o the Commission (Sub-Commission resolution 1994/26). In that year, the Commission took note o the resolutionand recognised the need or principles applicable to situations o internal and relatedviolence, and requested that the Turku Declaration on Minimum Humanitarian Standardsshould be sent or comment to governments and intergovernmental and non-governmentalorganisations. In 1996, the Commission again recognised the need or principles applicableto situations o internal violence, but did not reer to the Declaration.

40 Prosecutor v. Tadic, decision o 2 October 1995, Case No. IT-94-1-AR-72.


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(1993), the Declaration on the Right and Responsibility o Individuals, Groupsand Organs o Society to Promote and Protect Universally Recognized Human

Rights and Fundamental Freedoms(Declaration on Human Rights Deenders,1999).41 Some go urther. The Guiding Principles on Internal Displacement(IDPPrinciples, 1998) not only restate the relevant principles applicable to internally

displaced persons (IDPs) but clariy legal grey areas and gaps.42

Over time, sot law instruments may acquire an authority that was not oreseenat the time o their adoption. The most obvious example is the UniversalDeclaration o Human Rights(UDHR, 1948) itsel. At the outset, it was merelya non-binding declaration adopted by the General Assembly, but today manyo its articles have become statements o customary law that are held to haveuniversal application (see textbox above).

Sot law standards may subsequently infuence the drating o hard law.Article 10 o the ICCPR was directly inspired by the Standard Minimum Rules

or the Treatment o Prisonerswhich were adopted in 1955 by the rst Congresson the Prevention o Crime and the Treatment o Oenders.43 Both requirelaw enorcement ocials to separate juveniles rom adults, and untried romconvicted detainees.

Sot law instruments can raise awareness. The Beijing Declaration andProgramme o Action (1995) not only rearmed basic principles (or example,that womens rights are human rights) but identied a number o particularly

41 A/Res./48/104 and A/Res./53/144 and E/CN.4/1998/53/Add.2 respectively.

42 A/Res./53/144 and E/CN4/1998/53/Add.2 para. 9. In 1993, at the request o the CHR, theormer Representative o the Secretary-General on internally displaced persons, Francis M.Deng, prepared an initial study o international standards relevant to IDPs (E/CN.4/1993/35,Annex). Two more extensive studies were subsequently presented in 1996 (E/CN.4/1996/52/Add.2) and 1998 (E/CN.4/1998/53/Add.1). Encouraged by the CHR (E/CN.4/RES/1996/52,para. 9) and the General Assembly, Mr Deng went on to develop the IDP Principles. Theywere prepared with the help o a team o international legal scholars chaired by ProessorWalter Klin who succeeded Mr Deng as the Representative on IDPs in 2004.

43 Subsequently, the Standard Minimum Rules or the Treatment o Prisonerswere approved byECOSOC by its resolutions 663 C (XXIV) o 31 July 1957 and 2076 (LXII) o 13 May 1977.

Cusar Ieraial La

Customary law is considered to bind all states (except states that objected beoreit became accepted as law), whether or not they have ratied relevant treaties. Itoccupies a central position in international human rights law.

Customary law comes to exist when two tests are met: a) common practice by a groupo states over a period o time and (b) the belie by these states that the practiceconcerned is obligatory. A number o human rights norms are now considered to becustomary law, rom the prohibition o slavery to the prohibition o torture.


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egregious humanitarian law violations (such as rape, including systematic rape,and orced pregnancy) that subsequently became important to campaignsor womens rights. In a similar way, the Durban Declaration and Programmeo Action (2001) rearmed the Convention on the Elimination o RacialDiscrimination (CERD, 1965) and analysed new orms o racial discrimination,

helping to update the anti-discrimination agenda.Sot law instruments can also address technical issues and provide states withpractical guidance. Standards on the prevention o crime and the treatment ooenders, adopted in sot law instruments in the 1970s and 1980s, providespecic and detailed guidance to ocials that has helped states to ull theirlegal obligations.44

