31 Non-Derogable Rights – 2

Debdatta Dobe

Table of Contents

1. Learning Outcomes

2. Introduction

3. Non-derogable rights: Communications to the Human Rights Committee

3.1 Right to Life/Arbitrary Arrest and/or Detention

3.2 Torture

3.3 Freedom of Thought, Conscience and Religion

4. Non-Derogable Rights in Non-Binding Instruments

4.1 The Siracusa Principles

4.2 The Paris Minimum Standards

5. International Humanitarian Law

6. Summary

1. Learning Outcomes

• To give students an overview of those rights that are non-derogable on account of them being expressly stated as such in the international instruments as well as those rights that are non-derogable on account of being peremptory norms from which no State can derogate from by way of treaty;
• By the end of the module students will have an understanding of those civil and political rights that are enshrined in international instruments with respect to non-derogable rights.

2. Introduction (Voice Over)

As explained in Module 1, the concept of non-derogation is related to the idea of core or “first generation” human rights which may not be derogated from even in an emergency. Most international human rights treaties have specific provisions setting out the scope and extent of derogation possible under the treaty. However, even those treaties set out different connotations of non-derogable rights using different formulations or rationale for e.g. some rights may be non-derogable on account of being peremptory, others may be non-derogable as there may be no logical reason to derogate from them in times of emergency. This module, in continuation of module 1 will familiarize students with practical application of the provisions on non-derogation to specific fact situations through the Communications made to the Human Rights Committee. It will also look at soft law/non-binding instruments that speak of non-derogable rights.

3. Non-derogable rights: Communications to the Human Rights Committee

The Communications to the HRC offer much guidance on the practical applicability of principle of non-derogation. The condition for admissibility of communication is that the State Party must have recognized the competence of the HRC to receive communications under the First Optional Protocol to the International Covenant on Civil and Political Rights, 1966. The HRC has examined the following communications:

3.1. Right to Life/Arbitrary Arrest and/or Detention

In Eduardo Bleier v. Uruguay, the HRC examined the issue of enforced disappearance along with allegation of arrest, prolonged detention and torture. In response to the family’s queries, the government had only responded by stating that a warrant had been issued since August 1976 but that his whereabouts was unknown. The HRC opined that “… the failure of the State Party to address in substance, the serious allegations brought against it and corroborated by unrefuted information,cannot but lead to the conclusion that Eduardo Bleier is either still detained, incommunicado, by the Uruguayan authorities or has died while in custody at the hands of Uruguayan authorities.”

Similarly in H. Barbato v. Uruguay, Barbato had been imprisoned for more than eight years on the pretext of ‘prompt security measures’. At the end of November 1986, Barbato was shifted to Montevideo Police Headquarters. Thereafter his whereabouts were unknown till 28 December 1986 when Barbato was found dead at the Military Hospital from ‘acute hemorrhage resulting from a cut of carotid artery’. The family was told that he had committed suicide with a razor blade. The family alleged that the actual reason for death was torture in custody. The HRC observed that, “while the Committee cannot arrive at definite conclusion as to whether Barbato committed suicide or was killed by others while in custody; yet, the inescapable conclusion is that in all the circumstances the Uruguayan authorities either by act or by omission were responsible for not taking adequate measures to protect his life, as required under Article 6(1) of the Covenant”. Thus the HRC was of the opinion that State must not deprive any person of his right to life and also must take positive steps to ensure the right to life is protected.

In Mbenge v. Zaire, a Zairian citizen left Zaire in 1974 and thereafter resided in Belgium as a political refugee. In absentia, he was twice sentenced to death by Zairian courts. The Committee found violations of Article 14 because Mbenge was charged, tried and convicted in circumstances in which he could not effectively enjoy the safeguards of Article 14. On the issue of violation of Article 6, the HRC expressed the view that, “death sentence may be imposed only in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the Covenant. This requires that both the substantive and the procedural law in the application of which the death penalty was imposed was not contrary to the provisions of the Covenant and also that the death penalty was imposed in accordance with that law and therefore in accordance with the provisions of the Covenant.” Thus the State Party was also found in violation of Article 6(2).

3.2 Torture

Through these set of communications, the HRC has evolved a very expansive meaning and scope of the term ‘torture’.

In J.L. Mussero v. Uruguay, Mussero was made to stand hooded for hours without rest owing to which he lost his balance and fell and suffered permanent injury to his foot. The HRC held that this would constitute a violation of Article 7, even though it chose not to define the exact scope of the term torture.

