30 Other Human Rights Treaties

Sannoy Das

Introduction:

This chapter deals with four Council of Europe treaties that deal with four distinct areas of human rights protection – against torture, rights of minorities, rights with respect to medicine, and against trafficking. It is important to note that the primary human rights treaty of the Council of Europe is the European Convention on Human Rights (the ECHR). Several other treaties have been entered into to enable pan-European co-ordination with respect to protection of rights in specific matters. One way to approach the law contained in these treaties is to read them as specialized efforts in particular areas in human rights protection that add to the protections available under the ECHR.

This chapter will briefly introduce readers to four treaties – the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment; the Framework Convention for the Protection of National Minorities; the Convention on Human Rights and Biomedicine; and finally, the Convention on Action against Trafficking in Human Beings. Given four disparate areas, the module will concentrate on the broadest principles that inform the treaty mechanisms. The module will also explain how each treaty adds, if at all, to other international standards for human rights protection. Finally, the module will introduce the enforcement mechanism under each treaty and examine the work being done in enforcing the treaties.

Learning Outcomes:

On completing this module, the reader is expected to understand:

• The relationship of treaties dealing with specific areas of human rights protections to the European Convention on Human Rights, and their place in human rights protection generally;
• The key provisions and principles with respect to each of the four treaties;
• The enforcement mechanism under each treaty;
• The work that has been recently done in enforcing each treaty mechanism;

Background:

The Council of Europe, presently a 47 member organization, was formed in 1949. It is separate from the European Union. Unlike the Union, the Council of Europe does not have the features of a supra-national sovereign body, but is, rather, an organization under whose aegis its member States, while retaining their sovereignty, have entered into several treaties, the majority of which are aimed at the promotion and protection of human rights. The most famous of the Council’s treaties is, of course, the 1950 European Convention on Human Rights, enforced through the European Court of Human Rights, but the member States of the Council have also entered into several more treaties, each dealing with specialized matters of human rights protection. Here, as we review four such treaties, it is helpful to remember that unlike regulations of the European Union, these treaties have entered into force entirely by specific consent and ratification of member States for each such treaty. Thus, while the Convention for the Prevention of Torture has been ratified by all 47 States, the Convention for the Protection of National Minorities has only 39. Another important point to bear in mind as we enter this module is that we will be studying merely 4 of about 223 treaties, broadly related to protection of human rights and fundamental that have been concluded under the Council of Europe. This module thus provides a mere snapshot of the entire landscape of European human rights instruments.

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment:

The European Convention for the Prevention of Torture and Inhuman and Degrading Treatment was opened for signature and accession by the Council of Europe on 26 November 1987, and entered into force on 1 February 1989. As of 29 August 2017, it has been ratified by 47 member States.

The key point to understand about the Convention is that it is not a convention that either defines or amends the substantive body of law that prohibits torture and other forms of cruel and inhuman and degrading treatment. The Council of Europe, in 1981, called upon member States to hasten the adoption and implementation of the convention that was being formulated under the aegis of the United Nations, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The prohibition against torture, it must be recalled, is also a part of customary law. To this substantive body of law, the European Convention does not add any protection. It does, however, make these protections effective, and therefore superior. The European Convention is aimed at ensuring international monitoring and compelling compliance by States with the prohibition on torture and other forms of cruel and inhuman treatment of those persons whose liberty has been restricted under law.

The European Convention creates the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment. The main work of the Committee is to visit member States with a view to strengthening the protection of persons whose liberty has been restricted by law against torture and other prohibited forms of treatment. Despite clear prohibition, law enforcement authorities across the world are notorious for adopting conduct on prisoners, under-trials and other persons whose liberty has been curtained, which either amounts to torture, or is otherwise cruel, inhuman or degrading. In fact, some States that have not adopted the United Nations Convention, frequently adopt coercive interrogation and incarceration techniques, which are artificially justified as not falling afoul of the prohibition on torture laid down in customary law. With a view to ensuring that such conduct does not occur in Europe, the Committee under the European Convention is required to visit places where persons are detained in member States, collect facts and draw up reports along with recommendations for improving the protections offered to persons deprived of their liberty. In the event that a member State does not improve the situation based on the recommendation of the Committee, the Committee may, after giving the State an opportunity to present its views, make a public statement on the matter. It is important to note that the Convention does not create any further mechanism for enforcement of the protections, but it may be assumed that an adverse public statement by the Committee will be considered by most States to be a serious repercussion.

