State paranoia must give way to a healthy respect for the work and rights of human rights defenders; access to funding is one such right

DANIELA KAESTNER

The UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Declaration) is one of the key international instruments focusing on the rights of human rights defenders. This is complemented by the mandate of the UN Special Representative on human rights defenders Hina Jilani, who submitted her fifth report (E/CN.4/2005/101) to the Commission on Human Rights (CHR) this year. 

The delegation of Norway, which has sponsored the resolution on human rights defenders at the Commission for several years, has made honest efforts to promote and respect the work of human rights defenders, and to prevent actions undermining their work. The European Union (EU) has also demonstrated commitment to strengthening the vulnerable position of human rights defenders by adopting the Guidelines on Human Rights Defenders in June 2004 through its General Affairs and External Relations Council, even though the Guidelines are not legally binding.  

In short, human rights defenders do have instruments with which to fight persecution and other human rights violations. Unfortunately, all of these legal measures prove to be rather weak tools as they favour the exclusive application of domestic legislation, leaving NGOs and human rights defenders vulnerable to the whims of State interests. Most importantly, this phenomenon problematizes one crucial aspect of the functioning of NGOs and other human rights activists: their right to receive and utilise financial resources. 

Deficiency of the Declaration 

Prior to adoption, a draft of the Declaration had specified that it promoted "a clear commitment on the part of all UN member states to respect the rights of human rights defenders at the national and international levels". This was later excised from the final draft, compromised in the interests of adoption of the Declaration. 

The language eventually used in the adopted Declaration offers little by way of real protection to human rights defenders. The reference to the role of national law in Article 3 of the Declaration results in the subordination of international law to domestic law, which restricts the rights of human rights defenders through the applicability of more stringent national legislation. 

Although Article 3 of the Declaration stipulates that domestic laws must be "consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms…", this, at a closer look, proves to be counterproductive. Due to the fact that the international obligations are not expressively cited in the Article, it aligns domestic laws only with those international treaty obligations already ratified by the state and not with other international standards or customary law. Thus, the Declaration's possibility to provide for any protections other than those already implied in existent human rights law instruments, to which the state is a member, is exhausted. 

Moreover, as indicated by Article 21 and 22 of the International Covenant on Civil and Political Rights, Article 5 (d) (ix) of the International Convention on the Elimination of All Forms of Discrimination and Articles 2, 3, 5 and 11 of the International Labour Organisation Convention No. 87, the right to association and assembly has already been guaranteed and is nothing exceptional to the Declaration. 

As another example, Articles 2 and 4 of the Declaration simply reiterate the duty of States to promote and protect human rights, which is already proclaimed by the Universal Declaration of Human Rights. The result is that the majority of the provisions of the Declaration are simply modelled on other international human rights conventions, which apply equally to human rights defenders as to all other individuals. 

With respect to financial resources, the Declaration does incorporate the right to receive and obtain funding for human rights activities in Article 13, a right not articulated as such in any existing human rights standard. Yet, according to Article 17 of the Declaration, Article 13 is subject to the limitations "determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of the meeting of the just requirements of morality, public order and the general welfare in democratic society." Hence, all that is required to prevent human rights defenders from doing their work by cutting off their source of capital is to label them as "politically motivated" or as a threat to "national security", "public order" or even the "general welfare of society". 

Resolution on Human Rights Defenders 

Particularly because the Declaration does not contribute to any additional rights that may strengthen the position of human rights defenders, a strong resolution at the CHR is indispensable. Unfortunately, the draft resolution on human rights defenders, to be tabled during the ongoing 61st session of the CHR, again fails to address the legitimate aspiration of human rights defenders to freely access funding. 

The draft resolution does reflect other key elements of the report of the Special Representative on human rights defenders. Firstly, the special emphasis Ms. Jilani has put on the increasing number of cases of serious violations is reflected in the draft resolution.

Secondly, the draft refers to the focus of the report on "the concern at the increasing restrictions imposed by States on the freedom of association, through the passing of extremely restrictive and cumbersome legislation regulating freedom of association." 

Thirdly, it seeks to broaden the idea of protection by extending it to relatives of human rights defenders, since Jilani's report documents how relatives of human rights defenders have repeatedly been targeted in order to pressure the defender. Last but not least, the draft text recognizes the important role defenders play in upholding human rights during times of armed conflict, with special regard to their vulnerable position during war. Several aspects of the General Assembly's (GA) resolution of the 59th session in October 2004 have also been incorporated into the CHR resolution, such as the request for States to "…ensure that complaints from human rights defenders about threats or violations against them or their relatives are investigated promptly". 

One hotly debated paragraph of the draft consists of the call upon States to "…ensure, protect and respect the freedom of expression and association (…), in particular with regard to facilitating the acquisition of legal status…". This issue has also been inserted with regard to the GA's Resolution, but slightly amended from 'registration' to 'acquisition', which can be seen as some progress since acquisition also refers to the process prior to registration. However, despite the word "inexpensive" concerning acquisition, financial means are not mentioned once throughout the resolution. 

In short, the resolution copies the language of the Declaration, rather than taking it forward. 

Obstacles Posed by Domestic Legislation 

The use of policies, legislation and procedures - often justified as "security" or "counter-terrorism" measures - to restrict the work of human rights defenders has been increasing and may even target the defenders themselves. India provides a good example: the Foreign Contributions Regulation Act (FCRA) requires all Indian organisations and individuals that seek to receive foreign contributions to receive clearance first from the Ministry of Home Affairs, in the form of either registration or prior permission. An anachronistic, Emergency-era statute, the FCRA is a potent tool used by the government to restrict the work of human rights defenders. 

Governments have a legitimate interest in holding NGOs accountable for financial or other wrongdoing. However, normal regulatory and criminal justice procedures provide sufficient institutional resources to accomplish this task. Similarly, narrowly tailored financial reporting requirements for NGOs serve legitimate governmental interests and should remain in place. In India, however, it is the highly politicised Ministry of Home Affairs that administers the FCRA rather than the Ministry of Finance. This leaves the application of the law open to manipulation and selectivity. 

The Government of India also attempts to curtail the freedom of assembly and association. From mid-1999, NGOs organising international conferences in India have required prior permission from the Ministry of Home Affairs and other relevant ministries. The clearance requirement is not pursuant to any law, rule or guidelines, it is simply the new practice of the Government of India. The clearance requirement is not manifest as a written policy with established procedures. It functions at the whim and fancy of the Government of India.

This ad hoc operation places NGOs at a distinct disadvantage in its dealing with the Government of India as the procedure lacks transparency. The clearance requirement procedures are clearly prone to arbitrary use and abuse in the absence of established policies and procedures. 

