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25 September-1 October, 2006 |
Rapporteurs’ responses add value
to interactive dialogue; NGO participation in country dialogues still
unclear
Preparations for the
2nd session of the Human Rights Council were relatively orderly, with
the timetable of business decided well in advance. What remained
undecided however, and still remains undecided as the Council is
ongoing, is what the official outcome of this interactive dialogue with
Special Procedures will be and what form decisions will take to
implement recommendations. The process of transition, and the apparent
time-lock created by the omnibus decision to extend the mandates of all
Special Procedures for one year pending the outcomes of the Working
Group on Review of Special Procedures, has thrown into confusion the
manner in which any decisions/resolutions are likely to be conducted.
Informal consultations on the subject are ongoing, and the suggestion of
omnibus texts by the President containing both substantive and
operational elements in some form or other seems to have gathered favour.
What form this or these may take, however, is anyone's guess.
The 2nd session opened
on 18 September 2006 with speeches by the Secretary General and the High
Commissioner, both enjoining the Council to give proper consideration to
the most pressing global human rights issues, including country
situations of gross and systematic violations. The Secretary General's
short and frank speech noted that the special sessions of the Council
were “rightly concerned' with the situation in the Middle East, and the
same vigilance should be shown towards similar occurrences of serious
human rights violations elsewhere in the world. The SG highlighted
Darfur as a situation which may even deteriorate in the future, and
which the Council should address so as not to "disappoint the hopes of
humanity".
The High Commissioner
echoed these sentiments, identifying Darfur as "as a tragic reminder of…
protection failures" and where, "in the face of a near collapse of the
prevention and protection initiatives put forward by the international
community, we must stress, in the last instance, the need for
unflinching accountability." Concentrating primarily on country
situations, including Iraq, Sri Lanka and Nepal, the HC concluded that
"expectations surrounding this Council's willingness to comprehensively
address these challenges need to be met". Yet whether the Council finds
it within its capability to address these very clear demands remains to
be seen.
The prospect of
consensus being reached on a first operational decision was apparent in
the interactive dialogue surrounding the statement of Philip Alston,
Special Rapporteur on Extrajudicial Executions. Following his visit to
Sri Lanka, Alston concluded that, where the national criminal justice
system in the state "has utterly failed to provide accountability", "the
time has come for the establishment of a full-fledged international
human rights monitoring mission." Whilst not opposing the establishment
of an OHCHR presence in Sri Lanka, Malaysia, Indonesia and others were
quick to defend the actions of the government of Sri Lanka as
endeavoring to strengthen the protection of human rights in the country.
The inference would appear to be that human rights violations are
legitimate when committed in an attempt to restore peace and stability.
In any case, it would appear that such an office is likely to be
established, and this may form the first operational decision of the
Council.
The response of Nigeria
to Alston's statement of receiving reports of individuals who have been
sentenced to death by stoning for homosexuality was one of the more
remarkable scenes of the first week, and the silence of other States to
confront it no less indefensible. Whilst Alston, supported by Human
Rights Watch in an NGO statement, referred to such practice as "a
fundamental negation of all that human rights norms stand for", Nigeria
responded that "the death penalty by stoning under Sharia law for
unnatural sexual acts" should not have been included in the SR's report,
as no executions have taken place on account of a moratorium, and in any
case "the notion that executions for offences such as homosexuality and
lesbianism are excessive is judgmental rather than objective. What may
be seen by some as disproportional penalty in such serious offences and
odious conduct such may be seen by others as appropriate and just
punishment." None of the 32 States, who in 2005 presented a joint
statement to the Commission urging states to "prevent, investigate,
prosecute and punish the perpetrators of violence committed against
individuals because of their sexual orientation", felt compelled to
challenge the Nigerian position.
Norway and the EU
instead meekly read out their prepared statements encouraging further
'study' on the subject. Brazil, sponsors of the aborted 2003 resolution
on sexual orientation, and New Zealand, presenters of the 2005
statement, said nothing.
Elsewhere, a
refreshingly clear exchange of views followed the statement of the
report of the Special Rapporteur on Religious Freedom, Ms. Asma Jahangir,
in the wake of Pope Benedict XVI's quotation of Byzantine Emperor Manuel
II Paleologos at Regensburg University.
The Organization of
Islamic Conference was of the view that the Pope's subsequent apology
for having offended Muslim sensibilities "gives the impression that the
Muslims have not fully understood the intent and reasoning behind the
papal lecture. The irony is that they have."
In measured terms, the
OIC proceeded to detail why such vilification is without foundation and
how do they do not wish to see a regression from "the uniting forces of
modernity, globalization and religious harmony".
However, it is unlikely
that their subsequent calls for examining the possibility of drafting a
Convention to combat defamation of religions will garner requisite
support. Even a Convention on religious discrimination (a more viable
subject for reasons including the existence of a Declaration of the
same) would only surface if it was felt that present protections are
inadequate, a view that relevant Special Procedures do not appear to
subscribe to.
The first week of the
2nd session will however have generated most attention outside the halls
of Palais des Nations for its discussion of Guantanamo Bay. The eventual
presentation of the joint statement of Special Procedures proceeded as
expected, with the US summarizing its 60-page conclusions of March 2006,
whilst adding the its new conciliatory tact that, yes, "we would like to
see Guantanamo closed down… but we can on1y close Guantanamo if we can
still protect ourselves and our allies from the threat posed by the
dangerous men held there, while ensuing that transferred or released
detainees are treated humanely." The value of the interactive dialogue
was evident by the fact that the US' exercise in manipulation was
quickly rebutted by the responses of the Special Rapporteurs.
The nature of the US'
response also raised obvious questions about what type of Council it was
that the US sought if it is not willing to subject itself to the same
scrutiny as it expects for other states. Again, the EU's lack of
resilience on the issue, having previously declared that the Council
"needs to be attentive to developments around the world [and] it is
important that the Council addresses situations where there are clear
signs of degradation of the human rights situation", shows that
selectivity is not the domain of a select few but an omnipresent
hangover from the Commission that will in all likelihood thwart the
further work of the Council.
And, finally, the
Council would not be complete without its quirks. In the interactive
dialogue on freedom of religion the Singaporean delegate expressed
outrage and dismay at being personally approached by an un-named
representative of civil society who had the gall to suggest that the
Singaporean government's position was "garbage". Apparently sensitive
to Singapore's position on littering, the President called for "mutual
respect" in the Council. This was immediately followed by the Cuban
delegation accusing the UK delegation of reading a statement "as
prepared by Washington", and suggesting that the UK might want to invade
Cuba, whether by way of "capital or tourists". So much for mutual
respect.
On the margins, it is
not yet finalised whether non-governmental organisations (NGOs) will be
entitled to engage in the interactive dialogue on country specific
mandates in the coming week. There is absolutely no rationale for a move
to prevent NGO involvement, but there is no doubt that one will be
concocted next week if the proposal is tabled by certain regional
groupings.
Administratively, the
first week of the 2nd session moved along reasonably well, thanks to
professional stewardship by the President and Secretariat, and by the ad
hoc nature of the session, which has provided certain leverage for free
flowing interaction.
Whether this will be
translated into concrete decisions remains to be seen, and at it this
stage it is not even possible to make any general predictions. And it is
of course these conclusions that will ultimately gauge the efficacy of
the present session..
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New era for disability
rights
MAUREEN
HARRIS
On 25 August 2006
consensus was reached by the Ad Hoc Committee on the text for a new
International Convention on the Rights of Persons with Disabilities and
an Optional Protocol to the Convention to be adopted simultaneously.
The drafting has been five years in the process, initiated by the
establishment of the Ad Hoc Committee by the General Assembly in 2001
"to consider proposals for a comprehensive and integral international
convention to promote and protect the rights and dignity of persons with
disabilities, based on the holistic approach in the work done in the
fields of social development, human rights and non-discrimination and
taking into account the recommendations of the Commission on Human
Rights and the Commission for Social Development."