Under the Convention, States are obliged to offer unrestricted access to members of the Committee undertaking a visit to places where persons are detained. States are further obliged to permit interviews of persons detained, and offer full information that is necessary for the Committee to carry out its task. The Committee is comprised of one member from each State party to the Convention, but a visit is usually undertaken by a smaller group of members. During each visit, the Committee is assisted by experts. All persons undertaking the visit, including members of the Committee and experts, are entitled to immunity from arrest and detention and the privilege of unrestrained movement in the State that they are visiting.

A small set of exceptions have been carved out in the Convention. While, ordinarily, a State party cannot block the visit of a delegation of the Committee, the authorities of the State may, under exceptional circumstances, make representations to the Committee against undertaking particular visits to particular places. While making such representations the only justifications that a State may invoke are those national defence, public safety, serious disorder in places of detention, or the need for an urgent interrogation relating to a serious crime.

Protocol No. 1 to the Convention was opened for signature on 4 November 1993. This protocol brought about certain amendments to the treaty which were necessary in order to enable non-Member States of the Council of Europe to accede to the Convention. The Committee of Ministers may invite any non-Member State to accede to the Convention. Protocol No. 2, of the same date, brought about two technical amendments to the treaty to govern membership on the Committee of Ministers – the first that permits a person to be re-elected twice to the Committee, and the second, enabling conduct of elections in a manner to ensure that one half of membership is renewed every two years. Both protocols, having been ratified by all States parties to the Convention, entered into force on 1 March 2002, and now form integral parts of the Convention.

Framework Convention for the Protection of National Minorities:

The Framework Convention for the Protection of National Minorities was opened for signature by the Council of Europe on 1 February 1995, and entered into force on 1 February 1998. As of 29 August 2017, it has been ratified by 39 member States. As an international instrument designed to protect rights of ‘national minorities’, the Convention is the first of its kind. It is important to remember that certain issues of minorities in general, arising particularly from the need to protect their cultural and linguistic heritage and their rights against the State in terms of discrimination is protected through the application of the ECHR, the European Social Charter, the European Charter for Regional or Minority Languages, and, of course, relevant United Nations instruments. The Framework Convention, however, is a more comprehensive legal framework for the protection of minorities, addressing their participation in the political, economic, social and cultural life. The Convention mandates States parties to adopt measures that ensure that persons may retain the identity of belonging to a national minority without being subject to disadvantage, and that their enjoyment of participation in the political, social, economic and cultural life is not predicated upon assimilation into the majority. States parties are obliged to create conditions that enable national minorities to maintain and develop their culture and retain essential elements of their identity, be it religious, linguistic or cultural. States parties are thus required to ensure that minorities can manifest their religious belief, express themselves in their own language and be able to use such language freely in public and to maintain educational institutions without interference of the State. States parties are further required to enable minorities to retain contact with people in other States with whom they share and ethnic, cultural or religious heritage. While these provisions mostly require States to desist from taking certain forms of measures, States are also positively obliged to foster a spirit of tolerance and enable interaction and meaningful exchange between people of the minority and of the majority.

While the Framework Convention is broad in its ambit, it is important to note that it is a ‘framework’ convention, implying that the instrument does little in terms of spelling out the specific legal obligations of States. Instead, its provisions direct the ‘aims’ that a State must have in enacting regulations. It grants States a wide margin of appreciation in translating the obligations under the Convention to domestic law. This leaves open the possibility of both under-action by the State as well great disparity between the actions that are taken by different member States. Most critically, the Convention does not define the term ‘national minorities’, leaving it open for States to interpret the term to include only a few specific groups, even while the cornerstone principle of the Convention is the right of individuals to freely self-identify as belonging to a minority.