The problem of legislation aimed at hindering human rights defenders in their work is not restricted to India, although it is particularly reprehensible that such legislation would find a place in the statute book of a democratic country. (see box) 

Hopes for the Future 

The Declaration and the draft resolution simply re-affirm human rights standards without offering any added protection to human rights defenders. 

The one unique provision on the right of NGOs to receive funding is subordinated to national legislation, although the very States where funding is most urgently required are those which do not respect international standards of basic human rights, and especially the concerns of human rights defenders. 

Therefore, it is even more desirable that the international community, and especially the sponsors and co-sponsors of the annual resolution do not capitulate to the strong opposition of countries commonly viewed as being unconcerned about human rights. 

States truly dedicated to human rights issues, must recognize the valuable contribution of civil society and NGOs. 

They must keep the issue of their access to funding on their agenda.

12 years on, lessons not learnt

The Indian NHRC was well placed to serve as an inspiration, a blueprint for other NHRIs in the region. It now appears that it is more likely to show them the way to the bottom...

In these pages one year ago, during the 60th session of the Commission on Human Rights, Human Rights Features had expressed its views on the quality and manner of appointments to the National Human Rights Commission of India (NHRC). A year on, it turns out the same concerns are still valid, magnified by the fact that one member whose appointment has been called into question did not deem it fit to step down on moral grounds, even if temporarily, after the Supreme Court of India delivered a split verdict on the issue. 

Furthermore, there has been no attempt to address, or even acknowledge, the fact that more than 98 percent of NHRC staff is drawn from other government departments, seriously undermining their effectiveness. Of even greater concern is that as much as a fifth of the staff in key departments is reportedly drawn from the Intelligence Bureau of the Government of India. 

In the legal challenge to the appointment of Mr. P.C. Sharma, former director of the Central Bureau of Investigation, Justice Sabharwal ruled against the appointment, while Justice Dharmadhikari held that the appointment had conformed to all legal procedures and requirements, and was therefore valid. The case will now be heard by a larger bench.

There is, nevertheless, even at this interim stage, a lesson for the government. For, even if the legal procedures in this appointment were followed, it still does not absolve the government of its responsibility, in this case as well as in future cases, of ensuring that such appointments are above board, and more importantly, seen to be above board. 

Question of Credibility 

At the core of the issue is the credibility of the NHRC. As Justice Sabharwal emphasised in his order, the NHRC is a high-powered statutory body functioning as an instrument to protect and promote human rights, and "the credibility of such an institution depends upon [a] high degree of public confidence". 

Again, as Justice Sabharwal pointed out, "[a]n individual Police officer may be very good but his participation in decision making as a member of the Commission is likely to give rise to a reasonable apprehension in the minds of the citizens that he may sub-consciously influence the functioning of the Commission. Such reasonable perception[s] of the affected parties are relevant considerations to ensure the continued public confidence in the credibility and impartiality of [an] institution like [the] NHRC." 

Public confidence is clearly nowhere at the top of the government's agenda - neither the Central Government's, nor the States'. If it was, the NHRC's annual reports would not have been stowed away in the Ministry of Home Affairs, waiting to be presented to Parliament. The annual report for 2002-2003 has only recently been tabled in Parliament - in December 2004. If public confidence was indeed on the agenda, the NHRC's directions would be complied with as a matter of priority. State Human Rights Commissions would have been established in every state. The dismal performance of the existent state human rights commissions would be reason enough to bring them under the purview of the NHRC. 

Eligibility 

In addition to the general impropriety on the part of a former police officer to accept a position on a human rights monitoring body, Mr. Sharma also lacks the necessary qualifications for membership of the NHRC. Section 3 of the Protection of Human Rights Act stipulates that the four members of the NHRC shall include one former judge of the Supreme Court, one former Chief Justice of a High Court and two persons having knowledge of, or practical experience in, matters relating to human rights. Mr. Sharma does not have either a judicial or a human rights background. 

Further, as Justice Sabharwal's order states, "A Police officer may be [a] very good investigator.  He may have vast experience in respect of the nature of commission of crime and consequentially its prevention.  But, for the present purposes what is relevant to be borne in mind is that [a] number of cases reported to NHRC relate to acts of omission and commission by the members of such forces." 

The order also questioned the utility of having a former police officer serve as a Member of the NHRC on the grounds that the NHRC could put his expertise in investigation to good use. "[T]he knowledge or practical experience in relation to commission of crime, investigation and solving a crime which may show violation of human rights is one thing and the knowledge or experience relating to protection of life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India is altogether different," Justice Sabharwal observed. "The requirement of section 3 (2)(d) - relating to the constitution of the Commission", he held, "is of [the] latter and not [the] former." 

Amendments to the Protection of Human Rights Act 

SAHRDC has long advocated the raising of the bar. According to Section 4 of India's Protection of Human Rights Act 1993 - the enabling legislation for the setting up of the National Human Rights Commission - the President of India appoints the Chairperson and other members of the Commission based on the recommendations of a Committee comprising of the Prime Minister of India, the Speaker of the Lok Sabha (lower house of Parliament), the Home Minister, the leader of the opposition in the Lok Sabha and Rajya Sabha (upper house of Parliament) and the Deputy Chair of the Rajya Sabha. 

The Appointments Committee is not free from political influence and in practice recommendations evince a pro-government stance. The opposition is given two spots in the Committee and the representatives of the Government form two-thirds majority in the Committee. Independence in the appointment committee, as is insisted upon by the Paris Principles - the minimum criteria for the establishment and functioning of national human rights institutions - is therefore not assured. Thus, while an appointment may have been carried out with due regard to the consultation process, it is worth examining if the process itself is adequate, in letter and in spirit. 

The Protection of Human Rights Act 1993 specifies that the Commission shall be headed by a person who has been Chief Justice of India. The other members shall include a former judge of the Supreme Court, former Chief Justice of a High Court, and experts in matters relating to human rights. The current NHRC membership comprises three former judicial officers, one retired police official and one former diplomat. Chairpersons of the National Commission for Minorities, National Commission for the Scheduled Castes and Tribes and the National Commission for Women are ex-officio members.

Although, the legal fraternity has been represented in the NHRC, persons having knowledge and experience in the field of human rights (the Act provides for two such persons) have no representation in the NHRC. It seems unlikely that a Commission meant to protect and promote human rights can achieve its objective without giving any representation to those who work directly for the cause of human rights and are aware of the various issues that need to be addressed in this area. If the Commission is to be represented only by present and former public servants, a true and fair representation of the human rights situation in India cannot be expected. The enabling legislation setting up the Commission is restrictive in scope so far as membership is concerned and fails to guarantee a pluralistic membership to the Commission as is required by the Paris Principles, thus violating the standards in practice. 