Despite historic and
ongoing resistance by some critics to a convention specific to the
rights of disabled persons, the new Convention has been hailed as a
landmark achievement in the recognition and protection of rights of
persons with disabilities, who represent one of the most marginalised
groups, and whose rights, according to proponents of the Convention,
have "been routinely ignored or denied throughout much of the world."
Why a Convention?
Disabled persons
constitute one of the largest minorities in the world. The UN has
estimated that there are 650 million people with disabilities -
approximately 10 percent of the global population. The Convention will
recognise the distinct needs of disabled persons in their capacity to
effectively enjoy and access the full range of human rights. It also
has the ability to address various issues specific to the position of
disabled persons, which have impeded participation in society and access
to rights.
A significant issue is
the relationship between disability and poverty. The majority of
disabled persons live in rural areas in developing countries. Studies
have shown that disability and poverty are intertwined: one creates and
entrenches the other. Another significant concern in relation to the
rights of disabled persons is that of 'multiple discrimination' -
discrimination on the basis of gender, age or other minority status in
combination with discrimination or disadvantage on the basis of
disability. Women with disabilities in particular have been often
viewed as 'genderless' and are more likely to be subject to violence and
abuse.
The Convention is the
largest formal step to date in what has been a 20-year process away from
an approach to disability based on notions of charity and illness,
towards a rights-based approach that characterises disabled persons in
terms of their 'inherent dignity' and as bearers of rights.
On entry into force it
will be the first binding international instrument setting out
comprehensive rights for disabled persons and their implementation and
"full realization" by state parties. Historically, disabled persons
have been largely invisible within the system and isolated by factors
such as "ignorance, neglect, superstition and fear". The Convention
represents a large step in achieving full visibility for the issues
relating to the rights of the disabled.
Although disabled
persons are included under the current human rights system, it has not
thus far proved effective in ensuring full equal access to or enjoyment
of rights for disabled persons. Further, the Convention addresses some
key areas that have not been specifically or adequately addressed in
previous instruments - such as disability and development, gender
specific issues and children with disabilities, as well as the right to
adequate housing.
Features of the
Convention
The definition of
disability develops on previous definitions in the UN standards and the
World Programme. It reflects the idea that disabled persons are
prevented from full participation in society because of limitations
imposed by various barriers within society - expressed by the New
Zealand Human Rights Commission in its position paper as "cultural,
attitudinal, economic and environmental barriers."
Currently, some 45
countries reportedly have some form of disability legislation, which may
include anti-discrimination legislation or comprehensive legislation
relating to the rights of the disabled. In the Asia Pacific region a
recent study by the Economic and Social Commission for Asia and the
Pacific, 14 of 28 countries reported having comprehensive disability
legislation and five reported disability specific anti-discrimination
legislation. The Convention will help to consolidate and guide the
legislative process globally by requiring state parties to adopt
"appropriate legislative measures" safeguarding and implementing
rights.
The Convention reflects
the indivisibility and interrelatedness of civil and political and
economic and social rights, which is particularly apparent in the realm
of disability rights. As well as guaranteeing fundamental rights, the
Convention addresses disability-specific issues, both in the context of
the existing rights and independently. Among these are accessibility,
reasonable accommodation, independent living, protection against
violence and abuse, raising awareness in the community to combat
discrimination, personal mobility and inclusion in political and
community life. There is also a positive obligation to effectively
secure the right to equality for persons with disabilities. This
includes special measures to accelerate de facto equality and
"reasonable accommodation" for individuals in particular circumstances.
The specific needs of
women and children with disability are recognised by the inclusion of
stand alone articles in relation to these groups. Gender issues are
mainstreamed throughout the Convention, for example in Article 16
providing for freedom from exploitation, violence and abuse, which
specifically notes the gender related aspects of violations of this
right; and in relation to health issues and rights to fertility and
family life.
The importance of
international cooperation in achieving the inclusion of disability
rights in the development process is also addressed. Lack of access to
housing, education, employment, transportation, health care and
rehabilitation make it difficult for disabled persons in poverty
situations to claim rights on the same basis as others. The Convention
targets these specific impediments and requires that persons with
disabilities be guaranteed such access on an equal level with other
persons and relative to their particular needs.
The UN disability
report found that national institutions are not yet prominent in
advancing disability rights, although they have started to become more
involved in disability rights issues. The Convention should assist this
process by providing for government and other 'focal points' to address
disability issues and the establishment of "a framework… to promote,
protect and monitor implementation."
Finally, the proposed
Optional Protocol to the Convention establishes an individual complaints
mechanism establishing a procedure for violations of the Convention and
a mechanism for the Committee on Rights of Persons with Disabilities to
receive and investigate information on state parties accused of grave
and systematic violations of the Convention.
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Existing measures
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Existing measures for the promotion and protection of the rights
of disabled persons include the major human rights instruments
that encompass but for the most part do not specifically address
disability rights. They also include a number of 'soft law'
instruments that are specific to disabled rights but are not
legally binding or comprehensive in addressing current issues.
Major non-binding instruments are the 1982 World Programme of
Action Concerning Disabled Persons and the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities.
The Rules were envisaged to imply a strong "moral and political
commitment on behalf of states to take action for the
equalization of opportunities for persons with disabilities."
They established a Special Rapporteur to the Commission for
Social Development to monitor implementation. Despite the
progress signalled by the Rules, some gaps remained. As noted
by the Special Rapporteur, dimensions of disability such as
children and women with disabilities, persons with developmental
and psychiatric disabilities, the issue of housing, and a
strategy towards "improving living conditions for disabled
people in regions of extreme poverty" were not "treated
sufficiently".
A 2002 UN study on human rights and disability highlighted the
potential of existing UN mechanisms for the protection of human
rights in the context of disabled persons. It also noted the
need to make better use of these mechanisms as their potential
for the promotion and protection of the rights of disabled
persons has not been fully utilised.
The study further recognised the limitations of existing
mechanisms in terms of constraints on time and resources
restricting the ability of treaty bodies to focus on the
specific needs of the disabled. Reporting on disability issues
was found to be limited and 'piecemeal', even under the ICESCR
and CEDAW where the treaty bodies have issued specific general
comments on reporting responsibilities in relation to persons
with disabilities. The Beijing Declaration which emerged from
the World NGO summit on Disability in 2000 also expressed
concern on behalf of NGOs regarding the effectiveness of the
existing instruments.
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The way forward
Adoption of the text by
the Ad Hoc Committee is the first step in the process, but there is
still a long road ahead. The Convention will be considered by the
General Assembly at its current session. It will then be open for
ratification and come into force following ratification by 20 states.
This will be followed by submission of initial reports by state parties
on implementation and subsequent reports at four-year intervals.
The new Convention is
necessary for raising the status and visibility of the rights of the
disabled. It is recommended that disability be included in the Human
Rights Council Universal Periodic Review process. Further, the treaty
bodies must continue to reflect the issue of disability rights in their
reporting procedures.
Finally, the Office of
the High Commissioner for Human Rights must include disability rights as
a specific area to be addressed in the OHCHR annual report.
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BUSINESS AND HUMAN
RIGHTS
The
torture business: Buying impunity
NILS ROSEMANN
If human rights protection
in the 21st century is still aiming to end impunity, it has to shift under
the conditions of globalization from a state based perspective on
international norms to a victim's perspective of redress, compensation and
relief from human rights violations. The victim's perspective should be the
guiding basis of human rights law. In this context, the UN 'Norms on the
Responsibilities of Transnational Corporations and Other Business
Enterprises with Regard to Human Rights' (the Norms) are the most
comprehensive attempt to frame this perspective - by balancing state-based
power with human rights obligations and framing corporate power with human
rights accountability.
The example of torture
shows how governmentally granted impunity facilitates human rights
violations by corporate actors. The example is not only chosen because
torture is a core concept in the US-led global 'war on terror'. It also
significantly demonstrates the concept of privatization of human rights
violations.
Legitimising torture
In 2002, Alberto R.
Gonzales, the current US Attorney General, and former White House Legal
Council, stated that this "new type of warfare [required] a new approach to
our actions towards captured terrorists". President Bush supported a "new
thinking in the law of war". This call for a new approach encouraged the
emergence of further proposals, initiating a debate on the legalisation of
torture.