The Advisory Committee which assists the Committee of Ministers in implementing the Convention is in the process of reviewing definitions of national minorities across States, with a view to checking if some groups are arbitrarily excluded. On 27 May 2016, the Council of Europe adopted Thematic Commentary 4 on the scope of application of the Convention, which reviews the issue of the free self-identification as a national minority carefully, and which will guide future implementation of the Convention.

Convention on Human Rights and Biomedicine:

The Convention on Human Rights and Biomedicine or, more fully, the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (also known as the Oviedo Convention) was opened for signature and accession on 4 April 1997 and entered into force on 1 December 1999. As of 29 August 2017, it has been ratified by 29 member States.

The only international instrument with respect to human rights in the context of the biomedical sciences, the Convention is aimed at protecting the dignity of individuals and their rights against discrimination in the context of medical treatment and other applications of the biomedical sciences. The Convention is designed as a legal framework, allowing States margins of appreciation in translating their obligations to the domestic context. It is further important to note that the Convention operates in a fairly niche area of human rights, in which customary principles are difficult to discern. The provisions of the Convention apply to matters of ordinary medical treatment, as well as to more specific areas of biomedical research, genetics and transplantations.

Article 2 of the Convention states that the interest and welfare of the human being shall prevail over the sole interest of society or science. Given that this Convention was written after the withering away of communist dictatorships in Europe, the entrenchment of this principle of liberalism is but natural. The Convention ensures that no ‘greater good’ of the society and science can be achieved at the expense of human rights. With respect to scientific research, it has always been a fear that the nature of the research, often notoriously encouraged by States, may treat human rights as expendable. The primacy granted to human rights thus lies at the core of the Convention.

With respect to ordinary medical treatment, the Convention requires that States adopt measures to ensure equitable access to healthcare without discrimination. States are also required to ensure that when a medical intervention is made (with any ordinary medical treatment being a ‘medical intervention’), the person upon whom such intervention is made has given free and informed consent to the intervention. In other words, the Convention mandates that States recognize the right of a person to not accept medical treatment. The Convention requires that States put in place appropriate measures for persons who are unable to give consent or where, in cases of emergency, an intervention is carried out, it is done so only for the benefit of the individual – and even in such cases, if the individual has previously expressed a wish with respect to accepting treatment, such wish be taken into account. The Convention also requires that States respect the right of privacy of individuals with respect to medical conditions, and that individuals have a right to information (including a right to not be informed) about their own medical records. With respect to genetics, the Convention prohibits modification of the human genome in order to introduce modifications in descendants, while recognizing that an intervention to modify the genome may be undertaken for preventive, diagnostic or therapeutic purposes. The Convention prohibits sex selection and any discrimination on the grounds of genetic heritage.

As mentioned above, the object of the Convention is to encourage research being carried out freely in the fields of biology and medicine, without, however, resulting in compromises on human rights. The Convention thus requires that States adopt measures to ensure that medical research is carried out on human beings only when there is no alternative method of testing available. When, however, research is carried out on a person, the Convention requires that protocols be put in place to ensure that the rights of the individual are not compromised. This includes the right of the person to know the potential risks involved in the research and the need for affirmative consent for research to be carried out. In any case, medical research of this nature, the Convention mandates, must be approved by independent bodies that have evaluated the merit of the projec, and the research protocols. Similarly, the Convention requires that States ensure that organ or tissue transplants are only undertaken for therapeutic benefit, and take place from a live person only when comparable results cannot be had by removing organs from a deceased. Similar rules on consent as in all earlier sections apply, and the use of human body parts for financial gain is prohibited. Finally, the Convention outlaws the creation of human embryos for research.

In order to enforce the obligations under the Convention, States are required to notify sanctions within their domestic laws for violations, as well as enable access to compensation for anyone who has suffered damage owing to such violations. The Steering Committee on Bioethics (CDBI), created by the Convention. is tasked with reviewing scientific developments and recommending amendments to the Convention such that the Convention is in step with the advancement in biomedical research, and can respond to human rights challenges arising therefrom. States parties may be called upon to submit explanations to demonstrate how their internal laws ensure the effective implementation of obligations under the Convention. Finally, the European Court of Human Rights has been given jurisdiction to issue advisory opinions, sought either by a State or by the CDBI, on the provisions of the Convention.