What next? 

Hopefully not a former chief of the Intelligence Bureau. As SAHRDC has pointed out in the past, a significant percentage of NHRC staff is drawn from the Intelligence Bureau. In a functioning democracy, this should be considered sacrilege. Those who belong to the intelligence community, on becoming part of the NHRC, must resign from their parent cadre and agree to be absorbed as regular NHRC staff. The NHRC, most of all, cannot allow for dual loyalties in its serving personnel. 

With more vacancies arising in the NHRC, it is incumbent on the government to ensure that future appointments are made with the utmost discretion. There is a vast pool of human rights expertise in the country that the government can tap into. It is inconceivable that from the entire range of available human rights lawyers, activists, and academics, the government could only find a person who has had no human rights experience worth the name. Mr. Sharma's official profile on the NHRC website is proof of the inadequacy of his credentials. Any more dubious appointments will serve to greatly lower the prestige of the NHRC, both domestically and internationally. 

Time to get cracking 

The NHRC must engage in some activism of its own, for its own sake. This, the Commission has been reluctant to do. With India's free and vibrant press the NHRC could have developed a dynamic relationship and used newspaper columns and television interviews as a platform.  In its engagement with peer networks and other human rights bodies at the international level, it could be more forthcoming about its problems, and use them as a sounding board. 

Instead, when questioned about its work, ability, or bottlenecks encountered, the NHRC's reaction is to go on the defensive. It appears to do no introspection, and its approach to inquiries and suggestions is at best subdued and aloof, at worst, prevaricating. 

With non-governmental organisations, which continue to regard the NHRC with hope and promise, the NHRC could have established a transparent and constructive method of interaction, one that goes beyond token meetings and perfunctory, dead-end discussions. Meetings of the NHRC's Core Committee of NGOs are desultory exercises in defensiveness on the part of NHRC officials, and repeated attempts by some NGO Core Committee members to elicit concrete action from the NHRC on substantive issues have failed. The NHRC's failure to act on - or even comprehensively discuss - the appointments issue prompted the resignation of Ravi Nair, Executive Director of the South Asia Human Rights Documentation Centre (SAHRDC) from the NGO Core Committee in December 2004. That leaves only two human rights activists on the Committee - Mr. Y.P. Chhibber of the People's Union for Civil Liberties (PUCL) and Henri Tiphagne of People's Watch, Tamil Nadu. 

There are other steps the NHRC can take to demonstrate its commitment to transparency. Its website (www.nhrc.nic.in) and its newsletters are a study in abstract minimalism. It must take a leaf, or rather a webpage, from the sites set up by the Human Rights Commission of Fiji or even the Nepal Human Rights Commission which puts out a good quantity of information even as it grapples with a host of problems. 

For starters, the website must put out the complete case papers on every complaint it takes up for consideration. The NHRC currently puts out only the 'status' of each complaint, which normally consists of terse one-sentence reports stating who and where a reply to the complaint is being awaited from. No mention of the time given to the official to submit a reply, and no reference to what the NHRC would propose to do by way of follow up in case the reply received is inadequate. 

In rejected cases, substantive reasons must be provided for the rejection. This would assist prospective complainants and the general public in ascertaining what kind of complaints can in fact be addressed to the NHRC. 

The task may seem daunting but it is not. The NHRC has the good fortune of being located in one of the most IT-savvy countries in the world, and it would be a simple matter to find and appoint a good team of IT professionals to get on with the job. 

Secondly, it must publish on its website the career histories of all staff members. Citizens have the right to know where the staff of the NHRC is coming from. 

All this material should also ideally also find a place in the annual reports. However, in view of the pathetic speed at which the Indian Home Ministry tables the NHRC's annual reports, the website and the newsletter would serve as a much quicker reference. 

The Indian NHRC was among the first to be established in the Asian region. It was hoped that it would serve as an inspiration, a blueprint for other upcoming NHRIs throughout the region. It now appears that it is more likely to show other NHRIs the way to the bottom.

Dhaka fascinated by idea of NHRIs

...and it’s been so entranced it hasn’t managed to get a move on for nine years now

Though official pronouncements over the past decade claiming progress towards the creation of a Bangladeshi National Human Rights Commission have been frequent, there has been no substantive development toward this end beyond announcements of "further research" on the matter.  Such statements were first made in 1995, under the initiative of the then Bangladesh Nationalist Party Government's 'Action Research Study on the Institutional Development of Human Rights in Bangladesh'  (IDHRB).  Yet, the work of the National Consultative Committee, formed to monitor and evaluate the IDHRB, has stalled. According to its website, it has only published two working papers, the last one in 1997, and neither of which refer explicitly to the establishment of a national human rights commission. 

In late 2004, the United Nations Development Programme (UNDP) Bangladesh, in cooperation with the Australian High Commission in Dhaka, organised a conference in Dhaka titled "Institutional Protection of Human Rights: Role of National Human Rights Institutions". 

The purpose of the conference was to "explore the possibilities of creating a functional network within South Asia and other Asia-based Human Rights Commissions and Institutions" and more specifically, to serve as a "starting point for laying down the foundation for an independent human rights commission for Bangladesh and a wider platform for South Asia." 

To activists and experts working on issues related to National Human Rights Institutions (NHRIs) - and on Bangladesh - it was incomprehensible as to how the Government of Bangladesh and UNDP Bangladesh chose to refer to the conference as a "starting point for laying down the foundation an independent human rights commission", and still keep a straight face. 

Successive governments in Bangladesh have been hinting at the imminent establishment of a national human rights commission - for the past nine years, no less. And if that was not adequate, His Excellency, Mr Reaz Rehman, Adviser (State Minister) Foreign Affairs, Government of Bangladesh, and head of the Bangladeshi delegation in Geneva, stated in his speech during the CHR's High Level segment that a Law Reform Commission set up to review existing [legal] instruments and institutions would also make “recommendations for setting up a National Human Rights Commission." (see box below) 

This is far from reassuring. The Bangladesh Government and its officials have had innumerable occasions to consider the setting up of a human rights commission, to review and revise those considerations, to request recommendations from a number of bodies, both domestic and international, and to make numerous trips abroad to see for themselves how a national institution may be established and how it may function. 

The "attempts" began in 1995, under the initiative of the then Bangladesh Nationalist Party Government which set up an 'Action Research Study on the Institutional Development of Human Rights in Bangladesh'  (IDHRB). Since then, there has been no substantive development beyond "further research".  