Alan Dershowitz, proposed
"torture warrants". Another Harvard fellow, the then Director of the Carr
Centre for Human Rights Policy, Michael Ignatieff, suggested the
legitimisation of coercive interrogation methods as "lesser evils". While
volumes of intellectual debate mounted on academic shelves around the world,
the U.S. administration filled its secret prisons. President Bush's claim
that "we don't torture people in America" took on a new meaning.
At the same time as the US
Justice Department's website declared that "torture is abhorrent both to
American law and values and international norms", legal creativity
facilitated the use of prison ships and privately run airplanes for
interrogation sessions in order to evade these norms. Cofer Black, then
chief of the CIA's counter-terrorist unit, later testified that, "After 9/11
the gloves came off" and admitted that the USA is willing to determine the
rules of the game alone.
The use of extraterritorial
prisons such as Guantanamo, and extra-legal terms such as "unlawful
combatants" or "unprivileged belligerents", provided the legal reasoning for
impunity. This concept had to be altered, in the war against Iraq, since the
USA as occupying power was bound by humanitarian and human rights law.
Investing in impunity
One famous example of
granted impunity is the awarded freedom from legal liability of Sir Francis
Drake's explorations with The Golden Hind in 1580 by Queen Elizabeth I., who
was at the same time the largest shareholder. Similarities in the
relationship between the US administration and modern day business may be
unintended but are evident.
The US relies extensively
on private military and security for its activities as part of the war on
terror. In a mission statement, CACI International Inc - a US company
alleged to be implicated in the human rights violations at Abu Ghraib -
describes its profile as: "provid[ing] the IT and network solutions needed
to prevail in today's new era of defence, intelligence and e-government. […]
Our solutions lead the transformation of defence and intelligence, assure
homeland security, enhance decision-making and help government to work
smarter, faster and more responsively." In the war in Iraq, such forces are
outside the chain of command and not legally accountable. The two dead
Iraqis, who died in Abu Ghraib prison after being questioned by the CIA
contracted interrogators, are not an issue for the Department of Defence.
This showed that neither the Uniform Code of Military Justice - that outlaws
human rights violations - nor the Military Extraterritorial Jurisdiction Act
of 2000, were applicable.
Although the examples of
non-applicable law have shown the widely granted impunity for private
military contractors, this was not seen as sufficient enough for corporate
demands of risk management. Therefore, right after the beginning of the war
against Iraq, the US Presidency passed, on 22 May 2003, Executive Order
13303 granting contractors and sub-contractors of the Iraqi oil business
immunity for crimes under US jurisdiction. While free from accountability in
their home state (lex domicilii), the US led CPA had to ensure
impunity in the host state (lex loci actus). On 27 June 2003, Order
17 was passed which grants any foreign contractor or sub-contractor, and
employees of such contractors of the CPA, or the Coalition Provisional
Forces, immunity for their official activities pursuant to the terms and
conditions of the contracts, and states that such contractors shall not be
subject to Iraqi laws or regulations.
The result of this
agreement was exposed to the world by Maj. Gen. Antonio M. Taguba's secret
report on the mistreatment of prisoners in US custody and prisons. There he
remarked that employees of private military firms contracted by the US-led
CPA for interrogatory purposes "were either directly or indirectly
responsible for the abuse at Abu Ghraib". Taguba further reports that
military police guards were directed and actively requested by army
intelligence officers, CIA agents, and private contractors "to set physical
and mental conditions for favourable interrogation of witnesses". Security
and military corporations like Blackwater Security Consultants, CACI
International Inc., and Titan's PAC were named. Following his retirement
from the CIA, Cofer Black became a CEO for Blackwater.
Academic confusion
Asked at a side event at
the 61st session of the Commission on Human Rights (CHR), the Special
Rapporteur on torture, Manfred Nowak, showed himself to be a traditionalist,
saying that torture by definition is an act of state agents.
Apparently more concerned
with the problem, yet without any immediate solution, was the Special
Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston.
Questioned on this subject at another side event of the 61st CHR Alston
assured the audience that he was concerned about the issue and opposed
outsourcing of human rights obligations.
Yet Alston maintained that
the primary obligations rest with states to protect such rights. In his
recent report (E/CN.4/2006/53), Alston writes: "Armed conflict and
occupation do not discharge the State's duty to investigate and prosecute
human rights abuses. The right to life is non-derogable regardless of
circumstance… and in addition to being fully responsible for the conduct of
their agents, in relation to the acts of private actors States are also held
to a standard of due diligence in armed conflicts as well as peace."
Unfortunately, Alston fails to say how accountability will be found where
the state itself is not only unwilling, but is in fact facilitating, the
outsourcing of human rights abuses.
Victim's perspective
Torture by private military
and security forces is just the tip of the iceberg. Labour law violations
and disregard for environmental standards are other examples. John Ruggie,
the Special Representative on 'human rights and transnational corporations
and other business enterprises', in his report (E/CN.4/2006/97) states that
he is not sure if human rights abuses within the corporate sector are
increasing or decreasing over time, or if it is only a question of more
reports by more actors. He turns a blind eye to states' intentions to create
loopholes in international law.
Interestingly, Ruggie
himself says in the same report: "Of course to victims of abuses this
uncertainty [lack of reliable data about increase of decrease of corporate's
human rights violations] matters little." Ruggie admits it is a challenging
task to address all the difficulties.
The Special Rapporteur on
'adverse effects of the illicit movement and dumping of toxic and dangerous
products and wastes on the enjoyment of human rights', Okechukwu Ibeanu,
argues in his report (E/CN.4/2006/42) for accountability of corporations to
international human rights standards in host and home countries. The point
of departure for Ibeanu is the victim's perspective, and thus the report
states that the Norms "are an attempt to hold companies to account for
actions adversely affecting human rights and to limit impunity for human
rights violations. The Special Rapporteur still finds that the draft Norms
have made an important contribution to the debate about the scope of
companies' human rights responsibilities and the extent to which
international human rights law is directly applicable to them." Thus the
victim's perspective becomes the litmus test for Ruggie's work.
A victim's perspective on
corporate human rights violations calls for a balance of corporate power
through human rights, comparable to existing human rights obligations for
states. Business entities are able to accept such standards voluntarily but
human rights protection should by no means depend on the choice of a
potential or actual perpetrator.
Since States are
responsible for deregulation and impunity for corporate human rights
violations, the Human Rights Council is the right body to agree upon a
normative and compulsory human rights standard for corporate activities. The
Special Representative should take this into account. His advice should
focus on the victim's call in host countries of corporate activities -
mostly developing countries - for standards that are in force in the
developed home countries and agreed upon internationally.
- Nils Rosemann is
based in Islamabad (Pakistan) and works as an Attorney of Law and as a
Human Rights & Development Consultant in Islamabad and Geneva.
SRI LANKA
President’s picks, but not good enough
The lack of
transparency and consultation in appointments to Sri Lanka’s Human Rights
Commission is disturbing
MAUREEN HARRIS
On 18 May 2006, just nine
days after Sri Lanka was elected to the Human Rights Council, President
Mahinda Rajapaksa made direct appointments of five new members to the Human
Rights Commission of Sri Lanka (HRCSL), which had been inoperative since
March 2006 when the terms of office of the previous Commission lapsed.
The Presidential
appointments to the HRCSL occurred in the absence of any transparent or
consultative process, followed similar appointments to the Public Service
Commission (PSC) and the National Police Commission (NPC) and preceded
direct appointments to the higher judiciary, including judges to the Supreme
Court and Court of Appeal sworn in on 29 May 2006.
The appointments were made
in blatant violation of Sri Lanka's own Constitution, the provisions of the
Human Rights Commission of Sri Lanka Act (1996) and the 'Principles relating
to the status and functioning of national institutions for protection and
promotion of human rights' (Paris Principles). In the context of Sri Lanka's
recent acquisition of a seat on the newly formed Human Rights Council, the
direct Presidential appointments display a manifest disregard for
fundamental principles of democracy and the operation of the rule of law.
