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Part 10 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.
Topic 8: Taking up individual cases
MRG defines strategic litigation as an advocacy technique used to achieve legal, political, and social change via the judiciary. The goal of strategic litigation is to set precedents that have a broad impact beyond the individual case.
Minority rights activists can use strategic litigation to:
- Challenge laws or policies that violate constitutional protections or human rights, and ensure that laws are interpreted and applied properly
- Expose injustice and provide redress for victims
- Educate the judiciary and legal community about human rights, and expose institutionalized prejudice
- Promote government accountability by making the international community aware of a government’s actions
- Raise public awareness and encourage public discussion about minority rights
According to MRG, a good strategic litigation case will involve a legal issue that relates to a broader social problem, so that the precedent set by the case can be used to win other cases with different facts. A precedent is a legal decision that can be used as a standard in future similar cases. Before starting a case, all potential applicants must be carefully evaluated.
Characteristics of a good applicant
- They must not only have strong claims, they also must be strong individuals willing to endure the scrutiny of the opponent, the court, media, and general public.
- Strategic litigation cases take a long time to work their way through the domestic and international legal systems. The applicant must understand that it may be years before the case is finished.
- Applicants should be articulate and credible, and their stories should elicit sympathy.
- They must understand that the case is designed to achieve a significant impact beyond their individual claim, and be willing to take a back seat to the lawyers and organizations bringing the case.
Since courts use previously decided cases in order to determine the outcome of the current case, it is helpful to have rulings from courts in the same country, other comparative jurisdictions, or international courts that support the case. The more similar the facts of the prior cases are to those of the current case, the more helpful the cases will be.
Before filing a case, it is important to gather and assess all the evidence that supports its claims. Witnesses, defined as people who saw the alleged violation or were otherwise involved in the events in the case and can testify in court about their experiences and knowledge, should be contacted and interviewed well in advance of the court case. Expert witnesses, defined as people with specialized knowledge about a particular field, such as university professors, scientists, and doctors, who can provide their opinion about the case to the court, may also be hired. When bringing a case, it is important to find a lawyer who is committed to the cause and knowledgeable about strategic litigation and the law relating to the claims.
International mechanisms can only hear cases over which they have jurisdiction (the right, power or authority to interpret and apply the law) and which meet their admissibility requirements. Anyone who believes their rights have been violated can apply to have their case heard before an international mechanism. However, the right that the victim claims has been violated must be protected by the treaty in accordance with which the mechanism operates, and the respondent state must be a party to that treaty.
Before a case can be brought, all domestic remedies must be exhausted. This means using all the procedures available to a person in their own country to seek protection of their rights or to seek justice in respect of a past violation of their rights. These procedures include taking a case to court or making a complaint to the police. One must submit their case to the international mechanism soon after exhausting local remedies.
The international mechanism will require submitting an initial document explaining the case and why the mechanism can hear it.
- Human Rights Committee, for alleged violations of the International Covenant on Civil and Political Rights (ICCPR)
- Committee on the Elimination of Discrimination Against Women, for alleged violations of the International Convention on the Elimination of Discrimination Against Women (CEDAW)
- Committee Against Torture, for alleged violations of the Convention Against Torture (CAT)
- Committee on the Elimination of Racial Discrimination, for alleged violations of the International Convention on the Elimination of Racial Discrimination (ICERD)
- Committee on the Rights of Persons with Disabilities, for alleged violations of the Convention on the Rights of Persons with Disabilities (CRPD)
An individual whose rights under the relevant treaty have been violated by a state that is party to the treaty can file a complaint with a UN treaty body, so long as the state has recognized the competence of the committee to hear complaints. Third parties may complain on behalf of other individuals provided they obtain written consent.
The European Court of Human Rights (ECtHR) hears cases concerning alleged violations of the European Convention on Human Rights (ECHR). Any individual or organization can bring a case against a state that is party to the ECHR alleging that the state has violated his or her rights under the Convention. The individual or organization need not be a citizen of one of the states party to the Convention, but the violation must have occurred within the jurisdiction of a state that is party to the Convention.
The African Commission on Human and People’s Rights (ACHPR) hears cases concerning alleged violations of the African Charter on Human and Peoples’ Rights. Any individual or organization can bring a case against a state that is party to the African Charter alleging that the state has violated his or her rights under the Charter. Third parties can bring cases on behalf of others.
Part 9 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.
Topic 7: Participation in international meetings
NGOs can participate in some UN bodies without any special registration, including the most relevant body for minorities – the UN Forum on Minority Issues. NGOs attending meetings of the Human Rights Council, including the Universal Periodic Review (UPR), must have consultative status with the UN Economic and Social Council, called ECOSOC status. According to MRG, “Minority NGOs have reported that obtaining ECOSOC status, although difficult, has resulted in them being taken more seriously by their Government and by international actors, and sometimes has had a positive impact on their ability to access donor funds.”