Some sot law instruments have become points o reerence reerredto in national legislation, national and international jurisprudence or in otherinternational instruments. The IDP Principles quickly became a document o

reerence. In 2004 the Commission on Human Rights expressed satisactionthat an increasing number o states, UN agencies and regional and non-governmental organisations were applying them as a standard.45 Written in non-technical language, and drawing on the advice o practitioners and experts,they were widely used to protect internally displaced persons. In Arica, theArican Union, the Economic Community o West Arican States (ECOWAS) andthe Intergovernmental Authority on Development (IGAD) have called on memberstates to disseminate and apply them. In Latin America, the Constitutional Courto Colombia considers them to be binding at domestic level.46 Although somecountries belonging to Asian regional organisations, including the Associationo East Asian Nations (ASEAN) and the South Asian Association or Regional

Cooperation, have argued that, being a declaration, the Principles are non-binding, their authority seems to be beyond dispute.47

Within the ILO, some sot law instruments have been used to set new directionso the Organisation. The Declaration o Philadelphia (1944) laid out a programmeo action and new directions or the ILO ater the Second World War, and itwas incorporated into the Constitution in 1946. The Tripartite Declaration on

44 Particularly relevant are the instruments adopted by the UN Congresses on the preventiono crime and treatment o oenders. See page 42.

45 Resolution 2004/55, operative para. 6. For the IDP Principles, see E/CN.4/1998/53/Add.2.46 See e.g. Judgment T-O25 (2004). See also, I/A Court H.R., Case o the Mapiripn Massacre

v. Colombia. Preliminary Objections and Acknowledgment o State Responsibility o March7, 2005. (Only in Spanish). Series C No. 122.

47 When Switzerland convened a series o inormal meetings to discuss governmentsmisgivings and reservations with respect to the IDP Principles in 2002, or example, itbecame clear that the minority would not challenge their status. Additionally, in the 2005UN World Summit the heads o states and governments recognised the IDP Principles asan important international ramework or the protection o internally displaced persons.A/Res/60/1 para. 132.


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Multinational Enterprises and Social Policy(1967, updated in 2000), set basicstandards on this question and established a review procedure. The Declarationon Fundamental Rights and Principles at Work (1998), set out new reportingprocesses and a new approach to human rights technical assistance.

Other sot law instruments requently used by regional and domestic courtsinclude the Basic Principles and Guidelines on the Right to a Remedy andReparation or Victims o Gross Violations o International Human Rights Law and

Serious Violations o International Humanitarian Law48and the Set o Principlesor the Protection and Promotion o Human Rights through Action to Combat

Impunity.49 Several Latin American countries have taken these principles andguidelines into account when drawing up legislation on reparations. The Inter-American Court on Human Rights has reerred several times to them. Theyalso infuenced the Rome Statute o the ICC, notably article 75 dealing withreparations.

Because some sot law instruments have had real impact, states increasinglywant to engage with, i not supervise and control, processes that states do notinitiate. As a result, it may become more dicult to initiate sot law standards.Even though the initiative to drat the IDP Principles was encouraged by theCommission, some states criticised the text when it was rst presented becauseit was not drated by an intergovernmental process. States also eared that theway in which the IDP Principles had been developed would set a precedent.

Such ears may be misplaced. Draters o sot law instruments usually consultstakeholders, ormally and inormally, and most take particular account ogovernment views because they know that, to have impact, any text ultimately

needs their support. When the Commission on Human Rights sought advicerom experts, it required them to consult all relevant actors, and in particulargovernments. The Representative o the Secretary-General on the Human Rightso Internally Displaced Persons was asked to do so and sent a questionnaireto all governments and interested organisations beore undertaking his study.States do thereore have opportunities to make their views known and toinfuence texts, even when the process remains in the hands o experts.

In sum, when it comes to hard and sot law, it is dicult to assess in advancewhich kind o instrument will be easier to negotiate. While hard law is preerable as by denition it is binding it is important not to underestimate the options

that sot law oers. As mentioned, it can be infuential, especially at domesticlevel, where local courts sometimes apply it, and can assist national authoritiesto address certain issues by providing practical guidance.