The work of the National Consultative Committee, formed to monitor and evaluate the IDHRB, seems to have frozen. According to its website, it has only published two working papers, the last one in 1997, and neither of which refer explicitly to the establishment of a national human rights commission. 

Meanwhile, representatives of various ministries, as concurrent members of the IDHRB, have undertaken study tours of India, the Philippines, Canada, and the United States, amongst other countries, presumably in order to further "appreciate" how national institutions function. 

Whilst the IDHRB has been successful in organizing seminars much on the lines of the aforesaid UNDP conference of 2004 - such as "Composition, Powers and Functions of the National Human Rights Commission in Bangladesh" on 28 May 1997 and "The Relation Between the National Human Rights Commission and the Judiciary on 30 August 1997 - it has in no way advanced the creation of a national human rights commission. (see also box below) The IDHRB's only substantive contribution, namely the draft bill of the Bangladesh National Human Rights Act 1999, has been shelved for five years.  

Despite the fact that this bill is unsatisfactory and would effectively reduce any future institution to a mere recommendatory body, these prolonged deliberations in Parliament only serve to suggest that the authorities have no intention to establish a national institution. Meanwhile, seminars and conferences such as the one recently organised by UNDP, help keep up the pretence that the establishment of a national institution is of genuine interest to the Bangladesh Government.  

It is true that substantive efforts must be undertaken to establish a national human rights institution in Bangladesh. These must include the application of focused and sustained pressure on the Bangladesh Government to implement its pronouncements of the past nine years. However, ill-considered and futile initiatives such as the one attempted by UNDP, as with all other conferences of the past several years on the same topic, have only served to legitimise the procrastination of the Bangladesh Government, despite the best intentions of the conference organisers. 

The Bangladesh Government has all the knowledge it needs to establish an institution, and should do so without delay. Conferences such as the one organized by UNDP are a misuse of valuable UN funding which could be allocated to technical advisory services from the Office of the High Commissioner on Human Rights (OHCHR), designated to assist in the creation of independent national human rights institutions.   

Further, since Bangladesh does not have a national institution of its own, discussions on regional arrangements or improving upon the Paris Principles in Bangladesh would be premature - a clear cart-before-the-horse scenario. 

Furthermore, the Asia Pacific Forum on National Human Rights Institutions (APF) already adequately serves as a functional network within the entire Asia- Pacific region. No observer from Bangladesh appeared to be present at the last APF annual meeting, which may only further raise suspicions as to the Government of Bangladesh's genuine commitment to such arrangements.

Skewed judiciary undermines human rights

The prosecution in South Korea exercises near complete control over the pre-trial and trial process

The South Korean prosecutorial system is in urgent need of reform. Judicial independence is being undermined by the predominance of the prosecution and the collusion between judges and prosecutors. Politicisation of the judiciary is rampant. There are shortfalls in evidentiary provisions and methodology, which also weakens the judicial process and denies justice to the defendant. 

The prosecution exercises almost complete control over the entire pre-trial and trial process, manifestly increasing the opportunity for bias, corruption and abuse of process. The Public Prosecutor's Office Act vests prosecutors with the "duty and authority" to investigate crimes, institute and maintain public prosecutions, direct and supervise judicial police officers and direct and supervise the execution of criminal judgment. Human rights petitions filed with the National Human Rights Commission of Korea revealed "abuse of prosecutorial powers" was the most frequent complaint among cases relating to the prosecution. 

It is common practice of the courts to utilise the interrogation protocol produced by the prosecutor's office as indisputable evidence upon which a conviction may be based. The Donga Ilbo stated, "the report drawn up by Public Prosecutors during criminal investigation [is] adopted as decisive evidence, and the Defendant and his Defence Counsel only resort to imploring the judge 'to consider extenuating circumstances'." It was as recently as December 2004 that the JoongAng Daily reported on a Supreme Court ruling, which found "that an accused person's written confession in most cases must match their live testimony in court for the person to be convicted of a crime." In this case, the witness submitted that his testimony was different from his interrogation statement because the original statement was induced by the prosecutor's threats. Prior to this decision, a defendant was convicted based on nothing more than the word of the prosecution, and only time will tell whether this judicial precedent will be adopted in practice. 

Judges strive to never return a not-guilty verdict; the courts "boast" a conviction rate of approximately 99 percent. This is possibly attributable to the pre-supposition of the bench that if there is sufficient evidence for an indictment to be presented, there exists sufficient evidence for conviction. The result of this is that the defendant is effectively judged guilty upon indictment; the judgment by the court is mere rubber stamp approval of what has already been determined by the prosecution. This is a violation of the United Nation's International Covenant on Civil and Political Rights ratified by South Korea. It states in Article 14(1) that "… everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." Another by-product of this preordained verdict is that defence counsel often does not bother with cross-examination.

There are severe limitations on the presumption of innocence. The South Korean Constitution and the Criminal Procedure Act both specify that a defendant is to be presumed innocent until a judgment of guilt is pronounced; note that the provisions do not concern proof of the defendant's guilt, but rather the time at which the court states that the defendant is guilty. The problem with this is that the prosecution effectively presupposes a "judgment of guilt" before the matter reaches the bench for deliberation. South Korea has ratified the International Covenant on Civil and Political Rights, which states in Article 14(2) that "[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law". However, in South Korea the emphasis is on the defendant to produce evidence to assert innocence and refute the presumption of guilt. Exacerbating this problem, defence witnesses frequently feel too intimidated to testify in court to help rebut the 'presumption of guilt' in operation and so choose to ignore the court summonses and simply pay a monetary fine of up to 500,000 won (approximately US$500). 

A recent high profile case in point is that of Un-Yong Kim, the Vice President of the International Olympic Committee and founder of the World Taekwondo Federation. Observers have described him as a 'prisoner of conscience' who is being scapegoated by South Korean politicians for Pyeongchang's failure to win the 2010 Winter Olympic Games bid in 2003. The Supreme Court concluded in its verdict on 14 January 2005: "Since Mr. Kim failed to give convincing and rational explanations on why he drew the money and how he spent it, it can be inferred that he used the public money for personal purposes." 

The courts often exercise judicial restraint in their failure to interfere in matters regarding the executive, or render a favourable judgment. Politicisation of the judiciary, in the form of the grant of amnesties, pardons and stays of execution induced by political bias, only serves to undermine the essence of judicial impartiality. The JoongAng Daily reported that "informal offers of leniency [are made] through negotiations with defendants, most notably in high-profile political corruption scandals." This is a violation of Article 2 of the United Nation's Basic Principles on the Independence of the Judiciary, which states that decisions should be made impartially without any restrictions from any quarter for any reason. 