Any NGO can submit information to the treaty bodies and attend treaty body meetings to lobby committee members. They are only required to inform the secretariat in advance to arrange accreditation. Any NGO can submit information to special procedures and meet with mandate holders without ECOSOC status. Any NGO can submit information to the UPR. Attending the review in person requires a special registration; however, the debates can also be watched on the UN webcast.
Access to regional bodies
- The African Commission on Human and Peoples’ Rights (ACHPR) grants observer status to NGOs, for which there is an application process.
NGOs without observer status may attend meetings of the ACHPR but they are not allowed to speak. NGOs with observer status sometimes allow other NGOs to make statements under their name.
- The Human Dimension Implementation Meeting of the Organization for Security and Co-operation in Europe (OSCE) is Europe’s largest human rights conference. NGOs from OSCE member states can participate in the meetings. There is an online registration process where NGOs need to provide some details about their work.
- The Association of Southeast Asian Nationas (ASEAN) has arrangements for granting affiliation to NGOs; however few, if any, NGOs working on human rights have this affiliation.
- There is no arrangement for NGO participation in the Summit of the South Asian Association for Regional Cooperation (SAARC). However, some organizations have received official recognition by the Association.
Many states are especially sensitive about minority issues. As such, minority NGOs need to understand the political realities of international bodies so that they can develop strategies to advance their issues despite the difficulties that can be encountered. At most international meetings, formalities such as formal language, protocol for speaking, and time-keeping take place.
It is important for NGOs to devise strategy that links their work at home with the setting of an international meeting. The opportunities available at these meetings generally fall under four categories:
- Dialogue with the government
- Media relations
- Structural or institutional issues
Writes MRG, “Minority rights is frequently a marginalized issue at the international level. Many states are either indifferent or hostile to efforts to improve minority protection.
It is therefore important that minority NGOs attending international meetings are visible, to remind states of the importance of the issue. This can be done by:
- Making statements highlighting minority concerns under different agenda items and not only under the item specifically dealing with minorities
- Speaking to a range of different government representatives about the importance of addressing minority rights (It may be easier to speak to representatives from neighbouring countries or the region)
- Updating MRG and other NGOs working on minority issues about the discussions that have been had to help improve overall strategy on minority rights internationally.”
In summation, planning a strategy before attending an international meeting is very important. NGOs cannot expect attendance alone to have an impact. NGOs need to take advantage of all available opportunities. These opportunities include meeting your government representative to discuss issues, meeting representatives from other governments, publicizing your issues through the international media, networking with other NGOs, and meeting with other potentially useful contacts such as UN staff. Minority issues are frequently ignored or marginalized at the international level. This means it is important for minority NGOs to participate fully and remind states of the importance of addressing minority concerns. Taking time to get involved with institutional issues such as establishment or renewal of human rights mandates may lead to new or improved opportunities in the future.
Part 8 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.
This topic analyzes the reporting obligations of state parties to the core international human rights treaties, and the NGO’s role at all stages of the reporting process.
Section 1: Overview of state reporting obligations
In all the monitoring systems discussed to date, state parties are obliged to submit reports to the relevant body (Committees in the case of treaty bodies; the Human Rights Council for the Universal Periodic Review; the African Commission on Human and Peoples Rights for the Africa regional system; and the Advisory Committee for the Framework Convention for the Protection of National Minorities in the case of Europe).
The aim of the report is to explain how the appropriate provisions and rights are being implemented by the state party, and to set out the legal, administrative, and judicial measures taken by the state party to implement their international obligations. Reports also: compel state parties to comprehensively review the measures they have taken to implement human rights obligations; make state parties monitor their own progress in upholding their obligations; help identify problems and shortcomings; lead to the analysis of future needs and the setting up of relevant goals for a more effective implementation; and lead to the development of appropriate policies to achieve these goals.
The reporting pattern is generally the same for each mechanism:
State presentation and questioning (only relevant to UN treaty bodies and African and European regional mechanisms)
- In examining state reports, the monitoring bodies undertake an important role in terms of advising states on how to improve compliance with the international standards to which they have subscribed.
- The monitoring bodies are not tribunals, and the Concluding Observations are not legally binding and cannot be enforced. The Conventions, however, are binding, and states often accept advice from monitoring bodies.
- The state report is the main document used by the committees. Governments often submit idealized descriptions of the human rights situation in their countries by avoiding disclosing problems and shortcomings.
- To assess the accuracy of state reports, committee members can consider information from other sources.
NGOs play a strategically important role before, during, and after the monitoring process in the following ways:
- Pressure: Reporting on time can prove to be a challenge for some state parties. NGOs play a key role in pressuring governments to submit overdue reports.