There are four additional protocols to this Convention.

The first protocol, of 12 January 1998, the Additional Protocol on the Prohibition of Cloning Human Beings was developed after the successful cloning of mammals. This protocol envisages a complete prohibition on the cloning of a human being, admitting no exceptions to the rule. However, it does not affect the use of cloning technology for cells, which can result in growing tissues and organs, as a part of medical research. It entered into force on 1 March 2001 and has been ratified by 23 member States as of 17 September 2017.

The second protocol, of 24 January 2002, the Additional Protocol concerning Transplantation of Organs and Tissues of Human Origin contains detailed provisions on organ transplant, the principles governing which find mention in the Convention, as noted earlier. The aim of the protocol is to require States to put in place a system that ensures equitable access for all people who require organ transplantation to organs available for transplantation. The protocol requires States to adopt transparent, objective and ‘duly justified’ rules for the managing of the allocation of organs among patients. The protocol also requires that organs be removed from living persons only if they cannot be obtained otherwise, and that they be removed for transplantation only when the donor has a close personal relationship with the patient, or under conditions defined by law, with the approval of an independent body. Further provisions of the second protocol envisage the adoption of procedures that ensure protection of rights of both patients needing transplants, and organ donors, in the context of this form of medical treatment. It entered into force on 1 May 2006 and has been ratified by 15 member States as of 17 September 2017.

The third protocol, of 25 January 2005, Additional Protocol concerning Biomedical Research contains provisions that are relevant to protecting rights of persons upon whom interventions are made in the course of medical research. As noted earlier, the Convention itself lays considerable stress in this respect on elements of consent. Building on these provisions, the protocol addresses matters such as the analysis of risks and possible benefits of research projects, their evaluation by ethics committees and the procedures for obtaining the ‘free’ consent of participants. Its provisions aim to ensure minimization of risk. The protocol deals in detail with safeguards that must be complied when research is sought to be carried out on persons who are pregnant or breastfeeding or are in emergency clinical situations. Finally, sponsors and researchers carrying out research in a State that is not a party to the protocol are required to at least ensure that the research does not violate the fundamental principles underlying the protocol. It entered into force on 1 September 2007 and has been ratified by 11 member States as of 17 September 2017.

The fourth protocol, dated 27 November 2008, the Additional Protocol concerning Genetic Testing for Health Purposes, deals with protecting rights of persons in the context of genetic tests and genetic counseling. Genetic tests can only be carried out with consent, and can only be offered where a clear clinical benefit can ensue therefrom. Genetic tests, while permitted, cannot be exploited to stigmatize persons or groups based on genetic heritage. It has not yet entered into force. It has been ratified by 4 member States as of 17 September 2017.

Council of Europe Convention on Action against Trafficking in Human Beings:

The Council of Europe Convention on Action against Trafficking in Human Beings was opened for signature and accession on 16 May 2005 and entered into force on 1 February 2008. As of 29 August 2017, it has been ratified by 46 member States and one non-member State.

The Convention is a measure aimed at combating human trafficking. The scope of protection of the Convention extends to all cases of trafficking, whether women, men or children, and whether trafficking is committed within the context of trans-national organized crime or not. The exploitation that the Convention contemplates for a person to be a victim of trafficking is one of forced labour or servitude, slavery or acts in the nature of slavery, sexual exploitation and the removal of organs.

This Convention is not the only mechanism of international law dealing with the issue of trafficking in human beings. Especially in the transnational context, the Convention supplements the United Nations Convention against Organized Crime, and the Convention does not affect rights and obligations from any other international instrument to which States that are parties to the Convention are also parties, if those international instruments ensure greater protection to victims of trafficking. Having said that, it is important to note that the Convention itself builds upon and existing international standards with respect to preventing human trafficking. The Convention includes a mandate for ensuring greater protection to victims and strict enforcement actions to prevent human trafficking. Finally, the Convention also puts in place a monitoring mechanism for ensuring that States parties comply with their obligations. The mechanism involves two bodies – the Group of Experts on Action against Trafficking in Human Beings (GRETA) and the Committee of the Parties. Here we will focus on understanding the functioning of the GRETA.

