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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 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.
Part 2 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 2 in the course is titled Introduction to the UN human rights system. The first section lays out the purpose and structure of the United Nations human rights system. Given the course objectives, this section delves right into the most pertinent part of the UN Charter—Article 55, which reads:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
Here we see a differentiation between charter bodies and treaty bodies. The former are those which have been created using the authority of the UN Charter. “They are political bodies, meaning that either members of the body represent their governments or individuals are appointed to their role by governments. Charter-based bodies can address issues in any country, but it is important to keep in mind that their political nature also has an impact on their effectiveness.” In contrast, treaty-based bodies get their authority from UN human rights treaties (legal agreements between states). “Treaty bodies are considered more effective than Charter bodies, as they come from legal instruments. However, they can only address issues in states that have accepted the treaty.”
Nongovernmental organizations (NGOs) also play a pivotal role in the UN human rights system by providing support and lobbying the UN and its member states. Roles of NGOs include:
- Contributing to policymaking and legislative debates at the international, regional and national levels
- Highlighting issues concerning violations and abuses when governments and international organizations tend to be ineffective or even silent
- Bringing such issues to the attention of monitoring bodies operating under the auspices of international and regional organizations
- Providing information available to the various monitoring bodies and procedures
- Submitting cases on behalf of individuals where bodies or mechanisms permit
- Identifying needs for technical assistance projects and contributing to their implementations
- Putting political and public pressure on governments to live up to their obligations under the human rights instruments
- Lobbying for more effective implementation of existing standards and mechanisms and for the creation of new ones
After considering some of the constraints NGOs experience within the UN, we move on to the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDM). Per MRG, “A declaration is a statement of the aims or ideals of states. Declarations apply to all states; however, they are not legally binding. . . . UNDM is not the only UN instrument protecting minority rights, but it is the first and only one addressing the rights of minorities in a separate document. The UNDM constitutes the main UN reference for minority rights.”
Article 1 protects the right to existence and identity and to expression of identity through culture, religious practice, and use of language. Article 2 protects the right to participation—both in public life and in decisions affecting the minority. The UNDM grants members of minorities the right to exercise their rights freely and in community with others in Article 3.
Under the UNDM Article 4, states must not discriminate against minorities and they should create the conditions necessary so minorities may develop their culture. States must take measures so that minorities can learn their mother tongue and encourage knowledge about minority cultures within the country. Minorities may not be excluded from economic development.
The UNDM also provides in Article 5 that when national and international programs are being designed, the interests of minorities should be taken into account. Article 8 reiterates that special measures taken to implement the UNDM by redressing historic marginalization of minorities are not discriminatory. Another provision of note is Article 9, which states, “UN Agencies should contribute to the realization of the rights in the UNDM.” MRG explains, “This is an important provision, because it means that all UN agencies, such as UNDP, UNICEF, ILO, etc., should be paying attention to minority rights within their areas of work.”