- Consultation: NGOs can sometimes be consulted in the drafting of the state report.
- Shadow reports: If a government is not interested in consulting NGOs, or it has not included the issues the NGOs raised, NGOs can submit written information directly to the committee in the form of a ‘shadow report’ (also referred to as ‘parallel report’ or ‘alternative report’).
Prior to the session
- List of issues: Some UN treaty bodies prepare a ‘list of issues’ on the basis of the state party report and other information. This list is usually compiled at a session of the committee six to 12 months before the state report will be examined. This list contains committee’s concerns and questions for the state party.
- Information for members of monitoring bodies: The secretariat of the monitoring body compiles all documents related to the country under examination (including shadow reports from NGOs) for the members of the body to read.
During the session
- Lobbying: NGOs can hold informal discussions with individual expert members of monitoring bodies.
- Briefings: It is possible for NGOs to provide informal briefings to expert members of monitoring bodies. These meetings provide NGOs with the opportunity to explain issues, update members, and answer questions.
NGOs can submit information to the committees alone or as part of a coalition of NGOs.
Once a monitoring body has considered a state party report, it adopts the ‘Concluding Observations’. They are made public and can be found on the website of the relevant monitoring body.
- Concluding Observations reflect the monitoring body’s position on the implementation of treaty provisions.
- They refer to positive aspects on the implementation of provisions but also identify areas where further action is needed.
- They therefore contain recommendations on the further implementation of the treaty by the state party.
Recommendations are not legally binding and cannot be enforced.
Part 6 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.
Asian human rights mechanisms
The workings of the Association of Southeast Asian Nations (ASEAN)
Founded in 1967, ASEAN is currently comprised of Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. Timor Leste has observer status. The purpose of ASEAN is to boost economic growth, social progress and cultural development in the region; and promote regional peace and stability through respect for justice and the rule of law, and adherence to the principles of the United Nations Charter. In 2007, ASEAN adopted its own charter.
Decision-making within ASEAN
|Secretariat||Implements policy decisions; draws up ‘plans of action’ in collaboration with Senior Officials|
|Ministerial meetings||Amend and endorse plans of action drawn up by the Secretariat|
|ASEAN Summit||The highest decision-making body: gives final approval to plans of action|
In terms of rights, ASEAN Vision 2020 seeks to create an ASEAN Community by 2020 where “all people enjoy equitable access regardless of gender, race, religion, language or social and cultural background; where civil society is empowered and gives special attention to the disadvantaged, disabled and marginalized; where social justice and the rule of law reign.”
The ASEAN Community is composed of three pillars of cooperation:
- ASEAN Political-Security Community (APSC)
- ASEAN Economic Community (AEC)
- ASEAN Socio-Cultural Community (ASCC)
Asia-Pacific does not have a regional system of treaties, courts, commissions or other institutions to protect and promote human rights. As such, the organization has recently established the following three relevant mechanisms:
- ASEAN Intergovernmental Commission on Human Rights (AICHR)
- Though it does not explicitly mention minorities, principle 2.2 of the AICHR’s Terms of Reference underlines respect for non-discrimination.
- ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC)
- Committee on the Implementation of the ASEAN Declaration on the Promotion and Protection of Migrant Workers (ACMW)
ASEAN has also adopted its own declarations relating to women:
- Declaration on the Advancement of Women in ASEAN (1988)
- Declaration on the Elimination of Violence Against Women in the ASEAN Region (2004)
- ASEAN Declaration Against Trafficking in Persons Particularly Women and Children (2004)
Established in 1985, the South Asian Association for Regional Cooperation (SAARC)’s main goal is to jointly promote social and economic development in Asia. Its current member countries are Bangladesh, Bhutan, Maldives, Nepal, Pakistan, India, Sri Lanka, and Afghanistan.
Created in January 2004, the Technical Committee on Women, Youth and Children is concerned with issues such as the trafficking of women and children within and between countries in the region; increasing women’s participation in politics; and women’s health and education. SAARC adopted a regional Convention on Combating the Crime of Trafficking in Women and Children for Prostitution in January 2002.
Established in 2004, the SAARC Social Charter “incorporates a broad range of goals in areas such as poverty eradication, population stabilization, women’s empowerment, promotion of health and nutrition, and child protection. It also requires member states to formulate a National Plan of Action, or modify any existing one, to implement the provisions of the Charter. It calls on states to enact any plan through a transparent and broad-based participatory process.”
The SAARC Charter does not list promotion of human rights as a goal. SAARC has not adopted any human rights convention or charter. It has not agreed to create any regional institution or mechanism to monitor adherence to, and implementation of, the various UN human rights conventions already signed by its member countries.