The 'Aide Memoire'
detailing Sri Lanka's pledges and commitments in support of its candidature
for the Human Rights Council included the pledge that, "in pursuit of its
commitment to the further promotion and protection of human rights, Sri
Lanka will … build capacity of… the Human Rights Commission of Sri Lanka and
other independent statutory bodies established as part of the national human
rights protection system." The step taken by the President, effectively
stripping the HRCSL of its independence and therefore of any credibility or
transparency, does just the opposite.
The Human Rights Commission
of Sri Lanka Act
The Human Rights Commission
of Sri Lanka Act 1996, which established the HRCSL, stipulates the
appointment procedure for HRCSL members requiring that members are "to be
appointed by the President, on the recommendation of the Constitutional
Council." Since it was anticipated that the Human Rights Commission of Sri
Lanka Act would slightly precede the establishment of the Constitutional
Council, the Act further stipulated that "in the period commencing on the
appointed date and ending on the date in which the Constitutional Council is
established, members of the Commission shall be appointed by the President
on the recommendation of the Prime Minister in consultation with the Speaker
and the Leader of the Opposition."
The Constitutional Council
The Constitutional Council
(hereafter the 'Council') was created by the Seventeenth Amendment to the
Constitution on 3 October 2001 with the stated purpose of making appointment
recommendations to national institutions. Article 41(b) expressly requires
that "[n]o person shall be appointed by the President as the Chairman or a
member of any of the Commissions specified in the Schedule to this Article,
except on a recommendation of the Council." Establishment of the Council
sought to remedy what had previously been unrestrained Presidential
discretion over the process of appointment of members to national
institutions.
The Council is stipulated
to consist of the Speaker (as Chairman), the Prime Minster, the Leader of
the Opposition, as well as "…one person appointed by the President, five
persons appointed by the President, on the nomination of both the Prime
Minister, the Leader of the Opposition; one person nominated upon agreement
by the majority of the Members of Parliament belonging to political parties
or independent groups other than the respective political parties or
independent groups to which the Prime Minister and the Leader of the
Opposition belongs and appointed by the President."
Following its establishment
in 2001, the Council was only effectively operative for one term of three
years, between March 2002 and March 2005. In March 2005 the terms of office
of the Council members expired and have not since been refilled. The reason
generally cited for this delay is the failure to resolve the issue of which
of the minority parties shall be allowed to nominate the final member of the
Council on behalf of independent groups or independent political parties.
If this was the true reason
for the delay and a matter of serious concern to the President, he could
have intervened with the minority parties himself, but he has not done so.
Also, if the minority parties could not agree on a nomination a proposal
could have been made to share the three-year term between their
representatives, but no such option has been considered. Further, the
President failed to make the appointments to the Council recommended to him
by his own Prime Minster as well as the Leader of the Opposition. Since the
quorum of the Council is six members, if these appointments were made the
Council would have been functional despite the lack of agreement on the
final Council member.
The Paris Principles
Under the Human Rights
Commission of Sri Lanka Act, the persons appointed shall "be chosen from
among persons having knowledge of, or practical experience in, matters
relating to human rights." Because the Act contains no definition of the
criteria entailed by 'knowledge of, or practical experience in' recourse may
be had to existing international norms to fill in the gaps left by municipal
law. Therefore the Paris Principles, representing the accepted standard for
the functioning of NHRIs, are applicable in the interpretation of the
provisions of the Act.
The Paris Principles state
that “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.”
Additionally, the
Commonwealth Secretariat 'National Human Rights Institutions (NHRIs) Best
Practice' stresses the fundamental requirement of independence for the
effective functionality of NHRIs. This includes freedom from "outside
restraint or improper influence" and the requirement that appointments not
be determined exclusively by the executive. The 'Best Practice' recommends
that members reflect gender balance, the ethnic diversity of society and the
range of vulnerable groups in their respective societies as well as "the
qualifications necessary to undertake the role …"
The appointments…
The appointments originally
included two previous members of the HRCSL who reportedly refused
reappointment because of the unconstitutional basis of the appointments. In
their stead, a former judge of the Supreme Court, Deshamanya P. Ramanadan,
was appointed as Chairman, along with a retired judge of the Court of Appeal
and two others who were virtually unknown to the human rights community in
Sri Lanka. The fifth appointment, and the only one with any long term
experience in the field of human rights was lawyer and activist S.G.
Punchihewa, who reportedly refused the appointment on the basis that it was
arbitrary and unconstitutional, and stated that he had not been informed
about the appointment until he saw a news broadcast mentioning his name and
announcing the appointment.
There is widespread public
concern that, besides the unconstitutional nature of the appointments, none
of the four members who accepted meet the HRCSL Act criteria of "having
knowledge of, or practical experience in, matters relating to human rights"
or the recommendations of the Paris Principles.
Additionally, it is clear
that no consultative process of any kind took place and the appointments
cannot be other than arbitrary, as evidenced by the admission of Mr.
Punchihewa that he knew nothing of the appointment prior to its
announcement. The fear is that President Rajapaksa is taking advantage of
the lack of a Constitutional Council to stack institutions, including the
HRCSL, with sympathisers - this at a time when the situation of conflict is
escalating and the strengthening of NHRIs particularly essential.
The rules?
In a press release
announcing the appointments, the Permanent Mission of Sri Lanka to the UN in
Geneva stated that they were "an indication of President Rajapaksa's
personal commitment and that of the Government, to the fulfillment of Sri
Lanka's obligations towards the promotion and protection of human rights at
both the local and international level." It added that the appointment was
aimed at furthering the promotion and protection of the rule of law and that
it was "a manifestation of the Government's strong commitment to uphold the
principles of democracy, pluralism and human rights in the context of the
peace process."
This is disturbing. The Sri
Lankan President's "personal commitment" evidently does not go so far as to
ensure that the procedures laid down in international human rights standards
and best practice on human rights are followed. The appointments to the
HRCSL and the other national institutions and to the higher judiciary
reflect disregard for the rule of law and principles of democracy.
This is further evidenced
by the recent decision of the Court of Appeal of Sri Lanka regarding the
constitutionality of the appointments to the NPC and PSC. The Court of
Appeal held that, under Article 35(1) of the Constitution, the President has
immunity from proceedings in any court for his actions or omissions, whether
they are official or private, apart from the three express exceptions stated
in Article 35(3).
According to the decision,
the President therefore possesses immunity from action by any court for the
violations of Article 41(b) of the Constitution prohibiting appointments
except on the recommendation of the Constitutional Council. The decision
represents an exceptionally broad and untenable interpretation of
Presidential immunity.
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ISRAEL
Building Blocks of Occupation
Israel’s settlement
policy and the de facto annexation of territory
ANTAINE
O'CUILINN
Despite calls for a
settlement freeze from the United States and the European Union among
others, the Israeli government has recently begun a new settlement push. On
4 September 2006, the BBC reported plans to construct 700 new residences for
settlers, expanding the settlement blocks of Beitar Illit and Maale Adumim
in the Occupied West Bank. On 21 September 2006, Reuters reported that a
tender had been issued for the construction of a further 164 residences in
the West Bank settlements of Ariel, Alfei Menashe, and Karnei Shomron. This
action by the Israeli government clearly contravenes the 'Road-Map'
sponsored by the United States, the European Union, the Russian Federation
and the United Nations. It also violates international humanitarian law.
Article 49 of the Fourth Geneva Convention of 1949 prohibits an occupying
power from transferring parts of its own civilian population into the
territory it occupies. The status of this provision as customary
international law is confirmed in the ICRC study on Customary International
Humanitarian Law, which cites the prohibition on the transfer of civilians
in Article 85(4)(a) of Additional Protocol I to the Geneva Conventions of
1949 and Article 8(2)(b)(7) of the Rome Statute of the International
Criminal Court among other sources.
Despite the clearly illegal
character of Israel's settlement policy being affirmed in numerous CHR and
UNGA resolutions, and the opposition frequently expressed by individual
states, the number of settlers in the Occupied Territories continues to
grow.