The practice of initiating unfair prosecutions against political enemies of the ruling party is also not uncommon. Ironically, the Public Prosecutor's Office Act specifies, "the public prosecutor shall observe political neutrality". This is in conformance with Article 13(a) of the United Nation's Guidelines on the Role of Prosecutors, which requires prosecutors to carry out their functions impartially, avoiding all political discrimination. 

It is alleged that collusion between the bench and the bar is rampant, compromising the premise of individual independence of judges that, according to the International Commission of Jurists, is required for the existence of an independent judiciary. There is an engendered tradition of favouring personal connections. Both judges and prosecutors are recruited from the Judicial Training Center, where they are obligated to study for two years before entering the profession. This creates a breeding ground for alliances between professionals. Exacerbating the problem of complicity between the bench and the bar, the practice of Junkwanyewu gives preferential treatment to retired judges and prosecutors acting as private attorneys; when they finish their term in office on the bench or the public prosecution, they may choose to return to the bar, where their former colleagues are willing to look favourably upon them in their judgments. According to the Judiciary Reform Committee, lawyers who were previously judges or prosecutors tend to use personal connections to influence the proceedings and benefit financially at the expense of the accused, thereby further undermining judicial independence. 

In a recent example of this, prosecutors decided either there were no grounds to prosecute, or dismissed charges against eight public officials, one of whom was a judge, who were on the sex sales list of a drinking establishment. Public Prosecutor Ik-joong Kang of the Seoul High Commission stated that "we recognize that Judge 'A' received sexual services/entertainment but it was unrelated to his duties, so we decided to defer bringing a case against him, in consideration of the fact that prosecution was also deferred against other suspects involved in this sex sales case for violation of the Prevention of Moral Delinquency Act." The public prosecutors also said there was suspicion against another judge, who had twice dismissed arrest warrants for the establishment’s owner. Public prosecutors were also implicated in the affair. To date, no high ranking officials have been prosecuted for their involvement. 

Judges are appointed either by or on the recommendation of the Chief Justice. The Gyunghyang Shinmun alleges that "what becomes more important to individual judges is not what is just and fair according to the constitution, but the leaders of the Judiciary who hold the authority to make decisions on their promotion." Primarily attributable to the historical influence of Confucianism, high respect for authority figures is commanded by Korean society and these values are superimposed on the court hierarchy. The 2003 US Department of State report stated that the Minister of Justice initiated a new system of appointments and promotions "based on merit rather than the previous traditional system based on seniority". 

South Korean academics and certain members of the judiciary believe the prosecutorial system requires an immediate overhaul. Of a 2004 opinion poll of 101 legal scholars, 97 percent believed that reform of the Public Prosecution system was necessary, with 46.4 percent attributing the need for reform to political bias. Judge Joon-Young Jung stated that "it is unprecedented in any other country for the Prosecutor to monopolize the investigation and at the same time for the court to admit the investigative report prepared by the Prosecutors as evidence." 

As lawyer Sung-ryul Ahn of the National Human Rights Commission of Korea commented in a recent interview with Naeil Shinmun: "In contrast to the continuing improvements in people's human rights standards, the reality is that the Korean criminal justice system and the prosecutorial authorities that run the system are not catching up with these standards." The Director of Public Prosecution in the Ministry of Justice has said that "the priority task at hand is to eliminate factors that cause infringement of human rights in all stages of the criminal prosecution procedure." South Korea must turn this vision into reality, sooner rather than later.

Jennifer Langlais

The explosion of private companies selling military services on the global market has spurred vivid debates on the need to strengthen the international instruments regulating mercenary activities. The anticipated lack of support for an amendment to the 1989 Convention against the Recruitment, Use, Financing and Training of Mercenaries has however made international observers concentrate on alternative approaches, including the promotion of national legislation. 

To date, a handful of countries possess laws prohibiting the recruitment of mercenaries. A lesser number have laws regulating private military companies directly. Two major suppliers of private military services, South Africa and the United States, have however enacted in recent years innovative pieces of legislation addressing the threat posed by the new providers of security. While these laws suffer numerous flaws and are arguably more concerned with avoiding breaches of foreign policy than human rights, they are nevertheless instructive in developing strategies to bring these new providers of security under greater control. 

i) South Africa 

Embarrassed by the involvement of Apartheid-era military personnel in a number of armed conflicts plaguing the African continent and the notorious "exploits" of the private military company Executive Outcomes, the South African government adopted in 1997 the Regulation of Foreign Military Assistance Act. The Act forbids South African citizens and companies from engaging in mercenary activity wherever they are and from recruiting, financing, using or training persons for the same ends. The provision of military assistance is not prescribed under the Act but instead controlled by a licensing and authorisation procedure administered by the National Conventional Arms Control Committee (NCACC). Authorisation will be granted only if the contract does not undermine national interests, is not likely to result in the infringement of human rights or the destabilisation of a region, and conforms to the international obligations of South Africa. 

Despite its stated purpose to promote and protect human rights and fundamental freedoms universally, it has been argued that the Act is more concerned with ensuring that the activities of military suppliers do not run counter to South African foreign policy. The wide discretionary powers given to the Minister of Defense under the Act as well as the broad definition of mercenary activity which even captures certain forms of humanitarian assistance, tend to support this contention. The Act is further rendered almost impotent by the inherent difficulties associated with enforcing extraterritorial legislation. So far, only two condemnations have been secured under the Act. This poor record would nevertheless be a source of optimism if it were not relating to the 1,500 South Africans currently working for private security companies in Iraq in breach of the Act. 

More disturbing however is the fact that some private security companies based in South Africa are operating in Iraq without having gained clearance from the NCACC. A firm named Meteoric Tactical Solutions is currently providing protection services in Iraq and training new Iraqi police and security forces. Erinys, a joint South African-British company, has received a multi-million dollar contract to protect Iraq's oil industry. Both companies deployed their personnel in Iraq without the assent of the NCACC. Erinys reportedly failed to apply at all. This flagrant indifference of the industry vis-a-vis the Act reflects in part the severity of the penalties it provides. 

The first mercenary prosecuted under the law, French-born South African Richard Rouget, was fined 100,000 rand ($17,300) for having recruited fighters for the civil war in Ivory Coast. Similarly, retired pilot Karl Alberts, arrested in 2004 for fighting rebels in Ivory Coast, was fined less than 20,000 rand ($3,500) for his offense, an amount equivalent to a day or two of pay in the industry. Not surprisingly, these penalties hardly act as a deterrent. 

It might be hoped that the mercenaries and those who employ them could be prosecuted under international humanitarian law for the crimes committed. The problem is that states are often unable or unwilling to denounce mercenaries. Mercenaries operate in regions not easily accessible and often characterized by a lack of efficient police forces capable of, or willing to detect, offences. Moreover, governments are unlikely to denounce the abuses committed by the mercenaries they have themselves hired to neutralize rebel forces. 