The Convention is an important instrument among international measures that aim to combat human trafficking inasmuch as principles of victim protection, gender equality and non-discrimination undergird its provisions. It is among the instruments that adopt a victims’ rights based approach to the problem of trafficking. The Convention requires States parties to implement measures for effectively identifying victims of trafficking, and, upon such identification, render assistance to victims by, among other things, providing a standard of living that ensures their sustenance, access to medical treatment, assistance in legal proceedings against offenders, access to education (in the case of children) and access to legal redress and compensation. The Convention also contains elaborate provisions that provide a recovery and reflection period for victims (especially in the context of criminal proceedings), and repatriation and return of trafficked persons. Underlying all these provisions is the overall obligation of the State to ensure gender equality and gender mainstreaming in the measures that it adopts pursuant to the Convention.

At the same time, the Convention also requires States parties to tackle the problem of trafficking by checking demand for services that arise out of trafficking. States are obliged to put in place legal measures that criminalize trafficking, the use of services of victims of trafficking and acts relating to travel documents that facilitate trafficking. The Convention requires that States take legislative and other measures to ensure effective penal laws that account for aggravating circumstances, strong enforcement mechanisms and adequate provisions in procedural laws that can enable investigation and prosecution without complaints from the victims, and enable trials while protecting victims and witnesses and their privacy.

Under the Convention, the primary mandate for GRETA is to carry out an evaluation procedure for each State party with respect to its discharging of obligations under the Convention. The GRETA is required to prepare reports on the implementation of the provisions of the Convention by the States parties, identify issues with implementation and suggest ways in which the State may deal with such issues.

In each case, GRETA shall prepare a draft report containing its analysis concerning the implementation of the provisions on which the evaluation is based, as well as its suggestions and proposals concerning the way in which the Party concerned may deal with the problems which have been identified. The draft report shall be transmitted for comments to the Party and its comments are taken into account by GRETA when establishing its report. GRETA adopts its report and conclusions concerning the measures taken by the Party concerned to implement the provisions of the Convention. The report and conclusions are sent to the Party concerned and to the Committee of the Parties. The report and conclusions of GRETA shall be made public as from their adoption, together with eventual comments by the Party concerned. The Committee of the Parties may adopt, on the basis of the report and conclusions of GRETA, recommendations addressed to the Party concerning the measures to be taken to implement the conclusions of GRETA and aiming at promoting co-operation with that Party for the proper implementation of the Convention.

Given that the Convention is relatively recent, the full impact of GRETA’s work, as its 6th general report indicates, is difficult to accurately measure, but GRETA reports can be directly linked to changes in laws and policies in States like Albania, Austria, Bulgaria, Croatia, Cyprus, Denmark, Georgia, Montenegro, Romania and the Slovak Republic.

Summary:

Under the aegis of the Council of Europe, several human rights treaties have been concluded, including the ECHR and several treaties dealing with specific and niche areas of human rights. In this module we have reviewed four such treaties – dealing with the prohibition against torture, on tackling human trafficking, on protecting human rights in the context of medical procedures and biomedical research, and on protecting national minorities. In each, we have seen that the Conventions spell out broad obligations that permit States some margin of appreciation in translating these obligations into domestic law. Nonetheless, this does not mean that the obligations imposed are ‘weak’ in nature. In fact, it is important to note that in each treaty an enforcement mechanism is put in place, primarily by entrusting a body (often comprised of a group of independent experts) with the responsibility to monitor compliance by States, suggest changes to domestic regulations and draw up reports for assessment. These treaties are not only useful in understanding the human rights protection landscape in Europe, but also offer a useful template for understanding the diversity of issues that arise in respect of human rights protection, and how international instruments may help in addressing them.

Reference

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