48 General Assembly resolution 60/147 o 16 December 2005.

49 The Principles on Impunity were proposed in 1997 by Proessor Joinet (E/CN.4/Sub.2/1997/20/Rev.1, Annex II) and updated by Proessor Orentlicher in 2004 (E/CN.4/2005/102/Add.1). The CHR took note o them in its resolution 2005/81 o 21 April2005.


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DifferentinstruMentsforDifferenttypesofprotectiongaps

O course, it is not simple to know which kind o instrument should be selectedto address a particular protection gap. The sensitivity o the issues at stake, thepolitical climate, the existence o regional standards on the issue or standards on

comparable issues, and the presence o actors who might support or oppose astandard-setting initiative all infuence that choice. Nevertheless, some generalprinciples can be suggested.

Normative gaps are perhaps best addressed by hard law instruments. Inparticular, in the presence o a gap in protection that puts in jeopardy the lieor human integrity o people, a legally binding standard is the best response.However, a sot law instrument may be the more realistic option when asignicant number o states have reservations. It may also be adopted as a rststep, to prepare the way or a legally binding norm.

Application gaps can be addressed by hard or sot law instruments.Though a sot law text may clariy the need to protect a particular group,however, only hard law instruments include legally binding monitoring andenorcement mechanisms. In their absence, protection may be illusory. UNworking groups, Special Rapporteurs or Representatives o the Secretary-General can sometimes oer an alternative monitoring mechanism. Victims oenorced disappearances and human rights deenders have certainly benetedrom the work o the Working Group on Enorced or Involuntary Disappearancesand the Special Representatives o the Secretary-General on human rightsdeenders, or example.50

Supervisory gaps are also more suitable or hard law instruments. The actthat they are binding, and provide monitoring, means that states are requiredto enact proper legislation or create bodies to implement them. Although statesare required to take eective measures to prevent acts o torture under theCAT (e.g. articles 2 and 16), or example, the Optional Protocol to CAT helpsto ensure that these commitments are met by establishing a system o visits toplaces o detention (article 3 OP-CAT).

50 Their impact is due particularly to the act that both the Working Group and the SpecialRepresentative take up individual cases o human rights violations.


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III. wHo? tHE ACtoRS

The number o actors involved in standard-setting has multiplied. A handul oexperts prepared the Universal Declaration o Human Rights(UDHR) in 1948,whereas more than 150 government delegations and hundreds o civil societyorganisations participated in drating the Rome Statute. This does not mean, ocourse, that the actors involved are o equal weight. Their infuence on decisionsand in the broader negotiating process varies greatly.

Ultimately, states determine whether a new legal instrument is adopted and whatit says. In theory, states could thereore set standards without regard to NGOs orother actors. In practice, this is not what happens. NGOs have regularly placednew issues on the international agenda and ensured they have been takenorward. Diplomats recognise (not always publicly) that NGOs and experts arecrucial partners in standard-setting processes. NGOs are important sourceso inormation and analysis, and can shape public opinion internationally anddomestically.

Beore examining the roles o dierent actors, it should thereore be emphasisedthat no interest group or constituency can achieve much on its own. To besuccessul in standard-setting, a cluster o actors must be willing to cooperatethrough the long process o negotiation. The Convention on the Prohibition othe Use, Stockpiling, Production and Transer or Anti-Personnel Mines and on

Their Destruction (Ottawa Treaty, 1997) showed that it is possible to achieverapid success when victims, veterans o war, NGOs, like-minded governments,military experts as well as UN agencies and the International Committee o theRed Cross (ICRC) cooperate eectively.

I cooperation is obviously desirable, it is by no means simple to achieve. Inmany cases, it requires advocates to create public awareness and supportor issues that may initially be unpopular or unrecognised. This is demandingwork that needs accomplished communication and diplomatic skills. Moreover,coordination and consultation must take place at many levels; it is not surprising,in act, that communication between interest groups is recognised to be arequent problem. At the same time, i it is vital to involve many stakeholders indeveloping a new standard including those who are most directly aected standard-setting processes also rely on specic proessional contributions, bydiplomats, legal experts and advocates. Their negotiation cannot be achievedby popular means. I setting eective and legitimate standards is an art, itrequires an unusual mix o elite and popular advocacy.