In De Bouton v. Uruguay, the HRC found the treatment meted out to De Bouton i.e. being forced to stand without rest, being blindfolded and cuffed continuously constituted a violation of Article 7 and 10 on the ground of ‘degrading treatment’.

In E. Quinteros and M. C. Almmedia de Quinteros v. Uruguay, the HRC held that the prolonged disappearance of a near relative constitutes psychological torture on another. It expands the victim of torture to encompass the mother whose daughter has disappeared without explanation.

In Pratt and Morgan v. Jamaica, the HRC opined that, excessive delays in judicial proceedings do not per se constitute cruel, inhuman degrading treatment. However, each case has to be looked on its own merits. However on the second issue of delay in communicating stay on warrant of execution the HRC opined that it constitutes ‘cruel and inhuman treatment’ on account of the anguish a warrant of execution causes.

3.3 Freedom of Thought, Conscience and Religion

In Pavvo Muhonen v. Finland, the HRC was asked to consider whether Article 18 contemplated the right of conscientious objection to military service. However, the final review of the Examining Board which recognized Muhonen’s status as a conscientious objector rendered the necessity to determine whether Article 18 guaranteed a right to conscientious objection to military service irrelevant. Additionally the HRC opined that a claim for compensation would not arise as the conviction of Muhonen had been set aside on grounds of equity as opposed to miscarriage of justice.

In Bhinder v. Cananda, requirement of wearing a hard hat which interfered with a Sikh man’s ability to wear turban was held not violative of Article 18 as the restriction was not flowing from a discriminatory ground, rather was imposed for observance of reasonable safety standards given the occupation was that of an electrician at a railroad company. Measures imposed in view of reasonable and objective standards of safety do not stand in the way of Article 18.

4. Non-Derogable Rights in Non-Binding Instruments

Besides Article 4(2) of the ICCPR and the provisions in various regional instruments, non-derogable rights can be found enumerated in several non-binding instruments. The categorization of the rights in these instruments proceeds for mainly 3 classifications: (a) value oriented identification i.e. the more important the right the higher the need to protect it (non-derogable rights are thus intrinsically valuable); (b) function oriented identification i.e. the role they play in emergencies; and (c) consent oriented identification i.e. as long as they exist in a treaty they are subject to the State’s will. Set out below are some non-binding instruments/policy documents that follow one or more of these approaches to categorization.

4.1 Siracusa Principles

The United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 1985 reiterates that, “no state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees under Article 4(2)”. These rights are non-derogable under any conditions even for the asserted purpose of preserving the life of the nation.

State parties to the Covenant, as part of their obligation to ensure the enjoyment of these rights to all persons within their jurisdiction under Article 2(1) and to adopt measures to secure an effective remedy for violations under Article 2(3), shall take special precautions in time of public emergency to ensure that neither official nor semi-official groups engage in a practice of arbitrary and extra-judicial killings or involuntary disappearances, that persons in detention are protected against torture and other forms of cruel, inhuman or degrading treatment or punishment, and that no persons are convicted or punished under laws or decrees with retroactive effect. The ordinary courts shall maintain their jurisdiction, even in a time of public emergency, to adjudicate any complaint that a non-derogable right has been violated.

In addition to reiterating the specifically listed non-derogable rights of the ICCPR such as right to life, prohibition of torture, right not to be held in slavery etc. and stating that they will apply to non-signatories as well, being customary law, the Siracusa Principles states that, although protections against arbitrary arrest and detention (Article 9) and the right to a fair and public hearing in the determination of a criminal charge (Article 14) may be subject to legitimate limitations if strictly required by the exigencies of an emergency situation, the denial of certain rights fundamental to human dignity can never be strictly necessary in any conceivable emergency. Respect for these fundamental rights is essential in order to ensure enjoyment of non-derogable rights and to provide an effective remedy against their violation. In particular:

• All arrests and detention and the place of detention shall be recorded, if possible centrally, and make available to the public without delay;
• No person shall be detained for an indefinite period of time, whether detained pending judicial investigation or trial or detained without charge;
• No person shall be held in isolation without communication with his family, friend, or lawyer for longer than a few days;
• Where persons are detained without charge the need of their continued detention shall be considered periodically by an independent review tribunal;
• Any person charged with an offense shall be entitled to a fair trial by a competent, independent and impartial court established by law;
• Civilians shall normally be tried by the ordinary courts;
• Any person charged with a criminal offense shall be entitled to the presumption of innocence and to at least the following rights to ensure a fair trial. Right to a fair trial shall include the right to be informed the charges promptly, right against self-incrimination, presumption of innocence, free legal assistance, right to be present at the trial, right to examine witnesses, right against double jeopardy etc.
• An adequate record of the proceedings shall be kept in all cases; and,
• No person shall be tried or punished again for an offense for which he has already been convicted or acquitted

It further reiterates that, in a non-international armed conflict, States party to Geneva Conventions shall have to abide by Common Article 3. The safeguards under the 1977 additional Protocol II will apply to States Party to that Protocol.