Since 1967 the numbers of
settlers in the Occupied Palestinian Territories has been increasing
steadily, year by year. The motivation for this policy is important to bear
in mind and is perhaps best illustrated in the words of those speaking on
behalf of Israeli government.
Soon commencing the
construction of settlements in the Occupied Territories, Moshe Dayan, the
Israeli Minister of Defence stated: "I regard settlement as the most
important thing and the factor that has the greatest weight in creating
political facts, on the basis of the assumption - as the Prime Minister has
also stated - that we will not leave a place in which we have established a
settlement or outpost. Therefore, in determining the map and in determining
our desire for a new map, I see settlement as the most symbolic factor and
the one that will most bind us ourselves."
The role of settlement in
ensuring Israel's permanent hold over territory is further supported by the
remarks of Major General Shlomo Gazit, the first Israeli Army officer in
command of operations in the Occupied Territories: "It was clear that the
Israeli settlements in the territories, and especially in the
densely-populated areas, have far-reaching political consequences. These
settlements are intended to establish new facts to affect the future
political solution. It was clear that establishment of the Israeli civilian
settlements is a kind of statement of policy, whose weight is not much less
than the Knesset's decision in 1967 to annex East Jerusalem: this settlement
was established on land from which Israel does not intend to withdraw."
The cardinal function of
Israel's settlement policy is thus to ensure the assimilation of occupied
territory into Israel's national system, facilitating the de facto
annexation of Palestinian lands. Settlement of the Occupied Territories was
initially guided by a plan proposed by Israel's Labour Minister Yigal Allon
in 1967. The 'Allon plan' provided for the annexation of approximately forty
percent of territories occupied as a result of the Six Day War. Israel's
settlement of the Occupied Territories was significantly accelerated in 1977
with the implementation of proposal put forward by Mattityahu Drobles on
behalf of the World Zionist Organisation (see box below).
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‘Settled’ Concept
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In 1976 Yigal Allon, Israel's Foreign Minister, commented:
'[I]f you look at the many decisions taken by the Israeli
government in the past as to the locations of the settlements,
then you will recognize that they do add up to a concept.
Settlements are established in strategically important areas,
along existing borders or near areas which will probably become
borderlines in the future. . . . In my opinion, settlement is
one of the largest tools of leverage in our political struggle
for defendable borders in the framework of a peace treaty. I
see in these settlements . . . a large contribution to the
security of our state.
(Cited in Jan
Metzger, Martin Orth and Christian Sterzing, This Land is Our
Land: The West Bank Under Israeli Occupation; Dan Bryant, Judy
Byrant, Janet Goodwin and Stefan Schaaf [trans.]; London: Zed
Press, 1983, p. 20.)
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Drobles suggested that
“[t]he best and most effective way of removing every shadow of a doubt about
our intention to hold on to Judea and Samaria forever is by speeding up the
settlement momentum in these territories... [T]he purpose of settling the
areas between and around the centers occupied by the minorities [the
Palestinian majority in the West Bank] is to reduce to the minimum the
danger of an additional Arab state being established in these territories.
Being cut off by Jewish settlements the minority population will find it
difficult to form a territorial and political continuity.” [The term 'Judea
and Samaria' refers to the West Bank. Drobles uses to term 'minorities'
when referring to the Palestinian majority. ]
At the time, Likud Prime
Minister Menachem Begin held the bulk of the Occupied Territories to be
'part of the land of Israel, where the nation was born.' Maintaining these
territories to be "Israeli lands belonging to the Jewish people", he
referred to their settlement as "a right and a duty. We have and we will
continue to fulfill that right and that duty."
In 1979 Ariel Sharon, as
Minister of Agriculture in Begin's government, advanced yet another
settlement initiative. This plan provided for the expansion of existing
settlements and the construction of new ones strategically located as a
means of strengthening Israel's hold over the Occupied Territories. Part of
the plan included the annexation of East Jerusalem through the construction
of multiple settlements surrounding the city. Sharon explained the rationale
for doing so as follows: "Jerusalem will not remain the capital of Israel if
it does not have a Jewish majority. The answer is to construct satellite
cities all around the Arab sections of Jerusalem… Within 20 to 30 years, we
must reach the point where there are a million Jewish inhabitants in Great
Jerusalem, including the cities surrounding it.
Israel's intention to annex
territory using settlement is evidenced by a further settlement strategy
advanced in 1983. The objective of this initiative, formulated jointly by
the Ministry for Agriculture and the World Zionist Organization, was "to
disperse maximally large Jewish population in areas of high settlement
priority, using small national inputs and in a relatively short period by
using the settlement potential of the West Bank and to achieve the
incorporation [of the West Bank] into the [Israeli] national system."
An influx of Jews in 1989
from the former Soviet Union boosted the process of colonization, supplying
an additional populace for the state's settlement program. Two years later
Ariel Sharon devised the 'Seven Stars' plan, a strategy for the construction
of settlements in seven key locations along the 1967 'green line' separating
Israel from the West Bank. The purpose of the plan was to facilitate the
eventual eradication of the boundary, enabling the de facto annexation of
territory into Israel. Supporting this annexation of Palestinian lands, the
Israeli Minister of Finance, Dan Meridor, stated in 1996 that “...[i]t is
clear that if we are serious in our intention not to return to the 1967
lines, words alone will not suffice. Settlement is one of the things that
determines the map of the country. Therefore, if we stop the settlement in
one place or another it means that we have surrendered that place."
The current Israeli
government, like its predecessors, strongly supports this policy of de facto
annexation through the expansion of existing settlements. As noted by the
most recent report of the Special Rapporteur on the situation of human
rights in the Palestinian territories: "Settlements continue to grow,
particularly in the "closed zone" between the Green Line and the wall, which
at present accommodates 76 per cent of the settler population in the West
Bank. The three major settlement blocs - Gush Etzion, Ma'aleh Adumim and
Ariel - will effectively divide Palestinian territory into cantons or
Bantustans. "
Given the obvious changes
that are being made to the demography of the West Bank, Israel's policy of
settlement stands clearly in the way of a two-state solution. While both the
United States and the European Union have called for a settlement freeze,
neither seem inclined to act in order to halt it once and for all. The
European Union, as Israel's major trading partner, could feasibly adopt a
position making Israel reconsider the merit of settlement from an economic
point of view. Likewise, if the United States was serious in its opposition
to Israel's settlement policy, it could threaten the withdrawal or reduction
of the aid it gives annually to Israel.
It is clear however that
there currently exists a distinct lack of political will on the parts of
both European Union and the United States to deal with the issue. In the
absence of meaningful opposition, Israel's settlement of the Occupied
Territories continues unabated and in violation of CHR resolutions and
international law, still serving its original purpose: the creation of
'political facts' to ensure Israel's hold on territory is made permanent,
blocking the right of self-determination for Palestinians.
- Antaine O'Cuilinn
is a PhD Candidate at the Irish Centre for Human Rights, National
University of Ireland, Galway.
REFORM OF THE UN
UPR: What value added?
NATHALIE
MONTILLOT
The creation of the
universal periodic review (UPR) has raised many questions. What will be
the role of civil society in this new mechanism? How will the UPR be
carried out and in what respect will it actually contribute to the
promotion and protection of human rights, especially in comparison with
the work achieved by the Commission on Human Rights? We have seen that
the participation of civil society in the work of the Human Rights
Council (HRC) and especially in the UPR is a fundamental prerequisite. A
thorough reform of the international human rights system requires an
increased input of the grassroots. Yet, for it to have a significant
impact, the UPR will have to be carried out in an efficient and
effective manner, with appropriate follow-up and genuine State
cooperation. This implies that it abides by the highest standards of
objectivity and impartiality, and that it therefore remains free from
political interference.
General Assembly
Resolution 60/251 states that the review shall be a "cooperative
mechanism, based on an interactive dialogue, with the full involvement
of the country concerned and with consideration given to its
capacity-building needs". The specific modalities of the review are
under consideration in the working group on the UPR mechanism.