Lack o diversity undermines the legitimacy o a process. Where governmentocials and human rights activists rom regions outside the Western Europeanand Other Group (WEOG) and the Latin American and Caribbean Group(GRULAC) are weakly represented, their states and societies tend to identiyless with the standards in question, and this ultimately weakens the claim that


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human rights norms have universal relevance. This is o particular concernwhen the standard negotiated is highly relevant to such regions.

New technology has made standard-setting processes accessible to a largeraudience, easing coordination and allowing inormation to be shared rapidly.

This is certainly positive, even though it must be acknowledged that not allactors have the same access to these technologies.

states

The participation o states in standard-setting processes is unrestricted.However, small missions do not have enough sta to participate consistentlyin the many ocial meetings in which they have an interest. Nor can ForeignAairs Ministries with small human rights departments be expected to monitorand research all the issues under negotiation at one time. NGOs can increaseinvolvement in issues that concern them by providing ocials, in capitals aswell as missions, with inormation and reasons to engage.

The composition o government delegations varies rom process to process.They are oten a mix o career diplomats and (legal) experts. The ormer areusually the main negotiators; legal experts tend to act as technical advisers.51

51 At the ILO, governments usually appoint experts in the subjects under discussion romthe Labour or a related Ministry, who are able to engage technically at a level diplomatscould not.

Chairs drai Ciees

The chairs o drating committees play an extremely important role. They can positivelyinfuence the conduct o talks, by acilitating dialogue, resolving dierences, buildingco-operation between governments, and presenting compromise texts.

All texts adopted in recent years have been Chairs texts: this in itsel shows theirinfuence. Indeed, they oten use their political and moral authority to orce delegationsto accommodate other views and, ultimately, to put on the table a text that refects, inot consensus, a compromise that may eventually win general consent.

Dierent elements are usually taken into account when appointing a Chair. Theyare likely to include negotiating skills, personality, and the candidates personalcommitment to, knowledge o and interest in the issue. In addition, the diplomatsstate is a actor, because it infuences the extent to which a chair can expect to workwith all interested parties, including those less committed to the initiative, and agreea consensual text. This explains why representatives rom small countries that havea good human rights record and have previously demonstrated an open and fexibleapproach to the issue under negotiation are oten chosen. At other times, it may beworth opting or a chair that comes rom a more powerul country that has the politicalclout to impose a text or take dicult nal decisions.


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Diplomatic representatives may have a personal agenda. This can have apositive eect i, or example, they decide to drive negotiations orward inorder to enhance their reputation, or i their infuence enables them to buildinternational, domestic, political or ocial support or a process. The contrarymight also be true.

Government representatives need time to understand the substantive issuesbehind proposals or new standards. Ministry o Foreign Aairs sta willnormally seek advice rom other relevant Ministries (e.g. Interior and Justice)and public institutions, including the judiciary and law enorcement agencies.However, because the latter are oten unamiliar with the international settingso negotiations, internal consultation may be time-consuming and dicult.Domestic counterparts may nd it dicult to know what inormation they shouldsupply. This has an unavoidable eect on the pace o negotiations.

In the UN, oreign aairs ocials negotiate agreements that other public

institutions must subsequently implement. This is potentially a source oineciency, even political tension. Diplomats may not be in a position to oreseethe impact their decisions will have on ocials in other departments and publicinstitutions, who will have to implement the new standard domestically.

At the same time, negotiating delegations are in constant touch with their capitals,where decisions are ultimately taken. Diplomats both receive instructions romtheir capitals and infuence those instructions. For diplomats and advocates,thereore, it is oten worth engaging with ocials o governments whose publicpositions are apparently unhelpul.