Even when the registering and licensing procedures are complied with, the Act lacks any monitoring mechanism to ensure that the terms of the license are not breached. It was reported for example that many companies registered as landmine removers in order to benefit from the exemption granted to humanitarian agencies, but engaged in all sorts of activities on the terrain. 

More worrisome is the possibility that these offenders, despite having committed acts of mercenarism, might benefit from the protections of the laws of war presumed under Additional Protocol 1 to the Geneva Conventions. As suggested by some academics, the requirement that every contract be approved by the government arguably removes the authorized companies and their employees from the international definition of mercenary which excludes people sent on official duty. 

ii) The United States 

The activities of private security firms are regulated in the United States by the 1998 International Traffic in Arms Regulations (ITAR), which is part of the US Arms Export Control Act of 1968. Under part 123 of the Act, private security companies wishing to provide defence services must apply for a license before signing a contract with a foreign client. Generally, a license will be denied when a contract for military assistance would not be in furtherance of world peace and the security and foreign policy of the United Sates. Section 126.1 also prohibits the export of military services to certain enumerated countries and those with respect to which the United States or the United Nations maintain an arms embargo. 

Upon receipt of an application, an internal assessment process involving a variety of bureau within the Defence and State Departments is triggered. The process has been often criticized for its lack of transparency. There are no provisions to ensure transparency in the granting of licenses other than a congressional notification requirement for contracts in excess of US 50 million dollars. Many contracts naturally fall under this amount while those in excess of the threshold amount can easily be broken up. Only those contracts that end up being notified to Congress may be subject to public scrutiny. 

The ITAR is perhaps the most sophisticated piece of legislation dealing with private security companies. Yet, it suffers the same problems of enforcement than its South African counterpart. Regrettably, there is no follow-up mechanism to ensure that the terms of a license are not trespassed. Embassies are officially entrusted with the task of monitoring compliance but there is no official mechanism or reporting procedure put in place. One official from the Colombian embassy was even reported as saying that it was not the responsibility of the American government to investigate the mistaken killings of civilians by employees of an American private security company. Some countries where American private military companies operate do not even have an American embassy. 

Conclusion 

As the American and South African experiences demonstrate, national legislations are not a panacea to the problems engendered by the new providers of security. Private military companies can easily escape cumbersome legislation adopted by their home states by moving their quarters to more hospitable shores or by operating through subsidiaries registered elsewhere. Attempts at regulating their activities may moreover tend to drive them and their clients further underground. And not less importantly, most national laws are likely to remain a dead letter given the vagaries associated with extraterritorial enforcement. 

Yet, in light of the low level of support that a multilateral convention would get at this stage, the promotion of national standards should not be entirely discarded but rather considered as one element of a wider strategy to bring private military companies under greater control. While not a substitute for an international riposte, a greater number of countries with appropriate regulations would make it more difficult for private military companies to escape regulation through relocation and would potentially marginalize the most disreputable companies. 

Convincing countries to regulate the export of military assistance is not an easy task but could be encouraged by the development of international standards for model national legislation. The South African and American laws are in this respect particularly useful. Ideally, these international standards should be drafted in conjunction with the industry and military experts. The present definition of mercenary should be abandoned and replaced by one that reflects modern forms of mercenarism. If registering and licensing procedures are recommended, they should be accompanied by reporting mechanism that ensure that the terms of license are not breached. Embassies could be entrusted with the task of revising reports, although other means of oversight could also be developed. 

Most importantly, authorization or licensing procedure should involve the democratic processes or be submitted to an independent committee accountable to the public. In the end, however, and as important as it is to develop model national legislation, it should be remembered that the eradication of mercenary activities will only be possible in the long run with the consolidation of strong political structures and the creation of accountable public security systems.

The present status of the UN Norms

 gareth sweeney

"Challenged as never before by public mistrust and suspicion of motives, business cannot afford to continue to reject an opportunity to demonstrate that the pursuit of profit is based on principle and on the values of international society."

- Sir Geoffrey Chandler 

Despite the closely guarded deliberations of aligned states on the subject and the secretive circulation of position papers by an aggressive coalition of adversaries, the treatment of the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (Norms) remain at the forefront of concern for this year's Commission on Human Rights (CHR). 

The content of the Norms shall not be detailed here, but shall be referred to throughout in the accompanying piece by Nils Rosemann (for a general summary, see Human Rights Features  series for the 60th CHR session at http://hrdc.net/sahrdc/hrfchr60/pdf/issue3-v7.pdf). It should be emphasized, however, that the Norms are not complete, either in form or by any manner of implementation. They are at the elementary stage of development at the CHR, despite the claims of certain factions of the Sub-Commission Working Group on TNCs that it is a closed book following the end of Professor David Weissbrodt's membership.  

The trade off for presenting the Norms uncontested before the CHR, by way of Sub- Commission resolution 2003/16, was an absence of any referral as to how the CHR may be guided in its treatment of the Norms, as is customary in the transfer of guidelines from the Sub-Commission to the CHR. Indeed, credit can be attributed to the lobbying of the NGO coalition at last year's CHR for the Norms coming before the CHR at all. This served as an invaluable counterbalance to the lobbying of the International Chamber of Commerce (ICC) and International Organisation of Enterprise (IOE), who have maintained their defiance against the Norms and in 2004 branded them a resolute "failure", "privatising human rights" and "legitimising vilification of private persons". 

This resulted in last year's decision on the 'Responsibilities on TNCs and Related Business Enterprises with Regard to Human Rights' (E/CN.4/DEC2004/116). In light of the above, it constituted a moderate success. Positively, it expressly recognised the Norms as containing "useful elements and ideas for consideration by the Commission" and requested that ECOSOC "confirm the importance and priority" it accords to these responsibilities, thus instituting the issue of business and human rights as an issue relevant to the work of the CHR. It also requested that the High Commissioner compile a report on the "scope and legal status of existing initiatives and standards" and "identify outstanding issues". 

The High Commissioner's report on evaluating "existing initiatives" has further strengthened the relative position of the Norms. Assessing the scope of voluntary initiatives such as the OECD Guidelines and the Global Compact, applicable ILO standards, and voluntary self-commitments, the report emphasises throughout the use of the Norms as the most comprehensive manner in which to proceed. The report was also inventive in its interpretation of "outstanding issues". This includes the potential that business has in the promotion of human rights, responsibilities and the lacunae in voluntary initiatives, and whether a UN statement is preferable. Most importantly, the report concludes by recommending that "there is merit in identifying more closely the "useful elements" of the draft Norms noted by the Commission in its decision 2004/116" and "therefore recommends to the Commission to maintain the draft Norms among existing initiatives and standards on business and human rights, with a view to their further consideration." 