It is interesting to
observe that most States and regional groups that have called for a
limited participation of civil society in the review also support the
idea that the UPR should be carried out in the form of an interactive
dialogue between the HRC and the government of the State concerned.
China, Russia and regional blocs such as the African Group and the
Organisation of the Islamic Conference (OIC) have called for the UPR to
be a peer-review mechanism, suggesting that the review should initially
be based on a report submitted by the reviewed State to the members of
the HRC, followed by an interactive dialogue between the State concerned
and the HRC.
This proposal is
clearly an assault on the principles of objectivity and impartiality of
the review. How objective and reliable can the UPR be if the information
used by the HRC purely relies on what the State highlights in its
report?
On the other hand,
States and NGOs that strongly support the involvement of civil society
in the UPR have also called for the creation of a subsidiary body to
carry out the UPR rather than the HRC itself. This subsidiary body
should be composed of independent experts and could take the form of a
permanent commission that would be geographically proportionate and
representative of the major legal systems. The UPR would be
intersessional, and the outcome of the review would be discussed in the
plenary for consideration and follow-up. This model is especially
attractive since an independent expert body would in principle be more
objective and impartial than the HRC.
Such impartiality would
however be determinate on the method of selection employed. If the
members of this expert body were to be directly appointed by the HRC
members, it would render the creation of this body completely useless.
The review could be as biased and selective as if it was carried out by
the HRC itself. To ensure impartiality and independence, the members of
the expert body would have to be elected, either by the HRC members
themselves, or possibly by the Office of the High Commissioner for Human
Rights (OHCHR). In any case strict criteria for eligibility should be
fixed in order to ensure a high level of expertise and commitment.
Switzerland, Canada,
Mexico, Peru as well as the European Union member states have all
stressed the fact that the UPR should not create additional reporting
obligations for States party to treaty bodies. Rather than the primary
input being provided by the State itself, they support the view that the
OHCHR should prepare a detailed background report on the human rights
situation in the reviewed State, in cooperation with all stakeholders.
Since interactivity would be best achieved if the background document is
designed in the form of a questionnaire, a list of questions to be posed
during the UPR process should be drafted. This set of questions should
be sent to the State under review well in advance in order for the State
to have enough time to prepare detailed answers and comments. This model
is especially attractive since the involvement of all stakeholders would
ensure better transparency and objectivity.
According to the
Conference of NGOs in Consultative Relationship with the United Nations
(CONGO), one model advocated by many NGOs envisages instead the
appointment of an independent expert from a roster prepared by the OHCHR.
This 'session rapporteur' would meet with all the stakeholders and
prepare a background note on the human rights situation in the reviewed
State. Does it imply that one rapporteur would be appointed per country
reviewed or would this independent expert have to cover all countries to
be reviewed in one session? In practical terms, would it be feasible? In
addition, the selection mode of the 'session rapporteur' would also have
to be specified and only a person with extensive experience and
expertise should be entrusted with such a task.
Outcome and follow-up
With respect to the
outcome of the UPR, most States support the view that the review should
be conducted in a positive and constructive spirit, avoiding
confrontation and giving consideration to the capacity-building needs of
the State concerned. India for instance has argued that the review's
sole purpose should be to identify areas for cooperation with a view
to enhance the country's capacity for the protection of human rights.
Likewise, Pakistan reiterated on behalf of the OIC the fact that it had
always rejected condemnation and favoured cooperation, dialogue and
reinforcement of means to achieve human rights.
For the UPR to be a
significant instrument, however, it will have to be more than a simple
forum for discussion and interactive dialogue. Even though the UPR will
be based on cooperation and constructive dialogue, it will have to go
beyond mere diplomacy. As Amnesty International points out, while the
HRC should not necessarily adopt a punitive and finger pointing
approach, the review should be frank and direct in addressing
shortcomings by states in the fulfilment of their human rights
obligations and commitments.
According to
Switzerland, the European Union, as well as a number of NGOs, the UPR
should ideally lead to recommendations that include measures of
technical assistance and capacity-building, and in the most serious
cases, the follow-up should consist in appointing a country rapporteur,
a commission of enquiry, or even the adoption of a country specific
resolution.
As Professor Françoise
Hampson observes, the UPR should therefore focus extensively on
follow-up and implementation measures. There is a wide consensus that
the second review should focus on the recommendations made during the
first one and should assess improvements as well as further steps to be
taken.
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Periodicity of the review
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AS to the time that should be allocated to each country for the
UPR, most states support the idea that the UPR should be carried
out in a three-hour intensive dialogue. This would imply that
approximately 30 to 40 countries per year would be reviewed, and
that each country would be reviewed every three to five years.
The Swiss Ministry of Foreign Affairs has indeed argued that
five years was the average reporting cycle of the Treaty bodies
and that it was therefore realistic and feasible. Considering
that the minimum gap between two reviews will be approximately
three years, it is fundamental to ensure that the HRC will be
able to address systematic human rights violations at any time
outside of the context of the UPR. It must be prepared to take
urgent action against mass atrocities and respond swiftly to
early warnings. In this respect, it is fundamental to recognise
the special procedures system as an indispensable mechanism to
"raise the alarm".
Algeria has argued that the time devoted to different countries
for review should be allocated on a case-by-case basis, even if
ideally, all states should have about half a day for the review.
It would indeed be coherent to allocate more time for the review
of States such as Sudan for instance, especially in comparison
with States like Monaco and Liechtenstein. Who would however
decide how much time is needed for the review? How would this
ensure that States are treated equally? Paraphrasing Françoise
Hampson, if treating similar cases differently is
discriminatory, it is equally discriminatory to treat different
cases alike. Professor Andrew Clapham put forward an interesting
idea, suggesting that the UPR should instead be carried out in
two sessions, ideally separated by an overnight break, in order
for the State under review to have enough time to answer
additional questions that would arise in the course of the first
session. He believes indeed that this would be much more
constructive and would involve a "real exchange of views based
on consultation and proper consideration of the questions posed"
rather than a "set piece ritual".
In any case, whether the working group decides that the UPR
should be carried out by an independent expert body, by the HRC
member states themselves or by a session rapporteur, it ought to
be ensured that all stakeholders, including NGOs and national
human rights institutions, are guaranteed the right to intervene
and to provide significant input.
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This is where genuine
State cooperation as well as extensive participation of civil society
will be crucial elements of the success of the UPR. Global Rights has
indeed highlighted a fundamental point, which is that civil society has
a substantial role to play in the follow-up process of the UPR. Indeed,
NGOs and national human rights institutions are the best actors to
ensure that any recommendations made by the HRC are conveyed and
implemented at the domestic level. They should therefore work in close
cooperation with the HRC.
The strongest outcome
of the UPR could therefore be the adoption of a country specific
resolution. The International Service for Human Rights has highlighted
the fact that the UN Commission on Human Rights issued hundreds of
resolutions every year, yet they had a very limited impact. It therefore
recommends that country resolutions should be more "results-oriented".
Human Rights Watch
stressed that a strong country resolution should only be adopted if
recommendations made to the government during the first review are not
implemented and if the state does not take adequate measures to correct
the human rights concerns identified during the review.
In any case, the UPR
will only be an effective and ground-breaking instrument provided that
it remains free from political interference and that States work in
close and genuine cooperation with the HRC.
According
to Louise Arbour, High Commissioner for Human Rights, "even an
institution that is perfect on paper cannot succeed if the international
community does not make the necessary change in the culture of defending
human rights. The political will and commitment of the international
community will be as important to making the new Council work as any
changes in structure or working methods".
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MIGRANT WORKERS
Hard labour in Singapore
BERNADETTE RADFORD with inputs from
SHIPRA DINGARE
As of 15 September
2006, foreign domestic workers entering contracts in Singapore will
benefit from a new standard contract to be implemented by employment
agencies. But while most workers in Singapore enjoy by law a 44-hour
work week, eight-hour day, and 12-week maternity leave, the 160,000
foreign workers employed as maids in Singaporean households will
continue to work with uncapped hours, unspecified rest periods, and the
choice of abortion or deportation if they become pregnant. Their
"achievements" under the new standard contract include "rights" to three
meals a day and a slim one-day off per month. Even these paltry
provisions won't apply to existing contracts or to maids hired directly
rather than through an agency, and being mere contractual provisions
rather than statutory rights, their violation won't attract the fines
and imprisonment attaching to violations of law. In the result, the new
standard contract endows only second-class rights affirming the
second-class status of foreign domestic workers in Singapore.