In short, governments are not monolithic; they shelter many opinions. It is notunusual or dierent Ministries in a country to have dierent positions on an issue.During negotiation o the Optional Protocol to the Convention on the Rights othe Child on the involvement o children in armed conict (OP-CRC-AC), orexample, some Ministries o Deence were not prepared to give their Ministrieso Foreign Aairs a ree hand in negotiations. Advocates generally take intoaccount such dierences when they seek allies or lobbying purposes.

A change o government or Minister (or even Ambassador) may transorm thenegotiating position o a government, sometimes overnight. Diplomats may berequired to change their opinions and a delegation that yesterday supported a

new instrument may tomorrow vigorously oppose it, or vice-versa.

While diplomats can delay or block a negotiation, they also possess the skills, ithey are well-inormed and in close contact with their capital, to take discussionsorward switly and smoothly. Government representatives may sometimes bemore progressive in their thinking than civil society organisations, and maygrasp undamental issues including the need or deeper reorm earlier.


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Diplomats also possess skills in herding cats the art o holding togethercoalitions o parties who have distinct and contradictory interests. No standard-setting process can be brought to a close without the support o several states.Lead countries must gather riends around the issue. This is easier to do i theyhold key positions, or example as coordinator or acilitator. At the beginning o

negotiations, delegations spend time getting to know one anothers positions,and arranging coordination, especially within regional groups.

Sometimes standard-setting processes can be advanced when a group o like-minded governments work together. A good example is the Core Group ogovernments (most notably Canada, Norway, Austria, and South Arica) thatpushed or the Ottawa Treaty. Although this Core Group was geographicallydiverse and contained mid-sized states, in close cooperation with a coalition oNGOs and international organisations it was very eective.

huManrightsngosanDcoalitions

NGOs have made a considerable contribution to standard-setting processes,particularly in the United Nations. Because o their monitoring activities, theyhave identied many protection gaps and, using their advocacy capacity, haveput many issues o concern on the international agenda. Taken as a whole,NGOs also have considerable expertise in international, regional and domesticjurisprudence and implementation.

This said, NGOs rom dierent regions currently have very unequal access tointernational standard-setting processes. Most NGOs that are not located inEurope or North America cannot aord to make regular trips to Geneva, NewYork or Vienna, or maintain liaison oces in those cities, and nd it dicult tokeep themselves inormed or contribute to negotiations.

Technology, in particular e-mail and axes, acilitates the involvement o abroader range o organisations. However, organisations rom the South do notall have access or high quality access. Language is also a barrier or many.English tends to dominate but lack o resources or translation makes it harderor non-English speakers to participate.

To participate directly in United Nations discussions, NGOs must be accreditedby ECOSOC (see textbox, page 27). Accreditation permits NGO representativesto attend and speak at meetings held by ECOSOC and its subsidiary bodies,to be heard by UN human rights committees and commissions and, in certaincases, to infuence the agendas o these bodies. NGOs without ECOSOC status,or that do not have the capacity and resources to participate in internationalmeetings, oten contact international NGOs based in Geneva, New York orVienna to communicate their views and positions.


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International NGOs have increasingly recognised that to be eective they needto share inormation with colleagues in other countries and take account o theviews o local partners. A number o them have taken steps to acilitate theparticipation o competent and well-inormed national and local NGOs romdierent regions.

It can scarcely be overstressed that domestic advocacy is crucial to the impacto standard-setting, as well as to international advocacy. The role that nationalNGOs play in infuencing the positions and behaviour o their governments isirreplaceable.

Sometimes NGOs orm coalitions to pursue their goals. Several have beenstrikingly successul. The Ottawa Treaty and the Rome Statute were both drivenorward by large NGO coalitions that generated public and political momentum,using a combination o advocacy and public education. It is worth noting thatboth campaigns beneted rom substantial nancial resources and used the

media eectively. In both cases, public opinion played an important role inshaping government policies.

The International Campaign to Ban Landmines (ICBL) was ormed ve yearsbeore the adoption o the Ottawa Treaty by a mixed group o NGOs withexpertise in human rights and humanitarian law, development, and medicaland humanitarian relie.52 This range enabled them to provide valuableexpertise and advice to government representatives who were initially relativelyuninormed about the social impact o mines or the experience o mine victims.As a result, they established a genuine partnership o interest that provides astriking example o the value o a coalition.