This year, on the basis of the High Commissioner's report, a draft resolution is in the process of being finalised by the UK, Argentina, Nigeria, India and Russia. Initial indicators are reasonably positive, requesting the appointment of a Special Adviser to the Secretary General for a period of two years to clarify minimum standards, the implications of such concepts of "complicity" and "sphere of influence", and the general development of ideas to address accountability. The decision is unlikely to mention the Norms explicitly, yet the incorporation of reference to the report of the High Commissioner and "existing initiatives" adequately encompasses their application, thus enabling the potential for the Norms to remain relevant. Recommendations for advancement can then be expected in 2007. This, in no small part, can be attributable to the efforts of civil society. A David-and-Goliath story of the future perhaps, but most certainly a measure of justice, for under international law "every organ of society" is expected to be held accountable.

The case of Nestlé ‘Pure Life’: How the Norms apply

This article will show the added value of the Norms with the example of the impact of production of Nestlé's bottled water "Pure Life" in Pakistan (For a more a detailed analysis see: Nils Rosemann: Drinking Water Crisis in Pakistan and the Issue of Bottled Water - The Case of Nestlé's 'Pure Life', Swiss Coalition, Bern 2005; at: http://209.238.219.111/Nestle-Rosemann-Mar-2005.doc). 

Access to safe and sufficient drinking water is not only a basic need but a human right (see General Comment 15 of the Committee on Economic, Social and Cultural Rights). The global water shortage of affordable and safe drinking water is manifested in Pakistan where an estimated 75 percent of the population are without access to safe drinking water. In rural areas, up to 90 percent of the population may lack such access.  As one indication of the magnitude of the problem, it is estimated that 200,000 children in Pakistan die every year due to diarrhoeal diseases alone. 

The first principle of the Norms states that human rights obligations - such as the right to water - are the primary responsibility of states. With regard to the activities of corporations, the obligation to protect requires states to prevent third parties - such as corporations - from interfering in any way with the enjoyment of the right to water. Among other factors, this obligation includes adopting necessary and effective legislative and other measures to restrain corporations, for example, from denying equal access to adequate water or polluting or inequitably extracting from water resources. 

Groundwater extraction is one of the few possibilities to satisfy people’s need for drinking water in Pakistan. But groundwater extraction in the province of Punjab (Pakistan) is unregulated. In the case of Lahore, different users from agriculture and industry, as well as public water providers, compete for the use of this scarce source. 

In 1998, Nestlé chose Pakistan as a country to roadmap its global water strategy in the bottled water market. Nestlé originated "Pure Life" in response to "the global need for a safe family drinking water with a pleasant taste, affordable price and tailored to local preferences". But Nestlé's 'Pure Life' is not affordable to those in need of safe and clean drinking water; nor is it sold only in Pakistan. If a family were to satisfy its daily water needs with 'Pure Life' it would spent approximately $38.60 (US) per month, constituting approximately one third of an average household income or four-fifths of an average monthly wage. Because of the stagnating bottled water market in Pakistan, Nestlé exports its water to booming markets. Although public figures are not available it is presumed that Nestlé exports 'Pure Life' to Saudi Arabia, to troops in Afghanistan, and possibly to Iraq. For the sake of profit, Nestlé contributes to the decrease of the ground water level, which dries out local water provisions and exceeds the renewable volume. 

The negative impact of Nestlé's engagement and business policies in Pakistan contradict its own commitments to human rights and its principle of sustainable use of resources. It also undermines the credibility of its membership to the United Nations Global Compact. Furthermore, both Switzerland, as the host country of Nestlé International, and France, as the host country of Nestlé Waters, are reluctant to consider Nestlé's activities as violations of the voluntary OECD Guidelines. ILO standards are also not applicable since labour standards are not concerned in this case. 

The Norms are therefore the only set of principles whose implementation would enable victims of corporate human rights abuses to address their concerns towards reluctant governments and corporations directly. The first principle of the Norms declares that corporations have their own obligations with regard to human rights in instances where governments fail to meet their regulatory and guiding obligations or in situations where corporations are acting independently due to economic power or market position. 

Within its respective sphere of influence, Nestlé has to respect the right of access to water, and the rights to information and participation. It has to restrain from any activity that jeopardizes the realization of human rights (Principle 12 of the Norms). In addition, in their market operation, Nestlé would have to act in accordance with fair business, marketing and advertising practices and take all necessary steps to ensure the safety and quality of the goods and services they provide, and not produce, distribute, market, or advertise harmful or potentially harmful products for use by consumers (Principle 13). Finally, Nestlé should generally conduct their activities in a manner that contributes to the wider goal of sustainable development (Principle 14). Human rights protection is about accountability. And accountability for business in the 21st century should not stay as a voluntary principle. 

Nils Rosemann is based in Islamabad and works as an Attorney of Law and Human Rights & Development Consultant in Islamabad, Geneva and Berlin.

Human rights progress: Good, but can do better

State agencies have improved their human rights records; but other problems, such as racist attacks, have emerged

A peace agreement was concluded in Northern Ireland in 1998. Called the Belfast (or Good Friday) Agreement, it was the product of extensive negotiations between the British and Irish governments and most but not all of the political parties vying for votes in Northern Ireland. 

The Agreement was approved in a referendum throughout Ireland, by 71 percent of voters in the North and 94 percent in the South. It provided for an elected Assembly in Belfast and for cross-community power-sharing within the Executive Committee of that Assembly. These institutions were up and running by the end of 1999. 

Central to the Agreement was a commitment to ensuring that human rights are properly protected in Northern Ireland. As part of that commitment a statutory Human Rights Commission was established, opening its doors on 1 March 1999. Later that year an Equality Commission was formed (uniting three pre-existing bodies) and in 2000 a Police Ombudsman's Office began operating. 

Temporary bodies were set up to make recommendations on how the policing system and, more generally, the criminal justice system should be reformed. When those bodies reported, they put at the heart of their proposals the need to ensure that all agencies within the criminal justice sphere adhere strictly to human rights standards. Implementation of their recommendations is well under way and is being supervised by Oversight Commissioners. 

In the 1998 Agreement the participants reaffirmed their total and absolute commitment to exclusively democratic and peaceful means of resolving differences on political issues, as well as their opposition to any use or threat of force by others for any political purpose. They also reaffirmed their commitment to the total disarmament of all paramilitary organisations and their intention to continue to work constructively and in good faith, and to use any influence they may have, to achieve decommissioning of all paramilitary arms within two years. 