A report by Human
Rights Watch published in 2005 went some way to highlighting the
neglected area of domestic worker abuse in Singapore, and this article
draws from these findings prior to 2006. However, despite marginal
improvements in particular areas, the plight of domestic workers
by-and-large remains deplorable in the state today. Singapore’s vibrant
economy has thrived thanks to foreign labour (see box), and it is
appalling that the country continues to treat those workers with such
contempt.
Social Attitudes
In March 2006, a senior
Ministry of Manpower official rejected the idea of a day off each week
for maids, stating that it would lead to "rigidities" and problems for
families with "special needs". His statement reflects an attitude in
which the rights and needs of the domestic worker are subordinated to
the superior interests of the Singaporean family. This condescending
attitude and a variety of negative stereotypes are common within the
general community and constitute one of the major obstacles to
legislative reform. Stories of run-away maids feed into the general
perception that maids "can't be trusted". In the ongoing debate as to
whether maids should receive a day off, one employer commented "They
have boyfriends and all that! Some even go to Geylang [Singapore's red
light district] and earn extra cash, you know? We can't control the
maids...so we don't want to give [them] days off." Such prejudices serve
to rationalise the strict control that employers exercise over their
maids. Much of the Singaporean community also lacks respect for the
"service class", who are traditionally seen as being 'beneath'
Singaporeans. Thus the "enclaves" of domestic workers who gather
socially at various spots throughout the city are often the subject of
disparaging remarks.
Regulation of Foreign
Domestic Workers
The disenfranchisement
of foreign domestic workers is reinforced by their exclusion from
Singapore's Employment Act, which regulates employment conditions in the
majority of labour sectors, and from the Workmen's Compensation Act.
This exclusion means that domestic workers are not statutorily entitled
to a minimum number of rest days, maximum work hours, sick leave, or
compensation for work-related disability or death.
Thus, while the new
standard contract will stipulate one rest day a month, workers under
existing contracts and those whose contracts are not negotiated through
agencies will continue to be unprotected. The contract also provides
that the monthly day off can be compensated if not taken; given foreign
domestic workers' weak bargaining power, it is feared that some could be
pressured into surrendering their day off. Finally, beyond
"recommending" eight hours rest, the new standard contract places no cap
on working hours.
Apart from their
contract of employment, foreign domestic workers are governed only by
the Employment of Foreign Workers Act, which regulates the issuing of
work permits. Foreign domestic workers are issued a second-class work
permit committing the holder to twice yearly tests for pregnancy and
venereal disease; she is also restricted from marrying a Singaporean
without the special approval of the Work Permit Controller. Permit
conditions further stipulate that a foreign domestic worker cannot
become pregnant or deliver a child while in Singapore, although
immigration officials have stated that the worker may continue in
employment if she aborts the child. The permit laws effectively prevent
foreign domestic workers from forming any roots in Singaporean society,
thereby creating a permanent temporary class of resident with
subordinate rights.
Work permit regulations
also require employers to take out a $US 2950.00 bond to guarantee the
repatriation of migrant workers. The bond is forfeited if the employer
fails to repatriate or if the maid runs away. In practice, this
increases incentives for employers to restrict domestic workers' freedom
of movement in order to prevent maids from disappearing.
Foreign domestic
workers are also denied the welfare benefits enjoyed by other
Singaporeans. For their medical needs they must depend on their
employers, a stipulation included in the new standard contract. If an
employer's legal duty in this regard is not enforced by the state then
there are no official avenues through which such assistance may be
obtained.
Finally, foreign
domestic workers, like other workers in Singapore, have no minimum wage,
nor is one provided in the new contract. This is subject to exploitation
by employers of foreign domestic workers. The current wage standards
reflect racism and inequality, with Indian workers earning the least at
US$ 88-US$ 106 a month, Sri Lankan and Indonesians earning US$130-153,
and Filipina workers earning US$438-531, a wage roughly half that of a
local worker doing the same job. In addition to low wages, the repayment
of recruitment fees disguised as "loans" takes place through uncapped
deductions from workers' wages for a period of months, creating a system
akin to that of bonded labour. Indonesian domestic workers generally
endure uncapped salary deductions for six to ten months. This situation
prevents many maids in abusive or otherwise intolerable work situations
from seeking a transfer or repatriation. The new standard contract does
nothing to cap salary deductions and provides only that loan repayments
be recorded in a Schedule of Repayment.
In the past,
non-payment of wages has been another serious issue, with most workers
having little control over payment and no independent access to their
bank account to confirm payment. In one extreme case, according to Human
Rights Watch, a Bangladeshi worker was not paid for eight years. In
early 2005, the Work Permit Regulations were altered to require
employers to pay their workers monthly, a stipulation also included in
the new standard contract. The new contract also provides that receipt
of salary must be acknowledged in a standard Schedule of Salary Payment.
Provided that enforcement takes place, these measures will hopefully
eliminate non-payment of wages.
Abuse of Foreign
Domestic Workers
The physical and sexual
abuse of domestic workers is another ongoing issue in need of urgent
redress. Representatives of aid organisations have reported that
physical abuse and deprivation of food from approximately 25-50 percent
of all complaints by domestic workers. Another frequent grievance is
deprivation of contact with the outside world. Human Rights Watch
reports that some employers go to the extreme of padlocking their maids
within the confines of the house or apartment, preventing them from
having any external contact, including via the telephone or postal mail.
Some employers have even taken maids' passports away. These intolerable
work conditions have contributed to the suicides and deaths of at least
147 foreign domestic workers in Singapore since 1999. The new standard
contract stipulates that "external communications must be made
available." But with weak protections for even the monthly rest day, it
is not clear how effective this provision will be.
Violation of Domestic
and International Law
The legislation
governing foreign domestic workers in Singapore violates its domestic
and international legal obligations, in particular the notion of
equality before the law, including equal protection, as articulated in
the Singaporean Constitution. The appalling conditions which are endured
by many of the foreign workers amount to significant violations of human
rights, including the freedoms of association and movement. The
restrictions placed on workers are in some cases so severe that Human
Rights Watch has labelled them conditions of "forced labour and debt
bondage". Such practices violate the ILO Convention on Forced Labour and
the Supplemental Slavery Convention, both of which Singapore has
ratified.
In its response to the
damning 2005 Human Rights Watch report on maid abuse in Singapore, the
Ministry of Manpower retorted that "FDWs [foreign domestic workers]
choose to work in Singapore because of better conditions (as) compared
to their home and other countries." This is an entirely inadequate
reaction to a significant social issue. The fact that workers choose to
work overseas to seek better economic opportunities does not mean that
they should have to endure human rights abuses.
The Singaporean
government has taken limited measures to improve the situation of
foreign domestic workers. Criminal penalties for physical assault,
sexual abuse, and forced confinement were increased 1.5-fold in 1998 for
cases in which the victim was a foreign worker and the perpetrator an
employer. Singapore introduced an accreditation programme for employment
agencies in 2003 and has mandated orientation programs for new foreign
workers and new employers. In December 2005 the government revoked the
licence of an employment agency that withheld workers' passports and
left them to sleep outside.
Given that an estimated
half of foreign domestic workers are currently not entitled to any days
off and that food deprivation is one of their primary complaints, the
new standard contract does represent a step forward. But it reflects
poorly on Singapore that guarantees of food should be considered a
triumph for foreign workers.
Singapore's continued
reliance on cheap foreign labour, and the accompanying restrictions it
places on this sector, reflects a nation content to feed off the misery
of its neighbours. Singapore must reform its laws to reflect the
vulnerable position of foreign workers and to afford such workers equal
protection with other workers.