The Coalition or the International Criminal Court (CICC) illustrates the positiverole that coalitions can play in implementing a standard ater adoption.53 TheCICC was created in 1995 by twenty-ve organisations and grew so ast that,during the Rome Diplomatic Conerence in 1998 it had the largest delegation,with nearly ve hundred members. Today, it has a membership o over twothousand NGOs rom more than 150 countries. Ater the conerence, CICCmembers adopted a multi-year campaign to secure the sixty ratications thetreaty required to come into orce. Despite expert predictions that raticationwould take a long time, the treaty came into orce ater just our years.54 As oJuly 2006 the Rome Statute had been ratied by one hundred states.

During negotiation o the Rome Statute, the Womens Caucus or Gender Justiceprovided another example o a successul coalition. Mobilising womens rightsactivists and organisations rom dierent regions, it had a signicant infuence on

52 More inormation is available at www.icbl.org.

53 More inormation is available at www.iccnow.org.

54 The treaty entered into orce on 1 July 2002.


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the text and its reerences to gender and sexual violence in particular. When theRome Statute was approved, the Caucus resumed its work and created a neworganisation called Womens Initiatives or Gender Justice, which advocates orgender-inclusive justice and or an eective and independent ICC.

The Rome Statute codied crimes o sexual and gender violence, includedthem in the ICCs jurisdiction, and instituted procedures or dealing with suchcrimes and protecting the rights o their victims. It refected the history o workon gender-specic violence by womens and human rights organisations. Asa result o their eorts over many years, violence against women has beenrecognised as a human rights violation, notably since the Vienna WorldConerence on Human Rights (1993). Gender had also been prominent in thecase-law o the Tribunal or the Former Yugoslavia.55

NGOs have ound other ways to work together to infuence standard-settingprocesses. Since time is limited and NGOs are numerous, the latter are

always under pressure to make ecient use o opportunities to put their viewsorward. Umbrella bodies play a useul role here. One example o many is theInternational Council o Voluntary Agencies (ICVA), which represents a widerange o NGOs that work on humanitarian and reugee issues. The ExecutiveCommittee (ExCom) o the Oce o the United Nations High Commissioner orReugees (UNHCR) gives ICVA a ormal opportunity to present the views ohuman rights, humanitarian, and development NGOs in a ocused way. (ForUNHCRs role in standard-setting, see Chapter IV.)

NGOs coordinate ormally or inormally in many dierent ways to present theirpositions eciently and in a representative manner. Womens organisations

have been particularly good at this. Hundreds o womens organisationsworked together to produce shared texts during the International Conerenceon Population and Development (Cairo, 1994) and the Fourth World Conerenceon Women (Beijing, 1995). This sharply increased the eectiveness otheir lobbying and advocacy and helped generate plans o action at bothconerences that provided rameworks or the development o national laws andpolicies on violence against women, and sexual and reproductive health andrights. Womens organisations were also successul in lobbying governments toinclude representatives rom womens NGOs in their ocial delegations.

Governments themselves can help to bring NGO positions or concerns into

negotiations and to the attention o other governments. Some states have along tradition o working closely with NGOs. Many NGOs have ound it useul todevelop contacts with such riendly countries at dierent stages o a standard-setting process though a state that is riendly in one process can o coursebe hostile on a dierent issue.

55 It also established a requirement that sta o the court should airly represent dierentregions as well as women and men.


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experts

UN Special Rapporteurs, Members o the UN Sub-Commission on the Promotionand Protection o Human Rights (see Chapter IV) and academic and othertechnical experts have played a vital role in standard-setting. They regularlyidentiy protection gaps and initiate new standards. They oten participateas well during negotiations. The Special Rapporteur on Torture, or example,participated in the negotiation o the Optional Protocol to the Convention againstTorture(OP-CAT) by supporting the drat proposed initially by Costa Rica andattending the drating committee at crucial moments. By and large, expertshave produced studies o high quality on standards.