It is true that since 1998 there has been a dramatic decrease in the number of deaths resulting from the security situation in Northern Ireland, but the Agreement has certainly not delivered an end to paramilitarism and only a handful of weapons have been decommissioned. Since 1969, when the "troubles" broke out, there have been nearly 4,000 such deaths. In the six-year period 1999 to 2004 there were 70, whereas in the previous six years there were 247. In the six years preceding the paramilitaries' ceasefires, announced in 1994, there were 495.

The continuing paramilitary violence, racketeering, smuggling, drug-trafficking, robbing and intimidation have not done much to enhance the reputation of Sinn Féin - the main political party supporting the Republican paramilitaries. Although that party represents almost one quarter of the electorate in Northern Ireland, other parties are at present unwilling to collaborate with it unless it cuts its apparent links to criminality. 

In October 2002 the Northern Ireland Assembly was suspended because of alleged spying activities conducted from within Sinn Féin offices. Further allegations concerning the party's involvement in the UK's biggest ever bank robbery (which took place in Belfast in December 2004, netting more than £26 million) have done little to ease others' distrust. Because of this, there is no prospect of the Assembly being re-established within the next year or so. 

Apart from the deaths, the most hideous human rights abuses committed by the paramilitaries are the so-called "punishment attacks", when people suspected of "anti-social behaviour" (usually young males) are shot or beaten, usually in or on the hands, kneecaps or ankles. In the six calendar years since the Agreement (1999 to 2004) there were 1,652 of these attacks, compared with 1,308 during the previous six years. Shootings are slightly more common than assaults and Loyalists commit roughly twice as many of each form of attack as Republicans. 

Another common form of human rights abuse in Northern Ireland is racism, with Der Spiegel announcing in early March 2005 that Belfast is now the most racist city in the world. The number of racially motivated attacks on, for example, Chinese and Indian people, or on the growing number of Eastern Europeans, Filipinos and Africans who have recently come to Northern Ireland, is steadily rising. In the last nine months of 2004 there were 474 racist incidents across Northern Ireland. 

Discrimination on religious and political grounds is now relatively uncommon, having been targeted since 1976 by effective "fair employment" legislation. On the other hand, Northern Ireland is a conservative society, so discrimination based on gender or sexual orientation is not unusual, despite EU-derived laws being in place to combat it. Obtaining an abortion in Northern Ireland is also very difficult, with perhaps 1,500 women travelling to England each year for the operation. 

State agencies have much improved their human rights record in recent years. Only one person has been killed by the police or army in Northern Ireland since 1992, and no plastic bullet has been fired since September 2002. The new Police Service of Northern Ireland (PSNI) has gone to some lengths to instill a human rights approach throughout the organisation, with draft Force Orders, a Code of Ethics and various internal policy documents being sent to the Human Rights Commission for prior scrutiny. The PSNI conducts good human rights training for all its officers, especially new recruits. A positive discrimination measure means that the percentage of police officers who are Catholic is now 17 percent, compared with just 8 percent in 2001. It is projected to rise to 30 percent by 2011 (the Catholic population as a whole is about 44 percent). 

The Prison Service has to date been less receptive to a human rights culture. There have been seven deaths in Northern Ireland's prisons in the past three years and the conditions in which some prisoners are held, particularly women prisoners and those with mental health problems, have been condemned by both Her Majesty's Inspectorate of Prisons and the Human Rights Commission. The latter is currently banned from visiting the women's prison because the government believes that other statutory bodies are better placed to inspect those institutions. Overcrowding is not a problem, unlike in Great Britain's prisons, but "slopping out" still continues in places. Only at the end of February 2005 was a Prisons Ombudsman appointed, and even he will not be empowered to investigate deaths occurring in prison. 

All is still not well as regards the systems for complying with the state's positive duties under Article 2 of the European Convention on Human Rights. In three recent court cases the judge held that the state had applied the wrong test when deciding whether applicants for personal protection measures should receive them. 

Following judgments by the European Court of Human Rights between 2001 and 2003 in six cases involving deaths in Northern Ireland, the Council of Europe's Committee of Ministers is still not satisfied that enough is being done by the UK authorities to put matters right. The inquest system is experiencing a huge backlog, the Public Prosecution Service will still not give reasons (save in wholly exceptional circumstances) for its decisions not to prosecute agents of the state (or anyone else for that matter) and the House of Lords has ruled that deaths occurring in Northern Ireland prior to 2 October 2000 (when the Human Rights Act 1998 came into force) do not need to be investigated in accordance with the stringent requirements of Article 2 of the European Convention. 

In relation to a number of high-profile deaths, the British government has reacted very slowly to calls for public inquiries to determine whether there was any collusion between state security forces and Loyalist or Republican paramilitaries. Following exhaustive work by retired Canadian judge Peter Cory, who recommended that public inquiries should be held into all four deaths he looked at in Northern Ireland, the government has established inquiries into three of them. But for the fourth (that of solicitor Patrick Finucane in 1989) it has introduced new legislation (the Inquiries Bill) to replace the Tribunals of Enquiry (Evidence) Act 1921 so that more control can be retained by government Ministers over what information is disclosed at the inquiry. 

Lord Stevens, the recently retired Commissioner of the Metropolitan Police Service in London, has already announced in his own inquiry into the murder of Patrick Finucane and Brian Lambert that there was collusion in their deaths. He added: "Informants and agents were allowed to operate without effective control and to participate in terrorist crimes. Nationalists were known to be targeted but were not properly warned or protected." 

One of the remaining problems in Northern Ireland, therefore, is how to deal with the past. The government has been looking at models used elsewhere and the Northern Ireland Affairs Committee at Westminster is currently conducting an inquiry into the topic. A Victims and Survivors Commissioner is to be appointed, but no Truth and Reconciliation Commission is on the cards for the time being. The police have a Serious Crime Review Team looking at unsolved killings and occasionally the Police Ombudsman can help if new evidence relating to such deaths comes to light. Republicans who are "on the run" are to be amnestied if and when a new overall settlement is reached between local parties and the governments. 

The Human Rights Commission is still trying to persuade the British and Irish governments, the local political parties and the community and voluntary sectors to sign up to its proposals for a Bill of Rights for Northern Ireland. Meanwhile the Commission continues to urge improvements in a variety of more specific contexts, such as mental health care and human rights education. 

Generally the overall human rights picture in Northern Ireland is a lot rosier than it was some years ago but, as ever, more remains to be achieved. 

Brice Dickson is Professor of International and Comparative Law at Queen's University, Belfast. He recently retired as Chief Commissioner of the Northern Ireland Human Rights Commission, having served from 1999-2005.