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Not-so-surprising
Singapore
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The unrelenting Singaporean economy has for decades been powered
by cheap foreign labour. In 2005 over 671,000 foreign workers
comprised approximately 28 percent of Singapore's workforce.
The 160,000 foreign domestic workers enter Singapore on two-year
work permits and come mainly from the Philippines, Indonesia and
Sri Lanka. Many of these women are recruited by employment
agencies, often disreputable, to whom they become indebted in
paying exorbitant recruitment fees. While earning salaries of
approximately US$ 88-US$ 189 a month, they must settle debts of
US$ 875-US$ 1312 within two years. Their level of debt and
deprivation of contact with the outside world render them highly
susceptible to abuse.
Yet despite prolonged international and domestic attention to
their plight, the Singaporean government has taken insufficient
measures for their protection.
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PAKISTAN
Balochistan tests Islamabad pledge
SOPHIE
JOHNSON
In its 2006 pledge to
the Human Rights Council, Pakistan claimed that "[s]ustainable democracy
and empowerment at grassroots level, through good governance, have been
established at the local, provincial and national levels". Yet, in the
Pakistani province of Balochistan, a lack of democratic dialogue between
the people and Pakistani authorities has meant two years of violence,
widespread human rights abuses, mass internal displacement and the
deaths of hundreds of civilians and armed personnel.
Violations of human
rights by both government services and armed rebel factions occurs daily
in the province. Government forces believe they are acting to bring
security and prosperity to the region while rebel groups consider
themselves a resistance movement struggling for autonomy in the face of
government neglect. A December 2005 assassination attempt by Baloch
armed opposition groups led General Musharraf to reiterate his
determination to crush the rebel movement, arguing that many tribal
leaders were resisting 'development' in order to secure power.
General Musharraf has
embarked on a military campaign against the 1,000 or so rebels,
deploying over 36,000 Frontier Constabulary (FC) troops in Balochistan,
in what tribal leader Attaullah Khan Mengal described as an "undeclared
war". Despite the massive deployment of troops Pakistan has refused to
label activities in Balochistan as anything more than a 'law and order'
situation. Interior Minister Aftab Sherpao explained to the Senate that
the government believed in dialogue, however he claimed that the use of
force is necessary against "miscreants" and "furraris" (fugitives).
The recent killing by
Pakistani forces of veteran Baloch politician Nawab Akbar Khan Bugti and
the resultant hostilities have highlighted the urgent need to seek a
democratic solution in order to bring an end to the violence and human
rights abuses.
Political
marginalisation
Historically autonomous
and culturally distinct from other areas of Pakistan, Balochistan has
never sat happily in the Pakistan union of states. The province is rich
in resources, including natural gas, coal and oil deposits fulfilling 50
percent of Pakistan's energy needs.
Despite this, its
sparse population of mostly tribal origins is amongst the poorest in the
country. According to Pakistan's Labour Force survey of 2003-2004, urban
unemployment is 12.5 percent in Balochistan, compared to 9.7 percent in
Pakistan generally. The Baloch feel that the government has neglected
them and disregarded their rights in the pursuit of national economic
interest.
Recent government plans
to turn Balochistan into an international trading zone with a major
seaport have served to reinforce this perception. Central authorities
argue that financial resources have been invested in the region, however
the Pakistani daily The Dawn points out "projects such as the
building of the Gwadar port, the building of cantonments and even new
roads do not necessarily benefit ordinary Baloch."
Several unsuccessful
attempts have been made to address the issues facing Balochistan by
national politicians, including debates in the National Assembly and the
Senate and a 2004-2005 inter-party parliamentary committee. The
committee considered Baloch fears over development projects and military
intervention in the province but the resulting report was not presented
before Parliament, causing politicians, such as Hafiz Hussain Ahmed, to
question 'how serious the government is in addressing the issue'.
Growing feelings of
marginalisation in the region have resulted in opposition to the
government and increasing support for an autonomous Balochistan.
Opposition has been voiced both democratically and by using force to
disrupt national development projects and energy distribution pipelines.
In the absence of any
effective means to address concerns, in the past two years at least
three tribal groups have sabotaged infrastructure such as gas and water
pipelines. Most recently the BBC reported that a gas pipeline 350 km
from the state capital was blown up by Baloch armed groups, causing
widespread disruption to industry in Karachi and Balochistan itself.
Human rights abuses
Despite the lack of any
official state of emergency in Balochistan, to date both Pakistani
forces and armed opposition groups in Balochistan have used force that
is often excessive, indiscriminate and in violation of Pakistan's
domestic and international human rights obligations.
The resort to violence
by both sides has had tragic consequences. The Human Rights Commission
of Pakistan (HRCP) report, ‘Conflict in Balochistan’, estimates that
about 150 civilians were killed in violent outbreaks from March 2005 to
January 2006. Additionally, in one offensive in March 2005, the UN
estimated that over 70 civilians were killed. Civilian casualties have
been further compounded by military blockades of tribal strongholds. In
these areas, a total lack of medical care has greatly increased civilian
mortality rates.
In response to rebel
violence the FC have launched air attacks against local camps housing
suspected militants. Civilians in Dera Bugti reported "military and
paramilitary troops usually encamp[ed] among civilian populations, to
use them as 'human shields' against militants."
In another incident,
after several Pakistani officers were killed in a mine explosion near
the village of Pattar Nala, the FC raided local homes and killed 14
persons.
Disappearances are also
frequent. The Herald (Pakistan) reported that there had been more
than 6000 disappearances in Balochistan from the beginning of
hostilities to late August 2006.
In the town of Dera
Bugti alone there were an estimated 24 disappearances in 2005, although
the figure may be higher, as "families are often hesitant to come
forward because of threats by intelligence agencies warning them to
remain silent."
Disappearances are in
violation of the Pakistani constitution, which ensures the right to life
and liberty in accordance with law; they are also in violation of
Pakistan's international obligations. When committed as part of a
systematic attack against any civilian population, disappearances
constitute a crime against humanity. Under customary international law
States are also obliged to ensure that they do not aid disappearances by
inadequate investigation.
There have been several
credible reports of widespread torture in Balochistan, including
allegations of torture by Pakistan's Inter Services Intelligence Service
(ISI). These reports describe detainees being 'taken to ISI secret
torture cells and severely tortured continuously for five months.' The
HRCP has commented that there appears to be "a network of private
torture cells run by intelligence agencies throughout the country."
The Constitution of
Pakistan provides partial protection against torture, requiring "no
person… be subject to torture for the purpose of extracting evidence".
The prohibition on torture is a jus cogens norm of customary
international law and as such applies in all circumstances and is
enforceable against all States.
Despite this, according
to the HRCP, torture is "committed with impunity" in Balochistan as both
the government and the courts have failed to take action to prevent the
abuses. Pakistan's voluntary pledges to the Human Rights Council
included 'work[ing] towards early ratification of CAT'. Perhaps a more
meaningful pledge would be to first work towards ending the endemic use
of torture and the impunity of security forces in Balochistan.
Rebel violence
The Pakistani security
forces are not alone in committing human rights violations. In 2006,
gunmen suspected of belonging to the Balochistan Liberation Army killed
three Chinese engineers. Thirteen people were killed in an alleged
tribal violence linked bus explosion in February 2006.
Additionally tribal
groups have been accused of planting landmines resulting in the deaths
of at least three FC personnel. Nawab Akbar Bugti was alleged to have
abducted eight police personnel, although he denied this allegation.
Tribal Sardars (chiefs) have also been accused of maintaining private
jails, and subjecting opponents to deliberate humiliation.
The future
The government has
attempted to justify its military activities in Balochistan by labelling
it a 'law and order' situation. Given the well-known underlying
political and economic causes for the conflict, this explanation is
clearly nothing but a smokescreen masking the reluctance of the central
authorities to deal with the problems in Balochistan.
No justification can be
made for the human rights abuses carried out by government agencies in
contravention of domestic and international law, for which both the
security forces and decision-makers 'have remained completely
unaccountable.'
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