EConomIC And SoCIAL CoUnCIL (ECoSoC) Csulaive Saus

In 1968, the UN Economic and Social Council (ECOSOC) adopted a resolution(revised and expanded in 1996) covering the status o NGOs. Based on article71 o the United Nations Charter, it set out suitable arrangements or consultation

with non-governmental organisations which are concerned with matters within itscompetence.

The resolution accorded qualied NGOs three types o consultative status in the UN.Category I includes NGOs that, based on their mandate, have a special interest inall o ECOSOCs activities. Category II includes organisations that, based on theirmandate, have an interest in some o ECOSOCs activities. NGOs in Category III areplaced on a roster and may be consulted on an ad hoc basis.

To apply or consultative status, NGOs must:

pursue an activity that is relevant to the work o ECOSOC and its subsidiarybodies;

have been registered or at least two years;have a democratic decision-making mechanism; and

derive their unding rom national aliates, individual members or other non-governmental components.

Applications are considered by the Intergovernmental Committee on NGOs andsubmitted to ECOSOC or nal approval. Registered organisations must report ontheir activities to the Committee every our years and describe their contribution to thework o the UN. The status can be suspended or withdrawn i the organisation doesnot contribute eectively to that work, or i it undertakes activities incompatible with theUnited Nations Charters principles and objectives, engages in politically-motivated

acts against member states or is infuenced by internationally recognised criminalactivities.


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Though to a lesser degree, members o UN human rights treaty-monitoringbodies, who are also experts, have played a similar role.56 They are otencalled upon to give their opinion on specic technical or legal issues duringintergovernmental negotiations. In their daily activities, nevertheless, thecontribution they make to standard-setting is limited. When they review situations

or individual cases, or comment on national legislation and practice, theyinterpret international standards. In particular, UN treaty-monitoring bodies issueGeneral Comments or Recommendations in which they clariy the scopeand content o certain obligations. In that respect, the work o these experts isan important source o inormation when it comes to identiying protection gapsor discussing which elements a new standard should contain. Their work isalso crucial when it comes to broadening or extending the protection o existingstandards to meet normative or applicability gaps.

In the ILO, the Committee o Experts on the Application o Conventions andRecommendations oten uses its review unction under article 19 o the ILO

Constitution to propose new or amended standards and these proposals areusually acted upon.

The contribution o experts can be invaluable because they are independentand (by denition) well inormed. Their reports and proposals are likely toaddress technical and legal issues objectively and proessionally, avoidingproblems o explicit political bias. When this is so, the legitimacy o their viewsis dicult to challenge and, as a result, experts can be precious allies o bothgovernments and NGOs.

Under the Commission on Human Rights, states sometimes requested experts

to make an initial assessment o the benets a new standard would provide,or its practicality. Some o these studies signicantly infuenced the path thatstandard-setting processes took. During negotiation o the Convention or theProtection o All Persons rom Enorced Disappearancean expert assessmentrecommended the adoption o a legally binding instrument, which reinvigoratedthe negotiations that concluded successully three years later. 57

In general, a positive expert assessment helps to create conditions that avourthe adoption o a new standard. Expert reports can assist a proposal to gatherpolitical momentum. Where an experts advice is sceptical or complicated, ocourse, this is likely to delay a new process.

56 For example, the Committee on Economic, Social and Cultural Rights prepared an initialdrat o the OP-ICESCR that was submitted to the CHR in 1996 (E/CN.4/1997/105, annex).The Committee on the Rights o the Child prepared a preliminary drat o the OP-CRC-AC(see E/CN.4/1994/91).

57 Mr Manred Nowak was asked to examine the international ramework or protectingindividuals rom enorced or involuntary disappearances, in line with CHR resolution2001/46. See also E/CN.4/2002/71, p. 6.


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Experts who held mandates under the Special Procedures o the Commissionon Human Rights (e.g. Special Rapporteurs and Working Groups o theCommission) were generally selected b

Documents

Human Rights Standards: Learning from Experience