The Siracusa Principles also references the I.L.O. basic human rights conventions which contain a number of rights dealing with such matters as forced labor, freedom of association, equality in employment and trade union and workers’ rights which are not subject to derogation during an emergency.

4.2. Paris Minimum Standards

The Paris Minimum Standards of Human Rights Norms in a State of Emergency were finalized in the the 61st Conference of the International Law Association held at Paris. It is meant to serve as a guidance document for governments and non-governmental organizations as a benchmark for the minimum guarantees to be afforded in times of emergency. In addition it calls upon states in a state of emergency to not suspend access to judicial review and other procedural safeguards. The Paris Standards advance 16 Articles that guarantee rights that shall not be suspended or derogated from in times of emergency. They include (among others):

• Article 1- right to legal personality i.e. right to be recognized as a person before the law and the inherent right to dignity and integrity.
• Article 2-Freedom from slavery and servitude
• Article 3- equality before the law and non-discrimination on the grounds of race, colour, sex, language, religion, nationality or social origin
• Article 4-Inherent right to life of every person. Accountability of states for every enforced or involuntary disappearance of an individual within its jurisdiction occasioned by an act or omission of the state.
• Article 5- non-deprivation of right to liberty and security of the person except on such grounds and in accordance with such procedures as are established by law
• Article 6- freedom from torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
• Article 7-right to a fair trial with minimum guarantees without discrimination including right to be informed of charge against him, right to prepare one’s defense, the right to be present at one’s trial, presumption of innocence, principle of non-retroactivity, double jeopardy, right against self-incrimination, rig ht of appeal, right to be tried by an independent and impartial tribunal,
• Article 8- Freedom of thought, conscience and religion
• Article 16- right to a remedy i.e. institution of an independent and impartial judiciary for ensuring rule of law. All ordinary remedies as well as special ones, such as habeas corpus or amparo, shall remain operative during the period of emergency with a view to affording protection to the individual with respect to his rights and freedoms which are not or could not be affected during the emergency, as well as other rights and freedoms which may have been attenuated by emergency measures. Civil courts shall have and retain jurisdiction over all trials of civilians.

5. International Humanitarian Law

In addition to human rights instruments (the non-derogable provisions of which continue to apply in times of armed conflict), the Common Article 3 of the Geneva Conventions of 1949 also sets out a common minimum standard of protections that need to be observed. Thus civilians not participating in hostilities and persons ‘hors de combat’ shall be entitled to humane treatment without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. Violence to person, taking of hostages, outrages upon personal dignity, in particular humiliating and degrading treatment, passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples, lack of care for the wounded and sick are all prohibited under the Article.

6. Summary

Non-derogable rights attempt to strike a fine balance between individual freedoms and the State’s interest in restoring public order or responding to situations of emergency. They are intended to guard against suppression of inalienable freedoms during authoritarian regimes on the ground of existing political unrest. Especially vulnerable in such situations are political, religious, and racial minorities against whom a hostile majority imposes harsh sanctions ostensibly for protection of national security. Together the two modules set out the historical context of non-derogation. They also set out the subsequent developments, such as incorporation of non-derogation in regional instruments and interpretative documents. It also identifies the attempts made to re-inforce and expands non-derogable rights through codification of customary law as well as the interpretation of the HRC in the General Comments.

Reference

• John Carey, UN Protection of Civil and Political Rights, Volume 8 William s Hein & Co, 1970
• Louis Henkin, The International Bill of Rights: The Covenant on Civil and Political Rights, Columbia University Press, 1981.
• Joseph, Sarah, and Melissa Castan, The International Covenant On Civil And Political Rights: Cases, Materials, And Commentary, Oxford University Press, 2013.
• Tom Farer, The Hierarchy of Human Rights, AUILR, Volume 8(1), available at http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1506&context=auilr
• Rene Bruin and Kees Wouters, Terrorism and the Non‐derogability of Non‐ refoulement, International Journal of Refugee Law 15.1 (2003), available at http://oppenheimer.mcgill.ca/IMG/pdf/Bruin-2.pdf
• Jurisprudence of the Human Rights Committee (including on non-derogable rights) available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8 &DocTypeID=17